Trogun v. Fruchtman

• Decision Date: 21 May 1973
• Docket Number: No. 324,324
• Citation: 207 N.W.2d 297,58 Wis.2d 569
• Parties: Nathan TROGUN, Appellant, v. Robert FRUCHTMAN, M.D., Respondent.
• Court: Wisconsin Supreme Court

Page 297

207 N.W.2d 297

58 Wis.2d 569

Nathan TROGUN, Appellant, v. Robert FRUCHTMAN, M.D., Respondent.

No. 324.

Supreme Court of Wisconsin.

May 21, 1973.

S. A. Schapiro, Milwaukee, for appellant.

Irving W. Zirbel, Milwaukee, for respondent.

Gaines & Saichek, Milwaukee (Theodore B. Hertel, Jr., Milwaukee, of counsel), amicus curiae on behalf of Wis. Academy of trial lawyers.

WILKIE, Justice.

Three issues are raised on this appeal. They are:

1. Did the trial court properly nonsuit plaintiff-appellant?

2. Did the trial court err in not applying the doctrine of res ipsa?

3. Did the trial court err in holding:

(a) that plaintiff-appellant failed to establish a prima facie case of assault based upon the defendant's failure to adequately inform him of the potential side effects of the drug INH?

(b) that the doctrine of informed consent in Wisconsin does not arise from a fiduciary obligation on the part of the physician?

NONSUIT OF PLAINTIFF

Appellant asserts that he established a prima facie case of negligence on the part of Dr. Fruchtman by introducing evidence as to the recommendations of the Public Health Service and the State Board of Health with respect to the use of the drug INH in a chemoprophylactic course of treatment. According to appellant, Dr. Fruchtman's alleged deviation from those recommendations by prescribing INH for appellant which, in turn, caused his jaundiced condition, constituted negligent medical treatment. Particular reliance by appellant is placed upon a signed, but unsworn, pretrial statement of Dr. Joseph C. Mulhern, superintendent and medical director of the Milwaukee TB Control Center, to the effect that the use of INH in this case was a departure from the standard practice. Appellant argues that the trial court erred in granting defendant's motion for nonsuit in light of this prima facie showing of negligence. An extensive review of the evidence adduced at trial is necessary to analyze plaintiff's contention that he was erroneously nonsuited.

The first medical witness to testify at trial was plaintiff's witness, Dr. Kiesl Kaufman, a Milwaukee specialist in internal medicine and pulmonary diseases. On direct examination Dr. Kaufman testified that he first saw the appellant in Mt. Sinai hospital on September 23, 1968. He stated his conclusion was that Trogun was suffering from 'obstructive jaundice' which was 'probably due to drugs.' Kaufman further testified Trogun was suffering from a noninfectious hepatitis or imflammation of the liver. According to Kaufman, a biopsy showed appellant's liver to be of a bright green-yellow color rather than the normal reddish-brown color. Appellant was taking three drugs at the time he contracted jaundice, Diabenese, INH, and Atromid-S (to lower fat and cholesterol count), and Dr. Kaufman was not prepared to say for certain which drug caused the jaundice. He did opine, however, that it was probably not the Atromid-S, and that the Diabenese was directed to the pancreas rather than the affected liver. During cross-examination, Kaufman stated that although Diabenese has been known to cause jaundice, such cases were 'very rare.'

With respect to the Diabenese, Dr. Kaufman observed there were two schools of thought in the medical community. While his school of thought did not prescribe the drug for persons such as Trogun, he stated there were doctors who did. According to the doctor, the drug INH has been known to cause side effects since its inception in 1951 or 1952. This drug, he testified, 'could' have been a substantial factor in causing Trogun's hepatitis.

On cross-examination, Dr. Kaufman testified he had given the drug INH to thousands of patients and that it is 'a relatively innocuous' medication which cuased only 'a few' cases of drug hepatitis. Dr. Kaufman stated that in 1968 he was not telling his patients of the possibility of contracting jaundice from INH. According to Kaufman this was the standard practice of the Milwaukee medical community of specialists in internal medicine because of the rarity of instances of jaundice at that time. Dr. Kaufman's cross-examination concluded with his agreement to the assertion that a person who had a positive TB, skin test, as had Trogun, should be put on INH pursuant to the recommendations of the State Board of Health.

On redirect examination Dr. Kaufman testified that despite the rarity of instances of the drug INH causing jaundice in 1968, he felt it, rather than the Diabenese, caused the jaundice in Trogun. The reason for this, he stated, was the fact that Trogun had been taking the Diabenese for a year whereas he had only taken the INH for six to eight weeks before contracting jaundice.

