No. 85-466
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
GREGORY D. OSTERMILLER,
P l a i n t i f f and A p p e l l a n t ,
-vs-
MICHAEL ALVORD,
D e f e n d a n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n ,
T h e H o n o r a b l e L e R o y M c K i n n o n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Nash, Wellcome, F r o s t , G u e n t h e r & Zimmer; P a g e
Wellcome, Eozeman, Montana
F o r Respondent:
Poore, Roth & Robinson; D o u g l a s A. Buxbaum, Butte,
Montana
S u b m i t t e d on B r i e f s : May 9 , 1986
Decided: June 2 5 , 1 9 8 6
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75% l e r k
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Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff Gregory Ostermiller appeals in this dental
malpractice action. The District Court for Gallatin County
entered a judgment on a jury verdict for defendant. We
affirm.
The issues are:
1. Was it error for the court to allow defense counsel
to communicate with a treating physician of the plaintiff
during trial, without the plaintiff's consent?
2. Did the court err by allowing certain expert testi-
mony and by allowing Dr. Black to testify?
3. Was the jury's verdict supported by substantial
credible evidence?
Plaintiff first visited defendant, a dentist, in Decem-
ber 1981 to have a wisdom tooth pulled. He had five addi-
tional appointments with defendant between December 1981 and
April 1982. On April 13, 1982, defendant pulled two more of
plaintiff's wisdom teeth. Prior to the extraction, defendant
discussed with plaintiff the possibility of bleeding, swell-
ing, and discomfort, but he did not discuss the possibility
of a serious post-extraction infection. Defendant instructed
plaintiff to call him at any time if there were problems
following the extraction.
Three days after the extraction, plaintiff went to
defendant's office complaining of severe pain and swelling on
the left side of his face. Following an examination, defen-
dant prescribed a broad-spectrum antibiotic to combat any
infection that might be present. However, the swelling and
pain did not go away. Plaintiff saw defendant again on the
19th to have his stitches removed, but no additional treat-
ment was given because defendant believed that the infection
was diminishing.
By the next night, plaintiff's pain and swelling ha.d
become so intense that he had to be driven to the hospital,
and defendant was immediately called there. After examining
plaintiff, defendant concluded that plaintiff was experienc-
ing serious post-extraction infection, and called in Dr.
Stephen Black, an oral and maxillofacial surgeon. Dr. Black
performed two operations on plaintiff to drain the infection,
providing temporary relief of the condition. However, plain-
tiff did not completely recover until March of 1983 when two
small bone chips were removed from his cheek at the Universi-
ty of Washington Medical Center.
I
Was it error for the court to allow defense counsel to
communicate with a treating physician of the plaintiff during
trial, without the plaintiff's consent?
Near the close of plaintiff's case at trial, defendant's
counsel asked plaintiff's counsel whether he intended to call
Dr. Black, one of plaintiff's treating physicians. This
inquiry was made before the court and on the record, but the
jury was not present. Although Dr. Black had been deposed
and references had been made to his treatment notes during
plaintiff's direct examination of defendant, plaintiff an-
swered that he did not intend to call Dr. Black. Defendant's
counsel then requested the court's permission to meet with
Dr. Black to prepare testimony for use in defendant's case.
Plaintiff's counsel objected to any extrajudicial communica-
tion between defendant's counsel and Dr. Black, based on Jaap
v. District Court of Eighth Judicial Dist. (Mont. 1981), 623
P.2d 1389, 38 St.Rep. 280. The court did not prohibit the
interview, which was conducted that evening with plaintiff's
counsel present. The next day Dr. Black appeared as a wit-
ness for defendant.
Parties to litigation waive any physician-patient privi-
lege as to the mental or physical condition in controversy.
Rule 35 (b)(2), M.R.Civ.P. However, this Court held in Jaap
that a district court does not have the power to order a
private interview between counsel and possible adversary
witnesses, or to attempt to enforce any method of discovery
not provided for by the Montana Rules of Civil Procedure.
Jaap, 6 2 3 P.2d at 1 3 9 1 - 9 2 . The holding in Jaap does not
apply here. In this case, defendant's request to meet with
Dr. Black was made near the end of plaintiff's case at trial,
after plaintiff had said he did not intend to call Dr. Black
as a witness. At that point, Dr. Black could not be classed
as a possible adversary witness as far as the defendant was
concerned. Dr. Black was a treating physician with signifi-
cant knowledge of the course of treatment of plaintiff.
Defendant's counsel had previously listed Dr. Black as a
possible witness. The interview by defendant's counsel can
better be described as a means of reviewing a witness's
testimony than as a means of discovery. Because the witness
was not a witness for the plaintiff, and because the inquiry
was made during the course of trial, normal discovery limita-
tions as referred to in Jaap did not apply. In response to
the defense counsel's invitation, plaintiff's counsel was
present during the interview. We conclude that it was not
error to allow the interview to take place.
I1
Did the court err by allowing certain expert testimony
and by allowing Dr. Black to testify?
Plaintiff contends that Dr. Kenck's expert testimony
about defendant's general ability to recognize and treat
infections and his capability and conscientiousness as a
dentist was impermissible character evidence under Rule 404,
M.R.Evid. Plaintiff also argues that Dr. Black's testimony
should not have been admitted because he was not disclosed as
an expert witness in defendant's answers to interrogatories.
