No. 88-550
TE THE SUPREME COURT OF THE STATE OF MONTANA
LAWRENCE A. CHAPEL,
Plaintiff and Appellant,
-VS-
JAMES G. ALLISON,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Rnbh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Monte Beck argued, Bozeman, Montana
For Respondent:
Gary L. Walton argued; and John ~ a v i s ;Poore, Roth &
Robinson, Butte, Montana
For Amicus Curiae:
W. William Leaphart argued, Kt. Trial Lawyers' Assoc.,
Helena. Montana
R. Stephen Browning; ~rowning, Kaleczyc, Berry & Hoven,
Mt. Hospital Assoc., Helena, Montana
Gerald J. Neely, Mt. ~ e d i c a lAssoc., ~illings, Montana
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Submitted: October 17, 1989
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c u cj Decided: January 12, 1990
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Justice John C. Sheehy delivered the Opinion of the Co.urt.
Lawrence A. Chapel sued Dr. James G. Allison for
malpractice in the ~istrictCourt, sixth ~udicial ~istrict,
Park County. At the close of Chapel's case in chief, before
a jury, the ~istrictCourt granted Dr. Allison's motion for a
directed verdict on the basis that Chapel failed to present
sufficient evidence to meet his burden of proof. Chapel
appeals the judgment in directed verdict to this Court. We
reverse and remand for a new trial under the conditions
hereafter set forth.
The sole issue upon which we base our reversal is that
the District Court erred by granting Dr. ~llison'smotion for
a directed verdict.
Chapel was injured when he was kicked by a horse on
February 18, 1983. He was taken to the emergency room at
Livingston Memorial Hospital where he was treated by Dr.
James G. Allison. The doctor diagnosed the fracture as
"comminuted undisplaced fracture of the infra condylar region
of the left tibia" after viewing X-rays. There was an open
wound proximal to the tibia. He applied a long leg cast
extending from Chapel's mid-thigh down to and including his
foot.
Chapel was released from the hospital on February 21,
1983. He was readmitted on February 25, 1983 for treatment
of a blood clot which had lodged in his lung. By stipulation
of counsel this case does not involve any allegation of
negligence of Dr. Allison because of the blood clot.
The cast was removed May 2, 1983. Chapel's leg
exhibited a varus deformity (bow-leggedness) which required
surgery, a procedure called an "osteotomy," to straighten the
bowed leg. This surgery was performed September 19, 1984 in
~illings, Montana, at St. Vincent Hospital by Dr. Richard
Snider who removed a piece of bone from Chapel's leg.
I.
Dr. Allison practices in Livingston, Montana, as a
licensed non-board-certified general practice physician (thus
legally entitled to treat Chapel's injuries). He treated
Chapel at the emergency room of Livingston Memorial Hospital
and did not refer Chapel to an orthopedic specialist.
Chapel had been a patient of Dr. Allison's for nearly 20
years, the doctor treating ailments from common illnesses up
to and including sprains, fractures, and an initial treatment
for a ruptured disc.
Chapel's injury was of the kind which would fall within
the area of practice of an orthopedic surgeon. It would also
fall within the area of practice of a properly qualified
general practitioner who possessed the requisite degree of
knowledge and skill for treating his patient, but a general
practitioner is not trained, excluding experience, at a level
a board-certified orthopedic surgeon would be trained. Dr.
~ l l i s o n did not hold himself out to Chapel to be anything
other than a general practitioner when he undertook the
treatment of Chapel. Dr. Allison claimed during the
litigation that he possessed the requisite degree of
knowledge for treating Chapel because of his 24 years of
practice in which he had treated 1,000 fractures, 50 of which
involved the tibia and 15 of which involved the tibia1
plateau, and one instance of the same injury, but without the
wound overlying the fracture site.
The expert testimony produced by the plaintiff Chapel
came from an orthopedic surgeon from Denman, Massachusetts,
Dr. Stephen Sand, board-certified in the speciality of
orthopedic surgery. His testimony was as follows:
Q. Based upon what you have learned by reviewing
all of the documents that we mentioned, have you
been able to form a reasonable judgment on what the
standards of care are in the Livingston-Bozeman
area in Montana for the care and treatment of an
injury such as was sustained by Mr. Chapel by a
general practitioner?
