No. 85-246
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
WILEY H. JUEDEMAN and HAROLD JUEDEMAN,
as Personal Representatives of the
Estate of CLARICE E. JUEDEMAN, deceased,
and on their own behalf, and behalf of
all other heirs of CLARICE E. JUEDEMAN,
deceased, et al.,
Plaintiffs and Appellants,
MONTANA DEACONESS MEDICAL CENTER,
a corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Regnier, Lewis, Boland & Roberts; James M. Regnier,
Great Falls, Montana
Anderson, Edwards & Molloy; A. Clifford Edwards,
Billings, Montana
For Respondent:
Alexander & Baucus; John D. Alexander and ~ e i l
E.
Ugrin, Great Falls, Montana
Submitted on Briefs: June 6, 1986
Decided: October 1, 1986
Filed: UGT 1-
& &
% Clerk
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Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiffs brought a wrongful death and survivorship
action against Montana Deaconess Medical Center (hospital) in
the Eighth Judicial District Court for Cascade County.
Following a jury trial, a verdict was returned in favor of
the hospital and judgment followed. Plaintiffs appeal. We
affirm.
The issues are:
1. Did the District Court err in giving a proximate
cause jury instruction?
2. Did the District Court err in giving a "mere fact of
injury" jury instruction?
3. Did the District Court err in giving an alternative
methods jury instruction?
4. Did the District Court err in granting the hospital
a protective order that prohibited deposing the hospital's
nontestifying expert?
On May 26, 1981, Clarice Juedeman, age 71, had colon
surgery. During surgery a catheter was inserted in her right
internal jugular vein for the purposes of measuring pressure,
withdrawing blood samples, and feeding and medicating her.
Following the surgery she convalesced well and no longer
required intravenous feeding or medication. Her attending
physician, Dr. Mungas, wrote an order on June 5, 1981 to
discontinue the IV. A nurse removed the IV that day. Short-
ly after removal, decedent lapsed into a coma. She died
eleven days later.
The critical question was whether the nurse negligently
removed the IV and allowed air to enter the jugular vein; and
if that occurred, whether the air entered into the
circulatory system and ultimately plugged capillaries in the
brain causing damage to the brain and coma. In medical
terminology, the question was whether the removal of the IV
caused an air embolism.
Because the issues require a clear understanding of the
complex and contradictory testimony, we review the testimony
in some detail. Plaintiff Clarene Dysart, daughter of the
decedent, testified essentially as set forth in this para-
graph: She and the decedent were talking in the room when
Nurse Abel came in and informed the decedent that she was
going to remove the catheter. Prior to the removal of the
catheter, Nurse Abel brought decedent and her daughter cof-
fee. Nurse Able hesitated when she realized she didn't know
how to remove a catheter and left the room to speak with her
supervising nurse. At this time, Mrs. Juedeman was sitting
in a straight backed padded plastic chair. Nurse Abel re-
turned with Celia Villanueva, her supervising nurse, who
removed the IV while Mrs. Juedeman was sitting in the
straight backed chair. After Nurse Villanueva dropped the
catheter and left the room, Nurse Abel put gauze on Mrs.
Juedeman's neck. Within 30 seconds Mrs. Juedeman experienced
numbness, her eyes glazed and she started to go limp. Nurse
Abel ran to get Nurse Villanueva while the daughter held her
mother in the chair. When Nurse Abel returned, she attempted
to administer oxygen, but had great difficulty because she
was in a panic. The hospital room was in bedlam with nurses
yelling at each other. Eventually a nurse and an orderly put
Mrs. Juedeman back in bed. That evening after Mrs. Juedeman
was removed to the intensive care unit, the daughter talked
to Dr. Mungas, the attending physician. She testified that
she asked, "Since it happened so soon after the removal of
that catheter would that have anything to do with that?" Dr.
Mungas answered, "It would certainly lead you to think so,
wouldn't it?"
