Richards v. Mendivil

Decision Date04 January 1996
Docket NumberNo. 95-0228,95-0228
Citation200 Wis.2d 665,548 N.W.2d 85
PartiesTerry RICHARDS, Plaintiff-Appellant, Roger Richards, Plaintiff, v. Jairo MENDIVIL, M.D., Defendant-Respondent. d . Oral Argument
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John J. Albert and Steven J. Watson of Albert, Jude, Boyd & Simanek, S.C. of Racine. Oral argument was by John J. Albert.

On behalf of the defendant-respondent, the cause was submitted on the brief and oral argument of Jan M. Schroeder of Peterson, Johnson & Murray, S.C. of Milwaukee.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

ANDERSON, Presiding Judge.

In this appeal we conclude that leaving a portion of a nontherapeutic localization hook wire in Terry Richards's right breast is a situation where expert testimony as to the standard of care is not required. We reverse the trial court's order granting Dr. Jairo Mendivil's motions after verdict and dismissing the complaint because a layperson can reasonably infer that Mendivil failed to exercise proper care and skill during surgery when he left a foreign object in Richards's body.

In early 1991, Richards was referred to Mendivil when a mammogram showed the possibility of malignant microcalcifications in her right breast. After reviewing Richards's medical history, Mendivil scheduled her for a mammographic hook wire localization and biopsy. This procedure had three principal stages. First, a radiologist placed Richards's right breast in a compression device and shot an x-ray to find the lesions in the breast. Based upon the x-ray, a small mark was made on the outside of her breast in the location of the lesions. The radiologist numbed Richards's breast and inserted a sharp hollow needle. A second x-ray was taken to confirm that the needle was close to the lesion. The radiologist then threaded a thin wire with a barbed hook on one end, approximately fifteen centimeters in length, through the needle into the breast and fixed the barb hook in the breast tissue by pulling back on the needle. The radiologist's goal was to place the barbed hook within one centimeter of the lesions in Richards's breast. The radiologist completed this portion of the procedure by taping approximately seven centimeters of the wire, protruding from the breast, to prevent movement. Once the hook wire was fixed, Richards was transferred to surgery.

Mendivil performed the second stage of this biopsy procedure. The localization hook wire was located in the medial, upper part of Richards's right breast. Using an x-ray as a guide to the location of the hook wire, Mendivil made an incision from the top of the breast down to where he believed the lesions were located. Once he reached this area he dissected the tissue. To remove the dissected tissue and the fifteen-centimeter localization hook wire, Mendivil had to pull the tissue and the wire, including the seven-centimeter portion taped to the outside of the breast, through the breast tissue to the incision.

In the third stage of the procedure, the dissected tissue was then sent to the radiologist for examination. The tissue specimen was x-rayed. In his review of the x- ray, the radiologist did not see any of the microcalcifications that had been detected in Richards's earlier mammogram. Richards was discharged the same day.

Initially, Richards's recovery was uneventful and by March 1991 she began to feel that she was healing. However, she began to experience sharp pains when using her right arm and began to suspect something was wrong. A follow-up mammogram was performed in November 1991 and it was discovered that a three-centimeter piece of the hook wire was in her right breast. Mendivil removed the three-centimeter remnant and some scar tissue from Richards's right breast in December 1991.

Richards and her husband started this medical malpractice action in 1993. The complaint alleged res ipsa loquitur as a second cause of action. The trial court denied Mendivil's motion for summary judgment in which he contended that res ipsa loquitur was not applicable because he did not have exclusive control of the hook wire and that the Richardses' action failed because they did not have any expert testimony to support their medical negligence cause of action.

This case proceeded to a jury trial where Richards relied upon res ipsa loquitur to prove that Mendivil had been negligent in his care and treatment of her. At the close of Richards's case-in-chief, Mendivil moved for dismissal on the grounds of insufficiency of evidence, § 805.14(3), STATS., and the court took the motion under advisement. 1 At the close of all the evidence, Mendivil moved for a directed verdict on the same ground, § 805.14(4). The court took that motion under advisement and submitted the case to the jury which returned a verdict finding that Mendivil's negligence caused injury to Richards and assessing total damages of $24,034.30.

