(dissenting). I dissent because I do not believe that expert medical testimony is necessary to establish the standard of care applicable to a nursing home where the claimed negligence consists of failing to properly secure an elderly, disabled patient in her wheelchair while transporting her through the facility.
Angeline Ciesielczyk, an eighty-two year old non-ambulatory patient, was injured when she fell from her wheelchair while being pushed into the dining area by a nursing home aide. She alleged in her complaint that the home was negligent in failing to secure her in the chair and in the manner in which the chair was being manipulated by the aide.
In Cramer v. Theda Clark Memorial Hospital, 45 Wis. 2d 147, 153-54, 172 N.W.2d 427, 430 (1969), the court held that expert medical testimony was not necessary to establish a hospital's negligence in "leaving [the patient] unattended and under inadequate restraint." There the patient, recently out of surgery and under intensive care, was injured when, while unattended, he undid his bed restraints, got out of bed and fell to the floor. A few minutes earlier, a nurse had untied the restraint on his right arm to allow him to eat and left the room.
The majority makes brief reference to Cramer but concludes that the entire subject matter (use of physical restraints in nursing homes) has since been "removed from the conjecture of lay persons" by Wis. Adm. Code, sec. HSS 132.31(l)(k). In my view, both the context and content of that section clearly establish *185that it has no bearing on the evidentiary question in this case.
Wisconsin Adm. Code, sec. HSS 132.31(l)(k) provides in part that every nursing home resident has "the right to . . . [b]e free from mental and physical abuse, and be free from chemical and physical restraints except as authorized in writing by a physician for a specified and limited period of time." The code subchapter in which it appears is entitled "Residents' Rights and Protections," and its several subsections guarantee nursing home patients the rights, among others, to have unrestricted communications with family physicians and attorneys, to have private visits, to present grievances, to be informed of fees and charges, to be treated with courtesy and respect, to retain personal clothing and effects, to be fully informed of treatment and care, and, of course, to be free from mental and physical abuse and the use of chemical and physical restraints except as authorized by a physician.
As the majority indicates, another section of the code states that physical or chemical restraints (defined as devices or medication "used primarily to modify resident behavior by interfering with the free movement of the resident") are to be applied only on a physician's orders, which must specify the reasons for use of the restraints and the period during which they are to be applied. Wis. Adm. Code, secs. HSS 132.60(6) (a)l, 3, and 132.60(6)(b). Succeeding provisions authorize limited use of restraints without a physician's orders in "emergencies," and indicate that a locked room may also be used as a restraint. Finally, the section requires use of the restraints of "the least restrictive type appropriate to the resident," and provides that, while restrained, residents must "have their positions *186changed and personal needs met... at least every 2 hours." Secs. 132.60(6)(e), (f), Stats.
I simply do not believe the code provisions on patients' rights and the use of chemicals, devices, and locked rooms to "modify behavior" may be read to overrule Cramer and require expert medical testimony in order to state a prima facie case for negligence in failing to adequately secure an elderly patient in a wheelchair while moving her about the home. Whether the failure to provide a simple seat or lap belt such as that placed in evidence by appellant at trial was negligence is not a question of technical medical care. It is a matter of "routine care," which never has been regarded as a subject for expert testimony. Cramer, 45 Wis. 2d at 154, 172 N.W.2d at 430. One does not need to be an expert to make such an assessment, for it does not relate to the type of hospital or nursing home care that requires expert testimony. As stated in Cramer, "the facts could be ascertained by the ordinary . . . senses of a nonexpert." Id. at 153, 172 N.W.2d at 430.
I would reverse and let the jury make that determination. It is just as well qualified as any physician to do so.