No. 13488
IN THE SUPREME COURT OF THE STATE OF PlONTANA
IRENE TALLBULL, VERNON TALLBULL,
EDMOND TALLBULL, as the surviving heirs, et al.,
Plaintiffs and Appellants,
RICHARD WHITNEY, THE CITY OF FORSYTH,
MONTANA, and the COUNTY OF ROSEBUD, MONTANA,
Defendants and Respondents.
Appeal from: District Court of the Sixteenth Judicial District,
Hon. Alfred B. Coate, Judge presiding.
Counsel of Record:
For Appellants:
-
Robert H. Skaggs
Cate, ~ ~ n a u ~ h l - ~ i t z g e r aHuss, Billings, Montana
& ld
For Respondents:
Anderson, Symrnes, Forbes, Peete & Brown, Billings, Montana
Weymouth D. Symmes argued, Billinqs, Montana
Crowley, Haughey, Hanson, Gallagher & Toole, Billings,
Montana
Submitted: March 18, 1977
Filed: &&J L L ' y i i
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
In a medical malpractice action, summary judgment was
granted in favor of defendant physician by the district court
of Rosebud County. Plaintiffs appeal.
Plaintiffs are the surviving heirs of Henry Tallbull and
the administratrix of his estate. Defendants are Dr. Richard
Whitney, a Forsyth, Montana physician; the City of Forsyth; and
Rosebud County, Montana.
The action alleges medical malpractice and abandonment
of treatment by,Dr. Whitney upon Henry Tallbull resulting in his
death on February 16, 1973. In general terms, pretrial discovery
indicated that the immediate cause of death was an infection that
had spread throughout Tallbull's body following an apparent break-
ing of an abscess in his groin. Numerous possible secondary com-
plicating conditions were disclosed including alcoholism and
withdrawal effects, diabetes, tuberculosis, and urinary tract
infection.
In early February, Dr. Whitney had hospitalized Tallbull
in the Rosebud County Hospital where he embarked upon a course of
treatment. Defendants city and county are alleged to have removed
Tallbull from the hospital and incarcerated him in jail on the
instructions of Dr. Whitney but without legal grounds, interrupt-
ing Tallbull's course of treatment and jointly contributing to
his ultimate death.
After his release from jail, Tallbull consulted Dr. Jon
Kay at Crow Agency, Montana. He was under Dr. Kay's care from
February 6 until the early morning hours of February 16 when he
was transported to the Deaconess Hospital in Billings, Montana,
for a superpubic cystostomy. Tallbull died as soon as he arrived
there.
On March 13, 1976, plaintiffs deposed Dr. Kay. His deposition
- 2 -
testimony comprises the only expert opinion evidence of mal-
practice on the part of Dr. Whitney.
On June 17, 1976, the district court granted Dr. Whitney's
motion for summary judgment on the sole ground that Dr. Kay
could not testify as a matter of law under the Montana "locality
rule". Plaintiffs appeal from the summary judgment granted Dr.
Whitney. The claims of plaintiffs against the City of Forsyth
and Rosebud County are not involved in this appeal.
The underlying issue on appeal is whether Dr. Kay is
competent to testify as an expert medical witness on the standard
of care required of Dr. Whitney.
The core of plaintiffs" position is that a physician
who is familiar with the standard of medical practice in "the
same or a similar community in Montana" is competent to testify
as an expert medical witness concerning the required standard of
care and breach thereof alleged to constitute medical malpractice.
Plaintiffs' arguethat a reasonable interpretation of Montana's
"locality rule" does not bar the testimony of a treating physician
who did not practice in the precise community where the alleged
malpractice occurred. plaintiffs' poikout many undesirable
results that would follow if Montana's "locality rule" were given
a "narrow and stifling application" requiring actual practice in
the particular town as a requirement of competency to testify.
