Nimmer v. Purtell

• Decision Date: 16 June 1975
• Docket Number: No. 496,496
• Citation: 69 Wis.2d 21,230 N.W.2d 258
• Parties: Wilber NIMMER, Appellant, v. Neil PURTELL, Respondent.
• Court: Wisconsin Supreme Court

Page 258

230 N.W.2d 258

69 Wis.2d 21

Wilber NIMMER, Appellant, v. Neil PURTELL, Respondent.

No. 496.

Supreme Court of Wisconsin.

June 16, 1975.

Schwartz, Schwartz, Roberts & Cairo, Racine, for appellant; Thompson, Evans, Hostak & Clack, Racine, of counsel.

Schoone, McManus & Hanson, S.C., Racine, for respondent.

DAY, Justice.

This is an appeal from the judgment dismissing the complaint of the plaintiff on its merits, which also incorporated an order denying a motion for a new trial. The order denying plaintiff's motion for a new trial was entered August 2, 1973, and judgment on the verdict was entered August 21, 1973; from this judgment, plaintiff Wilbur Nimmer appeals.

Plaintiff-appellant Wilbur Nimmer (Dr. Nimmer) was on January 20, 1969, when the alleged cause of action arose, a duly licensed physician of osteopathic medicine. He operated a clinic in Sturtevant, which he had opened in 1958. In September, 1968, he hired the defendant-respondent Neil Purtell (Dr. Purtell), who was also a duly licensed physician of osteopathic medicine, to work at the clinic. The latter was a salaried employee of Dr. Nimmer and continued to be such until the relationship ceased in March of 1970.

During December of 1968 the plaintiff, Dr. Nimmer, had a case of flu. He missed no work and was able to drive his family to Louisiana and Florida and back, returning in January of 1969. During that trip the plaintiff experienced recurrent neck aches which he relieved by taking aspirin. The condition continued to bother him on his return.

On January 20, 1969, the plaintiff came to his clinic about 10:00 o'clock a.m. His neck was bothering him at the time and, according to the plaintiff, when he arrived at work he told the defendant Dr. Purtell of the pain and asked him to look at it. He testified that the defendant told him to lie down and proceeded to manipulate the plaintiff's neck. Plaintiff said he felt a pain in the back of his skull and that he told the defendant about it but the defendant paid no attention and left the room to attend his patients.

The testimony of the defendant varies considerably from the plaintiff's version. The defendant said that when he saw the plaintiff at the clinic on the morning of January 20th the plaintiff did complain about pain in his neck but did not ask the defendant to look at his neck; rather, plaintiff pointed to the back of his neck and said 'Crack my neck.' This was described as a simple manipulation and part of osteopathic treatment, which the defendant had been performing for a number of years. The defendant testified he figured the plaintiff knew what he needed and he was glad to oblige and did in fact manipulate the plaintiff's neck in the manner requested. The defendant then left to attend to his patients at the clinic.

After this treatment, the plaintiff went to various area hospitals to see patients and returned to the clinic around noon. He requested the receptionist to get him a sandwich, which she did. She stated that when it was delivered the plaintiff gave no indication of not feeling well. The plaintiff testified that he next saw the defendant at the clinic at about 12:45 p.m. and told him that his neck still hurt and asked the defendant to again take a look at it. According to the plaintiff's testimony, the defendant asked him to lie down and performed another manipulation on his neck, which plaintiff said resulted in a pain 'like a hot poker' shooting up to the same place at the back of plaintiff's skull near the junction with the neck. He said he again told the defendant of this pain but the defendant did not reply and left the room. Plaintiff further testified that after the defendant left the room the clinic's registered nurse, Jane Champley Christensen, came in and the plaintiff asked her to perform diathermy treatment to relieve the pain, which she did. The plaintiff could not recall if that treatment was successful. He said he told the nurse that his arm felt like it was floating in the air and he testified he then staggered down the hall because he wanted to lie down on the carpeted floor of another doctor's office in the clinic. He claimed he felt light-headed, giddy and euphoric. The defendant had no recollection of a second manipulation and in a pretrial deposition the plaintiff made no reference to a second manipulation. The defendant testified he left the clinic about noon to go home for lunch and had planned to remain out of the clinic since it was his afternoon off. However, he received a call to return to the clinic to attend the plaintiff's patients because the plaintiff was not feeling well. He testified that when he returned, he first saw the plaintiff lying on the carpeted floor of the other doctor's office and that Nurse Christensen was in attendance. Defendant was told by the plaintiff that he was not feeling well and that the defendant should look after plaintiff's patients. Plaintiff said he would be all right. The plaintiff told defendant that he thought he was suffering from the after-effects of the flu and defendant knew that plaintiff and his family had suffered recently from the flu.

