No. 87-295
IN THE SUPREME COURT OF THE STATE OF MONTANA
REBECCA HUNTER, a minor child, by
her Guardian and Grandfather, ALBERT
HUNTER,
Plaintiff and Appellant,
-vs-
MISSOULA COMMUNITY HOSPITAL, CHARLES
E. BELL, M.D. and DANIEL A. HARPER, M.D.,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Small, Hatch, Doubek & Pyfer; John C. Doubek argued,
Helena, Montana
For Respondent:
Garlington, Lohn & Robinson; Larry E. Riley argued,
Missoula, Montana
Submitted: January 5 1 1988
Decided: February 10, 1988
Filed: F E10
~ 1988
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
In this medical malpractice case, we hold that there was
no genuine issue of material fact where plaintiff failed to
produce a medical expert competent to establish by testimony
the applicable standard of medical care and a departure from
that standard. Therefore, the District Court, Fourth
Judicial District, Missoula County, correctly granted a
summary judgment in favor of the medical personnel. We also
determine that the doctrine of - ipsa loquitur is not
res
applicable to this case.
In so holding, we determine that plaintiff's case does
not come within the rule that third party expert testimony is
not necessary if a medical defendant ' s own testimony
establishes the standard of care and departure from it.
Rebecca Hunter was one of twins born on June 29, 1979,
at Missoula Community Hospital. Her twin brother was
delivered naturally, but Rebecca was delivered by caesarian
section. Rebecca was premature with a birth weight of 3
pounds 4 ounces, born at 32 weeks. Her attending physician
was Dr. Charles Bell, and on the day of her birth, Dr. Bell
called in Dr. Daniel Harper, a neonatologist, for
consultation. Thereafter, she was under the care of these
doctors until her discharge from the hospital.
On the day of her birth, Rebecca was placed in an oxygen
hood. Her condition, however, was deteriorating, and it was
determined that she had hyaline membrane disease, a lung
deficiency resulting from her prematurity. Approximately 30
hours after her birth, Dr. Harper inserted in Rebecca's right
nostril a nasal tracheal tube (NT tube), which extended
through the external nose to the posterior pharynx past the
vocal cords into the larynx. Dr. Harper testified that the
placement of the tube was necessary to "preserve life and
function." The external end of the tube was attached by
means of an adaptor to the respirator. The mechanical result
was that a mixture of air was forced through the NT tube into
the lungs of the child to expand the lungs. The pressure was
stopped at intervals during which the air was expelled from
the child's lungs. The NT tube was 3.0 millimeters in
diameter, strong enough to take the pressure and at the same
time flexible enough to be inserted as described.
The medical notes of the doctors and nurses indicate
that the NT tube was in the child from June 30, 1979 until
July 3, 1979, when it was removed. During the period that
the tube was present in the child, as shown by the nurses'
notes, one of the nurses attempted to reposition the NT tube
to relieve pressure on the nasal cartilege. On the day
following the removal, July 4, 1979, according to the medical
records, there was a brown mucous discharge from the child's
right nostril. All the medical evidence agrees that
stenosis, or narrowing of the orifice, occurred. One of the
nurses noted a questionable necrotic condition.
After the removal of the NT tube, the doctors ordered
the insertion of a feeding tube or tubes. These tubes were
necessary until the child acquired the sucking reflex. One
of the tubes was inserted far enough in the internal organs
of the child to take the food past the stomach. Later a tube
was utilized to insert food into the stomach itself. The
medical records do not show whether these tubes were inserted
through the right nostril, the left nostril, or through the
mouth, nor do they show the duration of time that the tube or
tubes were left inserted in the child. The medical testimony
indicates that the feeding tubes were more flexible than the
WT tube.
Dr. Harper's deposition testimony with respect to the
placement of the NT tube is that the tube exited the right
nostril in line with the air passage, and then was taped
across the moustache area to the side of the face. A further
tape was placed on the tip of the nose, straight up the
bridge of the nose to the forehead, so as to present a
triangular pattern. Dr. Harper testified that it would be
impossible to tape the NT tube in any other way because it
would not be long enough. The external end of the NT tube
was cut to fit the respirator adaptor.
During the time that the baby was in the hospital, until
her discharge in July, 1979, she was frequently visited by
her grandfather, grandmother and mother. Each of these
witnesses maintained that the NT tube or a tube like it was
in the right nostril of the child from June 30 until the date
of her discharge and that if more than one tube was used,
that in all cases the tube was inserted in the right nostril
of the baby. Moreover, they maintained that the NT tube from
where it exited the right nostril, was taken directly up over
her nose, past the left eye, and taped to her forehead in
such manner that the pressure from the tube on the cartilege
of the baby's nostril was increased. They contend that this
condition prevailed for the entire time that the baby was in
the hospital from June 30.
On July 23, Dr. Bell noted that Rebecca had a "stenotic
R nares" and brought in one Dr. French, an ear, nose and
throat specialist for consultation. It was determined that
further treatment would not be undertaken at that time until
the child had grown older and stouter, sufficiently able to
undertake medical repair. At the time of the deposition
(1985), the medical repair had not been undertaken. It is
contended that the nose of the child is distorted and that
the right nares is almost, if not completely blocked. The
condition may be irreparable.
The allegations of malpractice against the medical
personnel, as cited by the appellant in brief are that the
initial insertion and the way in which the NT tube was
positioned and affixed to the face of the baby was improper,
and that it was thereafter improper to insert another tube
into the same stenotic right nostril of the baby; and that
this subsequent tube or tubes were similarly and improperly
affixed and maintained to the face of the baby.