Nurse Abel, who was the decedent's primary nurse, testi-
fied essentially as set forth in this paragraph. Because she
had never removed an internal jugular vein catheter, she
consulted the procedure manual, which did not offer protocol
as to proper positioning of the patient. Nurse Ahel then
called intensive care nurses. One intensive care nurse
recommended that the patient sit upright and another recom-
mended a semi-reclined position. After she obtained gauze
and neosporin, Nurse Abel asked Nurse Villanueva, her super-
visor, for assistance. They went into decedent's room.
Decedent was sitting in a gold cloth recliner chair and Nurse
Abel reclined the chair back. Nurse Villanueva turned off
the IV and clamped it down. Nurse Abel slowly removed the
catheter from decedent's neck. After holding the pressure
for a good minute, Nurse Abel taped the spot where the cathe-
ter had been removed. Nurse Abel then talked to the decedent
for approximately seven minutes before taking the IV equip-
ment to the medication room and getting the family coffee.
When Nurse Abel returned with the coffee, decedent appeared
to be in distress and said she felt numb. Nurse Abel and
Nurse Villanueva put decedent in bed and oxygen was adminis-
tered without difficulty. Nurse Abel could not remember if
the daughter was in the room when the IV was removed or
whether she helped place the decedent in the bed. Nurse Abel
had worked in a hospital in California immediately prior to
trial. When asked how she would remove a jugular catheter
today, Nurse Abel indicated she would recline a chair at
approximately a 45 degree angle as she had done in
California.
Nurse Villanueva testified essentially as set forth in
this paragraph. When asked for assistance by Nurse Abel, she
was aware Nurse Abel had consulted the procedure manual. She
was not aware Nurse Abel had called the intensive care unit.
When Nurse Villanueva went in the room, decedent was in a
yellow or gold recliner chair, in a semi-reclined position.
Nurse Villanueva shut off the IV tubing with a clamp. Nurse
Villanueva then instructed Nurse Abel to remove the catheter
slowly while applying moderate pressure, and after removal,
to continue pressure for another minute and finish by taping
the spot. Nurse Villanueva left shortly after she watched
Nurse Abel perform that procedure. Approximately five
minutes after Nurse Villanueva left the room, she saw Nurse
Abel go inside the medication room and get a cup of coffee.
The next time Nurse Villanueva saw Nurse Abel was when Nurse
Abel asked her to check the decedent, about ten minutes after
the removal. When Nurse Villanueva entered the decedent's
room, the decedent was in distress. Both nurses tried to
transfer decedent to the bed but she was too heavy and trans-
fer was completed only after a male orderly arrived. Once
transferred she was given oxygen. Nurse Villanueva testified
that prior to coming to Deaconess Hospital, she had worked in
a San Francisco hospital where she was specially trained as
an intravenous nurse. During her six week course at the San
Francisco hospital she received no instruction as to how a
patient should be positioned when a jugular catheter was
removed. However, during the three and a half years she was
employed in California, she removed catheters about twelve
times, and the patients were either stretched out on a bed,
in a reclined position, or sitting. Based upon her experi-
ence, she concluded that position didn't matter.
Dr. Mungas, who practiced both general and vascular
surgery, testified by deposition as set forth in this para-
graph. The catheter was inserted at the time of the colon
surgery. Dr. Mungas ordered the catheter removed on June 5,
1981. He was called at home by one of the nurses and was
informed that the decedent was having trouble. The nurse
stated over the phone that Mrs. Juedeman was sitting in a
chair when the nurse removed the IV; that after the IV was
removed, the patient complained of feeling dizzy or weak and
asked to be put back in bed and then became unresponsive.
After returning to the hospital that evening, Dr. Mungas
examined the patient and talked with her daughter and a
nurse. His discussions led him to believe that it was not
seconds but minutes after the IV was removed before the
patient felt numb. Later Dr. Mungas consulted with Dr.
Brenton, whose diagnosis was air embolism. Dr. Mungas ques-
tioned Dr. Brenton's diagnosis of air embolism but yielded to
him as the specialist in neurology. However, after a series
of tests failed to confirm Dr. Brenton's diagnosis, Dr.