A. My opinion, based on the review of the
information that you have stated, and my contact
with a general practitioner in the area, is that a
general practitioner would not, under ordinary
circumstances, handle this type of case or injury.
After testimony was admitted, the court allowed
extensive voir dire examination by opposing counsel of Dr.
Sand and upheld the propriety of his opinion over objection.
At the close of Chapel's case in chief, counsel for Dr.
Allison moved for a directed verdict on the issue of
liability, contending that Chapel had failed to sustain his
burden by a preponderance of the evidence that any problems
with his leg resulted from the negligence of Dr. Allison.
The court granted the motion for a directed verdict.
Later, in dismissing the jury, the District Court stated
reasons for the directed verdict. The ~istrictCourt said
that proof of the competency of Dr. Sand to testify in the
matter was "very shaky;" that the plaintiff did not call Dr.
Kurtz, a Bozeman doctor, upon whom Dr. Sand had relied for
information as to the area of practice for a general
practitioner; that Dr. Allison had testified that in his
opinion Chapel was bow-legged before the accident and despite
the leg injury and disc surgery the same year, that Chapel
was able to go elk hunting in the mountains for a two-week
period; that the other doctors whose testimony appeared in
the case have all in effect said that there was no fault
[which came from depositions not used at the trial]; that the
reports of the radiologist showed no displacement of Chapel's
bones in the X-rays; that the plaintiff had failed to rebut
Dr. Allison's testimony that plates, screws and bolts should
not be used in an open fracture treatment because of possible
risk of infection, or Dr. Allison's testimony that it would
be improper to insert a needle or orthoscopic instrument in
Chapel's knee; or that general anesthesia was not used and
should not be used; that Dr. Allison further testified that
further manipulation of the bones might have done more
possible harm than good, and other elements of the testimony.
In effect, the District Court weighed the testimony as
opposed to the evidence of Dr. Sand that "a general
practitioner would not under ordinary circumstances handle
this type of case or injury."
This court stated in ~rittonv. Farmers Insurance Group
(1986), 221 Mont. 67, 721 P.2d 303, 317, the following:
A motion for directed verdict is properly granted
only in the complete absence of any evidence to
warrant submission to the jury, and all inferences
of fact must be considered in the light most
favorable to the opposing party. Jacques v.
Montana National Guard (1982), 199 Mont. 493, 649
P.2d 1319; if the evidence viewed in a light most
favorable to plaintiff indicates reasonable men
might differ as to the conclusions drawn from the
evidence, a directed verdict is not proper. Weber
v. Blue Cross of Montana (1982), 196 Mont. 454, 643
P.2d 198.
Chapel himself testified that it was obvious to him that
his leg was crooked as it was cast, that it caused him a good
deal of pain about which he complained to the doctor and
about which the doctor did nothing. Mrs. Chapel also
testified that she was concerned about her husband and
informed Dr. Allison that she wanted her husband to receive
the best possible medical attention and to let her know if
the doctor could not handle the case. Chapel inquired of the
doctor whether his leg would remain in the shape that it was
cast.
The findings relied on by the District Court in this
case show that it weighed the plaintiff's evidence,
ultimately finding in favor of the defendant. The power of
weighing the evidence belongs to the jury. Therefore, on the
basis that the District Court improperly granted a directed
verdict, we reverse and remand the cause for further
proceedings in accordance with this opinion.
During pretrial procedures before the District Court,
the plaintiff made a motion - limine that the "same locality
in
rule" (infra) was not applicable in this case. The court
denied the motion, saying:
The court specifically determines that the rule
applicable in this case is that Dr. Allison will be
held to the standard of care in February 1983 of a
licensed general practitioner, who is not board
certified, in the same or similar communities
within Montana. Provided, however, experts from
elsewhere and in other specialties will be
considered competent to testify if they are
medically qualified and if they are in fact
familiar with the standards for a general
practitioner in Livingston or similar communities
in Montana at the time in question.