Dr. Harper testified in his deposition that if the NT
tube had been affixed to the baby's face as described by the
grandparents and mother, such placement of the tube would
have been improper. He contended, however, that his practice
was to affix the tube in the manner that he described and
that the NT tube was not long enough to be affixed in the
manner described by the lay witnesses. There is no medical
dispute that stenosis of the child's right nostril occurred,
and this irrespective of the manner in which the tube was
affixed to the face of the child. Dr. Harper also testified
that he was aware of two other instances where stenosis had
developed from the use of an NT tube, but no further
explanation was sought as to the circumstances of those
instances.
During the course of discovery in this case, counsel for
the medical defendants, by interrogatories, demanded from
plaintiff the names of any expert witnesses he intended to
call, the subject matter upon which the experts would
testify, and a summary of the grounds of each opinion. In
response, plaintiff's counsel gave two names of doctors who
would testify as experts, but whose testimony eventually
failed to materialize. Counsel attempted by various means to
locate other such experts but those efforts, though
substantial, have been ineffectual. Counsel for plaintiff
has located a plastic surgeon who would testify that the
damage to Rebecca's nose is consistent with the placement of
tubes described by the lay witnesses, but who would not
testify as to a standard of care outside of his field of
plastic surgery.
Complaint in this cause in the District Court was filed
on December 11, 1984. On December 4, 1986, the district
judge entered an order regulating pretrial proceedings,
providing that discovery would be closed on January 2, 1987,
and that witnesses not identified at that time could not be
called at trial. On January 5, 1987, the defendants moved
under Rule 56, M.R.Civ.P., for summary judgment in their
favor. The motion for summary judgment was amended, and
thereafter briefed and on February 17, 1987, the District
Court granted an additional three months to plaintiff's
counsel in which to secure necessary expert witnesses, and
ordered that if counsel failed to secure such witnesses and
to inform the court and opposing counsel as to their
identities by May 1, 1987, the court would dismiss the
complaint. In entering that order, the District Court noted
that there were questions of fact, (1) as to how many tubes
were involved with respect to the right nares of the
plaintiff; (2) for what period of time did the tube or tubes
remain in the right nares of the plaintiff; and, (3) whether
the NT tube was properly stationed or affixed following its
insertion. Nevertheless, the District Court noted that there
remained other questions of fact relating to whether proper
medical protocol was maintained, whether defendants departed
from the recognized standard in their treatment and care of
the child, and what precisely constituted the applicable
standard of care.
The plaintiff failed to produce the names of his experts
by May 1, 1987. On May 5, 1987, the motion for summary
judgment was renewed by the medical defendants, and on May
25, 1987, the District Court entered summary judgment
dismissing the action of the plaintiff.
On appeal, counsel for the plaintiff maintains that the
deposition testimony of Dr. Harper established the proper
standard of care with respect to the placement of the NT tube
and that the testimony of the lay witnesses is sufficient to
create a material issue of fact with respect to whether the
proper standard of care had been followed. Moreover, he
contends that this case, on its face, governed by the
doctrine of - ipsa loquitur.
res
In Hill v. Squibb and Sons, E.R. (1979), 181 Mont. 199,
592 P.2d 1383, we noted:
It is true that in several recent cases we have
cited with approval Evans v. Burnhard (19751, 23
Ariz.App. 413, 533 P.2d 721, for the proposition
that third party expert testimony is not necessary
if a defendant doctor's own testimony establishes
the standard of care and departure from it.
(Citing cases. ) Further, in Thomas v. Merriam
(1959), 135 Mont. 121, 337 P. 2d 604, we indicated
that negligence of a doctor may be shown by his own
admissions.. . .
Resort to the foregoing rule, however, is not feasible
here. What is missing from Rebecca's case before the
District Court is testimony that under the circumstances
prevailing, the damage to her nostril would have not occurred
if the applicable standard of medical care had been followed
by the medical personnel. All of the facts argued for by
Rebecca's counsel can be assumed to be true, and yet the
biggest question remains: Was the stenosis avoidable by
adherence to a proper standard of medical care in this case?
The answer to that question is beyond the knowledge of lay
persons. Thus it may be that the position of, the number of,
and the duration of the tubes, as observed by Rebecca's lay
witnesses, were the causes of the stenosis, and eventual
damage. On the other hand, it may be that the position of,
number of, and duration of the tubes, as testified to by the
medical personnel would in the circumstances here also
produce the same conditions. It may further be that the
possibility of stenosis is a risk that must be accepted under
the applicable standard of medical care if the child's life
was to be saved. Lay persons do not know the answers to
these questions. It requires experts in the field to tell us
and here we have no experts.
Thus, we have before us a case in which, though there
are genuine issues of fact between the observations of the
lay witnesses as to the method of treatment accorded Rebecca
and the treatment reflected by the medical notes and the
testimony of the medical personnel, these issues are not yet
material issues of fact. They will not become material
until, by the testimony of competent medical experts, a
standard of proper medical care is established and a
departure therefrom, without which the stenosis would not
have occurred. In other words, even assuming the testimony
of the lay witnesses to be accurate, the test of proximate or
legal cause has not been met. In the absence of material
facts, the summary judgment was proper. See Montana
Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d
670.
In the same manner, the doctrine of - ipsa loquitur is
res
not available here. The doctrine does not apply when there
is no evidence to show that the result ordinarily would not
have occurred had the defendant exercised due care, or that
the result was not to be anticipated. Negaard v. Estate of
Feda (1968), 152 Mont. 47, 52, 446 P.2d 436, 439. For the
same reasons that w e affirm summary judgment in this case, we
must deny the applicability of - ipsa loquitur.
res See Clark
v. Norris (Mont. 1987), 734 P.2d 182, 44 St.Rep. 444.
Affirmed.
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