Mungas concluded the decedent could have died from thrombotic
stroke, embolic stroke, or cardiac arrhythmia, with the most
likely cause being cardiac arrhythmia. Air embolism was a
very, very remote possibility. Dr. Mungas described the
decedent's predisposition as follows:
She is elderly. She is diabetic. Diabetics have
accelerated development of atherosclerosis.
Atherosclerosis is one of the more common causes of
stroke. She has hypertension, which is one of the
predisposing causes of stroke. And she has
atherosclerotic heart disease manifested by a
previous history of congestive heart failure. And
if I remember right, she has had some problems with
tachycardia in the past, which is a manifestation
of atherosclerotic heart disease. So all of these
things I would say might predispose her to have a
stroke: her age, diabetes, hypertension and heart
disease.
On June 16, 1981, the date of decedent's death, Dr. Mungas
wrote a letter to the Director of Nursing suggesting that a
new protocol be adopted for removing a jugular catheter. Dr.
Mungas recommended that central venous catheters should only
be removed when a patient was in a flat position.
Mercedes Strain, Director of Nursing at the hospital in
June, 1981, testified as set forth in this paragraph. On
the date of the operation there was no protocol or instruc-
tion regarding the proper position of the patient when a
catheter of this type was removed. Prior to receiving Dr.
Mungas' letter suggesting a recumbent protocol, she was
conducting an investigation regarding the position decedent
was in when the catheter was removed. The investigation
revealed that decedent was in a reclining chair but did not
specify the position of the reclining chair. On June 19,
after some research, Mercedes Strain wrote Dr. Munga.s that
some surgeons did not suggest positioning in a flat position,
and research of medical literature was not helpful. On June
24, 1981, a protocol was distributed which suggested that as
an added safety precaution to the patient before discontinu-
ing jugular IV's the patient should be placed in bed in a
recumbent or flat position.
Mary Valacich, Director of Nursing Services at the other
hospital in Great Falls testified that prior to 1983 there
was no written protocol as to the positioning of a patient
when such a catheter was removed. However, since 1975, the
policy in their hospital had been to place the patient in a
flat position.
Dr. Brenton, who previously practiced in Great Falls as
a neurologist, testified as set forth in this paragraph. He
examined the patient on June 6, 1981 and his impression was
that she suffered an air embolism and that this accounted for
her neurological state. His diagnosis was based on the
close-in-time relationship between the discontinuation of the
catheter and the patient's clinical appearance. Dr. Brenton
stated that an air embolism is more likely to occur if a
patient is sitting upright than lying down. He pointed out
that for an air embolus to occur there has to be a vacuum
effect in the vein, which means a negative pressure in the
vein. If a patient is sitting upright, there is the possi-
bility of air being sucked into the vein. However, if the
patient is lying down, the vein will be distended by blood
and will tend to be bleeding which will not allow air to
enter. He did point out that if there was an air embolus,
the symptoms would be manifested in a relatively few seconds
with an outside limit of one minute. Dr. Brenton admitted
that his diagnosis represented a rare condition, but he stood
by his diagnosis. On cross-examination, Dr. Brenton stated
he was not fa.miliar with any reported cases in medical liter-
ature which corresponded to his diagnosis. He also testified
that the time between the removal of the IV and the symptoms
was less than a minute, and that his understanding was that
decedent was sitting upright.
Dr. Anderson, a practicing physician specializing in
pulmonary and internal medicine testified that he examined
decedent on June 5, 1981. His impression was that possible
causes of death were carotid occlusion, cerebral embolus,
thrombotic air embolus and cerebral hemorrhage. However, in
his records he listed air embolus first. Dr. Anderson was
convinced that a patient should be in a flat position when a
catheter was removed. On cross-examination, Dr. Anderson
testified that the only possibility of air embolus occurring
was if the defendant had anatomic malformation, and that the
medical records showed no such malformation. He also testi-
fied that he had not found this type of air embolus listed in
medical literature. He pointed out that decedent did suffer
from atheroscopic disease and hypertension, both life threat-
ening conditions predisposing a person to a stroke.