The order of the court correctly reflected the status of
the law in Montana relating to the standard of care
applicable to general practitioners.
Formerly, the standard of care required of a physician
or surgeon in treating a patient was to exercise as
reasonable care and skill which "is usually exercised by
physicians or surgeons of good standing of the same system or
school of practice in the community in which he resides,
having due regard to the condition of medical or surgical
science at that time. " Hansen v. Pock (1920), 57 Mont. 51,
59, 187 P. 282, 285. The "same locality rule" restricted the
geographical area from which the degree of care exercised by
a physician or surgeon could be determined to the community
in which the doctor resided.
In Tallbull v. ~ h i t n e y (1977), 172 Mont. 326, 564 P.2d
162, this Court examined the "same locality rule" and
determined that the foundation for it no longer existed. The
reasons given were that the accessibility of medical
literature, the freq.uency and availability of national,
regional and state medical meetings, advances of
communication of medical knowledge, transportation advances,
and the opportunity for rural community doctors to gain
medical knowledge in the same manner as doctors in more
pop.ulous regions in the state, all made the "same locality
rule" outdated. In Tallbull, this Co.urt expanded the rule
saying :
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 locati-on, size and character in a
medical context.
172 Mont. at 335, 564 P.2d at 166, 167.
The Tallbull rule was modified insofar as it applied to
an orthopedic surgeon in ~asheim v. Humberger (1985), 215
Mont. 127, 695 P.2d 824. There, this Court recognized that
the defendant was a nationally board-certified orthopedic
surgeon and had received comparable training and passed the
same national board certification tests as all other
board-certified orthopedic specialists in the nation. On
that basis, this Court held that when a defendant in a
medical negligence action was a board-certified specialist,
his skill and learning would be measured by "the skill and
learning possessed by other doctors in good standing,
practicing in the same speciality and who hold the same
national board certification." Aasheim, 215 Mont. at 130,
695 P.2d at 826. Thenceforth, board certified specialists in
Montana would be subject to a national standard of care.
In Glover v. Ballhagen (1988), - Mont . - 756 P.2d
,
1166, this Court answered a certified question posed by the
Federal ~istrictCourt of Montana again with respect to the
standard of care applicable to national board-certified
specialists. In this case, the doctor was a board-certified
family practitioner. In Glover, we concluded that:
... the standard of care to which a board
certified family practitioner will be held is that
skill and learning possessed by other doctors in
good standing, practicing with the same national
board certification.
... that the party presenting a witness as an
expert must establish, to the satisfaction of the
trial court, that the witness possesses the
requisite knowledge, skill, experience, training,
or education to testify as to the diagnosis and
treatment in question as to the standard of care
applicable to the physician charged with
negligence.
Glover, 756 P.2d at 1168.
Thus, in the action against Dr. Ballhagen, this Court
held that the expert witness "must be q.ualified pursuant to
Rule 702 to testify as to the standard of care required of a
board certified family practitioner."
Not answered in the foregoing cases, and raised as an
issue in this case, is whether a non-board-certified general.
practitioner, practicing in a Montana community, who treats a
patient for an injury of a kind which would fall within an
area of practice of an orthopedic surgeon should be held to
the degree of care, knowledge and skill of the specialist; or
whether, as the District Court determined here, as a general
practitioner, in treating a patient for an injury which would
fall within the area of practice of an orthopedic surgeon,
the general practitioner should be held to that degree of
care, knowledge and skill of a general practitioner
practicing in the same or similar communities in Montana.
Because of the broad implications to the medical
community and to injured patients lurking in whatever
decision we made on this issue, we ordered rebriefing and
oral argument on the issue and invited briefs from amici
curiae.
