April 4, 1935.
June 24, 1935.
APPEAL from an order of the circuit court for La Crosse county: R. S. COWIE, Circuit Judge. Affirmed.
Action begun November 1, 1933, by A. O. Paulsen, plaintiff, against the defendants, Adolf and Gunnar Gundersen, and Eugene C. Smith, to recover damages for performing an operation on plaintiff without his consent, and for negligence in connection with the operation.
Plaintiff had trouble with his ear, and on June 4, 1932, placed himself under defendants' care. He received treatment for some time, and on June 20, 1932, was advised by defendants that he should have an operation on his ear. Plaintiff questioned the seriousness of such operation, and alleges he was informed that it was to be a "simple" mastoid operation unaccompanied by any danger. Dr. Eugene C. Smith, a member of defendants' clinic, performed a "radical" mastoid operation which was followed by loss of hearing in the left ear and paralysis of the left side of plaintiff's face. Plaintiff then sought the aid of Dr. Adson of Minneapolis, Minnesota, and remained in his care for over a year.
At the close of the testimony, defendants moved for a directed verdict on the ground that there was no evidence of negligence on their part and no evidence that plaintiff did not consent to the operation. This motion was denied. The court prepared and submitted a special verdict to the jury without objection or suggested alteration by either counsel. The special verdict of the jury rendered May 4, 1934, is as follows:
"1. In diagnosing plaintiff's ailments and in operating upon him, did Doctors Adolf Gundersen, Gunnar Gundersen and Eugene C. Smith, or any of them, fail to exercise that degree of care and skill which physicians and surgeons in good standing in the same school of medicine usually exercise in the same or similar localities, under like or similar circumstances, having regard to the advanced state of medical and surgical science at the time, in either of the following particulars, to wit:
"A. In respect to the performance of a radical mastoid operation under the circumstances then existing ?" Answered "Yes" by ten jurors.
"B. In respect to severing or otherwise destroying the functions of the facial nerve?" Answered "Yes" by ten jurors.
"2. . . . Was such failure to exercise such degree of care and skill a cause of plaintiff's facial paralysis and impairment of functions of hearing?" Answered "Yes" as to both subdivisions A and B.
"3. Did defendants, Adolf Gundersen, Gunnar Gundersen and Eugene C. Smith, cause a radical mastoid operation to be performed upon the plaintiff, Paulsen, without the consent of said Paulsen?" Answered "Yes" by all jurors.
"4. At what sum do you assess the plaintiff's damages?" Answered by all jurors, $30,000.
The plaintiff moved for judgment on the verdict, and defendants moved for judgment notwithstanding the verdict, and in the alternative, that the answers of the jury to several questions of the special verdict be changed, or for a new trial. These motions were argued on May 12, 1934, and the court, by order dated May 12th and filed May 19th, denied defendants' motions and granted the motion of the plaintiff. The defendants received the consent of the court to hear further argument on the motion for a new trial, and such further argument was heard on June 25, 1934, at which time the court extended the time for hearing motions after verdict. Further hearings were had and on July 11th, within the time fixed, the court ordered a new trial and filed a memorandum opinion in which he stated:
"In the event of defendants' failure to pay said sum of $400 within the time specified, the order for judgment and judgment heretofore entered will be permitted to stand; otherwise it will be vacated and set aside and a new trial granted."
In his decision, the court assigned several grounds for granting a new trial. He ruled that question 3 should not have been submitted to the jury because there was no credible evidence to sustain the contention of the plaintiff that the operation was performed without plaintiff's consent; and "that the two causes of action, as submitted to the jury in questions 1 and 3, are wholly inconsistent, and it is doubtful if an affirmative finding on both can be reconciled in any event." The answer to question 3 was changed from "Yes" to "No." The court expressed the opinion that it was not possible to determine just what particular injury of the plaintiff the jury contemplated in assessing the substantial damages as found by them; he said, "and I believe that the judgment, if allowed to stand, might well be a miscarriage of justice. . . . It is my opinion that in the manner in which the two alleged causes of action were submitted, it tended to mislead and confuse two inconsistent positions taken by the plaintiff, to such an extent that a new trial should be had in the interests of justice."
The order for a new trial dated July 13, 1934, provided:
"That the verdict herein be set aside and a new trial granted upon the ground that question number 3 should not have been submitted to the jury as a part of the special verdict, and upon the further ground that the answers to questions 1 and 3 of the special verdict are inconsistent, and upon the further grounds set forth in the opinion of the court, heretofore filed herein."
On July 30, 1934, the order granting a new trial was amended by striking out the words "and upon the further grounds set forth in the opinion of the court heretofore filed herein." From the order granting a new trial, this appeal is taken.
J. Henry Bennett of Viroqua and Humphrey Barton of St. Paul, Minnesota, for the appellant.
For the respondents there was a brief by George H. Gordon, Law Gordon of La Crosse, attorneys, and Chas. B. Quarles of Milwaukee of counsel, and oral argument by Mr. George H. Gordon and Mr. Quarles.