As demonstrated by this summary, there were conflicts in
the evidence. By a vote of 8 to 4, the jury rendered a
verdict for the hospital.
Did the District Court err in giving a proximate cause
jury instruction?
The District Court gave the following instruction No.
19:
The proximate cause of an injury is that cause
which in a natural and continuous sequence, unbro-
ken by any new and independent cause, produces the
injury, and without which it would not have
occurred.
Plaintiffs offered the following legal cause instruction
which was refused:
A legal cause of an injury is a cause which is a
substantial factor in bringing about the injury.
On appeal plaintiffs maintain that there were two possible
concurring causes which could have brought about the death of
decedent: the defendant's negligence and the decedent's
pre-existing condition. The hospital responds that the
theories presented to the jury were entirely on a competing
or alternate cause: the decedent died either from negligent
removal of the catheter or from a stroke caused by a
pre-existing condition.
In Kyriss v. State (Mont. 1985), 707 P.2d 5, 42 St.Rep.
1487, the above legal cause instruction offered by the plain-
tiff was given along with additional instructions describing
legal cause. In Kyriss, the plaintiff suffered from a
pre-existing condition of arteriosclerosis of the blood
vessels of the right leg. In the course of medical treatment
following the removal of a toenail on the right leg, gangrene
developed and it was necessary to amputate the lower portion
of plaintiff's right leg. Citing Rudeck v. Wright (Mont.
1985), 709 P.2d 621, 628, 42 St.Rep. 1380, 1388-89, the Court
stated in Kyriss:
[I]f two or more causes concur to bring about an
event, and any one of them, operating alone, would
have been sufficient to cause the identical result,
some other test is needed. In such cases it is
quite clear that each cause has in fact played so
important a part in producing the result that
responsibility should be imposed upon it; and it is
equally clear that neither can be absolved from
that responsibility upon the ground that the iden-
tical harm would have occurred without it, or there
would be no liability at all.
The "substantial factor" rule was developed primar-
ily for cases in which application of the "but for"
rule would allow each defendant to escape responsi-
bility because the conduct of one or more others
would have been sufficient to produce the same
result ...
The Court then concluded that there were two concurring
causes so that a proximate cause instruction failed to prop-
erly instruct the jury. The doctor defendants argued that
the pre-existing condition of arteriosclerosis caused the
condition which required the amputation. The plaintiff
argued that the improper medical treatment of the infection
in the leg following removal of the toenail was the cause of
the condition requiring amputation. The evidence
demonstrated that the pre-existing condition of
arteriosclerosis could have concurred with the negligent
medical treatment and resulting infection in bringing about
the condition requiring the amputation. The Court concluded
in Kyriss that because the two causes could have concurred to
bring about the injury, a proximate cause instruction was not
appropriate.
The plaintiffs in the present case contend that the
damage to the brain resulting from the defendant's negligence
and the decedent's pre-existing condition were possible
concurring causes. Our review of the record demonstrates
that this is not a case in which two causes concurred or
might have concurred to bring about the condition of the
patient and in which either one of them operating alone would
have been sufficient to cause the identical result.
The diagnosis of Dr. Brenton, neurologist, set forth the
essence of plaintiffs' contentions regarding cause:
[M]y diagnosis is that a small air embolus gained
its way into her circulation, due to anatomic
peculiarities on her part, found its way through
the pulmonary circulation into the arterial circu-
lation and lodged in the brain. Only perhaps five
or ten milliliters of air would have been
required ...
In lay terminology the substance of the diagnosis is that a
small quantity of air, approximately five or ten milliliters,
entered into Mrs. Juedeman's veins; and due to an abnormality
in her lung area, the air found its way through the lungs and
connecting circulation into arteries and lodged in the brain.
