Wulf v. Kunnath

827 N.W.2d 248 (2013)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

During the noon hour on October 23, 2007, nurses P, Kehm, and Crocker were seated at their desks in the nurse's workroom, when D, and Crystal Knight, M.D., joined them. They joked around, and the atmosphere was lighthearted. The group discussed upcoming snow removal that might occur while D was out of the country, and P commented that it would be funny to see D using a snowblower. According to D, he said, 'Hey don't make fun of me,' and tapped P on the nape of her neck. He intended to make the contact at issue, but he did not intend to hurt P. P described the contact as 'a strike on the back of [her] neck.' Knight testified that D touched P in the middle of the back of the head with the palm of his hand in 'a playful, joking manner . . . something that you would do to a friend or a relative if they are making fun of you.' Crocker testified that D 'playfully tapped P on the back of the neck.' The laughing and joking in the workroom continued for a few more minutes. P testified that her head moved forward rapidly a significant distance, that she dropped the telephone she was holding, and that she said, 'Oh, my God, that hurt.' She immediately felt pain in the back of her head and neck and suffered nausea, dizziness, and blurred vision. Kehm also recalled D saying, 'Ow, that hurt.' But Knight did not recall Pf's making any comments after the contact, nor did she see any movement of P's head or conduct to suggest P was experiencing any discomfort. Knight testified that P 'got a dirty look on her face'-which Knight described as an angry look. D testified that P's head did not move, that he did not recall her making any comments to him, and that he did not observe anything to lead him to believe that there had been an injury. Crocker did not notice any reaction nor recall P's dropping the telephone or making any comments. Crocker testified that P's head moved forward very little, if at all. Crocker did not notice anything different about P after the contact. Within minutes P went back to work and began an initial assessment on a patient, but she began to feel dizzy and nauseated. As she left the patient's room, she encountered nurse Kathy Krussel, who saw P crying and rubbing her neck. P said that Dh hit her in the neck. Krussel took P into a treatment room, and P reported that her neck hurt, that she had pain going down her arm, that she was nauseated, and that she was seeing spots. Kehm supplied ice, which P placed on the back of her neck. P spent the rest of the day in a nurse practitioner's office. When P walked to her car, she got more nauseated and felt as if she were going to pass out. P drove herself to an emergency room. P was 58 years old. P testified that she never believed that she had consented to a doctor's swatting her on the back of the head by not saying anything. P testified that the group had a familial-like relationship. D testified that he and P had a very collegial and close relationship, that P was like a mother to him, and that they would joke and tease. P testified that prior to the incident, D had '[t]hump[ed]' her on two or three occasions while walking in the hallway. She said that they were 'good-natured' thumps, as a brother would do to a sister. P never complained about the thumping, never asked D not to do it again, and did not find it to be offensive conduct. For each doctor that P saw she magnified the problem. P underwent two surgeries. Dr. Longley answered that the precise etiology of P's ongoing symptoms was unclear. He testified that the condition of the disk degeneration and spinal stenosis was clearly pre-existent, so the condition itself was not caused by the October 2007 incident. P had prior neck issues, including falls in 1984, 1988, and 1994 or 1995. But according to the history given to Longley by P, she denied any preexisting neck problems. Records showed that P had degenerative disk disease in 1994 and that P was being treated for a complaint to her neck at that time. Prior to the incident, P sat very erect and would turn her body to talk to someone, rather than just turning her neck. Krussel never noticed P to have problems with turning her head or neck. The jury returned a verdict for D. P appealed.