Shurpit v. Brah

• Decision Date: 12 April 1966
• Citation: 141 N.W.2d 266,30 Wis.2d 388
• Parties: Bernard SHURPIT, Appellant, v. William A. BRAH, M.D., Respondent.
• Court: Wisconsin Supreme Court

Page 266

141 N.W.2d 266

30 Wis.2d 388

Bernard SHURPIT, Appellant, v. William A. BRAH, M.D., Respondent.

Supreme Court of Wisconsin.

April 12, 1966.

William F. Hayes, of Hayes & Priebe, Ripon, Earl A. Charlton, of Charlton, Yanisch & Ritchay, Milwaukee, of counsel, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Norman C. Skogstad & Thomas N. Klug, Milwaukee, of counsel, for respondent.

BEILFUSS, Justice.

The plaintiff does not contend that the verdict is contrary to the evidence but does argue that the trial court committed several prejudicial procedural errors and that he is entitled to a new trial.

The errors alleged and relied upon in this appeal are: (1) that the trial court erred in refusing to allow plaintiff to offer evidence of defendant's negligence during and after the first surgery and treatment in November, 1958, or in the alternative in refusing to allow the plaintiff to amend his complaint during trial; (2) that the trial court erred in refusing to permit adverse and cross-examination of the defendant doctor respecting his opinions as to alleged malpractice and in refusing to allow cross-examination of the defendant's expert witnesses as to their opinions; and (3) that it was error to refuse to submit an instruction on res ipsa loquitur to the jury.

The trial court, in response to objection by the defendant, clearly restricted the plaintiff to proof of negligence as to care and treatment on and after May 11, 1959, at which time he entered the hospital for the amputation of the remaining portion of his right hand.

A few days before the commencement of the trial in February of 1965, plaintiff's counsel found a copy of a letter written by Dr. Brah to Briggs & Stratton dated May 26, 1959, as a report in connection with the plaintiff's workmen's compensation claim. The letter describes the plaintiff's injury and treatment from November 14, 1958, and concludes with this final paragraph:

'At this time it is felt by myself, as well as by others, that because of the crushing injury, organisms were buried in the tissues at the time of the original injury. These organisms were lighted up by the fact the surgery was again done at about the area where the previous injury had occurred. It is highly characteristic of this type of organism to be dormant for months or years in the tissues only to be stimulated at surgical procedure.'

On several occasions during the trial the plaintiff sought to introduce this letter, particularly the quoted paragraph, into evidence upon the ground that it constituted an admission or declaration against interest. The trial judge consistently sustained an objection to the letter upon the grounds that it was only an opinion and that any claimed acts of negligence by Dr. Brah prior to May 11, 1959, were not at issue for the reason that they were beyond the scope of the pleadings.

The trial court did permit the plaintiff to cross-examine Dr. Brah as to his records, the hospital records, and the contents of the letter, exclusive of the last paragraph, for the purpose of establishing the medical history known to or available to Dr. Brah at the time of the May, 1959 surgery, but not for the purpose of establishing actionable negligence.

Plaintiff contends that the allegation in the second amended complaint to the effect that he had been under the continuous care of Dr. Brah from November 14, 1958, is sufficient to bring any of the acts of Dr. Brah within the scope of the pleadings.

The complaints also allege 'that on or about the 11th day of May, 1959, the plaintiff was admitted to said hospital, free from all infections and, especially, free from gas gangrene.' The specific acts of negligence alleged by the plaintiff all go to the care and treatment after May 11, 1959. Construing the complaint as a whole, we agree with the trial court that the scope of the pleadings limit the issue of negligence to acts of the defendant on and after May 11, 1959.

