Treptau v. Behrens Spa, Inc.

• Decision Date: 16 October 1945
• Citation: 20 N.W.2d 108,247 Wis. 438
• Parties: TREPTAU et al. v. BEHRENS SPA, Inc.
• Court: Wisconsin Supreme Court

247 Wis. 438

20 N.W.2d 108

TREPTAU et al.

v.BEHRENS SPA, Inc.

Supreme Court of Wisconsin.

Oct. 16, 1945.

Appeal from a judgment of the Circuit Court for Waukesha County; Edward J. Gehl, Circuit Judge.

Affirmed.

Action brought by the plaintiffs, Otto Treptau and his wife, Elsic Treptau, to recover from the defendant, Behrens Spa, Inc., damages sustained by plaintiffs as the result of the alleged malpractice in the treatment of the wife by chiropractors and physicians employed by defendant.Upon a trial of issues under the pleadings, the jury returned a special verdict upon which the court entered judgment for plaintiffs' recovery of the damages assessed by the jury.Defendant appealed.Thorson, Seymour & Korf, of Elkhorn, for appellant.

Jacobson, Malone & Hippenmeyer, of Waukesha, for respondents.

FRITZ, Justice.

The defendant, Behrens Spa, Inc.(hereinafter called Spa), is incorporated as a hospital under Wisconsin laws and operates a hospital and sanitarium at Waukesha and employs physicians and chiropractors, including Drs. Behrens and Dixon.On August 27, 1941, the plaintiff, Elsie Treptau, went to the Spa for treatment of what she thought was a sprain of her right foot.Dixon told her she needed vertebra ‘adjustments', and between that date and September 14 Dixon gave her several chiropractic treatments and Behrens gave her one adjustment.In the course of those treatments the swelling and painfulness of the foot increased greatly and on Sunday, September 14, an X-ray was taken under Behrens' direction at the Spa, and by palpation in combination with the X-ray he determined that she was suffering from arthritis.Thereupon,-according to evidence relied upon by plaintiffs, but disputed in some respects by defendant,-Behrens applied a circular bandage consisting of two pieces of tape about 18 inches long and 1 1/2 inches wide, starting one piece of tape about the top of the instep and going around the instep twice, and the other piece of tape went the other way.While applying the tape he told Mrs. Treptau she had a bone infection, and to grind her teeth as he put on the tape and ‘tied it real tight’; and she testified she suffered a great deal of pain when it was applied.Immediately thereafter Behrens ordered diathermo heat treatments; and in addition she was given two such treatments on Monday and two on Tuesday.After the first heat treatment she was put in bed at the Spa, and complained to a nurse that the bandage was too tight and the pain was too great.Dr. Rice, and employee at the Spa, was called and loosened the tape a little at the top of the foot but not around it.While she was being given the subsequent heat treatments the circular bandage was still in place and unloosened around the foot.She continually complained of great pain, and the foot began to swell, and on Tuesday it became black and blue and was very painful, and so swollen that it was covering the upper part of the adhesive tape bandage which was tight.She asked two of the nurses to call a doctor, but none was available except Dr. Thatcher, one of the chiropractors; and he refused to examine the patient because he didn't know her.She then begged the nurses to help her take the tape off, which they did.She returned to her home Wednesday morning and called Dr. Wheelihan for treatment.

Upon concluding the introduction of evidence, defendant moved for a directed verdict.That motion was denied, but the court granted a motion by plaintiffs for the amendment of their complaint to conform with the proof to the effect that the defendant was guilty of malpractice in applying a restrictive tape simultaneously or practically simultaneously with the giving of electric therapy treatments subsequent to the application of the tape.Thereupon the court submitted the case to the jury on plaintiffs' theory that, as a matter of law, defendant can be held liable to plaintiffs if there was a failure on the part of its employe in bandaging the swollen foot, in the manner in which he did, in combination with applying the diathermic treatment to the foot, to exercise such reasonable care and skill as was usually possessed and exercised by physicians in good standing in a recognized school of the medical profession in the vicinity of Waukesha, having due regard to the advanced state of medical science at the time; and that, if there was such a failure, plaintiffs can recover from defendant such damages as each sustained by reason of such increased ailments, disabilities and suffering of Elsie Treptau as were caused by such failure.And in answer to questions submitted by the court for a special verdict, the jury found (1) that by bandaging the foot and at the same time applying diathermic treatment thereto, defendant failed to exercise such reasonable care and skill as was usually exercised and possessed by physicians who were in good standing in the school of medicine in the vicinity of Waukesha, Wisconsin, having due regard to the advanced state of medical science in August and September 1941; and (2) that such failure was a cause of the ailments and disabilities suffered by Mrs. Treptau after such treatment.