A malpractice action necessarily involves the issue of
whether the defendant exercised the required skill and care
in his treatment of the patient. This is almost always a
matter of opinion. Plaintiff's first witness was the defen-
dant, who testified as to the procedures he followed in his
treatment of plaintiff, which he stated were his standard
procedures. Plaintiff's expert Dr. Morton later testified at
length that, in his opinion, defendant failed to obtain a
valid informed consent because he failed to mention the
possibility of infection, that defendant should have taken
x-rays of plaintiff's mouth for evidence of existing infec-
tion, that defendant did not provide appropriate home care
instructions, and that defendant failed to recognize and
respond appropriately to the infection. Dr. Kenck was also
called as plaintiff's expert. Plaintiff elicited testimony
from Dr. Kenck that he would refer patients with severe
post-extraction facial infection to a family physician or to
Dr. Black for an intramuscular injection of penicillin. He
also testified that he would judge the severity of an infec-
tion by the amount of swelling present, and that he examines
extraction patients after 24 hours for signs of infection.
On cross-examination he testified that he had not examined
plaintiff's treatment records. On cross-examination, Dr.
Kenck also acknowledged that over the years he had known
defendant professionally, he had formed the judgment that
defendant is a good, capable, and conscientious dentist; he
had never known defendant to be incapable of making a
judgment as to whether an infection had progressed to the
point that the patient should be referred to a specialist;
and he believed defendant was capable of judging the type of
antibiotic therapy appropriate for a post-extraction
infection.
We do not approve the form of the questions to Dr. Kenck
because we recognize that they could be construed as elicit-
ing inadmissible character evidence. However, viewing the
three questions to which plaintiff specifically objects in
light of all of Dr. Kenck's testimony, we conclude that his
answers were properly admitted on cross-examination.
Plaintiff also objects to the admission of Dr. Black's
testimony because Dr. Black's name was not listed in the
defendant's answers to interrogatories requesting the names
of the expert witnesses who would be called at trial. That
contention ignores the information actually furnished to the
plaintiff. In defendant's May 10, 1984 answer to an inter-
rogatory regarding known witnesses, the defendant advised the
plaintiff that Dr. Black was a witness. This was almost 10
months prior to trial. Dr. Black was listed by the defendant
as a witness in the pretrial order dated February 20, 1985.
Further, Dr. Black was deposed by both parties prior to
trial. Dr. Black was a treating physician for the plaintiff
and in no way could be classed as a surprise witness. Plain-
tiff has not contended that he was surprised in any respect
by the testimony of Dr. Black. He has only argued that
defendant failed to list Dr. Black as an expert witness. We
find that such an argument is hyper-technical in view of the
information furnished to the plaintiff. We conclude that the
admission of Dr. Black's testimony was proper.
I11
Was t h e j u r y ' s v e r d i c t , s u p p o r t e d by s u b s t a n t i a l c r e d i b l e
evidence?
After the jury rendered its verdict in defendant' s
f a v o r , p l a i n t i f f moved f o r a new t r i a l b a s e d on i n s u f f i c i e n c y
of the evidence. The District C o u r t d e n i e d t h a . t motion.
Plaintiff again argues here t h a t t h e v e r d i c t and judgment
e n t e r e d below a r e a g a i n s t t h e w e i g h t o f t h e evidence. In
support, he r e f e r s t o D r . Black's opinion t h a t p l a i n t i f f ' s
infection arose a s a r e s u l t of t h e extraction of the tooth.
The t r a n s c r i p t a l s o shows t h a t D r . Black t e s t i f i e d t h a t ,
i n h i s opinion, defendant exercised t h e usual degree of s k i l l
and judgment in referring patients to specialists. Two
d e n t i s t s c a l l e d by d e f e n d a n t a s e x p e r t s reviewed t h e f a c t s
and m e d i c a l r e c o r d o f t h i s c a s e and t e s t i f i e d t h a t , i n t h e i r
opinions, d e f e n d a n t was n o t n e g l i g e n t in his treatment or
r e f e r r a l of p l a i n t i f f . They t e s t i f i e d t h a t i n a s m a l l p e r -
centage of t o o t h e x t r a c t i o n s , p o r t i o n s of t o o t h r o o t break
o f f , and a n i n f e c t i o n l i k e t h e one s u f f e r e d by p l a i n t i f f c a n
r e s u l t . I n t h e i r opinions, defendant d i d not n e g l i g e n t l y omit
t o do a n y t h i n g which c o u l d have p r e v e n t e d t h i s , o r do any-
thing to negligently cause it. They a l s o t e s t i f i e d t h a t
infections such a s t h e one p l a i n t i f f suffered a r e so r a r e
t h a t t h e y s h o u l d n o t be r o u t i n e l y d i s c u s s e d w i t h p a t i e n t s a s
a p o s s i b l e outcome o f a t o o t h e x t r a c t i o n , t h a t i n f e c t i o n s c a n
worsen d r a m a t i c a l l y i n a v e r y s h o r t t i m e , and t h a t d e f e n d a n t
a d e q u a t e l y monitored p l a i n t i f f ' s p r o g r e s s a f t e r t h e e x t r a c -
tion. We hold that there is substantial evidence in the
record t o support t h e j u r y ' s v e r d i c t .
Affirmed.
We Concur:
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Justices