COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1266
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
T. J. YELICH, a minor,
by,
E. CAMPION KERSTEN,
his guardian ad litem,
and DALE YELICH,
Plaintiffs-Appellants-Cross Respondents,
KAREN ANN YELICH,
Plaintiff,
v.
JOHN P. GRAUSZ, M.D.,
and THE WISCONSIN
PATIENTS COMPENSATION FUND,
Defendants-Respondents-Cross Appellants.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Milwaukee County: THOMAS P. DOHERTY,
Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. T. J. Yelich and his father, Dale Yelich, appeal from a
judgment entered in favor of Dr. John P. Grausz. The judgment, dismissing their complaint on the merits, was entered
after a jury found Grausz not liable in a medical malpractice action. The Yeliches contend that the trial court
erred when it did not submit the theory of general medical malpractice to the
jury or give a res ipsa loquitur jury instruction. Further, the Yeliches contend that the trial
court should have set aside the verdict either because it was inconsistent or
because it was perverse and the result of prejudice. They also contend that the trial court should have found, as a
matter of law, that Grausz was not an employee of Milwaukee County when he
treated T. J. Yelich. Grausz filed
a cross-appeal to preserve his right to challenge the jury's finding on
damages. We reject the Yeliches' claims
and affirm the circuit court's judgment.
We do not reach Grausz's cross-appeal.
T. J. Yelich was
delivered by caesarean section approximately six weeks prematurely. Grausz, a neonatologist, immediately assumed
responsibility for the infant's care.
Although born prematurely and at a gestational age when the lungs are
not fully developed, the baby did not initially require assistance to breathe.
A few hours after the
infant was born, however, he developed symptoms of respiratory distress
syndrome. The syndrome is a combination
of symptoms indicating that the baby's lungs are not mature enough to allow
sufficient oxygen to reach the bloodstream.
Depending upon the seriousness of the underlying condition, respiratory
distress syndrome can appear to progressively worsen as signs of distress
increase. X-rays of the infant also
suggested the presence of hyaline membrane disease, which occurs when thick
membranes develop and coat the air sacs of the lungs. This condition can be fatal.
Because hyaline membranes are associated with respiratory distress, it
is assumed to be the cause of respiratory distress syndrome in premature
infants.
According to the
testimony, respiratory distress syndrome and hyaline membrane disease in
premature infants are treated by providing supplemental oxygen. Too much oxygen, however, can contribute to
blindness and burn the lungs.
Consequently, the levels of oxygen and carbon dioxide in the blood and
the acidity level of the blood are monitored.
Initially, Grausz
ordered that T. J. Yelich be given supplemental oxygen via a hood placed
over the incubator. Later, the child
was placed on a respirator. His blood
gas levels were monitored by blood drawn from his heel and by readings from a
non-invasive device called a transcutaneous monitor, which measures the flow of
oxygen and carbon dioxide through the skin.
In order to directly monitor the gas levels in the arterial blood,
Grausz also inserted an umbilical artery catheter. The catheter is a thin, flexible tube that is threaded through an
umbilical artery into the aorta. An
x-ray taken after the catheter was inserted showed that the catheter had looped
back on itself with the tip located near where the blood vessels to the kidneys
and intestines branch off the aorta.
Grausz testified that he was concerned that this location could irritate
these organs. Consequently, he pulled
the catheter out until the tip was just above where arteries to the lower left
half of the body branch off the aorta.
Approximately ten hours
after the umbilical artery catheter was inserted, it was used to medicate the
infant. Almost immediately, the
infant's left leg blanched, and no pulse could be detected in the leg. The hospital staff removed the catheter. Additionally, Grausz and the consulting
doctors treated the infant for thrombosis with blood-clot-dissolving
drugs. After several hours, circulation
and color were restored to the leg; however, a small patch of skin on the left
buttock was dead.
Ultimately, the child
was transferred to Children's Hospital to have the dead skin surgically
removed. During the surgery, the
surgeon discovered that the dead tissue was much more extensive and included
the child's left gluteus maximus and gluteus minimus muscles. The removal of the muscles prevented the
child's left hip joint from properly forming and resulted in substantial
deformity of the child's left leg.