The principal contention of defendant is that Dr. Kay is
not competent to testify because he is not familiar with the
standard of medical care either in Forsyth or a similar community
in Montana. Defendant argues that Montana's existing "locality
rule" requires a physician to conform to the standard of medical
care in the community in which he practices; that there are valid
reasons for retention of this rule in Montana regardless of justi-
fication for its abandonment in metropolitan areas; and that Dr.
Kay is not competent to testify concerning the standard of
medical care in Forsyth because he admits unfamiliarity with
it. Additionally defendant claims that even if Montana's
"locality rule" is broadened to include "similar communities",
Dr. Kay is incompetent to testify because he is not familiar
with the standard of medical care in any community in Montana
similar to Forsyth.
For a collection of cases on the general question here
involved, see Anno: 37 ALR3d 420, Malpractice Testimony: Compe-
tency of physician or surqeon from one locality to testify, in
malpractice case, as to standard of care required of defendant
practicinq in another locality.
At the outset, it is important to note that the sole
basis of the district court's summary judgment is the interpre-
tation and application of Montana's "locality rule" to the compe-
tency of Dr. Kay as an expert medical witness on the standard of
medical care. The district court acknowledged the existence of
a factual dispute concerning the question of the alleged negli-
gence or malpractice of Dr. Whitney and specifically stated that
" * * * The only question decided by this Order is the 'locality
rule'. * * *" As this was the only question considered or de-
cided by the district court, we limit our decision on appeal to
this single issue.
The factual foundation for Dr. Kay's competency as an
expert medical witness on the standard of medical care required
of Dr. Whitney is contained in Dr. Kay's deposition. The deposi-
tion was taken in Billings, Montana on March 13, 1976. It dis-
closes that Dr. Kay is presently practicing pediatrics and general
medicine in Potsdam, New York, a town of about 16,000 drawing
from a population of about 50,000. He received his B.A. degree
from Stanford University in 1965 and his M.D. from Columbia
University in 1969. He interned at Harlem hospital in New
York for 8 months in medicine and four months in pediatrics
from 1969 to 1970. He then completed a two year residency in
pediatrics at Strong Memorial Hospital in Rochester, New York.
He was employed by the United States Public Health Service,
Indian Health Service, at the Crow Indian Hospital, Crow Agency,
Montana, from July, 1972 to June, 1974.
Dr. Kay is licensed to practice in New York and in
California but was not licensed to practice in Montana since he
was practicing at a federal facility. In his practice at Crow
Agency, Dr. Kay generally serviced the population on the Crow
and Northern Cheyenne Indian Reservations. He had examined
and treated Henry Tallbull following Dr. Whitney's treatment of
him, and he had consulted with Dr. Whitney on Dr. Whitney's prior
treatment of Tallbull.
Dr. Kay had never been in Forsyth or in the Rosebud
Community Hospital. He had heard of Dr. Whitney and possibly
of Dr. Cope, the other physician in Forsyth, but had never met
them. He had been to St. Vincent's Hospital in Billings on about
three occasions to visit patients and doctors. He had never been
to the Miles City or Glendive hospitals. He had been to the
Hardin, Montana hospital three or four times. He had not been
to the Sheridan, Wyoming hospital. Dr. Kay had had professional
discussions of patients and medical problems with physicians in
Hardin and Billings and had examined records of patients he was
treating who had been treated by other physicians in the area.
Dr. Kay's deposition testimony on his familiarity with
the standard of medical care is summarized and focused in the
following questions and answers. On direct examination by plain-
tiffs' attorney, Dr. Kay testified:
"Q. ~ u r i n gthe time you were at Crow Agency, did
you become familiar with the standard of medical
practice in the locality of Crow Agency, Eastern
Montana, Forsyth area? A. Yes, I did."
On cross-examination by defendant's attorney, Dr. Kay testified:
"Q. On what do you base your testimony that you
are familiar with the standards of practice in
Forsyth, Montana? A. I'm not exactly sure that
I said I'm familiar with the practice in Forsyth,
Montana, per se. I don't think I ever said that.
