NO. 84-166
IN THE SUPR.EME COURT OF THE STATE OF MONTANA
1985
KATHLEEN AASHEIM,
Plaintiff and Appellant,
-vs-
FRANK W. HUMBERGER,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District
In and for the County of Gallatin,
The Honorable D
-2- ,
.Judge presiding.
pl
COUNSEL OF RECORD:
For Appellant:
Anderson, Edwards & Molloy; A. Clifford Edwards,
Billings, Montana
For Respondent:
Berg, Coil, Stokes & Tollefsen; Don M. Hayes,
Bozeman, Montana
Submitted on Briefs: Dec. 27, 1984
Decided: February 21, 1985
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Kathleen Aasheim, plaintiff in a medical malpractice
action, appeals from a judgment entered by the District Court
of the Eighteenth Judicial District in favor of defendant,
Dr. Frank W. Humberger.
Plaintiff brought this action to recover damages for
alleged negligent medical treatment administered to her by
defendant. A jury trial which began January 30, 1984 con-
cluded with an eight to four defense verdict. Notice of
entry of judgment was filed and sent to the parties on Febru-
ary 6, 1984.
On May 15, 1979, July 26, 1979, August 16, 1979 and
September 12, 1979 Kathy Aasheim consulted Dr. Humberger, a
national hoard certified orthopedic surgeon, regarding prob-
lems with her left knee. Without ordering diagnostic x-ray
films of Ms. Aasheim's knee during either of the four office
examinations, Dr. Humberger diagnosed and treated Ms.
Aasheim's condition as chondromalacia. When her condition
did not improve with the treatment Dr. Humberger referred Ms.
Aasheim to Dr. Todd Taylor Grant, in Santa Monica, Califor-
nia, for arthoroscopic surgery. Preoperative x-ray films
taken September 26, 1979 revealed a giant cell tumor in
plaintiff's left knee joint. Dr. Grant performed an en bloc
resection on October 16, 1979. The resection surgery en-
tailed removal of the tumor and all infected bone and soft
tissue, which comprised the plaintiff's entire knee area. A
prosthetic knee device was implanted.
Plaintiff initiated this action alleging that Dr.
Humberger's failure to order diagnostic films in May or July
of 1979, resulted in her losing a chance to have less radical
surgery and preserve her natural knee. It is plaintiff's
contention that if defendant had discovered the giant cell
tumor with films taken in May or July of 1979, it is rea.son-
ably probable that her knee would have been saved.
Two issues are presented to this Court on appeal:
1. Whether the District Court committed reversible
error by improperly instructing the jury on the "locality
rule" as the appropriate standard of care.
2. Whether the District Court improperly refused an
instruction on the doctrine of "loss of a chance."
In establishing that the standard of care has been
breached in a malpractice action, it is a matter of law for
the court to determine the proper standard of care applicable
to the case and instruct the jury on that standard. The
trial judge instructed the jury on the stand.ard of medical
care in the following instruction:
INSTRUCTION NO. 8
"By undertaking professional service to a patient a
physician and surgeon represents that he has the
necessary degree of skill and learning to do so.
That degree of skill and learning is generally
measured by the skill and learning possessed by
other physicians and surgeons in good standing
practicing in similar localities under similar
circumstances.
"It is his further duty to use that skill and
learning as ordinarily used in like cases by repu-
table members of his profession practicing in
similar localities and under similar circumstances
and to be diligent and use his best judgment and
learning in an effort to accomplish the purpose for
which he is employed.
"The violation of any of these duties is a form of
negligence.
"If you should find that the defendant failed to
carry out any one or more of these duties and such
failure was the proximate cause of the injury to
which the plaintiff complains, then your verdict
must be for the plaintiff.
"The way in which you may decide whether the defen-
dant possessed and used the knowledge and skill and
care which the law demands of him is from evidence
presented in this trial by doctors called as expert
witnesses."
