Simpsen v. Madison General Hospital Ass'n, 189

Citation48 Wis.2d 498,180 N.W.2d 586
Decision Date03 November 1970
Docket NumberNo. 189,189
PartiesHelen M. SIMPSEN et al., Appellants, v. MADISON GENERAL HOSPITAL ASSN., a domestic corp., Respondent.
CourtUnited States State Supreme Court of Wisconsin

This is a personal injury action. On February 11, 1965, plaintiff, a thirty-four year old farm wife, was admitted to defendant hospital for surgery to be performed on the following day by Dr. Kenneth Sachtjen. Plaintiff had been referred to Dr. Sachtjen by Dr. Hommel, a Baraboo podiatrist, for the surgical correction of a hallux valgus or bunion condition on her left foot.

The following day, February 12, 1965, Mrs. Simpsen underwent the operation, known as a Mitchell osteotomy, wherein the bone of her left forefoot just behind the big toe was cut and then angulated in a corrective position. Following the operation the wound was closed and Mrs. Simpsen was returned to her room in good condition.

Immediately after the operation, Dr. Sachtjen left town on a vacation and did not return for ten days.

Plaintiff remained comfortable and had good circulation at the operative site on the following morning. Later in the morning on February 13, 1965, one of defendant's nurses, while attempting to help plaintiff from her bed to a wheelchair, allowed the wheelchair to roll backwards away from plaintiff. Plaintiff lost her balance, struck her foot at the operative site twice, bore her full weight upon it and fell to the floor, experiencing a severe pain and burning sensation at the operative site.

On February 19, 1965, plaintiff was discharged from the hospital, but was readmitted on February 26, 1965, for eight days because of pain and drainage at the operative site.

Over the next several months she continued to suffer pain and was unable to bear weight on the side of her foot. Shortening of the bone became observable and she was readmitted into the hospital on June 4, 1965, for another eight days with an admitting diagnosis of osteomyelitis at the operative site.

Since then plaintiff has suffered considerable pain and her ability to do her normal farm work has been severely restricted, and there is some permanent limitation of motion in her toe.

The instant action was brought by Mrs. Simpsen for her personal injuries and medical expenses and by her husband for loss of services and society of his wife. The jury found the defendant hospital causally negligent and awarded Mrs. Simpsen damages of $15,000 for her personal injuries and Mr. Simpsen $515 in medical and hospital expenses, and $1,000 for the loss of services and society of his wife.

Thereafter, both parties interposed motions: The plaintiffs for entry of judgment on the verdict; the defendant, to change the answers of the jury relating to the causal negligence of defendant from 'Yes' to 'No' or, in the alternative, for a new trial.

The trial court applied the Powers rule, reducing the award to $4,000, stating that in its opinion there was no evidence of record to attribute Mrs. Simpsen's disability 'beyond a temporary aggravation' to the trauma, and that $4,000 was a 'a reasonable amount to compensate Mr. and Mrs. Simpsen. * * *' The court ruled that the verdict was not a result of perversity or prejudice, nor the result of any error occurring during the trial.

Plaintiffs appeal from the order of the trial court, and defendant cross-appeals from the order denying its motion to change the cause question answers to 'No.' In the alternative, defendant seeks to affirm the order for judgment as reduced.

Kersten & McKinnon, Milwaukee, for appellants; Kenan J. Kersten, Milwaukee, of counsel.

Jenswold, Studt, Hanson, Clark & Kaufmann, Robert R. Studt, Madison, for respondent.

WILKIE, Justice.

Two issues are raised by this appeal:

1. Whether the trial court erred in determining that there is no evidence of record attributing the disability of Mrs. Simpsen, beyond mere aggravation, to the trauma.

2. Whether the trial court erred in excluding part of the testimony of Dr. Hommel, a podiatrist, concerning the relation of the trauma to the osteomyelitis.

Extent of Mrs. Simpsen's injury due to

neglect of hospital.

On this review we are governed by the rule that if there is any credible evidence, either facts or inferences which may be reasonably drawn from them which, under any reasonable view, supports the verdict of the jury, it ought not to be disturbed by the trial court. 1 Here, there is no dispute about the fact that on the morning after the surgery was performed by Dr. Sachtjen on Mrs. Simpsen's left foot, she fell as the result of negligence of a nurse employed by the defendant hospital, and that Mrs. Simpsen twice struck her foot at the operative site and bore her full weight upon that foot. The hospital record shows that on the first examination after this incident, the foot at the operative site appeared inflamed and swollen. This is not unusual following an operation. The record shows that four days later treatment with autibiotics was begun. The record is not clear as to the reason for doing so, although it is common procedure to begin antibiotic therapy at the first sign of infection, usually inflammation or tenderness.