Here are the arguments marshalled by each side:
Counsel for Chapel maintains that in an age of
increasing specialization, a doctor in general practice is
under a legal duty, in diagnosing or treating a patient, to
seek consultation with or refer a patient to a specialist
when the doctor knows or should know in the exercise of
reasonable care that the services of a specialist are
indicated. Chapel further argues that if there is another
mode of treatment that is likely to be more successful for
which the physician does not have the facilities or the
training to administer, but which is available from
specialists, it is the doctor's duty to so advise the
patient, and failure to apprise the patient of these facts
would constitute a breach of that duty. Chapel also argued
the duty to refer does not end with diagnosis. He contends
that the general practitioner must also evaluate what
progress is made in treating his patient and that if he knows
or has reason to know that his method of treatment has failed
or has not proven effective, he is under a continuing duty to
consult or to refer. Chapel further points out that in this
case, the orthopedic treatment of his leg was not an
emergency, and could have been done in later days.
Dr. Allison's brief contends that the Tallbull rule
should continue to be applied to general practitioners. Dr.
Allison points out that a general practitioner in a small
community such as Livingston has an advantage over general
practitioners in larger or more populated areas because
doctors such as Dr. Allison have occasion to treat many more
types of cases than would a general practitioner in a
metropolitan area. Dr. Allison had treated 15 injuries
similar to Chapels. Dr. Allison also contends that
restricting the degree of care to the same or similar
communities in Montana is proper because he confronts
illnesses and injuries in serving his community whereas
practitioners in a larger city devote much of their practice
to initial diagnoses with referral to a specialist for
anything beyond routine care. Dr. Allison also relies on the
Restatement (Second) of Torts, § 29912, Comment G (1965), in
support of the Tallbull rule. Dr. Allison also contends that
it would be impracticable to require a general practitioner
to be held to the standard of care of whatever area of
expertise in which his treatment might fall, including an
orthopedic surgeon, a dermatologist, a neurologist, an
obstetrician, an internist, and so on.
An amicus brief was filed by the Montana rial Lawyers
~ssociation. In it, the Trial Lawyers emphasize that all
physicians today receive a standardized education with
ongoing common access to sources of medical information in
authoritative journals through electronic data retrieval and
in continuing medical education seminars. Trial Lawyers
point out that Montana has no medical school, and thus,
doctors coming into this state to practice necessarily have
received a standarized education, and therefore the degree of
care they exercise in treating patients is subject to review
on a national basis. Trial Lawyers contend that there is a
trend away from the locality rule in most states which apply
a national standard of care typically defined as "a physician
is under a duty to use that degree of care and skill which is
expected of a reasonable competent practitioner in the same
class to which it belongs, acting in the same or similar
circumstances." Trial Lawyers contend that the phrase "the
same or similar circumstances" allows the trier of fact to
take into account and to weigh local conditions when the
standard is applied, so as to reflect the same "general
facilities, services, and options" which were available to
the treating doctor. Trial Lawyers contend that limiting
expert testimony to the standard of care reflected in the
same or similar communities in Montana is too restrictive,
and that uniform standards should be applicable to a given
situation regardless of locality and that the lack of
familiarity of the expert with practice in a particular
locality should not disqualify the expert. Trial Lawyers
contend that in such cases as presented here, a general
practitioner who knows or should have known that a patient's
ailment is beyond his knowledge or technical skill is under
the duty to disclose the situation to his patient.
An amicus brief was received from the Montana Hospital
~ssociation. ~ssentially,this brief points out the rather
dire prospects faced by rural hospitals in Montana. It
states that all of Montanas 64 hospitals were only marginally
profitable for the past five years but that rural hospitals
experienced increasing financial losses. The losses are
occuring primarily because of reduced utilization of rural
hospitals. Some of the reductions are due to public policies
and issues undertaken at both the federal and state levels
with cutbacks in federal and state Medicare and Medicaid
programs. The importance of a rural doctor to a r.ural
hospital is emphasized in the brief and the hospitals contend
that the similar locality rule is needed in rural areas to
keep physicians there providing essential health services and
utilizing local rural hospital services. We are urged by the
Hospital Association not to abandon the similar locality
rule.