The Yeliches sought to
submit the case to the jury on two theories of liability. They argued that Grausz was liable under a
general malpractice theory because he chose to use an unreasonably risky
procedure; i.e., the umbilical artery catheter, to sample blood gasses. They also claimed liability based on the
theory that Grausz failed to obtain informed consent before using the catheter. The trial court submitted only the issue of
informed consent to the jury. The jury
answered the special verdict question by finding that Grausz was not negligent
in failing to obtain informed consent.
The jury set damages for T. J. Yelich's past and future pain,
suffering, and disability at $1,750,000, but denied any compensation to Dale
Yelich for the loss of society and companionship of his son. The trial court denied the Yeliches' motions
after verdict and entered judgment dismissing the complaint on the merits.
GENERAL MEDICAL NEGLIGENCE
Generally, the form of
special verdict questions is left to the trial court's discretion. Dahl v. K-Mart, 46 Wis.2d 605,
609, 176 N.W.2d 342, 344 (1970).
Reviewing courts will not interfere if the questions cover the issues of
fact in the case; however, the trial court may not submit issues on which there
was a failure of proof. Id. Whether a party has failed to prove a prima
facie case is a question of law that this court decides independently. Burg v. Miniature Precision
Components, Inc., 111 Wis.2d 1, 12, 330 N.W.2d 192, 198 (1983).
The Yeliches did not
present expert testimony on the issue of whether Grausz was negligent. They elicited testimony from Grausz and the
defense's expert witness that due care requires a physician to choose a treatment
method that presents the least risk to the patient and that the physician
should not subject the patient to unnecessary risks. The Yeliches relied upon several medical textbooks to inform the
jury that thrombosis and embolism are major complications of umbilical artery
catheters and the use of the catheters is only recommended for very ill infants
or high-risk infants when blood monitoring is essential for diagnosis and
therapeutic management. According to
the texts, umbilical artery catheters should not be used when safer alternative
procedures can provide needed information.
The Yeliches also rely on their interpretation of testimony to argue
that Grausz's use of the umbilical artery catheter to monitor T. J.
Yelich's condition presented an unreasonable risk of harm.
The plaintiff in a
medical negligence case has the burden of proving that the physician failed to
conform to the proper standard of care; i.e., that he or she “fail[ed] to
exercise that degree of care and skill which is exercised by the average
practitioner in the class to which [the physician] belongs, acting in the same
or similar circumstances.” Francois
v. Mokrohisky, 67 Wis.2d 196, 200, 226 N.W.2d 470, 472 (1975) (citation
omitted). It is not enough to show that
other physicians might have acted differently, that alternative procedures were
available, or that the defending physician made a mistake. Id. at 201, 226 N.W.2d at
472. The test is whether, under the
circumstances, the defendant's act did not comport with approved medical practices. Id.
Expert testimony is
required when contested matters involve special learning, study, or experience
or involve special knowledge, skill, or experience on a subject matter that is
not within the realm of ordinary experience.
Cramer v. Theda Clark Memorial Hosp., 45 Wis.2d 147, 150,
172 N.W.2d 427, 428‑29 (1969).
Generally, matters involving professional medical care require expert
medical testimony to establish the degree of care and skill required of the
physician and to prove that a defendant departed from the standard. See Christianson v. Downs, 90
Wis.2d 332, 338, 279 N.W.2d 918, 921 (1979).
Only where the alleged negligence is within the ordinary knowledge of
laypeople is expert testimony not required.
Id. Whether expert
opinion testimony is necessary in a particular case presents a question of law,
which this court independently reviews.
Kujawski v. Arbor View Health Care Center, 132 Wis.2d 178,
181, 389 N.W.2d 831, 832 (Ct. App. 1986).
Proof of the Yeliches'
case requires expert opinion testimony.
Whether or not T. J. Yelich's condition was so critical or unstable
that the need to accurately monitor arterial blood gases outweighed the risks
created by the use of umbilical artery catheter is beyond the ordinary
knowledge and experience of laypeople.
The Yeliches attempted to overcome the deficiency in their case by
bootstrapping the medical textbooks to testimony of Grausz and other physicians
about the specifics of the infant's physical condition as recorded in the
medical records. Although the textbooks
provide general information, they do not give any guidance as to the particular
situation facing Grausz when he made the decision to insert the catheter. The textbooks, even with the infant's
medical records and the doctors' testimony, do not enlighten the jury on the
critical issue—whether, under the particular facts and circumstances of this
case, Grausz violated the standard of care when he decided to use an the
umbilical artery catheter in this infant.
