Peterson v. Carter

• Decision Date: 02 April 1960
• Docket Number: Civ. No. 3203.
• Citation: 182 F. Supp. 393
• Parties: Dawn Jeanette PETERSON, Plaintiff, v. Dr. Kenneth L. CARTER, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

182 F. Supp. 393

Dawn Jeanette PETERSON, Plaintiff, v. Dr. Kenneth L. CARTER, Defendant.

Civ. No. 3203.

United States District Court W. D. Wisconsin.

April 2, 1960.

Carroll E. Metzner, Madison, Wis., for plaintiff.

D. V. W. Beckwith, Madison, Wis., for defendant.

STONE, District Judge.

This is a malpractice action resulting from surgery performed on plaintiff at the Beloit Hospital, Beloit, Wisconsin, on January 29, 1957.

Plaintiff's complaint alleged that defendant performed a thyroid operation in which he negligently removed or damaged her parathyroid glands, and that as a result, plaintiff, who is now thirty years of age, has a permanent deficiency of thyroid and will be required to receive medication for the remainder of her life.

At the close of the evidence the defendant moved for a directed verdict dismissing the complaint on the ground that there was no proof in the record of negligence on the part of the defendant, as alleged in the complaint, which was a proximate cause of the plaintiff's injury and damage. The Court withheld its ruling on defendant's motion, advising defendant's counsel that the same motion could be renewed after the return of the verdict. No verdict was returned by the jury.

After the jury had deliberated over eight hours, it advised the Court that it was hopelessly deadlocked and could not agree on a verdict. The jury was discharged, and the defendant then renewed his motion that the complaint be dismissed for the reasons set forth in his motion for a directed verdict; that there was no evidence of negligence on the part of the defendant which was a proximate cause of plaintiff's injury and damage.

In Davis v. Virginian Railway Co., 1960, 361 U.S. 354, 80 S.Ct. 387, 389, 4 L.Ed.2d 366, the United States Supreme Court said: "Proof of malpractice in effect requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff."

The rule of law is well established in Wisconsin by an unbroken line of authorities, that a physician or surgeon called to prescribe and professionally treat a patient as a physician and surgeon, is bound to bring to his aid and relief such care and skill as is ordinarily possessed and used by physicians and surgeons of the same system or school of practice, in the vicinity or locality in which the physician resides, having reference to the advanced state of medical or surgical science at the time. Rost v. Roberts, 180 Wis. 207, 192 N.W. 38; Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455; Nelson v. Newell, 195 Wis. 572, 217 N. W. 723; Holton v. Burton, 197 Wis. 405, 222 N.W. 225; Gates v. Fleischer, 67 Wis. 504, 30 N.W. 674; Hrubes v. Faber, 163 Wis. 89, 157 N.W. 519.

In Stenkowiczki v. Lytle, 171 Wis. 625, 177 N.W. 849, the Supreme Court of Wisconsin held in a malpractice case that negligence consists of the adoption of a wrong procedure or the negligent application of proper procedure.

The degree of care and skill required of a physician and surgeon, and the question of his failure to exercise such care and skill, can only be proved by the testimony of experts.

In Kuehnemann v. Boyd, 193 Wis. 588, at page 592, 214 N.W. 326, at page 327, it was held that:

"In order to hold him (the physician) liable, the burden is upon the plaintiff to show that he failed in the requisite degree of care and skill. That degree of care and skill can only be proved by the testimony of experts. Without such testimony the jury has no standard which enables it to determine whether the defendant failed to exercise the degree of care and skill required of him."

The determination of the question of the competency and qualifications of a physician or surgeon as an expert witness on the issues of the standard of care required of the defendant in a malpractice case, as of expert witnesses generally, is addressed to the judicial discretion of the trial judge. 8 A.L.R.2d 773; Potter v. Schleck, 9 Wis. 2d 12, 100 N.W.2d 559; Drott Tractor Company v. Kehrein, 275 Wis. 320, 81 N. W.2d 500; Andersen v. Andersen, 8 Wis. 2d 278, 99 N.W.2d 190.

Dr. Nathan Flaxman of Chicago was the only doctor who testified on behalf of plaintiff in support of her claim that defendant was negligent, and that his negligence was the cause of plaintiff's injuries and damages.

Dr. Flaxman has practiced in Chicago, Illinois, since he finished his internship in 1933. He never had a residency in surgery. He does not hold himself out as a surgeon. Practically all of his practice has been as a physician. He performed no major operation since 1948. Before that time he did some surgery but his practice was divided about 70% to 75% medical practice, and 25% to 30% surgery. He has never qualified for any of the surgical societies or organizations. He is certified by the American Board of Internal Medicine as an internist. His only contact with thyroid surgery in Wisconsin is limited to his alleged observation of some of his former students, to whom he did not teach surgery, and whose names he could not recall, but whom he thought resided in the cities of Kenosha, Racine, Wausau, Eau Claire and Marshfield, all in Wisconsin.