It is critical to understand that if a small quantity of air
gets into the brain through an artery the effect is immedi-
ate. As further testified by Dr. Brenton:
Q Okay. With regard to your opinion regarding air
embolus, I believe you said the effects in a situa-
tion such as the one you believe occurred with Mrs.
Juedeman would be immediate. Did I understand you
correctly?
A Well, they would occur within the time frame
that it takes for the air to make its transit
through the circulation which is going to be in a
matter of seconds, you know, 30, 40, seconds,
something like that, maybe less.
Q Oh, I see. In other words, is this a very, very
quick happening?
A Very rapid. It's almost instantaneous, but you
know, it does take a short span of time. But it's
not something that's going to develop a half hour,
45 minutes later. It's going to happen right at
that time.
Q Would it be in my understanding -- would it be
appropriate to say that this mechanism would occur
within a minute?
A I would think so. A minute would be the outside
limit I would place on this sort of thing.
Plaintiffs' contention was that the hospital negligently
allowed a small quantity of air to get to Mrs. Juedeman's
brain. Plaintiffs maintained the damage to the brain was
within a matter of seconds and in less than one minute. The
hospital contends that there were no symptoms of any type for
a period of seven to ten minutes, and that this proves clear-
ly that no air ever gained access to the patient's brain. As
a result, the time between the removal of the catheter and
the onset of Mrs. Juedeman's symptoms became critical. As
previously summarized, this time was somewhere between a few
seconds and approximately ten minutes, depending upon which
of the witnesses were believed. Of course, the determination
of the time issue was for the jury, the trier of fact.
In Kyriss, this Court adopted the substantial factor
test as it appears in the Restatement (Second) of Torts,
§ 431. To date, this Court has not addressed the other
Restatement sections on legal cause. While it was not argued
by counsel, our review of the Restatement shows that 5 4 3 4 is
pertinent to the issue now before us. At 5 4 3 4 , the Restate-
ment describes the roles of the court and the jury in the use
of legal cause instructions:
(1) It is the function of the court to determine
(a) whether the evidence as to the facts makes
an issue upon which the jury may reasonably differ
as to whether the conduct of the defendant has been
a substantial factor in causing the harm to the
plaintiff;
(b) whether the harm to the plaintiff is
capable of apportionment among two or more causes;
and
(c) the questions of causation and apportion-
ment, in any case in which the jury may not reason-
ably differ.
(2) It is the function of the jury to determine,
in any case in which it may reasonably differ on
the issue,
(a) whether the defendant's conduct has been a
substantial factor in causing the harm to the
plaintiff, and
(b) the apportionment of the harm to two or
more causes.
We adopt the law as stated in 5 4 3 4 of the Restatement. We
conclude that there is no evidence in the record to support
the plaintiffs' argument that the hospital's negligence was a
substantial cause of Mrs. Juedeman's death, along with her
preexisting condition. This case is in direct contrast to
Kyriss where the evidence demonstrated the presence of two
causes which could have concurred in the resulting injury to
the plaintiff. The District Court correctly exercised its
function of making this determination and declining to offer
a legal cause instruction to the jury.
We conclude that it was proper to give the proximate
cause instruction in this case and to refuse the legal cause
instruction.
Did the District Court err in giving a "mere fact of
injury" jury instruction?
The court's Instruction No. 18 stated:
The mere fact of injury, standing alone, is not
proof of negligence against the defendant in a
malpractice action.
The law does not require that for every injury
there must be a recovery of damages, but only
imposes liability for a breach of a legal duty by
the defendant proximately causing injury to the
plaintiff.
Plaintiffs note that this instruction has been ruled
improper in simple negligence cases. Sampson v. Snow (Mont.
1981), 632 P.2d 1122, 38 St.Rep. 1441. Plaintiffs also
recognize that in a professional negligence action, the mere
fact of injury instruction has been held proper. Hunsaker v.