The trial court properly refused the request to submit a special verdict
question on general medical negligence to the jury.
RES IPSA LOQUITUR
The Yeliches also
contend that the trial court erred by not giving the jury a res ipsa
loquitur instruction. Res ipsa
loquitur is a doctrine from the law of evidence that allows negligence to
be inferred from circumstantial evidence.
Hoven v. Kelble, 79 Wis.2d 444, 449, 256 N.W.2d 379, 381
(1977). The instruction is appropriate
where there is evidence suggesting negligence, but the evidence does not
furnish a full and complete explanation of the event causing the injury. Peplinski v. Fobe's Roofing, Inc.,
186 Wis.2d 308, 315, 519 N.W.2d 346, 348 (Ct. App. 1994). The instruction should be given: (1) where there is evidence that the
event in question would not ordinarily occur unless there was negligence;
(2) where the agent or instrumentality that caused the harm was within the
defendant's exclusive control; and (3) where the evidence allows more than
speculation but does not fully explain the event. Lecander v. Billmeyer, 171 Wis.2d 593, 600-601, 492
N.W.2d 167, 170 (Ct. App. 1992).
The first requirement
may be satisfied by expert medical testimony or, in the appropriate case, by a
layperson's common knowledge. Id.
at 601, 492 N.W.2d at 170. The
requirement is not satisfied merely by evidence that the event is a rare result
of the particular procedure. Id. Although the second requirement is usually
identified as one of exclusive control, this is not completely accurate. Kelly v. Hartford Casualty Ins. Co.,
86 Wis.2d 129, 138, 271 N.W.2d 676, 680 (1978). A more accurate statement of the requirement is that other
responsible causes of the event can be reasonably eliminated, leaving only the
defendant responsible for any negligence connected with the apparent cause of
the accident. Id. Whether the first and second requirements
are met are questions of law, subject to an appellate court's independent
review. Peplinski, 186
Wis.2d at 316, 519 N.W.2d at 349.
The third requirement
addresses the quantum of evidence presented.
Res ipsa loquitur permits a jury to draw a permissible inference,
not a rebuttable presumption, from circumstantial evidence. Fehrman v. Smirl, 20 Wis.2d 1,
21, 121 N.W.2d 255, 265, 122 N.W.2d 439 (1963). A plaintiff must present enough evidence to allow the jury to
reasonably infer that the negligence caused the injury; and the jury's verdict
must be based upon more than conjecture or speculation. Lecander, 171 Wis.2d at 601,
492 N.W.2d at 170. Conversely, the
plaintiff must not present so much evidence that, if accepted by the jury, it
provides a full and complete explanation of the event. Id. Whether the evidence is within the appropriate mid-range is
influenced by the impressions made by the witnesses' testimony. Peplinski, 186 Wis.2d at 317,
519 N.W.2d at 349. Although the issue
of whether the proper quantum of evidence was presented is also a question of
law, deference is given to the trial court's analysis. Id.
The Yeliches' request
for a res ipsa loquitur instruction is defeated by the first and third
requirements. The medical textbooks
upon which they relied indicate that thrombosis and embolism are complications from the use of the
umbilical artery catheter. The
textbooks do not suggest that the risks only occur as a result of
negligence. Additionally, the Yeliches
presented a full and complete explanation for the cause of the injuries
suffered by T. J. Yelich. Their
theory throughout the case was that because of the catheter, he suffered a
blood clot that, due to the catheter's location, impaired circulation to his
left hip and leg; this impaired circulation resulted in the extensive
destruction of skin and muscle tissue.
Their theory, if accepted by the jury, completely explained the event.
INCONSISTENT OR PERVERSE JURY VERDICT
The Yeliches contend
that the jury's answer to the damages question was inconsistent with its
finding that Grausz was not negligent in failing to obtain informed
consent. They also contend that the
verdict was perverse and the result of prejudice because the jury found no
damages to Dale Yelich for loss of society and companionship. Although the Yeliches state that the jury's
answer to the informed-consent question was wrong, they do not challenge the
trial court's denial of their motion to change the answer to that question, nor
do they present an argument based upon the sufficiency of the evidence. Therefore, we will not review the jury's
answer to the informed-consent question.