In giving this instruction the trial court relied upon
our holding in Tall Bull v. Whitney (1977), 172 Mont. 326,
In - - this Court expanded the "locality rule"
Tall Bull
from requiring that medical testimony be based upon the
standard found in the defendant's community to a standard. for
the "same or similar localities." The expansion of the rule
found its support in public policy articulated by Justice
Haswell:
"Initially we observe that the foundation of the
'same locality' rule no longer exists ...Today
the accessibility of medical literature; the fre-
quency 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 pra.cticing in the same
medical community in the more populous regions of
this state."
Although the case at bar involves judging the conduct of
a board certified orthopedic surgeon, the trial court imposed
the "same or similar" locality rule. We find that the trial
court's instruction was unduly restrictive and constituted
reversible error.
The Supreme Court of Nevada discussed abrogation of the
locality rule when applied to special-ists in Orcutt v. Miller
"In this age of ubiquitous national communication
networks and increasing standardization of medical
training, the underpinnings of the locality rule
are extremely doubtful. Board certified specialists
should be held to national standards of the
specialty. "
Plaintiff offered her proposed instruction no. 5 which,
in relevant part, provides as follows:
"By undertaking professional services to a patient,
a doctor represents that he has the necessary
degree of skill and learning to do so. That degree
of skill and learning is generally measured by the
skill and learning possessed by other doctors in
good standing practicing in the same specialty and
who hold the same national board certification. In
this case, Defendant is required to perform to the
standards of orthopedics.
"It is the doctor's further duty to use that skill
and learning as ordinarily used in like cases by
other doctors practicing in that same specialty and
who hold the same national board certification.
"The violation of any of these duties is
negligence."
Board certified specialists receive comparable training
and pass the same national board certification examination.
The locality rule bears no rational relationship to standards
relevant for judging specialists so certified. The locality
rule was an outgrowth of disparity in the quality of communi-
ty medical practice. To the credit of the medical profes-
sion, including its excellent training and certification
program, the disparity has largely been eliminated. When the
reason for a rule ceases to exist, courts should not hesitate
to develop new legal principles more appropriate for the
solution of modern problems.
P1aintiffls proposed instruction no. 5 would have been
an acceptable instruction for the trial court to give in this
case. However, we would suggest that the sentence, "In this
case, Defendant is required to perform to the standards of
orthopedics" is surplusage, confusing, and should be omitted.
The balance of the instruction is approved and failure to
give the instruction constituted reversible error.
The issue regarding failure of the trial court to in-
struct on "loss of chance" will arise upon retrial. There-
fore, we examine the issues of causation including the legal
doctrine of "loss of chance."
First the court gave the "legal cause" instruction.
However, instead of instructing on "loss of chance" in
Instruction No. 14, the trial court told the jury:
"In this case, the plaintiff is not required to
prove for certain that defendant's negligence, if
any, prevented her from receiving proper medical
care. Medicine is not an exact science. Plaintiff
is required only to show that negligence on the
part of the defendant deprived her of a reasonable
medical probability of obtaining a better result."
This instruction is not a "loss of chance" instruction.
Under the instruction given plaintiff would be required to
prove, by a probability, that had early diagnosis and treat-
ment been made plaintiff would have obtained a better result.
In other words, plaintiff would have to establish that there
was better than a 50/50 chance of obtaining a better result.
Plaintiff sought to recover damages for "loss of
chance. " R.estatement (Second) of Torts S 323 (1965), reads:
"One who undertakes . .
. to render services to
another which he should recognize as necessary for
the protection of the other's person or things, is
subject to liability to the other for physical harm
resulting from his failure to exercise reasonable
care to perform his undertaking, if
" (a) his failure to exercise such care increases
the risk of such harm, . . ."
This section of the Restatement has been the subject of
much discussion by appellate courts. A number of jurisdic-
tions have held that where the defendant's conduct increased
the risk of injury or death by decreasing chances for suc-
cessful treatment there was a sufficient basis for allowing
the case to go to the jury on the issue of ca-usation irre-
spective of whether the "medical probability" test was satis-
fied. See Herskovits v. Group Health Co-op (1983), 99 Wa.2d
609, 664 P.2d 474; McBride v. United States (9th Cir. 1.972),
462 F.2d 72; Hamil v. Eashline (1978), 481 Pa.256, 392 A.2d
1280; Kallenberg v. Beth Israel Hosp. (1974), 45 A.D.2d 177,
357 N.Y.S.2d 508; Jeanes v. Milner (8th Cir. 1970), 428 F.2d
598; Hicks v. United States (4th Cir. 1966), 368 F.2d 626.
