Opinion
December 1, 1965 —
January 4, 1966.
APPEAL from a judgment of the county court of Milwaukee county: THADDEUS J. PRUSS, Judge. Reversed.
For the appellant there was a brief and oral argument by Ronald L. Piette of Milwaukee.
For the respondent there was a brief by Gratz Shneidman and Donald C. Paveleck, all of Milwaukee, and oral argument by Mr. Paveleck.
This is an action to enforce the medical-payments provision of an automobile liability insurance policy issued by the appellant, Hardware Dealers Mutual Fire Insurance Company, on an automobile owned by William Koczka, the respondent.
The provision in question provided that the insurance company would "pay all reasonable expenses incurred within one year from the date of accident for necessary medical . . . services."
On September 28, 1961, while this policy was in effect, Mr. Koczka was operating the insured vehicle, which was struck from behind by another automobile.
Mr. Koczka stated that he experienced pain in his neck and shoulders after the impact and visited Dr. Lester V. Salinsky for treatment on the day of the accident. He continued to see Dr. Salinsky for diathermy treatments between September, 1961, and January, 1962.
Dr. Salinsky sent Mr. Koczka a bill for such treatments totaling $525. Mr. Koczka submitted the bill to the appellant, which refused payment thereof, alleging that the treatment and charges therefor did not constitute necessary medical services or reasonable charges. Mr. Koczka commenced suit in the lower court, and a jury trial was held.
The respondent called Dr. Salinsky, who testified that he administered 45 infrared treatments to Mr. Koczka's cervical spine and 43 such treatments to his dorsal spine for the injuries sustained in the 1961 accident. Dr. Salinsky vouched that all of the treatment he gave to the respondent was necessary and did not reach a point of diminishing returns. He further stated that the number of treatments given was necessitated by Mr. Koczka's doing some sign-painting work which required him to hold his head in a rigid position for a considerable length of time, thus aggravating the injury. Dr. Salinsky could not state whether the respondent's case was more or less serious than the average.
Dr. Salinsky further testified that the continuance of the infrared treatments to the patient was based entirely upon the patient's subjective symptoms.:
"Whenever the patient tells me he is feeling a little better, referrable to the back we don't treat him; if he comes back and tells me, it started again, I'm still having trouble, we start treatment again. This is entirely up to the patient's subjective symptoms. He is the one who has been hurt, and he is the one I must believe."
Dr. David J. Ansfield, an orthopedist, examined Mr. Koczka for the appellant insurance company on June 6, 1962. He testified at the time of trial that it was his opinion that the effective range in the number of infrared treatments for a usual injury such as a sprain to the neck is six to 10 treatments. Only rarely, he continued, is a patient benefited by more than 10 treatments.
On cross-examination, Dr. Ansfield stated that he could not conceive of any person benefiting from more than 20 infrared treatments for the same injury and that if a person's work was causing a reoccurrence of pain, then infrared treatments would not be beneficial or necessary unless the patient ceased the particular aggravating activity. He also asserted that if 40 or more treatments were given over a period of four months this "would have to be explained by some unusual condition that arose that required that many treatments."
At the close of the testimony, the respondent moved for a directed verdict, which was granted by the trial court without first submitting the case to the jury. Judgment was entered for Mr. Koczka for $525. The defendant appeals from the judgment.
We have concluded that the learned trial court erred when it granted a directed verdict in favor of the plaintiff.
The evidence must be considered in a light most favorable to the party against whom the verdict was directed. Our review of the evidence convinces us that the evidence was not so clear and convincing as to have permitted impartial minds to have come to but one conclusion. The foregoing are the recognized standards to be used in determining whether a directed verdict should be granted. Tanberg v. Rydberg (1965), 26 Wis.2d 91, 94, 95, 131 N.W.2d 858; Anderson v. Joint School Dist. (1964), 24 Wis.2d 580, 583, 584, 129 N.W.2d 545, 130 N.W.2d 105; Schlueter v. Grady (1963), 20 Wis.2d 546, 552, 553, 123 N.W.2d 458; Gilson v. Drees Brothers (1963), 19 Wis.2d 252, 254, 255, 120 N.W.2d 63.
In scrutinizing the record, we find that there was' evidence offered by the plaintiff which, if believed by the jury, would warrant a determination in favor of the plaintiff; however, this record also contains a sufficient challenge to the plaintiff's case so as to have foreclosed the court's directing a verdict in favor of the plaintiff. The testimony of the defendant's medical witness, when construed in a light favorable to the defendant, adequately raised a factual issue for the jury. Dr. Ansfield testified that six to 10 was the usual effective number of treatments and that in excess of 20 treatments would not be necessary except under extraordinary circumstances.
It is true that Dr. Ansfield declined to condemn in express terms the number of treatments given to Mr. Koczka by Dr. Salinsky. Nevertheless, the fair import of Dr. Ansfield's testimony was to put in issue, as a factual matter, the necessity for all the medical expenses in the instant case. Heuer v. Heuer (1959), 7 Wis.2d 208, 213, 96 N.W.2d 485; Wadoz v. United National Indemnity Co. (1957), 274 Wis. 383, 391, 80 N.W.2d 262.
Dr. Salinsky was unwilling to classify Mr. Koczka's case as more or less serious than the average, but he explained the necessity for having given 45 infrared treatments by pointing out that his patient did sign-painting work which required his' head to be held in a rigid position, thus aggravating the injury. While Dr. Ansfield acknowledged that this could have aggravated the pain, he stated that it would not call for further heat treatment.
There is another basis for our conclusion that there was a factual dispute which should not have been resolved by a directed verdict. Dr. Salinsky acknowledged that his treatments were continued over a period of four months because his patient subjectively claimed that he had continuing discomfort. It follows, therefore, that whether the treatments were necessary depends in large measure upon the good faith of Mr. Koczka. In light of Dr. Ansfield's testimony, it would have been within the province of the jury to have considered Mr. Koczka's credibility. If the jurors believed that Mr. Koczka were malingering and that Dr. Salinsky's treatments were rendered in part as a result of such bad faith on the part of the patient, it would necessarily follow that all of the treatments were not "necessary" under the terms of this insurance policy.
The trial court having directed a verdict without submitting the issue to the jury, there will have to be a new trial. A new trial may have been averted had the trial court adopted the recommendation which this court has made in a number of cases. In Rasmussen v. Garthus (1961), 12 Wis.2d 203, 209, 107 N.W.2d 264, we stated:
". . . trial courts would do well to reserve decisions on motions for a directed verdict, at least in many instances, until after the issues have been submitted to the jury. Often the jury, by its findings, will effectually resolve the motion and in other instances it may save a new trial."
We more recently repeated this suggestion in Schiller v. Keuffel Esser Co. (1963), 21 Wis.2d 545, 554, 124 N.W.2d 646, where we quoted the following from Davis v. Skille (1961), 12 Wis.2d 482, 490, 107 N.W.2d 458:
"`It is to be regretted that the circuit court did not reserve its' ruling on the motion for directed verdict until after the jury had returned its special verdict. By so doing, even though the court after the return of the verdict did see fit to have granted the motion, there would now be no necessity of granting a new trial. We do not advocate that such procedure invariably be followed, but in close cases we deem it to be preferable.'"
By the Court. — Judgment reversed, and cause remanded with directions.