On February 19, 1965, Mrs. Simpsen was released from the hospital still under antibiotic medication, but was readmitted for eight days on February 26, 1965, because of pain and drainage at the operative site. The pain continued and shortening of the bone became observable and on June 4, 1965, she was readmitted for eight days with an admitting diagnosis of osteomyelitis at the operative site.

Two doctors testified at the trial, Dr. Sachtjen, the surgeon, and Dr. Howard Mahaffey, a non-treating doctor, who examined Mrs. Simpsen for the defendant.

Dr. Sachtjen testified that following the operation, Mrs. Simpsen had developed an infection and eventual osteomyelitis which was resolved, but which left her with a shortening of the bone and a scar-tissue formation at the operative site, which were permanent residuals of the osteomyelitis. These residuals resulted in a derangement of her static equilibrium, problems of proper weight bearing, and pain and discomfort which would be permanent.

Dr. Howard Mahaffey, testifying in behalf of the defense, agreed that Mrs. Simpsen's disabilities were related to the infection she sustained following her operation.

Although both agreed that it was the infection sustained by Mrs. Simpsen that caused her present disabilities, the trial court determined that plaintiff had failed to prove that the trauma incident was the cause of the infection.

Dr. Mahaffey testified that, in his opinion, there was no relationship between the trauma and the post-operative infection, noting that his opinion would be different if there were an opening of the wound and oozing. The hospital records not only fail to indicate any opening of the wound, but rather, indicate the opposite.

The testimony of Dr. Charles H. Miller by deposition was read into evidence. He was in attendance following surgery and checked Mrs. Simpsen after her fall. Reviewing the various hospital notes and reports, he stated he had 'evidently' not changed the dressing since there was no indication of doing so in the report. He testified: 'We don't like to change dressings in such a case immediately postoperatively except for some bleeding or something grossly wrong, so I'd say I did not change the dressing. * * *'

He further stated that had there been bleeding, excessive swelling, etc., it would have 'definitely' been noted in his report. In addition, he noted the report of Dr. Lucas, an associate of Dr. Sachtjen, who was in charge of Mrs. Simpsen while Dr. Sachtjen was out of town, which indicated he changed the dressing on February 14th, the day after the trauma, noting the wound was clean. Subsequent entries by Dr. Lucas indicated antibiotics were prescribed on February 17th, but that the wound was clean, with no drainage; and that the wound was clean on February 19th when Mrs. Simpsen left the hospital. There was evidence in the records that Mrs. Simpsen received strong medication for pain.

Consequently, it appears Dr. Mahaffey's opinion, that the trauma had no relation to Mrs. Simpsen's post-operative disabilities, stands in the absence of any indication that there was drainage or opening of the operative wound.

Dr. Sachtjen, testifying for plaintiff, stated that in operations of this type infection occurs unexplained in approximately two percent of the cases. He read two letters he had written to Dr. Hommel, a podiatrist in Baraboo, who was caring for Mrs. Simpsen. In the first, dated March 15, 1965, he noted that Mrs. Simpsen had suffered the trauma and stated:

'This can cause considerable pain reaction and some temporary oozing at the suture line, which caused a readmission period of a week a short time later.'

The second, dated February 10, 1966, noted the shortening of the bone and her continuing manifestation of pain, caused by 'a form of nonunion' of the surgically severed bone. He then stated:

'As you know, she developed an infection when the wound split open the first day she stepped on it, and this has been an offending condition.'

On cross-examination, Dr. Sachtjen stated that the hospital records did not indicate any drainage and showed that the wound was clean throughout Mrs. Simpsen's post-operative period of the hospital.

The following testimony of Dr. Sachtjen is particularly pertinent:

'Q. Well, now, you're satisfied there was an infection, isn't that right? A. Yes.

'Q. But, Doctor, to a reasonable medical probability, is it not correct that you cannot give us an opinion as to where this infection originated? A. That is correct; I cannot.

'Q. * * * is it true, Doctor, that you have no opinion to a reasonable medical probability * * * as to whether any traumatic incident such as falling or bumping had anything to do with this infection? A. That is correct.

'* * *

'Q. And, as a result, it is a fact, is it not Doctor,...

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    ...opinion is normally a decision left to the discretion of the circuit court. Watson, 227 Wis. 2d at 186; Simpsen v. Madison Gen. Hosp. Ass'n, 48 Wis. 2d 498, 509, 180 N.W.2d 586 (1970); Farrell, 151 Wis. 2d at 70,cited in 7 Blinka, supra, § 702.4, at 487. The circuit court's discretion in th......
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