The plaintiff spent the remainder of the afternoon on the floor of the office. The nurse remained with him and the defendant looked in on him on several occasions. The plaintiff vomited intermittently into a pan and slept intermittently on the floor. Plaintiff testified that when he laid on one side and then rolled to the other, he felt like he was on the ceiling and that he so informed the nurse. She testified she asked plaintiff if she could help him, if she could call someone, and if he would like to go home; but that the plaintiff said he would be fine, that he wanted only to be left alone and would prefer if she not stay with him but would help the defendant with the patients. The nurse testified that she and the defendant and the receptionist all suggested that the plaintiff's wife be called, but that he refused and insisted that he would be all right. They all testified that the plaintiff was lucid and rational when making these statements and the nurse testified he was never unconscious or incoherent throughout the afternoon. He was coordinated and alert enough to give orders and he very definitely rejected suggestions to call his wife or to call the hospital for a specialist. She said he appeared rational and oriented throughout, even during the vomiting spells. She said she did not overrule him and call anyone else because he was her boss and told her not to.

The defendant was in and out of the room several times during the afternoon. He did not conduct any tests although there was testimony that the plaintiff did prescribe an anti-vomiting injection and an injection of vitamins which the nurse administered. The defendant said he did not conduct any tests or make a diagnosis for the reason that the plaintiff was telling him the diagnosis and that he did not consider the plaintiff to be his patient. He said the plaintiff was lucid, oriented, completely rational, and totally 'coordinated in everything he said,' and that he so remained whenever the defendant was present throughout the afternoon.

He testified he would not have considered the plaintiff a patient until or unless the plaintiff had lost lucidity and rationality. He further testified that he agreed with the plaintiff's self-diagnosis that the symptoms were generally those of the flu which was prevalent in the area at that time. The plaintiff had told the defendant that he vomited very easily and did not indicate any particular discomfort. The defendant described the plaintiff as an extremely hard-driving, domineering person, one who influences people around him down to the smallest detail. He said he regarded the plaintiff as very uninhibited, very unreserved, and for this reason he found nothing unusual in the plaintiff's preferring to lie on the carpeted floor and vomit into a bucket rather than to do such in a toilet. When defendant suggested that the plaintiff go home or that his wife be called, the plaintiff responded he did not want his wife called and was comfortable where he was and that others should just let things be. He further testified that there was no change in plaintiff's temperament or personality from what it usually was throughout the afternoon until the plaintiff was taken home about 6:00 p.m. When it began to get dark the plaintiff suggested that he be taken home to allow the doctor whose office he was lying down in to have evening office hours. The plaintiff realized that he could not walk when he attempted to because he had no feeling in his right leg and it was at this time that the defendant became aware that there were signs of neurological involvement. The defendant and a pharmacist in the building helped the plaintiff to his home, which was within two blocks of the clinic. The pharmacist also testified that the plaintiff seemed rational and oriented and was joking about his condition.

When the plaintiff arrived home, his wife phoned the fire department rescue squad. The chief of that squad testified the plaintiff seemed incoherent and made no sense in his conversation. Because the plaintiff could not walk, they transported him on a cot.

The admitting data sheet at the hospital listed plaintiff as 'alert and oriented' upon arrival. The plaintiff's family physician, Dr. McHale, took the plaintiff's medical history after admission to the hospital and that history says that the plaintiff 'directed his associate to manipulate his neck.' Dr. McHale testified that when he took the plaintiff's history, plaintiff was completely alert, responsive, and oriented. Following various tests, it was determined that the plaintiff had suffered a type of stroke known as a Wallenberg syndrome. Expert witnesses for both parties testified that the Wallenberg syndrome does not impair judgment or the ability to diagnose; people undergoing it are alert and oriented and...