Schulz v. St. Mary's Hospital

• Decision Date: 03 January 1978
• Docket Number: No. 75-465,75-465
• Citation: 81 Wis.2d 638,260 N.W.2d 783
• Parties: Marilyn M. SCHULZ and Ronald W. Schulz, Respondents, v. ST. MARY'S HOSPITAL, Appellant.
• Court: Wisconsin Supreme Court

Page 783

260 N.W.2d 783

81 Wis.2d 638

Marilyn M. SCHULZ and Ronald W. Schulz, Respondents, v. ST. MARY'S HOSPITAL, Appellant.

No. 75-465.

Supreme Court of Wisconsin.

Argued Nov. 30, 1977.

Decided Jan. 3, 1978.

Plaintiffs-respondents, Marilyn M. Schulz and her husband, Ronald W. Schulz, brought this action for damages for personal injuries against defendant-appellant, St. Mary's Hospital of Milwaukee.

On August 29, 1973, the plaintiff Marilyn Schulz was visiting her son at St. Mary's Hospital. A lunch tray was brought to the room for her son. On the tray was a little stainless steel pot. The plaintiff testified she asked the nurse if it was coffee and the nurse said, "Yes." The plaintiff stated that she then told the nurse her son did not drink coffee and that the nurse replied, "Well, would you like it?"

Plaintiff poured some of the liquid from the pot into a cup. She testified that she told her son that the liquid was not coffee, but that it must be tea. She noted that the liquid was not hot, so she took two swallows. She noted that the liquid seemed salty. She took a third swallow. She told her son, "Quick, get me a glass of water." She drank the whole glass of water, but her throat still had a burning sensation. She testified that she thought, "well, sure it's broth. . . . (W)ell, I've got to try this again and figure out what it is. . . ." She testified that she then "tried another sip of it," though she was not sure she swallowed that sip.

The plaintiff then asked the hospital orderly to taste the liquid. He did and took the cup to the head nurse. The head nurse tasted it, promptly notified a security officer, and told plaintiff to go directly to the outpatient department where she was given olive oil, orange juice and milk, the recommended antidote for the diluted trisodium phosphate urn cleaner, which was the fluid in the cup.

In its answer the defendant hospital admitted its negligence in placing the coffee pot with the cleaning fluid in it on a patient's tray. The defendant hospital does not dispute that the plaintiff sustained some irritation and burning to her esophagus and that for several days after swallowing the urn cleaner she had headaches, nausea and diarrhea. But the day after the swallowing, blood tests showed that she had abnormal liver function, and at the time of trial she suffered from chronic active hepatitis. The medical testimony was in dispute as to whether the plaintiff's hepatitis was caused by the ingestion of the cleaner. With the case submitted to the jury on a special verdict, the jury found the negligence of the hospital was causal, apportioned 100 percent of the negligence to the defendant hospital, and awarded the plaintiffs $75,600 in damages: $50,000 for pain and suffering, $25,000 for loss of earning capacity, $600 in medical expenses, and nothing for loss of society. Defendant hospital appeals.

Merten, Connell & Sisolak, S. C., Milwaukee, on briefs, for appellant; Paul E. Schwemer, Milwaukee, argued and of counsel.

Robert L. Habush (argued), Gary R. Kuphall, and Habush, Gillick, Habush, Davis & Murphy, Milwaukee, on brief, for respondents.

ROBERT W. HANSEN, Justice.

While the central issue on this appeal relates to the damage awards made by the jury, and whether the evidence in this record sustains them, discussion will begin with the other issues raised.

NEGLIGENCE OF THE PLAINTIFF.

One of the special verdict questions asked the jury whether, the hospital having conceded negligence in serving urn cleaner on a patient's tray, the plaintiff was also negligent in taking the two swallows and one sip. The defendant hospital requested the trial court to answer this question in the affirmative as a matter of law. The trial court refused and the jury found that plaintiff was not negligent with respect to her own safety.

As to plaintiff's negligence, the law in this state is that, if the danger here was discoverable in the exercise of ordinary care, plaintiff was, as a matter of law, negligent for her own safety. ¹ As to the first swallow of the cleaning fluid, there is no claim of negligence on the plaintiff's part. It is in taking two swallows and a third sip that, defendant claims, plaintiff did not exercise ordinary care for her own safety. She knew by then that the liquid was not coffee or tea, was not warm, tasted very salty and gave her a burning sensation. The question is close as to whether a reasonably prudent person, exercising ordinary care for his or her own safety, would or would not have stopped sampling the fluid after the first swallow. However, even the head nurse and the orderly tasted the liquid with full notice that it had caused a burning sensation in the mouth and throat of the plaintiff. Given the hospital setting, it cannot reasonably be expected that the plaintiff's realization that what had been served in the stainless steel pot was not a beverage for human consumption would be instantaneous.