He had been at the University of Wisconsin Hospital on two occasions, but said he was too tired to attend any thyroid operations. He had no recollection of any specific technique used by the surgeons at this hospital on such operations. The Court is thoroughly satisfied from the evidence that he lacked the qualifications of an expert on thyroid surgery. He lacked the knowledge and experience to qualify as an expert witness, and was incompetent to testify as an expert on the issues involved in this action. His answers on cross-examination were evasive and unreliable, bearing on the ridiculous. His testimony, much of which was irrelevant to the issues involved herein, fails to establish in the slightest measure that Dr. Carter was negligent, or that his negligence was the cause of plaintiff's injuries and damages. He admitted that surgery was a proper method of treating Graves disease. He has not testified that surgery was an improper treatment. On cross-examination he disclosed his utter incompetency to testify as an expert witness in this action. A sample of his testimony on cross-examination follows:

"Q. Doctor, you say that the surgery described to you was not performed with the skill and care that surgeons use in this area. You are referring to Wisconsin? A. I am referring to the—well, in Chicago, the area—

"Q. Well, I asked if you were referring to Wisconsin? A. The entire state of Wisconsin?

"Q. Yes. A. Yes.

"Q. The southern half of Wisconsin? A. What is it?

"Q. The southern half of Wisconsin? A. Yes.

"Q. Are you familiar with the surgery performed in Wisconsin? A. Yes.

"Q. Who have you seen perform thyroidectomies in Wisconsin? In the southern half of Wisconsin? A. Some of my students—whose names evade me at the moment.

"Q. How long ago? A. Oh, as late as a year ago.

"Q. You can't remember any of the students' names? A. It isn't that I don't remember. I mean—

"Q. Have you seen any surgery performed in the University of Wisconsin Hospital on Thyroids? A. I was here in November—

"Q. Did you see any thyroidectomies performed there? A. Could be. I looked around.

"Q. Well, did you, please? A. I could have. I mean—

"Q. Who did you see perform any operation? A. I don't remember the names of the surgeons.

"Q. Are you acquainted with any of the surgeons in Wisconsin?

"The Witness: May I qualify the answer to that a little bit?

"The Court: Well, you know whether or not you know any of the surgeons here in Madison.

"The Witness: A. I know them by sight, but their names escape me.

"Mr. Beckwith: Q. Well, do you know Dr. Gale? A. I could, if I saw him.

"Q. Do you know him by reputation? A. No.

"Q. Do you know Dr. Curreri? A. No.

"Q. Know him by reputation? A. No.

"Q. Have you watched any operations being performed in any of the other hospitals in Madison? A. Not in Madison, no.

"Q. In Beloit? A. In the Rockford area, yes.

"Q. In Beloit? A. Well, I thought Beloit was in the Rockford area.

"Q. I asked you in Beloit, please. Rockford is in Illinois. I asked you, please, if you saw any in Beloit? A. No.

"Q. Now, these students of yours whom you have seen operate within the past year in Wisconsin. Where did you see them operate? A. Let's see—in the past year I have been in Wisconsin in various places. I have been in Marshfield,—

"Q. We are talking about thyroidectomies that you saw performed by your students in Wisconsin, now. A. I just want to give you the list of places I have been and the places I have visited, and that is why it is a little difficult for me to recall all these things. I have been in Eau Claire, Wausau, Stevens Point, Marshfield, Racine, Kenosha,—

"Q. Who did you see operate in Marshfield, for instance? A. I can't recall his name.

"Q. Did you see Dr. Lawton in Marshfield, for instance? A. There is an old interne—a man that I interned with, who is a Pathologist in Marshfield—

"Q. Well, did you see Dr. Lawton operate in Marshfield? A. The name doesn't mean anything.

"Q. Well, now, have you remembered where you have seen your students operate on thyroids in Wisconsin? A. In the various cities that I mentioned.

"Q. In all of those cities? A. Oh, I couldn't say all of them, no.

"Q. Well, which ones? A. Kenosha, Racine, Marshfield, Wausau, Stevens Point, Eau Claire, Wisconsin Dells.

"Q. Who in Wisconsin Dells? A. I was never very good at remembering names.

"Q. And these were all thyroid operations? A. They were what?

"Q. These were all thyroid operations? A. At one time or another, yes.

"Q. Pardon? A. Yes.

"Q. You have seen thyroid operations performed by students of yours in all of these places? A. Not in all of them. In various of these places.

"Q. Well, I was interested in thyroid operations;

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