If I did I will have to see it." (Emphasis supplied.)
Prior decisions of this Court have stated Montana's
"locality rule" in varying language. In earlier times, Montana's
rule has stated that a physician or surgeon assumes the obligation
to his patient of exercising such reasonable care and skill "as
* * * is usually exercised by physicians or surgeons of good
standing, of the same system or school of practice in the com-
munity in which he resides, having due regard to the condition
of medical or surgical science at that time " and that the law
is primarily concerned with whether the physician has acquitted
himself in the treatment of a particular patient " * * * accord-
ing to the measure of the standard of those of recognized schools
who practice in the same or similar communities". Hansen v. Pock,
57 Mont. 51, 59, 60, 187 P. 282. The rule has been stated in
terms of the standard of practice of the school of medicine to
which the physician belongs in the community in which he resides.
Louden v. Scott, 58 Mont. 645, 194 P. 488; Dunn v. Beck, 80 Mont.
More recently, in the case of a dentist, we have stated:
"A dentist who undertakes to treat a patient assumes
duty to that patient to exercise such reasonable
care and skill as is usually exercised by a dentist
in good standing in the community in which he resides."
Negaard v. Feda, 152 Mont. 47, 53, 466 P.2d 436;
To the same effect applied to a physician, see
Collins v. Itoh, 160 Mont. 461, 503 P.2d 36.
We have also quoted with approval from Dunn, the rule that requires
a surgeon in his treatment of a patient to "employ such a degree
of skill and diligence as surgeons practicing in the general
neighborhood, pursuing the same line of practice, ordinarily
display in like cases." Doerr v. Movius, 154 Mont. 346, 350,
463 P.2d 477. We have also stated the standard of medical care
in terms of "the general medical custom and practice of [the
physician's] community". (Bracketed material substituted.)
Montana Deaconess Hospital v. Gratton, Mont . , 545 P.2d
The value of these cases in measuring the precise bound-
aries of Montana's locality rule is questionable. Varying state-
ments of the rule can be excised from the opinions in these cases
supporting locality limitations to "the community in which [the
physician] resides", "the same or similar communities", or "the
general neighborhood". However, none of the Montana cases pre-
sented the issue involved in this appeal. In our view, we must
resort to logic rather than Montana precedent in determining this
issue.
Initially we observe that the foundation of the "same
locality" rule no longer exists. A good description of its under-
lying basis is:
"The original reason for the 'locality rule' is
apparent. When there was little inter-community
travel, courts required experts who testified to
the standard of care that should have been used
to have a personal knowledge of the practice of
physicians in that particular community where the
patient was treated. It was the accepted theory
that a doctor in a small community did not have
the same opportunities and resources as did a
doctor practicing in a large city to keep abreast
of advances in his profession; hence he should
not be held to the same standard of care and skill
as that employed by doctors in other communities
or in larger cities * * *." Pederson v. Dumouchel, 72 Wash.2d 7
:
431 P.2d 973. Also see Warnock v. Kraft, 30 C.A.2d
1, 85 P.2d 505; Hundley v. Martinez, W.Va. (1967),
158 S.E.2d 159, 167; Gist v. French, 136 C.A.2d
247, 288 P.2d 1003.
Today the accessibility of medical literature; the frequency and
availability of national, regional and state medical meetings;
advances in communication of medical knowledge; and transportation
advances, to name a few, no longer isolate the physician in a
rural community in Montana from the opportunities and resources
of physicians practicing in the same medical community in the
more populous regions of this state. See Harney, Medical Mal-
practice, 1973 edition, Sec. 3.3, p. 95, and cases cited therein.
While cogent reasons may still exist for differentiation of the
standard of care required of physicians practicing in large
metropolitan areas of the east, midwest, and coastal regions of
this country from that of a rural physician in eastern Montana,
such reasons are based on other considerations not applicable to
particular medical communities within this state.