The plaintiff sought, during the course of trial, to orally amend his complaint so as to encompass claims of negligent care and treatment extending back to date of injury, November 14, 1958. In support of his argument he states a subpoena for adverse discovery examination required that Dr. Brah produce all his books and records concerning his care and treatment of the plaintiff, and that the Briggs & Stratton letter was not produced. The subpoena is not a part of the record here and it does not appear that Dr. Brah in fact had a copy of the letter to Briggs & Stratton. We cannot on appeal determine the extent of the command of the subpoena if it is not a part of the record. The trial court in denying the motion to amend the pleadings noted that the summons was served upon defendant on December 7, 1961, more than three years subsequent to the events of November 14, 1958, and that the statute of limitations ¹ barred any claim for personal injuries arising more than three years before the commencement of the action. The court further stated that plaintiff had not only drawn and served the complaint but also two amended complaints. The injury occurred in 1958 and surgery performed in 1958 and 1959; the case was brought to trial in 1965. Clearly the plaintiff had more than ample time to investigate and state his cause of action. We find no abuse of discretion in refusing to allow a third amendment of the complaint, in fact to permit an amendment in view of the objections based upon the statute of limitations so as to reach beyond three years from the date of the commencement of the action would have been error.

The plaintiff contends that it was error to exclude the letter by Dr. Brah to Briggs & Stratton as an exhibit. The exhibit could have been admitted as a part of the history of the plaintiff's condition as it was known to Dr. Brah on May 11th, provided it was admitted with proper cautionary instructions as to limitations. If it was offered primarily for the purpose of attempting to establish negligence, it was properly excluded. The trial court must be allowed considerable latitude in determining whether exhibits which serve both a proper and improper function are to be received. In this instance the plaintiff was permitted to show the history in considerable detail through the hospital records, the doctors records and by cross-examination of the doctor as an adverse witness. Under these facts it was not an abuse of discretion to exclude the letter.

The plaintiff contends that the trial court committed prejudicial error in denying him the right to examine the defendant as an adverse witness as to his opinions of the cause of gas gangrene in plaintiff's arm and proper treatment to be rendered. The plaintiff was permitted, both on adverse examination and in cross-examination, to inquire into what the defendant did in examination and treatment but was not allowed to inquire as to Dr. Brah's opinion as to the cause or proper treatment in view of the history and his examination of the plaintiff.

We do not perceive that plaintiff should have been so limited under our adverse examination statute. ²

The courts of California and New York in considering this problem under similar statutes have held that a physician or surgeon can be examined adversely concerning the proper treatment of the injury or illness suffered by the plaintiff in a malpractice case, even though it calls for expert opinion. ³

In Lawless v. Calaway (1944), 24 Cal.2d 81, 90, 91, 147 P.2d 604, 608, the California court stated:

'Statutes (providing for adverse examination) were enacted to enable a party to call his adversary and elicit his testimony without making him his own witness. * * * They are remedial in character and should be liberally construed in order to accomplish their purpose. * * * It is well settled that a plaintiff in a malpractice action can establish his case by the testimony of the defendant therein. * * * It is equally well settled that expert testimony is ordinarily required to prove the material or relevant issues in an action for malpractice. Neither the letter nor the spirit of the statute suggests any reason why the defendant in such an action should not be examined with regard to the standard of skill and care ordinarily exercised by doctors in the community under like circumstances and with respect to whether his conduct conformed thereto. We are of the opinion that such examination should be permitted under section 2055 (Code of Civil Procedure) even though it calls for expert testimony. * * * There are cases which may support a contrary conclusion * * *, but in our opinion a rule excluding such testimony is at variance with the theory underlying the statute.'

In McDermott v. Manhattan Eye, Ear and Throat Hosp. (1964), 15 N.Y.2d 20, 27, 255 N.Y.S.2d 65, 71, 203 N.E.2d 469, 473, the New York court held:

'* * * That the defendant is an 'expert' and that the particular questions asked of him are those which only an expert can answer, seem beside the point. It is at least arguable that the doctor's knowledge of the proper medical practice and his possible awareness of his deviation from that standard in the particular case are, in a real sense, as much matters of 'fact' as are the diagnosis and examination he made or the treatment upon which he settled. More importantly, however, by allowing the plaintiff to examine the defendant doctor with regard to the standard of skill and care ordinarily exdercised by physicians in the community under like circumstances and with regard to whether his conduct conformed thereto, even though such questions call for the expression of an expert opinion, the courts do no more than conform to the obvious purpose underlying the adverse-party-witness rule. That purpose, of course, 'is to permit the production in each...