The following opinion was filed April 30, 1935:
Physicians and surgeons: Negligence: Malpractice: Operation without consent of patient: Burden and degree of proof: Trial: Special verdict: Questions to be submitted: New trial: Grounds: Errors in submission of questions to jury: Proceedings to procure new trial: Time for hearing and decision: Rehearing: Extension of time: Appeal: Review: Questions of fact preliminary to admission of evidence: Finality of trial court's determination.
1. A surgeon who performs an operation without the consent of the patient, either express or implied, or in the absence of an emergency recognized in the law as the equivalent of implied consent, is guilty of an assault and is responsible for the resulting damages. p. 583.
2. In an action by a patient against surgeons for damages resulting from the performance of a radical mastoid operation without the consent of the patient, submission of the issues in such form that the damages assessable because of the performance of the radical mastoid operation were not separated from the damages due to a preceding simple mastoid operation to which the patient had concededly consented, is held to warrant the granting of a new trial. p. 584.
3. The submission of two distinct causes of action as though they were part of the same cause of action, likewise warranted the granting of a new trial. p. 584.
4. On the retrial of this case, the first issue for the jury should be whether the radical mastoid operation was performed with the consent of the patient, and, if it was not, then the damages arising from such radical operation, and if consent was given the jury should determine whether the proper skill was used by the operating surgeon. p. 584.
5. A patient claiming that surgeons performed an operation with-out his consent has the burden of proving by a clear preponderance of the evidence that such consent was lacking. pp. 584, 585.
6. The determination of the trial court that a citizen of this state suing surgeons for damages had in good faith attempted to secure the aid of Wisconsin doctors but had been unable to do so, and that therefore, under sec. 147.14 (2), Stats., he could call as a witness a practitioner licensed to practice in another state, was final, in the absence of a showing of an abuse of discretion. p. 585.
7. Where a motion for a new trial was denied on May 12th, and judgment was entered on May 19th without notice to the defendants, who on June 7th obtained permission for further argument on the motion for a new trial, which was heard on June 25th, at which time the plaintiff was present and requested leave to file briefs and the trial court without objection extended the time for hearing the motion until July 30th, such extension of time being within the requirements of sec. 270.49 (1), Stats., an order granting a new trial on July 12th is held valid, although the defendants had made no express motion to vacate the judgment. [ Whitney v. Karner, 44 Wis. 563, distinguished.] pp. 585-587.
8. Where the trial court was doubtful as to the correctness of his charge and of the submission of certain questions to the jury, the court's first order denying a new trial was not res adjudicata as to a subsequent order granting a new trial on a rehearing and made while the court still had control of the case. p. 587.
A new trial of this case was ordered by the court below. As that order is to be affirmed because of prejudicial error, it is unnecessary to treat to any extent with the point contended for by the respondents, that a new trial was granted because the lower court was of the opinion that under the evidence there should be a new trial in the interests of justice. The trial court's ruling that there is no evidence to sustain the answer to the third question cannot be sustained, because there is sufficient evidence to raise a jury question. If, however, the trial court felt that he could not give his approval to a judgment based on that finding under the evidence, and had granted a new trial in the interests of justice, the exercise of his discretion in that regard would have been controlling. Gross Coal Co. v. Milwaukee, 170 Wis. 467, 175 N. W. 793.
In stating his cause of action, appellant alleged that instead of performing a "simple" mastoid operation, the respondents performed "a second operation by cutting and working through plaintiff's left ear to which plaintiff had not consented, and in so doing, defendants did sever and destroy plaintiff's facial motive nerve. . . ." The trial court was of the opinion that the issues were submitted to the jury with some confusion; that the ultimate facts necessary to a complete determination of the controversy and the proper assessment of damages, if any are to be allowed, were not placed before the jury with sufficient distinctness in the special verdict.
The pleadings and evidence show that the appellant arranged with the respondents for an operation involving the mastoid region of his head. He says it was to be confined to one described as a "simple" mastoid operation as distinguished from one described as "radical." To the so-called "simple" operation he gave his consent, and there seems to be no occasion for questioning the degree of skill with which that much of the operation was performed. The controversy arises over the fact that, when the extent of the simple operation had been reached, the respondents proceeded into the field of the "radical" operation.
If the radical operation was done without the consent of the patient, either express or implied, or because of an emergency recognized in the law as the equivalent of implied consent, then the operator was guilty of an assault and would be responsible for damages resulting therefrom. We agree with the learned trial judge in his conclusion that the controlling questions were ineptly stated with a result that there is a lack of findings by the jury on which to base a valid judgment as to the amount of damages resulting from the extension of treatment or the operation constituting the so called second or "radical" one. The error is in not submitting in some adequate form a question limiting the assessment of damages so as to exclude the expense, pain, and natural or necessary results of the simple operation to which the patient concededly submitted from the damages assessed. In order to have a fair assessment of the damages, the part of the operation consented to cannot be included in the amount of damages assessable because of the performance of the second operation. While it may be difficult to draw an exact line between the extent of the "simple" operation and the beginning of the "radical" operation under the circumstances of this case, the assessment of damages must nevertheless be made with that distinction in mind. This error was of sufficient gravity to warrant the granting of a new trial, and sustains the ruling.
