Peeples v. Sargent

• Decision Date: 17 May 1977
• Docket Number: No. 75-152,75-152
• Parties: Richard D. PEEPLES and Dolly J. Peeples, Plaintiffs-Respondents, v. James M. SARGENT, James E. Gmeiner and William R. Richards, d/b/a Valley Orthopedic Clinic, Defendants-Appellants, and St. Elizabeth Hospital, Inc., Virginia Boneck, Donna Stojakvic, Barbara Marty and Judith Keller, Additional Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 459

253 N.W.2d 459

77 Wis.2d 612

Richard D. PEEPLES and Dolly J. Peeples, Plaintiffs-Respondents, v. James M. SARGENT, James E. Gmeiner and William R. Richards d/b/a Valley Orthopedic Clinic, Defendants-Appellants and St. Elizabeth Hospital, Inc., Virginia Boneck, Donna Stojakvic, Barbara Marty and Judith Keller Additional Defendants-Appellants.

No. 75-152.

Supreme Court of Wisconsin.

Argued March 30, 1977.

Decided May 17, 1977.

David L. Fulton, Appleton (argued), for defendants-appellants; Peter S. Nelson and Fulton, Menn & Nehs, Ltd., Appleton, on the brief.

W. J. Ewald, Green Bay (argued), for additional defendants-appellants; E. D. Kranzush and Denissen, Kranzush, Mahoney & Ewald, S. C., Green Bay, on the brief.

Clay R. Williams, Milwaukee (argued), for plaintiffs-respondents; William J. French and Gibbs, Roper, Loots & Williams, Milwaukee, on the brief.

BEILFUSS, Chief Justice.

The issues deal primarily with the sufficiency of the evidence as to the individual defendants, errors as to the exclusion and admission of evidence, abuses of trial court discretion, improper jury instructions and excessiveness of damages.

The plaintiff-respondent, Richard D. Peeples, was a practicing architect in Appleton, Wisconsin. In late 1969 he experienced a dull pain in his right shoulder. Although the arm hurt when he moved it, he had no restriction of movement. In January of 1970, his personal physician referred him to Dr. James M. Sargent, one of the defendants-appellants. Calcium deposits were found in Peeples' shoulder and Dr. Sargent treated this condition with Xylocaine and Hydrocortisone injections with limited success.

Surgery to excise the calcium deposit was discussed with Mr. Peeples in July of 1970. He indicated he was reluctant to have surgery if any other treatment would take care of his condition. Surgery was performed by Dr. Sargent on September 21, 1970. Prior to surgery Peeples had no motion limitation in his right arm and hand.

In October of 1970, Dr. Sargent discovered that Peeples' pain was gone but he had a significant limitation of motion in his right arm. On November 2, 1970 Dr. Sargent discussed with Mr. Peeples a shoulder manipulation under anesthesia. Peeples stated the discussion was brief. Peeples also testified that Dr. Sargent described the manipulation "as a simple process in which I would be put under anesthetic and he would manipulate my arm in order to get rid of the muscular adhesions." Dr. Sargent stated that while Peeples was under anesthesia he intended "to move the shoulder through the various ranges where he was limited." Peeples testified Dr. Sargent mentioned no dangers or possible complications, nor did he mention the possibility of a dislocation of the shoulder. Peeples testified alternative methods of treatment were not discussed. Dr. Sargent said alternative procedures had been explored prior to discussing the manipulation. Peeples stated he probably would not have consented to the manipulation if he had known of the possibility of dislocation.

On November 13, 1970, Peeples' shoulder was manipulated. At the conclusion of the procedure Peeples' arm was immobilized by Dr. Sargent. Peeples recovered from the manipulation with "no great discomfort." After the manipulation Peeples evidenced no nerve damage or injury to his right arm or hand but still had limitation of motion in his right arm.

A second manipulation was recommended and performed on November 27th. At the conclusion of this manipulation Peeples' arm was placed at his side by Dr. Sargent. It was not immobilized. Dr. Sargent instructed one of the attending nurses to assist Peeples in raising his arm above his head after he had regained consciousness. There was a possibility of dislocation if the arm was raised by a nurse prior to Peeples' regaining consciousness.

Barbara Marty, a registered nurse, assisted Dr. Sargent during Peeples' manipulation on November 27, 1970. She graduated from nursing school in 1969 and had been employed as a psychiatric nurse prior to being hired by St. Elizabeth's Hospital in August of 1970. She heard cracking noises in Mr. Peeples' shoulder during the manipulation. She had never seen an anterior dislocation of a humerus and had been given no training by the hospital with respect to dislocation of the humerus. Barbara Marty saw Peeples' arm raised while he was unconscious. She had no recollection of who raised the arm, nor did she remember whether she grasped the arm as it was raised. She believed the arm was raised above Peeples' head before he left the operating room. She remembered Dr. Sargent's order that someone should raise the arm but did not remember whether he stated they were to wait until Peeples regained consciousness.