Some jurisdictions have rejected this approach, generally
holding unless the plaintiff is able to show that it was more
likely than not that the harm was caused by the defendant's
negligence, proof of a decreased chance of cure or survival
was not enough to take the causation question to the jury.
Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27
Ohio St.2d 242, 272 N.E.2d 97; Hiser v. Randolph (Ct. App.
1980), 126 Ariz. 608, 617 P.2d 774; Hanselmann v. McCardle
(198O), 275 S.C. 46, 267 S.E.2d 531.; Cornfeldt v. Tongen
(Minn. 1980), 295 M.W.2d 638.
A detailed discussion of the issues surrounding "loss of
chance" can be found in the recent Washington case of
Herskovits v. Group Health Co-op, supra. Summary judgment
for the defendamt was reversed and the case was remanded for
trial.
In Herskovits plaintiff's testimony was that plaintiff's
decedent's chances for survival had been reduced from 39
percent to 25 percent where decedent's cancer was delayed in
diagnosis due to the negligence of the physician who failed.
to make the original cancer determination. The Washington
Court emphasized that the "loss of chance" test should be
employed in connection with a "legal cause" instruction to
'
assure that d.efendant s negligence was a substantial factor
producing the "loss of chance." special concurring
opinion in Herskovits referred to the excellent law review
article entitled King, Causation, Valuation, and Chance -
in
Personal Injury Torts Involvinq Pre-existing Conditions and
Future Consequences, 90 Yale L.J. 1353 (1981) . The author
stated:
"Causation has for the most part been treated as an
all-or-nothing proposition. Either a loss was
caused by the defendant or it was not . . .
A
plaintiff ordinarily should be required to prove by
the applicable standard of proof that the defendant
caused the loss in question. What caused the loss,
however, should be a separate question from what
the nature and extent of the loss are. This dis-
tinction seems to have eluded the courts, with the
result that lost chances in many respects are
compensated either as certainties or not at all.
"To illustrate, consider the ca.se in which a doctor
negligently fails to diagnose a patient's cancerous
condition until it has become inoperable. Assume
further that even with a timely diagnosis the
patient would have had only a 3 0 % chance of recov-
ering from the disease and surviving over the long
term. There are two ways of handling such a case.
Under the traditional approach, this loss of
not-better-than-even chance of recovering from the
cancer would not be compensable because it did not
appear more likely [tha-n] not that the patient
would have survived with proper care. Recoverable
damages, if any, would depend on the extent to
which it appeared that cancer killed the patient
sooner than it would have with timely diagnosis and
treatment, and on the extent to which the delay in
diagnosis aggravated the patient's condition, such
as by causing additional pain. A more rational
approach, however, would allow recovery for the
loss of the chance of cure even though the chance
was not better than even. The probability of
long-term survival would be reflected in the amount
of damages awarded for the loss of the chance.
While the plaintiff here could not prove by a
preponderance of the evidence that he was denied a
cure by the defendant's negligence, he could show
by a preponderance that he was deprived of a 3 0 %
chance of cure." 9 0 Yale L.J. at 1363-64.
We feel that including "loss of chance" within causality
recognizes the realities inherent in medical negligence
litigation. People who seek medical treatment are diseased
or injured. Failure to diagnose or properly treat denies the
opportunity to recover. Including this lost opportunity
within the causality embrace gives recognition to a real loss
consequence of medical failure.
We hold that under the facts of this case plaintiff is
entitled to a "loss of chance" instruction. That instruction
may in substance, reflect the substantive law found in Re-
statement (Second) of Torts § 323, supra. The trier of fact
should determine whether defendant's negligence was a sub-
stantial factor in reducing plaintiff's chances of obtaining
a better result.
The judgment of the trial court is vacated and the cause
is remanded for a new trial consistent with the opinions
herein expressed.
We concur: i
Mr. Justice L. C. Gulbrandson deems himself disqualified
and did not participate in this decision.