Rost v. Roberts

• Decision Date: 06 February 1923
• Citation: 180 Wis. 207,192 N.W. 38
• Parties: ROST v. ROBERTS.
• Court: Wisconsin Supreme Court

180 Wis. 207

192 N.W. 38

ROST

v.ROBERTS.^a1

Supreme Court of Wisconsin.

Feb. 6, 1923.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Fred Rost against J. A. Roberts. From judgment for defendant, plaintiff appeals. Affirmed.

Malpractice. The defendant is a physician in practice at Portage. In July, 1920, plaintiff, 27 years of age, was afflicted with pustular acne, a disease of the sebaceous oil glands. He applied to the defendant for treatment of the malady. Defendant advised X-ray treatments. Such treatments were administered July 2, 5, 9, and 11. After the last treatment plaintiff returned to his work at Milwaukee, and in about a week an area of about 144 square inches on his back became red and somewhat irritated. A few days later it turned blue, then black, the skin cracked, began to peel, and some pus was present. The condition constituted an X-ray burn due to an overdosage of X-radiance. The burn was obstinate to treatment. It caused plaintiff great suffering, and was not healed until well along in the summer of 1921. Plaintiff brought this action to recover damages. Defendant counterclaimed for the value of his services in giving such treatments, and in treating the burn resulting therefrom, in the sum of $431. He also counterclaimed for the value of his services in treating a self-inflicted gunshot wound in the sum of $165. A general verdict was rendered in favor of the defendant assessing his damages at $560, the same being the full amount claimed by him for his services in treating the plaintiff. From a judgment rendered on the general verdict in favor of the defendant, the plaintiff brings this appeal.C. H. Metzler, of Portage (Grady & Farnsworth, of Portage, of counsel), for appellant.

Rogers & Rogers, of Portage (Lines, Spooner & Quarles, of Milwaukee, of counsel), for respondent.

OWEN, J. (after stating the facts as above).

The issues developed during the trial were about as follows: Plaintiff contended that the defendant was guilty of negligent practice in administering an overdosage of X-radiance. The factors to be considered in determining the amount of X-ray dosage administered are: (1) Target distance from the skin; (2) milliamperes of current used; (3) duration and frequency of exposure; and (4) spark gap. There was a conflict in the evidence with reference to two of these factors, namely, target distance and duration of exposure. The defendant testified that the target distance was 18 inches; the plaintiff testified that it was 4. Defendant testified that the first three exposures were of 3 minutes' and the last of 6 minutes' duration, making a total exposure of 15 minutes. The plaintiff testified that each treatment involved an exposure of 15 minutes' duration. All of the medical experts, including the defendant, testified that, if the exposure had been as stated by plaintiff, the treatments would result in overdosage, and constitute improper practice. They disagreed as to whether the dosage resulting from the treatments administered as testified to by the plaintiff constituted proper treatment. Defendant maintained that the dosage was such as is usually and customarily administered in the treatment of pustular acne, and that the burn was due to the hypersensitive skin of the plaintiff and an extraordinary susceptibility on his part to the effect of X-ray treatments.

These questions were thoroughly litigated, and, in view of the fact that the jury rendered a verdict not only against the plaintiff upon his cause of action, but in favor of the defendant upon his claim for services in administering the treatment and in treating the resulting burn, it is plain that the jury found for the defendant upon all questions in controversy. It is not contended here, seriously, at least, that the verdict is without support in the evidence. A reversal is sought because of alleged errors occurring during the trial.

The assignment of error perhaps most insistently argued on the part of appellant arises from that portion of the charge which placed the burden of proof upon the plaintiff. It is claimed that the following portions of the charge constitute prejudicial error, namely:

“For the plaintiff to recover it is essential that he satisfy you to a reasonable certainty by a preponderance of the evidence of the facts essential to his cause of action--that is, that the defendant was guilty of malpractice, and that this malpractice resulted in injury to him. If you are satisfied of the existence of these two facts, your verdict will be for the plaintiff. If not so satisfied, your verdict will be for the defendant upon his counterclaim, as to which I will more particularly instruct you later. Upon the general proposition of negligence, I will say finally that the burden of proof is upon the plaintiff to show that original burn of the plaintiff was caused by negligence of defendant, and that it was more severe than reasonably necessary for curative purposes. It is not enough to show that such burn may have resulted from such cause.”

Appellant claims that the doctrine of res ipsa loquitur applies to the case; that a presumption of negligence arises from the proof of the burn, and that the mere showing of the bad result shifted the burden of proof upon the defendant to disprove negligence. It seems unnecessary for us to consider whether the doctrine of res ipsa loquitur is applicable in case of a bad result from X-ray treatments administered by a physician to a patient as a curative agency. In the first place, plaintiff did not rely upon the doctrine of res ipsa loquitur. He undertook to prove as a part of his main case the amount of dosage administered, and that, whether in accordance with the testimony of the plaintiff or the defendant, it was an excessive dosage, and constituted improper practice.

[1] Res ipsa loquitur is a doctrine which permits an inference of negligence from the mere proof of an injury or accident where it appears that the injury or accident would not or could not have happened except for the negligent conduct of the defendant. In such cases it is held that the plaintiff makes a case for the jury by proof of the accident or injury, it being permissible for the jury to infer negligence from the fact that the injury or accident occurred. Manifestly he is in no better position so far as the burden of proof devolving upon him is concerned than if he had made out a case for the jury by affirmative evidence of negligence. The burden of proof was upon the plaintiff at the beginning of the trial to establish by a preponderance of the evidence the facts which entitled him to recover. This is a burden which the law imposes upon every plaintiff, and this burden remains upon him throughout the trial. Wigmore on Evidence, § 2489. It is with him at the close as well as at the beginning, and in order for him to recover the jury must find that the facts entitling him to recover are established by a preponderance of the evidence. Of course, when the plaintiff has introduced evidence sufficient to justify a verdict in his favor, it devolves on the defendant to meet and overcome such evidence. But the plaintiff is never relieved of the burden of proof, meaning thereby the burden of proving by a preponderance of the evidence the facts necessary to entitle him to recover.

In a similar case (Sweeney v. Erving, 228 U. S. 240, 33 Sup. Ct. 418, 57 L. Ed. 815, Ann. Cas. 1914D, 905) the federal Supreme Court said:

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forstall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.”

This question is comprehensively treated in a note to be found in 16 L. R. A. (N. S.) 527. The editor opens the note by saying:

“There are almost numberless cases in which the courts have expressed their understanding of the effect of the rule res ipsa loquitur by the formula that an accident to which the rule applies creates a presumption of negligence and casts upon the defendant the burden of proof, without explaining or in any way qualifying the phrase ‘burden of proof.’ ”

He concludes, however, that few, if any, courts which have expressly considered the question have disputed that the presumption which arises in favor of the plaintiff in a case to which the doctrine of res ipsa loquitur applies does not cast upon the defendant the burden of proof in the sense that the defendant is bound to establish freedom from negligence by a preponderance of evidence. This position is not in conflict with the declarations of this court upon the question. The cases relied upon by appellant (Hildebrand v. Carroll, 106 Wis. 324, 82 N. W. 145, 80 Am. St. Rep. 29;Lipsky v. Reiss Co., 136 Wis. 307, 117...