Donna Stojakvic, a registered nurse, was also assigned to the operating room on the morning of November 27, 1970. She began working in the surgical department of St. Elizabeth's Hospital in September of 1970, and prior to that time she had no surgical experience beyond nursing school. She had no formal training in shoulder manipulation. She was unable to remember whether Peeples' arm was raised after the manipulation.

In addition to the two nurses, an anesthetist and Emma Maas, an operating room technician, were also present during the manipulation procedure. Maas was not a nurse but had considerable experience in shoulder manipulations. She did not believe Peeples' manipulation was an easy one and she had never before seen anyone but a doctor manipulate an arm. She heard a popping sound during Dr. Sargent's manipulation but that was normal. She heard the order to raise the arm but could not remember whether the order stated this was to be done after Peeples regained consciousness. She did not see the arm raised but remembered it as being raised when Peeples left the operating room.

When Peeples regained consciousness his right arm was above his head and he was in extreme pain. Because the pain was "excruciating," he asked for a hypo but was told he would have to wait until he was taken from the recovery room to his room.

Dr. Sargent's manipulation was completed by 8 a. m. Peeples was taken from the recovery room to his room at 8:55 a. m. Judith Keller, a registered nurse, attended Mr. Peeples after he was returned to his room in the orthopedic department. She was hired by St. Elizabeth's Hospital in June of 1970. She had not observed an anterior dislocation of the humerus. She stated that when Peeples was returned to his room he was complaining of pain. The nurses' records indicated he was hollering in pain. She did not remember seeing any deformity or unusual formation in his right shoulder area. She observed no paralysis.

Robert J. Schierl was a patient sharing the hospital room with Peeples. He heard Peeples "yelling" in the hallway as he was returning from surgery. He continued to yell and moan after he was in the room. Peeples' shoulder was uncovered and Schierl observed a white lump in his armpit that was the size of a baseball with the top shaved off. He heard one nurse ask another "What's wrong with his arm?" At lunch time Peeples was still yelling but not as frequently.

Virginia Boneck was head nurse on the orthopedic floor on November 27, 1970. She administered a hypo to Peeples about 8:55 a. m., because of his pain. At 9:30 another hypo was given. Dr. Sargent was notified. She did not examine Peeples' armpit or shoulder but knew that was the location of the pain.

Peeples was taken to physical therapy for range of motion exercises about 10:30 a. m. The physical therapist wrote a report which stated "the humerus moved out of joint" twice. Dr. Sargent was notified and the exercises were terminated. Peeples testified that after moving his arm the therapist stated "I think it's dislocated."

After being returned from physical therapy there was a change in the feeling in Peeples' arm and shoulder. They began to be numb and it seemed like his hand was becoming dead. He was in extreme pain and so informed the nurses.

When Dr. Sargent returned to the hospital about 11:30 a. m., he was able to tell from across the room that Peeples had a dislocated shoulder. Schierl testified that Dr. Sargent said "they must have dropped him." Dr. Sargent concluded Peeples was suffering from a complete brachial plexus palsy. Complete brachial plexus palsy results in loss of all sensation and all motor ability of the arm. Peeples couldn't move his hand and had no sensation in his arm. Peeples was taken to the x-ray room and then to the operating room where Dr. Sargent reduced the dislocation and put the shoulder back in the socket.

Mrs. Peeples testified that when Peeples was released from the hospital he was despondent and was in great pain; he had great difficulty sleeping. Mrs. Peeples did not work prior to the injury but running a boarding house at the time of trial to assist in supporting the family, which included two minor children.

Mr. Peeples is an architect. He is right handed. He continued working after the shoulder dislocation but his effectiveness was substantially reduced. He attempted to teach himself to draw with his left hand. At trial he still suffered from lack of motion in his arm, stiffness and numbness of hand and fingers and spasms in his hand.

In 1969, as a partner in his own architectural firm, Mr. Peeples earned over $26,000. In 1970 he earned over $28,000. In 1971 he had no income; he was able to pay a draftsman hired to assist him and a secretary. He earned almost $5,000 in 1972 and $13,000 in 1973. In 1974 he was employed by a Milwaukee architectural firm and anticipated earning $14,000. Peeples began his own architectural firm in May of 1970, prior to the dislocation.

Mr. Peeples' former partner, James Zwack, testified that Peeples was unable to run a successful architectural business on his own. He found Peeples to be impractical. However, other evidence was introduced which tends to dispute this...