Another reason against limiting the locality rule to the
standard of care in the specific rural town involved is that the
customary practice there may itself constitute negligence. In
our view, the customary practice in a rural town is not the sole
test of acceptable medical practice or the standard of medical
care required; rather it is but one factor in determining the
required standard and is not conclusive in itself. For obvious
reasons, the required standard of medical care in a rural town
should not be determined exclusively by the usual and customary
medical practices of one or two physicians who practice there.
For a more detailed rationale, see Prosser Torts, 4th Ed., p.
165; Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 239
N.E.2d 368; Morgan v. Sheppard, Ohio App. (1963), 188 N.E.2d
808; Darling v. Charleston Community Memorial Hospital, 33 I11.2d
326, 211 N.E.2d 253.
Finally, considerations of public policy persuade us to
reject the view that Montana's "locality rule" should be limited
to the particular rural town where the physician practices. If
such a limiting rule were to prevail, the patient for practical
purposes would be deprived of any effective remedy for malpractice
i n many c a s e s . Hundley, s u p r a , e x p l a i n s t h i s f a c t o r i n t h e
f o l l o w i n g language:
" ' * * * The w e l l known r e l u c t a n c e of d o c t o r s t o
t e s t i f y a g a i n s t one a n o t h e r , which h a s been
mentioned now and t h e n i n t h e d e c i s i o n s , may
make t h i s [ e x p e r t m e d i c a l t e s t i m o n y ] d i f f i c u l t
o r impossible t o obtain.' Therefore, i f a plain-
t i f f i n a malpractice a c t i o n i s not permitted t o
o b t a i n e x p e r t t e s t i m o n y of a p h y s i c i a n who p r a c t i c e s
o u t s i d e t h e domain o f t h e d e f e n d a n t d o c t o r , h e may
be d e n i e d c o m p l e t e l y t h e o p p o r t u n i t y of p r o v i n g t h e
n e g l i g e n t a c t s of which he c o m p l a i n s . "
I n accord: C h r i s t y v . S a l i t e r m a n , 288 Minn. 1 4 4 , 179 N.W.2d
288; Sampson v. Veenboer, 252 Mich. 660, 234 N.W. 170; Johnson
v. Winston, 68 Neb. 425, 94 N.W. 607; Carbone v . Warburton, 11
N.J. 418, 94 A.2d 680.
I n a r u r a l town where a c t u a l s u b s t a n d a r d m e d i c a l c a r e
e x i s t s , r e s t r i c t i n g t h e l o c a l i t y r u l e t o t h e s t a n d a r d of m e d i c a l
c a r e i n t h a t p a r t i c u l a r town would measure t h e p h y s i c i a n ' s d i a g -
n o s i s and t r e a t m e n t of h i s p a t i e n t by a n i m p e r m i s s i b l e s t a n d a r d .
T h i s p o l i c y c o n s i d e r a t i o n h a s been s t a t e d i n t h i s manner i n
Restatement o f T o r t s , 2nd, Sec. 299A, n o t e ( g ) :
"Allowance must be made a l s o f o r t h e t y p e of
community i n which t h e a c t o r c a r r i e s on h i s
practice. A c o u n t r y d o c t o r c a n n o t be e x p e c t e d
t o have t h e equipment, f a c i l i t i e s , e x p e r i e n c e ,
knowledge o r o p p o r t u n i t y t o o b t a i n i t , a f f o r d e d
him by a l a r g e c i t y . The s t a n d a r d i s n o t , how-
ever, t h a t of t h e p a r t i c u l a r l o c a l i t y . If there
a r e o n l y t h r e e p h y s i c i a n s i n a s m a l l town, and
a l l t h r e e a r e highly incompetent, t h e y cannot
be p e r m i t t e d t o s e t a s t a n d a r d o f u t t e r i n f e r i o r i t y
f o r a f o u r t h who comes t o town. The s t a n d a r d i s
r a t h e r t h a t o f p e r s o n s engaged i n s i m i l a r p r a c t i c e
i n s i m i l a r l o c a l i t i e s , considering geographical
l o c a t i o n , s i z e , and t h e c h a r a c t e r o f t h e community
i n general."