The Yeliches claim the
jury's finding of damages for T. J. Yelich was inconsistent with its finding
that Grausz did not negligently fail to obtain informed consent. This claim is based on language in the jury
instructions. The trial court
instructed the jury, in part, as follows:
But in regard to [the
damage questions], you must answer the damage questions no matter how you
answered any of the previous questions in the verdict. The amount of damages, if any, if found by
you, should in no way be influenced or affected by any of your previous answers
to questions in the verdict.
...
If
you have determined that a reasonable person in Dale and Karen Yelich's
position would not have consented to the treatment given to T. J. Yelich
had the reasonable person been fully informed of the possible risks and
advantages, you will insert as your answer to the damage question the amount of
money which, under the evidence, will reasonably and fairly compensate T. J.
Yelich for the injuries suffered by T. J. Yelich as a result of the treatment.
The
court went on to instruct the jury regarding the factors to be considered in
setting damages, including humiliation, embarrassment, worry and mental
distress, if any, as well as the extent to which the injuries had or will
impair the child's ability to enjoy the normal activities, pleasures, and
benefits of life.
Emphasizing the second
paragraph of the quoted jury instructions, the Yeliches argue that because the
jury found Grausz was not negligent, the only consistent answer to the damage
question was “zero.” We reject this
reasoning because we cannot view the emphasized language in isolation. See State v. Paulson, 106
Wis.2d 96, 108, 315 N.W.2d 350, 356 (1982) (jury instructions considered as a
whole). The jury instruction told the
jury to answer the damages questions without regard to its answer to the
informed consent question. The language
highlighted by the Yeliches did not specifically contradict this directive,
although, arguably, it created an ambiguity that was not objected to by either
party.
Additionally, the
special verdict question was phrased as follows:
REGARDLESS
OF HOW YOU ANSWERED THE PREVIOUS QUESTIONS, YOU MUST ANSWER THIS FOLLOWING
QUESTION: What sum of money will fairly
and reasonably compensate T. J. Yelich for the following items of damage which
you attribute to Dr. Grausz' treatment:
Past and Future Pain, Suffering and Disability?
The
question focused on the damages “attributable to Dr. Grausz' treatment” of
T. J. Yelich. Even Grausz could
not argue that the child did not suffer past and future pain, suffering, and
disability attributable to the treatment.
That fact is not inconsistent with the finding that Grausz did not
negligently fail to obtain informed consent for the treatment.
Interestingly, the
Yeliches also argue that the verdict was perverse and the result of prejudice
because the jury denied any damages to Dale Yelich for the loss of
companionship and society of his son.
This is the result, they argue, that should have occurred with respect
to the child. In any event, their
argument only emphasizes the time that Dale Yelich spent with his son caring
for him. Thus, the evidence was that,
while burdensome and perhaps often unpleasant, Dale Yelich probably spent more
time with his son than if the child had had a normal, healthy childhood.
ISSUES NOT ADDRESSED
The evidence showed that
Grausz was dually employed as a faculty member of the Medical College of
Wisconsin and as a resident physician at Milwaukee County Medical
Hospital. In the latter capacity, he
was employed by Milwaukee County. The
issue of whether he was acting as an employee of Milwaukee County when he
treated T. J. Yelich was submitted to the jury. Relying upon the fact that the Medical College of Wisconsin
billed for the medical care Grausz provided to T. J. Yelich, the Yeliches
contend that the trial court should have found, as a matter of law, that Grausz
was not acting as a Milwaukee County employee.
In his cross-appeal,
Grausz contends that the amount of damages found by the jury was
excessive. The jury found that $1.75
million in damages was the appropriate amount to compensate T. J. Yelich
for pain, suffering, and disability.
We do not address either
of these issues. Our rejections of the
Yeliches' challenges to the verdict and the jury instructions allows this court
to affirm the trial court's judgment dismissing the complaint. Because those issues dispose of the appeal,
any discussion of the additional issues is superfluous. See Gaertner v. 880 Corp., 131
Wis.2d 492, 496 n.4, 389 N.W.2d 59, 61 n.4 (Ct. App. 1986) (if decision on one
point disposes of appeal, appellate court does not need reach other issues
raised).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.