Defendant's first contention on this appeal is that the court erred (1) in disregarding the well-established principle of law that a physician or surgeon is not liable for malpractice if he selects and uses one approved method of treatment although some other experts testified that if they were treating the casethey would use another method, or that the method employed was improper; and (2) that since there was testimony that the method employed by defendant is a method of treatment recognizedby the medical profession in Waukesha and vicinity, defendant can not be held guilty of malpractice in treating the plaintiff.

That in these respects there was no error on the part of the court, and that, on the contrary, that principle of law was consistently considered applicable by the court, is clearly evident from the record throughout the trial, including the following instruction to the jury: ‘You are further instructed that if you find from all the credible evidence in the case that the school of medicine recognizes more than one method of diagnosis or treatment of the condition which affected the plaintiff's right foot, it was not required, at its peril, to select one or the other of such methods and was at liberty to select either of said methods and may not be considered wanting in the required degree of care and skill merely because expert witnesses give their opinion that some other method would have been preferable.’Consequently, defendant's contention in that respect cannot be sustained.

Defendant's second contention is that ‘a verdict in a malpractice case’ must ‘be based upon expert opinion evidence to a reasonable certainty that there was malpractice and that the malpractice proximately caused the condition complained of.’That is also correct.But again in these respects it is evident from the record that the court rightly concluded and duly instructed the jury that plaintiffs must prove to a reasonable certainty, by expert opinion evidence, (1) that there was malpractice on the part of defendant's employes, and (2) that such malpractice proximately caused such damages as the jury assessed.Thus, as to both of these,-as well as other,-issues submitted by the questions for the special verdict, there was applicable the court's instruction that the burden of proof to establish the affirmative in answer thereto rests upon the plaintiffs; and that, ‘You will observe in these instructions and in reference to each of the questions, I have indicated the party upon whom the ‘burden of proof’ rests.If ten or more of your number are satisfied by a preponderance of the evidence to a reasonable certainty that the party having the burden of proof has established his or her contention, tention, then you should answer such question or subdivision‘Yes'.If ten or more of your number are not so satisfied, then you should answer such question or subdivision‘No’.'

Under this instruction the jury was free to accept, in determining those issues as to whether there was malpractice on the part of defendant's employes, either the opinions, as experts, testified to by the witnesses, Drs. Werra, Wheelihan and Nicely, or to accept the opinions testified to by Drs. Scheele, Young and Behrens.The jury evidently saw fit to accept the testimony of plaintiffs' expert witnesses, Drs. Werra and Wheelihan, corroborated in part by the testimony of Dr. Nicely, who was one of the defendant's staff.Likewise, in relation to the proof required to establish that such malpractice (if the jury so found) was ‘a cause of the ailments and disabilities suffered by the plaintiff after such treatment’, the record shows that in submitting this issue to the jury, the court, after duly defining the term ‘cause’, rightly instructed: ‘If you find that such disabilities or ailments from which Elsie Treptau suffered after the treatment were such as followed as a natural and probable result of the failure of the agents or employes of the defendant to exercise the reasonable care and skill defined in the first question, and if you find that they, if exercising such care and skill as physicians, ought reasonably to have foreseen that disabilities or ailments would probably and naturally follow from their failure to exercise such reasonable care and skill, (other than such ailments or disabilities as would have resulted if they had treated Elsie Treptau with such reasonable care and skill) then you will answer ‘Yes' to this question; if you are not so satisfied then you will answer ‘No’ to this question.'

However, in relation to the issue as to cause, defendant contends, furthermore, that there is no credible evidence to sustain to a reasonable certainty the jury's finding that the use of the treatments in combination by defendant was the cause of the increased ailments,...