Schultz v. Tasche

• Decision Date: 04 December 1917
• Citation: 166 Wis. 561,165 N.W. 292
• Parties: SCHULTZ v. TASCHE ET AL.
• Court: Wisconsin Supreme Court

166 Wis. 561

165 N.W. 292

SCHULTZ

v.TASCHE ET AL.

Supreme Court of Wisconsin.

Dec. 4, 1917.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by Frieda Schultz, an infant, by William Schultz, guardian ad litem, against John Tasche and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Action for malpractice. October 31, 1915, plaintiff, then about 18 years of age, fractured the femur of her right leg. She employed the defendants to treat her, and charges that by reason of their negligent and unskillful treatment the ends of the broken bone were not put in apposition, but were negligently allowed to override and unite, thus causing a shortening, lameness, weakness, and pain in the leg. The jury found: (1) The defendants failed to use ordinary care and skill as physicians and surgeons in their treatment of the fractured femur of plaintiff's right leg; (2) the injury which she has sustained in the deformity and shortening of her right leg was the natural and probable consequence of the failure on defendants' part to use such ordinary care and skill; (3) there was a failure on plaintiff's part to use ordinary care which contributed to produce the deformity and shortening of her leg; and (4) the damages which she sustained as the natural and probable consequence of defendants' negligence and want of skill were $2,000. Judgment for plaintiff was entered upon the special verdict, and defendants appeal.Lines, Spooner & Quarles, of Milwaukee, and Charles Voigt, of Sheboygan (Willet M. Spooner, of Milwaukee, of counsel), for appellants.

M. C. Mead, of Plymouth, for respondent.

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

Plaintiff was injured the last day of October, and was at once taken to the St. Nicholas Hospital, in Sheboygan, where she remained under defendants' care and treatment till December 12th, when she went home in an automobile to Plymouth, about 15 miles distant, and did not return for further treatment. In answer to the third question of the special verdict the jury found that there was a failure on plaintiff's part to use ordinary care which contributed to produce the deformity in her leg. It is claimed that this finding bars her right to recovery, and the cases of Hrubes v. Faber, 163 Wis. 89, 157 N. W. 519,Gores v. Graff, 77 Wis. 174, 46 N. W. 48,Ewing v. Goode (C. C.) 78 Fed. 442, and Quinn v. Higgins, 63 Wis. 664, 24 N. W. 482, 53 Am. Rep. 305, are cited to sustain the claim. None of them so hold. It must be admitted, however, that there is language in the opinion in the Quinn Case that, taken in connection with the charge of the trial court to the jury, gives color to the claim. The court charged the jury, in substance, that if plaintiff made any changes in the mode of treatment of his broken leg, then he should notify defendant of such changes at once, and, if he failed to do so, he could not hold the defendant responsible for any injury resulting from such changes. So far the charge is in harmony with the law of the state. He then instructed the jury further, in substance, that if plaintiff negligently or purposely disobeyed proper directions of the defendant, he could not recover. Judgment went for plaintiff upon a general verdict, and the defendant appealed. The question for decision by the court, so far as the instructions referred to are concerned was whether they were prejudicial to defendant. The language of the court to the effect that the charge “submitted the question of plaintiff's negligence quite fully and fairly to the jury, and that there was no error,” must be limited to the precise question before the court, namely: Was there error in it prejudicial to the defendant? So limited and understood, the language does not conflict with the later decisions of this court to the effect that negligence on the part of a plaintiff in the care of his injury which follows and aggravates negligent treatment by a physician, or aggravation from other causes not due to the physician's treatment, does not bar recovery. In such cases he may recover for the injury resulting from the negligent treatment of the physician, but not for that resulting from his own negligence or from the other aggravating conditions. Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674;Kiekhoefer v. Hidershide, 113 Wis. 280, 89 N. W. 189;Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338;Carpenter v. Blake, 75 N. Y. 12;Du Bois v. Decker, 130 N. Y. 325, 29 N. E. 313, 14 L. R. A. 429, 27 Am. St. Rep. 529.

[1] In the present case it is established by the verdict that defendants were negligent in the treatment of plaintiff before she left the hospital, and that damage resulted to her from such negligent treatment. Plaintiff's want of care consisted chiefly, if not entirely, in conduct by her after she left the hospital, and perhaps in her leaving prematurely. At any rate all these acts of hers took place after defendants' negligent treatment was administered. It is not strictly correct to call such later negligence on the part of a patient contributory negligence, though it has been so styled in the books. It is rather subsequent or supervening negligence that aggravates the improper condition due to the physician's prior negligence. The two do not synchronize in producing the injury as they usually do in the ordinary negligence case. The cause of action for the...