A d d i t i o n a l l y , such a l i m i t a t i o n of t h e " l o c a l i t y r u l e "
t o t h e s p e c i f i c r u r a l town removes a n i n c e n t i v e f o r improvement
of m e d i c a l c a r e t h e r e . Defendant e m p h a t i c a l l y p o i n t s o u t t h e
d i f f i c u l t y t h a t some r u r a l e a s t e r n Montana towns have i n s e c u r i n g
and r e t a i n i n g p h y s i c i a n s a s j u s t i f i c a t i o n f o r t h e l i m i t i n g r u l e .
While t h i s s i t u a t i o n i s undoubtedly t r u e i n some c a s e s , t h e l o g i c
of this approach is questionable. It appears to be based on
the proposition that a negligent physician offering substandard
medical care is preferable to no physician at all. We decline to
accept this simplistic statement of the available alternatives.
Many factors not germane to the issue on appeal may well contribute
to this situation. And if this logic were to prevail, some rural
eastern Montana towns might well be permanently deprived of the
standard of medical care to which they are entitled by removal of
an incentive to improvement.
For the foregoing reasons, we hold that Montana's "locality
rule" imposes on a physician undertaking the care of a patient
the legal duty of possessing and exercising that reasonable and
ordinary degree of learning, skill and care possessed and exercised
by physicians of good standing of the same school of practice in
the same or similar locality in Montana. A similar locality in
Montana within the meaning of this rule is a locality of similar
geographical location, size, and character in a medical context.
Is Dr. Kay competent to testify as an expert medical wit-
ness on the standard of care required &Dr. Whitney in his diag-
nosis and treatment of Henry Tallbull under the foregoing
locality rule? Dr. Kay's medical training and knowledge are
not in dispute. His familiarity with the standard of practice
in Forsyth or a similar locality is the focus of the dispute.
The specifics of his familiarity as contained in his deposition
have been previously set out. In general, his deposition in-
dicates that while he is unfamiliar with the standard of care
in Forsyth per se, he is familiar with the standard of practice
in Crow Agency, in eastern Montana and in the Forsyth area. He
recounts the basis for such familiarity in his deposition. A
basis is laid in his deposition showing the locality in which
he practiced is similar to Forsyth in geographical location,
s i z e and c h a r a c t e r from a m e d i c a l s t a n d p o i n t . W hold, there-
e
f o r e , t h a t D r . Kay i s c o m p e t e n t t o t e s t i f y a s t o t h e s t a n d a r d
of medical c a r e .
The c o n c l u s i o n s D r . Kay r e a c h e s c o n c e r n i n g t h e r e q u i r e d
s t a n d a r d and i t s b r e a c h by D r . Whitney a r e , o f c o u r s e , matters
t o b e d e c i d e d by t h e j u r y . They a f f e c t t h e w e i g h t t o b e g i v e n
h i s t e s t i m o n y r a t h e r t h a n h i s competency a s a w i t n e s s o r t h e
a d m i s s i b i l i t y of h i s testimony. These i s s u e s c a n n o t b e r e s o l v e d
by summary judgment a s t h e y i n v o l v e g e n u i n e i s s u e s o f m a t e r i a l
fact. R u l e 56 ( c ) , M.R.Civ.P.
F o r t h e f o r e g o i n g r e a s o n s t h e summary judgment g r a n t e d
Dr. Whitney i s v a c a t e d and t h e c a u s e i s remanded t o t h e d i s t r i c t
c o u r t o f Rosebud County f o r f u r t h e r p r o c e e d i n g s .
Justice
Y
Justices "'
.............
M r . J u s t i c e John Conway Harrison s p e c i a l l y concurring:
I concur i n t h e r e s u l t reached by t h e majority i n t h i s
Opinion but not i n a l l t h a t i s s a i d t h e r e i n .