COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1996 |
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. 94-1905
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
GREGG MILLER,
Plaintiff-Respondent,
v.
NATIONAL CHIROPRACTIC
MUTUAL INSURANCE
COMPANY and MARK BOHL,
D.C.,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Dr. Mark Bohl, a chiropractor, and his insurer,
National Chiropractic Mutual Insurance Company, appeal from a judgment awarding
damages on Gregg Miller's malpractice claim.
The issues are whether the trial court erred by giving a res ipsa
loquitur instruction and by excluding certain expert testimony, whether
credible evidence supported the jury's findings of causal negligence, whether
the jury's damage award was excessive and whether a new trial should be granted
in the interests of justice. We reject
Dr. Bohl's arguments on these issues and affirm.
In December 1991, Dr.
Bohl treated Miller for neck pain and headaches. At the third and last treatment session, Miller heard a loud popping
noise while Dr. Bohl was working on his neck.
A few minutes later, he suffered a stroke caused by a torn artery in his
neck. Dr. Bohl concedes that the tear
was linked to something that occurred during the treatment session. Neither he nor Miller could testify,
however, to exactly when the tear occurred and what Dr. Bohl was doing to
Miller at the time.
At trial, the jury heard
a physician, Dr. Charles Miley, testify that the artery was probably torn by an
unreasonably forceful neck rotation. Dr.
Bohl countered with an expert chiropractic witness, Dr. Joseph Ferezy, who
testified that the injury was probably not caused in that manner because there
was no other tissue damage and because Miller did not experience the pain one
would expect from an unreasonable use of force. Having ruled out excessive force, Dr. Ferezy concluded that
Miller had a preexisting weakness such that the tear would have occurred even
with the use of normal, reasonable chiropractic manipulation. The court did not allow Dr. Ferezy to
present that conclusion, however, on the grounds that no foundation
existed. The court only allowed Dr.
Ferezy to testify that a preexisting condition was a possible, not a probable,
cause.
In contrast to Dr.
Ferezy, Miller's expert chiropractor, Dr. Patrick Sullivan, testified that
Miller would not have suffered his injury if properly treated. Over Dr. Bohl's objection, the court
instructed the jury that
if
you further find from the expert testimony in this case that the injury to Greg
Miller is of the kind that does not ordinarily occur if a chiropractor
exercises proper care and skill, then you may infer, from the fact of the
testing and manipulation that Dr. Bohl failed to exercise that degree of care
and skill which chiropractors usually exercise. This rule will not apply if the evidence satisfies you that the
injury did not occur through any failure on Dr. Bohl's part to exercise due
care and skill.
The jury found Dr. Bohl
causally negligent and awarded damages including $500,000 for past and future
pain, suffering and disability. The
trial court upheld the verdict on postverdict motions, resulting in this
appeal.
The trial court properly
instructed the jury. The court should
give an instruction like the one quoted above, known as a res ipsa loquitur
instruction, if, by common knowledge or expert testimony, the jury can conclude
that (1) the result does not ordinarily occur in the absence of negligence; (2)
the defendant exclusively controlled the agent or instrumentality causing the harm;
and (3) the evidence on causation removes it from the realm of conjecture, but
is not so substantial as to provide "a full and complete explanation of
the event." Lecander v.
Billmeyer, 171 Wis.2d 593, 601-02, 492 N.W.2d 167, 170-71 (Ct. App.
1992). Here, Dr. Bohl argues,
alternatively, that Miller proved either too little or too much to justify the
instruction. We disagree. Dr. Sullivan went through each mode of
treatment Dr. Bohl used or might have used on Miller, and concluded that none
would produce a torn artery unless negligently performed. That testimony, if believed, established the
occurrence of a result not ordinarily occurring in the absence of
negligence. Otherwise, Dr. Bohl
conceded that something in his treatment methods triggered the tear, and the
instrumentality of the treatment was plainly within his exclusive control.
Additionally, although
Miller also offered Dr. Miley's opinion that the specific cause of the injury
was an unusually forceful rotation, that opinion was undercut by the lack of
evidence that an unusually forceful rotation actually occurred. It was not, therefore, evidence so
substantial or direct that it provided a full and complete explanation of the
event. "The introduction of some
evidence which tends to show specific acts of negligence, but does not purport
to directly furnish a complete and full explanation of the occurrence, does not
deprive the plaintiff of the benefit of res ipsa loquitur...." Knief v. Sargent, 40 Wis.2d 4,
9, 161 N.W.2d 232, 234 (1968). Neither
too much nor too little evidence was presented to remove the trial court's
discretion on giving the res ipsa loquitur instruction.
Dr. Bohl suffered no
prejudice from the decision to limit Dr. Ferezy's testimony. Dr. Ferezy testified that Miller was not
injured by a forceful neck rotation. He
wanted to, but could not, testify that if a forceful movement was not the
cause, then a preexisting weakness necessarily was. For purposes of Dr. Bohl's case, both statements made essentially
the same points: Dr. Miley was wrong
and Dr. Bohl was not negligent. Because
Dr. Ferezy was allowed to make those points, limiting his subsequent testimony
was harmless, even if it was error. A
party who relies on trial court error to obtain reversal must show that the
error complained of affected his or her substantial rights. § 805.18(2), Stats.
Miller introduced
sufficient evidence to support the verdict.
On review of a verdict, sufficient evidence is any credible
evidence. Foseid v. State Bank,
197 Wis.2d 772, 783, 541 N.W.2d 203, 207 (Ct. App. 1995). Dr. Bohl never disputed that his treatment
caused the torn artery and subsequent stroke, and consequently, whether he was
negligent was the only liability issue.
Miller introduced evidence that reasonable, non-negligent chiropractic
procedures would not have caused Miller's injury, but that negligent procedures
would have. Although Dr. Bohl disputed
that evidence, the jury was free to accept it and find negligence.
The trial court properly
refused to set aside the verdict as excessive.
Dr. Bohl contends that the upper limit on a reasonable verdict, based on
the evidence, would have been $100,000.
He maintains that the jury's award of $500,000 demonstrates that it
considered inappropriate factors. We
disagree. The test is whether the
verdict on damages exceeds what is reasonable as a matter of law. § 805.15(6), Stats. Put another
way, the issue is whether the award shocks the judicial conscience. Johnson v. Misericordia Community
Hosp., 97 Wis.2d 521, 566, 294 N.W.2d 501, 524 (Ct. App. 1980), aff'd,
99 Wis.2d 708, 301 N.W.2d 156 (1981).
Here, Miller had residual effects from the stroke, including voice
impairment, balance problems, fatigue, numbness on one side and a tingling sensation
in his arm. He testified how these
problems detrimentally affect his daily life and will restrict his activities
for the rest of his life. Given that
evidence, we cannot say that the award was shocking, or unreasonable as a
matter of law.
Finally, Dr. Bohl
contends that we should exercise our authority under § 752.35, Stats., to grant a new trial in the
interests of justice. Under § 752.35,
we may reverse if we conclude that the real controversy has not been fully
tried, or it is probable that justice has for any reason miscarried. We are not persuaded that a new trial is
necessary under either standard.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.