After the verdict, Mendivil moved for a directed verdict, § 805.14(5)(d), STATS., and, in the alternative, moved to change the "Yes" answers to questions one and two of the verdict to "No," § 805.14(5)(c). 2 The trial court granted both motions. The trial court denied Richards's motion for judgment on the verdict. The court entered judgment dismissing the complaint, and Richards appealed.

A motion challenging the sufficiency of the evidence to support a verdict may not be granted "unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party." Section 805.14(1), STATS. That standard applies to both the trial court and this court on appeal. Weiss v. United Fire and Casualty Co., 197 Wis.2d 365, 388, 541 N.W.2d 753, 761 (1995). It applies to any motion challenging the sufficiency of the evidence.

While the trial court granted both of Mendivil's alternative motions, we choose to review the order changing the "Yes" answers to the negligence and cause questions to "No." See Mills v. Regent Ins. Co., 152 Wis.2d 566, 570-71, 449 N.W.2d 294, 296 (Ct.App.1989). Mendivil's motion challenged the sufficiency of the evidence to support the "Yes" answers; therefore, we review the evidence produced by both Richards and Mendivil to determine whether credible evidence exists which supports a verdict in Richards's favor.

In considering a motion to change the jury's answers to the questions on the verdict, a trial court must view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence. Nelson v. Travelers Ins. Co., 80 Wis.2d 272, 282-83, 259 N.W.2d 48, 52-53 (1977). The trial court is not justified in changing the jury's answers if there is any credible evidence to support the jury's findings. See Bennett v. Larsen Co., 118 Wis.2d 681, 705-06, 348 N.W.2d 540, 554 (1984). In reviewing the evidence, the trial court is guided by the proposition that "[t]he credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, and where more than one inference can be drawn from the evidence," the trial court must accept the inference drawn by the jury. Id. at 706, 348 N.W.2d at 554 (quoted source omitted). On appeal this court is guided by these same rules. See Nelson, 80 Wis.2d at 282, 259 N.W.2d at 52.

When we review an order changing the jury's answers, we begin with considerable respect for the trial court's better ability to assess the evidence. See Weiss, 197 Wis.2d at 388-89, 541 N.W.2d at 761. However, an appellate court may overturn the trial court's decision to change the jury's answers if the record reveals that the trial court was "clearly wrong." See id. at 389, 541 N.W.2d at 761.

When a circuit court overturns a verdict supported by "any credible evidence," then the circuit court is "clearly wrong" in doing so. When there is any credible evidence to support a jury's verdict, "even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict ... must stand."

Id. at 389-90, 541 N.W.2d at 761-62 (emphasis in original) (quoted source and footnote omitted).

The trial court changed the jury's answers on the verdict after concluding that the jury failed to follow the res ipsa loquitur instruction that was given. 3 The court reasoned that "the event did not occur through any failure of Dr. Mendivil's part to exercise due care and skill. It happened because the wire either broke or was transected...." The trial court concluded that "this is not a res ipsa loquitur case" because there was no evidence to show when or how the wire was broken or transected; the event occurred despite the exercise of due care and skill; and, the procedure used was not without problems.

Conscious of our duty to give deference to the trial court's superior advantage for judging the evidence, we nevertheless differ with the trial court's evaluation of the evidence presented by Richards and Mendivil.

We start our discussion with a brief review of the res ipsa loquitur doctrine. 4 Res ipsa loquitur was first applied to medical malpractice actions in 1963. Fehrman v. Smirl, 20 Wis.2d 1, 21-22, 121 N.W.2d 255, 266 (1963). In Fehrman, the supreme court loosened the rule that a physician's negligence could only be proven by expert testimony in situations where the errors were of such a nature that a layperson could conclude from common experience that such mistakes do not happen if the physician had exercised proper skill and care. McManus v. Donlin, 23 Wis.2d 289, 297, 127 N.W.2d 22, 26 (1964).

The doctrine is not a rule of pleading. Res ipsa loquitur is a rule of evidence that permits the jury to draw a permissible inference of the physician's negligence without...

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