The lower court was also of the opinion that confusion resulted from the formation of the special verdict. Two distinct causes of action were submitted to the jury as though they were part of the same cause of action. In his opinion the court suggested, and we agree, that upon a retrial of this case an inquiry as to the existence of appellant's consent might well be the first question of a special verdict, and, if answered in the negative, then to have the jury proceed with the assessment of damages arising from the specific operation which was performed without the consent of the plaintiff. Should the fact be that consent was given, then the jury should be asked to determine whether the proper skill was used by the surgeon operating. Under the claim that the operation was performed without consent, the appellant has the burden of proving by a clear preponderance of the evidence that such consent was lacking. Whether the errors committed with respect to these matters are prejudicial, we have not considered because of the conclusion reached in regard to the question of damages.
We agree with the trial court that the testimony of Dr. McCoy, a resident of Des Moines, Iowa, was admissible under the provisions of sec. 147.14 (2), Stats. That portion of the statute applicable in this instance reads as follows:
". . . Practitioners in medicine, surgery or osteopathy licensed in other states may testify as experts in this state when such testimony is necessary to establish the rights of citizens or residents of this state in a judicial proceeding and expert testimony of licensed practitioners of this state sufficient for the purpose is not available."
If that statute is to have any value whatsoever, it must surely apply to a situation such as that disclosed at the trial of this case. When a party has shown the taking of adequate steps to secure the aid of Wisconsin doctors, and that he has been unable to secure it, he may call as a witness an expert from without the state. It was for the court to determine whether or not the appellant had in good faith attempted to secure the aid of Wisconsin doctors, and, having so determined, in the absence of a showing of an abuse of discretion, the determination is final.
Appellant urges that the order granting a new trial has no validity because judgment ordered on May 12, 1934, was entered on May 19th, and neither motion nor order was made vacating the judgment before the order granting a new trial on July 12th. The argument on this point is based on Whitney v. Karner, 44 Wis. 563, 565, wherein the court held that after entry of judgment a motion to set aside the verdict and grant a new trial should not be entertained unless joined with a motion to vacate the judgment. The ruling of the trial court in this case is supported by a record readily distinguished from the Whitney Case. In that case, the judgment was entered upon the verdict in favor of defendant on August 17, 1875, and notice of entry served on the 20th. A motion to set aside the verdict and for a new trial was dated August 18th, and served August 19th. The defendant's attorney served written notice that he would object to the hearing of the motion on the ground, amongst others, that the judgment had been entered in favor of defendant before the service of notice of motion to set aside the verdict and for a new trial. In the present case, the record is substantially different. After verdict, a motion for new trial was made and heard on May 12, 1934. Upon the hearing, the court denied the motion for a new trial, and ordered judgment for appellant. The clerk entered judgment on May 19th. No notice of entry of judgment was ever served on respondents. On June 7th, the court granted permission to respondents to present further arguments on the motion for new trial. The reargument was heard on June 25th. Appellant was present and requested leave to file briefs. As the statutory time for hearing motions after verdict terminates sixty days after its rendition, the court extended the period to July 30th. Appellant filed his brief on July 9th, at which time further argument was presented by both counsel. The court's memorandum decision was handed down on July 12th. Throughout these entire proceedings there was no attempt to present the judgment as a bar to further action in the matter of granting a new trial. The presumption is that the proceedings were directed to an effective order should one be made. In a somewhat similar situation this court said: "We think it appears that the trial court treated the motion to set aside the verdict and grant a new trial as in effect a motion to vacate the judgment, and that fact sufficiently appears from the language of the trial court." Galst v. American Ladder Co. 165 Wis. 307, 162 N. W. 319.
Appellant argues that the order granting a new trial was not handed down within sixty days after verdict, and, as there was no order extending the time for cause, the trial court was without power to disturb the verdict. The extension of time ordered by the lower court definitely comes within the requirements of sec. 270.49 (1), Stats. The extension was ordered to enable appellant to file his brief and to give the court time to examine the briefs of counsel and write his opinion.
The claim that the court's first order denying a new trial is res adjudicata as to any subsequent order on the same motion cannot be sustained. In the case of First Nat. Bank v. Kromer, 126 Wis. 436, 105 N. W. 823, this court said:
"The trial court having once judicially closed a matter, after giving such thought thereto that from the standpoint of the judge a reconsideration would not be liable to result differently, is well warranted in refusing to go over the matter a second time, though he still has full control of the litigation but the doctrine of res adjudicata has no application to such a situation."
"A trial court under our system, so long as a case before it has not been closed by a final judgment, or if closed the time has not elapsed within which such court still has control thereof, may, upon a proper application therefor, correct errors of its own commission."
The trial court was doubtful as to the correctness of his charge and of the submission of certain questions to the jury. They were sufficient to warrant a rehearing on the motion for new trial.
By the Court. — Order affirmed, and cause remanded for further proceedings according to law.
A motion to amend the mandate was denied, with $25 costs, on June 24, 1935.