In ruling on a motion for directed verdict the trial court must view the evidence in the light most favorable to the party moved against and can direct the verdict only when the evidence gives rise to no dispute on the material issues or only when the evidence is so convincing as reasonably to permit unbiased and impartial minds to come to but one credible conclusion. ² Applying that test, we find no error in the trial court's not finding the plaintiff negligent for her own safety as a matter of law.

HOSPITAL RECORDS.

The plaintiff was hospitalized in Elmhurst, Illinois, on five occasions prior to the visit to the defendant hospital. Three of the five hospital stays were to deliver a child; one was for a varicose vein ligation; and one was for removal of her gallbladder. The plaintiff's trial counsel sought the admission of the Illinois hospital records, under the business records exception to the hearsay rule, ³ identifying them through the testimony of the doctor who had delivered the last child and performed the ligation and who assisted in the gallbladder surgery. Photostatic copies of the hospital records were admitted into evidence by the trial court. The defendant contends that the admission of these records violated secs. 910.01, 910.02, 910.03 and 908.03(6), Stats. However, the reliance on secs. 910.01, 910.02 and 910.03, Stats., is misplaced. These photostatic copies are counterparts produced by a technique which accurately reproduces the original and therefore are "duplicates" under ch. 910, Stats., and admissible to the same extent as an original unless a genuine question as to the authenticity of the original is raised or unless it would be unfair to admit them. ⁴ While we conclude that this test is met, we hold that admissibility of hospital records is governed by sec. 909.015(1), Stats., permitting the authentication of a physical evidence to be made by a witness with knowledge that a matter is what it is claimed to be, and sec. 908.03(6), Stats., providing that records or data compilations may be introduced by "the testimony of the custodian or other qualified witness." ⁵ Absent some showing by the defendant that the records which were admitted were untrustworthy, the doctor here was such "other qualified witness." In the case before us an expert medical witness for the defendant, Dr. Enzer, based portions of his testimony on the admitted records, hardly suggesting that they were not authentic or untrustworthy.

CAUSATION OF HEPATITIS.

The defendant hospital contends that the evidence in this record does not support the jury's conclusion that swallowing two or three cubic centimeters of diluted trisodium phosphate caused the liver damage from which the plaintiff apparently suffered the very next day. As this court said in the case where the claim was that injuries to the mother in an automobile accident caused the birth of a Mongoloid child, in order for the jury here to award $75,000 to these plaintiffs, "it would have to be convinced that the negligence of the defendants in a direct chain of causation was responsible" ⁶ for the hepatitis.

In the case before us it was not sufficient for the plaintiffs to establish that if the trisodium phosphate reached the liver it would cause liver damage. To complete the direct chain of causation required in the Puhl Case ⁷ it was necessary to establish that the trisodium phosphate that was swallowed would enter the bloodstream and reach the liver of this plaintiff. As Dr. Holmburg, one of the medical witnesses for the plaintiff, stated: "In order to say that it was the cause of the liver injury, we have to assume that it got in the bloodstream and reached the liver to damage it." Asked how he knew that absorption had occurred, Dr. Holmburg answered, "I cannot prove that."

As to this needed link in the chain, Dr. Enzer, a pathologist as well as an internist, testified for the defendant hospital that trisodium phosphate could not enter the bloodstream and could not reach the liver. Asked to trace the course of trisodium phosphate through the system, Dr. Enzer testified that there would be no absorption into the bloodstream and therefore no effect on the liver because, upon reaching the stomach, the alkalinity of trisodium phosphate would be immediately reduced by the acid juices of the stomach to monosodium phosphate. Monosodium phosphate, rather than being absorbed into the system, would draw fluid out of the system, would have a laxative effect and pass through the bowels without reaching the liver. Lay persons might assume that any substance swallowed makes its way into the bloodstream and the liver. But in the light of Dr. Enzer's testimony that the trisodium phosphate swallowed could not reach either bloodstream or liver, this jury was not entitled to conclude the contrary unless some positive, contradicting testimony is contained in the record. For this court has held that: "It is certainly true that a jury may not disregard '(p)ositive uncontradicted testimony as to the...