Dr. Marvin Wagner was the second physician called by the plaintiff-appellant. A surgeon, Dr. Wagner testified he had performed several prior operations upon Trogun in addition to the laparotomy in 1968 for the jaundice. In response to a hypothetical question propounded by plaintiff's attorney as to the customary practice of doctors in the community confronted with a person such as Trogun who had been jaundiced for five days, Dr. Wagner stated he had no opinion as to whether immediate hospitalization and physical tests were in order. He stated jaundice was not an emergency sign. Dr. Wagner further stated certain liver function tests would be in order unless the patient was being considered for hospitalization, in which case such tests would be deferred until hospitalization. Wagner also stated the failure of defendant to attempt to have plaintiff, in his condition, admitted to a hospital other than one at which he was a staff member was not a departure from the customary practice in the community. In response to the question of whether it was a departure from the community practice for defendant not to advise the plaintiff of the potential side effects, including jaundice, toxic infection or hepatitis, of prescribing 300 milligrams of INH, Dr. Wagner replied in the negative. Dr. Wagner at the close of the direct examination, was asked the following question:

'I want you to assume the following facts: that Mr. Trogun had vascular surgery at Mt. Sinai Hospital in 1966; that during the surgery in December of '65, just prior to the surgery, a two-hour glucose tolerance test noted 98 fasting blood sugar, 185 1/2 hour, 137 at 2 hours and 95 at 3 hours; that he went to Dr. Fruchtman in October of 1966, in November of 1966, Dr. Fruchtman weighed him and took his temperature, and diagnosed his condition as being possible diabetes mellitus, but did not perform any physical examination other than weighing him and taking his temperature. Do you have an opinion whether or not the failure to perform a physical examination was in accordance with the customary skill and prudence exercised by doctors in this community in 1966 in diagnosing diabetes mellitus?'

Further facts in the question included Dr. Fruchtman's review of the plaintiff's medical record and his diagnosis being occlusive arteriosclerosis with possible diabetes.

In response to this question propounded by plaintiff's attorney, Dr. Wagner replied: 'Well, in consideration with the review of the records and with examination, that was adequate.'

On cross-examination Dr. Wagner testified that the normal blood sugar range is between 80 and 120 percent. He further elaborated, however, that 82 percent did not mean a person was no diabetic but that diabetics can fall into and out of the normal level. Dr. Wagner also stated that it would be a safe assumption that those persons in the younger age group, such as Trogun, at age fifty, who have arteriosclerosis and atherosclerosis are possible diabetics.

On re-cross-examination, Dr. Wagner testified that the report of the anesthesiologist who assisted him at the surgery of Trogun indicated diabetes mellitus and jaundice as Trogun's symptoms.

The plaintiff-appellant's third and final witness was Dr. Joseph C. Mulhern, a specialist in tuberculosis who was the assistant director of the Milwaukee TB Control Center from 1957 to 1964 land the superintendent and medical director of the Milwaukee TB Control Center from 1964 until the present. Dr. Mulhern testified he had familiarized himself with various modes and methods of standard treatment of TB and that in 1964 the State Public Health Service was instituting a program of prophylaxis in larger metropolitan areas using the drug INH as the agent therefor in inactive cases. Dr. Mulhern stated that the use of INH increased significantly after 1964 and private physicians utilized the Public Health Service guidelines for the use of such drug '(i)nasmuch as Public Health Service communications are available to the local physicians.' Mulhern further stated that under the customary procedure of his department a specific recommendation as to whether Trogun was suitable candidate for INH would have been made. He also stated it was the customary practice of physicians in the Milwaukee area in 1968 to follow his department's recommendations. Those recommendations, he stated, were based upon the guidelines of the Public Health Service.

Dr. Mulhern testified that the first tuberculosis X ray done by his department upon Trogun was on April 22, 1957. According to the doctor, there existed a 'calcification' (i.e., a previously infected but presently healed area) in the 'second interspace on the lfet.' The last X ray taken of Trogun, according to Dr. Mulhern, was in 1968. No discernible change had occurred in the interim, he stated, and this indicated 'stability.' According to Mulhern this stability placed Trogun in a relatively low risk group in terms of developing active TB. Dr. Mulhern was also asked the following question:

'. . . Doctor, assume the following: Assume that in 1957, x-rays taken in your department indicated Mr. Trogun to have a small, 2-millimeter's size calcified lesion, not in the apex of the lung but subapical or below the apex; assume further that at that...