Finally, we have received an amic.us brief from the
Montana Medical Association. In it, the Association points
out that it supports a high degree of access to all forms of
medical care, especially obstetrical and other services in
rural communities; that it desires to maintain the highest
degree of quality of medical care in all of Montana
communities; that it seeks the enhancement of the
physician-patient relationship and when at any given time
there is a change in the appropriate standard of care,
medical practitioners should have advance notice of the same.
The brief of the Montana Medical Association recognizes
the implications of the problem and seems to be seeking a
middle ground for its resolution. Thus, with regard to
general practitioners, its brief recommends that we continue
to adopt the "same or similar locality" standard, without
geographical limitations for general practitioners but allow
the "national" specialist standard to be applied to any
physician who holds himself or herself out as a specialist.
Otherwise the Association contends that one who is educated
and trained as a general practitioner should generally not be
expected or required to meet the standards or to follow the
procedures prescribed for a board-certified specialty and
should not be measured by the criteria for that specialty
other than his own. The brief suggests that the elimination
of the Montana boundary restriction on the locality r-ule is
warranted if the same could be done in this case without
modifying the verdict solely as a result of that change,
beca.use the concept of advance notice is important when
judicial legislation occurs. It points out that if the "same
or similar locality" rule for general practitioners is any
locality similar in the United States, sound policy reasons
support such a change, including: 1) the loss of general
practice or family practice services in Montana communities
in the rural areas; 2) the lack of specialty care in and of
the rural communities for referral of patients; 3) the fact
that a general practitioner, though competent to act in areas
which overlay specialistsbreas, is not necessarily as
skilled as a specialist; and, 4) the increased availability
of expert witnesses, the lack of which would be some
justification for alterations in the law. The brief contends
for a balance to be struck between the right of a negligently
injured patient to receive compensation through the
availability of expert testimony and the right of a doctor to
due process and a fair hearing, by insuring that those
experts who do testify possess solid practical experience in
the type of practice at issue.
On balance, the position asserted by the Montana Medical
Association as to the standard of care applicable in cases of
this type, with slight modification, appears suitable for
adoption by us. For the same reasons as in Tallbull, we
abandon the "locality" rule which is limited to Montana
communities. It appears proper to revise the rule that n v oi
limits the standard of care to be exercised by a general
practitioner to be determined by that standard established in
similar communities in Montana. The geographical restriction
of the state boundary is too narrow in view of the necessity
of expert testimony; yet, as the Association contends, the
national standard should not exclude local considerations
which face rural general practitioners.
Accordingly, we hold that a non-board-certified general
practitioner is held to the standard of care of a "reasonably
competent general practitioner acting in the same or similar
community in the united States in the same or similar
.
circ.umstances " See, ~hilkret v. ~nnapolis Emergency
~ospital Association (Md. 1975), 349 A.2d 245. "Similar
circumstances" permits consideration by the trier of fact of
legitimate local factors affecting the ordinary standard of
care including the knowledge and experience of the general
practitioner, commensurate with the skill of other competent
physicians of similar training and experience, with respect
to the type of illness or injury he confronts and the
resources, facilities and options available to him at the
time. ~nything in Tallbull to the contrary is hereby
reversed, prospectively as hereafter stated.
t his opinion applies only to general practitioners, and
does not affect board-certified specialists or board-
certified general or family practitioners.
We are further persuaded by the brief of the Montana
Medical Association that a change of judicial attitude of
this nature should be prospective only. We, therefore, order
on remand of this case to the District Court that any further
proceedings relating to the applicable standard of care of
Dr. Allison shall be that standard of care enunciated in the
Tallbull case, since that was the standard of care applicable
when Dr. Allison treated Chapel.
Moreover, the effect of this opinion with respect to the
standard of care required of non-board-certified general
practitioners shall be prospective only and shall apply to
treatments only by such general practitioners of patients
commencing from and after March 31, 1990, so that the effect
of this opinion will be made known to the medical profession.
Reversed and remanded for further proceedings in
accordance with this opinion. ~dst;'to Chapel/.
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We Concur: 4
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