Bozeman Deaconess Foundation (1978), 179 Mont. 305, 588 P. 2d
493. Plaintiffs contend Hunsaker should be overruled.
We decline to overrule Hunsaker. Here, the mere fact
that the decedent lapsed into a coma within a matter of
seconds or minutes after removal of the IV should not be
classed as proof of negligence of itself. The instruction
directed that the burden of proving the negligence of the
hospital remained on the plaintiffs. We conclude that this
instruction was appropria-te under the facts of this case.
Did the District Court err in giving an alternative
methods jury instruction?
The court's Instruction No. 16A stated:
The fact that other nurses might have adopted other
methods does not necessarily render the attending
nurse liable nor show negligence or want of skill
or care. If the method adopted has substantial
medical support, it is sufficient. And, where
there is a difference of opinion among physicians
and nurses as to the practice to be pursued in
certain cases, a nurse may exercise his or her own
best judgment, employing the methods his or her
experience may have shown to be best, and a mere
error of judgment will not make a nurse liable in
damages, in the absence of a showing of want of
care and skill.
Plaintiffs do not dispute the use of this instruction
when evidence supports alternative methods of diagnosis or
treatment, but contend that the hospital's theory was not
supported by medical evidence.
We will not again refer at length to the medical testi-
mony submitted on behalf of the hospital. We point out that
Nurse Abel, Nurse Villanueva, and Mercedes Strain, Director
of Nursing, all testified in a manner supporting the hospi-
tal's theory. While there certainly was evidence presented
to the contrary, there is substantial credible medical evi-
dence to support the theory of the defendant. While the
instruction is subject to some question because it is a
comment upon the evidence, we conclude that it was not re-
versible error to have given the instruction.
IV
Did the District Court err in granting the hospital a
protective order that prohibited deposing the hospital's
nontestifying expert?
In deciding whether the case should go before the Mon-
tana Medical Legal Panel, defendants had Dr. Pratt study the
records, research the case, obtain a pathologist's opinion,
and prepare a report. Dr. Pratt, a nontestifying expert,
made his report in anticipation of litigation. Later, a
disinterment issue was presented to the court, and Dr. Pfaff
filed an affidavit stating an autopsy might reveal the cause
of death. When Dr. Pfaff was deposed, in response to a
subpoena duces tecum, he produced Dr. Pratt's report. In
substance, the report concluded that "this is an almost
impossible case to defend." After reading the report,
plaintiffs sought to depose Dr. Pratt. The District Court
granted defendants a protective order pursuant to Rule
26 (b)(4) (B), M.R.Civ.P., which states:
A party may discover facts known or opinions held
by an expert who has been retained or specially
employed by another party in anticipation of liti-
gation or preparation for trial and who is not
expected to be called as a witness at trial, only
as provided in Rule 35 (b) or upon a showing of
exceptional circumstances under which it is imprac-
ticable for the party seeking discovery to obtain
facts or opinions on the same subject by other
means.
Plaintiffs contend that technical legal rules should not
cloud the search for truth. Because plaintiffs do not dis-
pute that Dr. Pratt was a nontestifying expert specially
employed in anticipation of litigation, his opinions are
discoverable only upon a showing of exceptional circumstanc-
es. We note that Dr. Pratt spent a sum total of 3 hours
studying the records, researching the case, obtaining a
pathologist's opinion and preparing the report. We find no
reason to believe it was impracticable for plaintiffs to
study the records, research the case, obtain a pathologist's
report, and draw their own conclusions. We conclude there
were no exceptional circumstances which justified ordering
Dr. Pratt ' s deposition.
Plaintiffs also maintain that hospital waived its privi-
lege when it presented Dr. Pratt's report to Dr. Pfaff for
purposes filing affidavit favor disinterment.
Waiver is the voluntary relinquishment of a known right, and
response to court process does not constitute waiver. Kuiper
v. Dist. Court of Eighth Judicial Dist. (Mont. 1981), 632
P.2d 694, 698, 38 St.Rep. 1288, 1292-93. Here, an intraparty
communication was discovered by court process. We conclude
there was no waiver. We hold the District Court did not err
in granting a protective order.
We affirm.
We Concur:
7