NO. 92-562
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ROBERT ZIMMERMAN,
Plaintiff and Appellant,
-vs-
G.D. ROBERTSON, D.V.M.,
d/b/a BOZEMAN VETERINARY
HOSPITAL,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerrold L. Nye; Nye & Meyer, Billings, Montana
For Respondent:
Geoffrey R. Keller; Matovich, Addy & Keller,
Billings, Montana
Submitted on Briefs: May 20, 1993
Decided: June 21, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Robert Zimmerman appeals from a judgment on directed verdict
entered in favor of G.D. Robertson by the Thirteenth Judicial
District Court, Yellowstone County. We affirm.
We restate the issues on appeal as follows:
1. Is expert testimony required in a negligence action
against a veterinarian?
2. Did the defendant's testimony constitute sufficient
evidence of deviations from the standard of care to enable the
plaintiff to withstand a directed verdict?
3. Did the District Court abuse its discretion in refusing to
admit testimony regarding whether the defendant obtained the
informed consent of the horse's owner prior to surgery?
Robert Zimmerman placed a colt in the care of Sarah Vaessen at
the Bridger Canyon Stallion Station (BCSS) in March of 1991. In
early May, Vaessen contacted veterinarian G.D. Robertson with
regard to castration of a number of colts, including Zimmerman's.
Robertson discovered that Zimmerman's colt was cryptorchid (one
retracted testicle); the colt was transported to Robertson's clinic
where cryptorchid surgery and castration was performed.
The colt was returned to the BCSS in mid-May. On May 24,
1991, Robertson was called to treat the colt for an upper respira-
tory infection. He treated the colt with antibiotics daily through
the end of May; the infection appeared to be responding.
To facilitate the healing process, Robertson applied Dermago
2 to the surgical site on June 7. He was called back to the BCSS
2
on June 19 regarding an infection at the surgical site; the colt
was transported back to Robertson's clinic. Robertson treated the
colt with antibiotics, other medications and drains. The colt died
on October 6, 1991. A autopsy was performed and a large abscess
n
was discovered in the spleen; in addition, streptococcus zooepidem-
icus bacteria was isolated.
Zimmerman filed a complaint against Robertson claiming
negligence in both the surgical procedure and post-surgery
treatment. A jury trial began on October 5, 1992. Zimmerman
testified and also called Vaessen and Robertson as witnesses.
Robertson moved for a directed verdict at the close of Zimmerman's
case. The District Court granted the motion on October 6,
concluding that Zimmerman had failed to provide necessary expert
testimony. Zimmerman appeals.
Is expert testimony required in a negligence action against a
veterinarian?
Zimmerman contends that expert testimony should not be
required in an action against a veterinarian. We disagree.
We have not previously addressed the specific question of
whether expert testimony is required in a negligence action against
a veterinarian in Montana. In Carlson v. Morton (1987), 229 Mont.
234, 745 P.2d 1133, however, we discussed the elements a plaintiff
must prove in any professional negligence action, stating that in
such actions "[nlegligence cannot be inferred from the simple fact
that a loss occurred." Carlson, 745 P.2d at 1136 (citations
omitted). We went on to observe that, while the field of legal
malpractice was relatively new in Montana, it was undisputed that
expert testimony supporting a departure from "the prevalent
standard of medical carew was required in medical malpractice
actions. Carlson, 745 P.2d at 1136. Indeed, by that time, the
necessity of expert testimony to establish the standard of care had
been extended to professional negligence actions against dentists,
orthodontists, manufacturers of pharmaceuticals, and abstractors of
title. Carlson, 745 P.2d at 1136-1137 (citations omitted). We
extended that requirement to actions against attorneys.
The rationale for requiring expert testimony in professional
negligence actions has been summarized by Professors Prosser and
Keeton:
Professional persons in general, and those who undertake
any work calling for special skill, are required not only
to exercise reasonable care in what they do, but also to
possess a standard minimum of special knowledge and
ability. Most of the decided cases have dealt with
surgeons and other doctors, but the same is undoubtedly
true of dentists, pharmacists, psychiatrists, veterinari-
ans, lawyers, architects and engineers, accountants,
abstractors of title, and many other professions and
skilled trades.
Since juries composed of laymen are normally incompetent
to pass judgment on [such] questions ...
it has been
held in the great majority of malpractice cases that
there can be no finding of negligence in the absence of
expert testimony to support it. . . .
Carlson, 745 P.2d at 1137, citing Prosser and Keeton on The Law of
Torts
-t § 32, 5th Edition, (1984).
As we did in Carlson in a professional negligence action
against an attorney, we conclude here that expert testimony is
necessary to establish the applicable standard of care in an action
against a veterinarian which arises from the veterinarian's
professional capacity. Matters concerning the standard of care
owed by a veterinarian during and after surgery are outside the
common experience and knowledge of lay jurors; expert testimony is
necessary to assist them in resolving such cases.
Our conclusion on this issue was clearly foreshadowed in
Carlson. We note, as well, that other jurisdictions have adopted
the expert testimony requirement in veterinary negligence actions.
In Utah, for example, expert testimony is required to show that a
veterinarian did not exercise the care and diligence ordinarily
exercised by skilled veterinarians doing the same type of work in
the community, and that the failure caused the injury. Posnien v.
Rogers (Utah 1975), 533 P.2d 120, 121-122. See also 71 A.L.R.4th
811, Veterinary Malpractice, 823-825.
Zimmerman's argument that differences in training, conditions
of practice and expected standards between veterinary doctors and
physicians weigh against requiring expert testimony in negligence
actions against veterinarians is not persuasive. Requiring expert
testimony is not the equivalent of applying the same standards to
veterinarians as are applied to physicians. Indeed, expert
testimony regarding the standard of care owed by a veterinarian may
reflect that the appropriate standard of care for veterinarians is
significantly less than that required of physicians. We do not
determine the appropriate standard of care merely by requiring
expert testimony on the subject.
Did the defendant's testimony constitute sufficient evidence
of deviations from the standard of care to enable the plaintiff to
withstand a directed verdict?
Zimmerman argues that Robertson's own testimony established
deviations from the applicable standard of care and that, on that
basis, the District Court erred in directing a verdict for
Robertson. We disagree.
Zimmerman advances "admissions" by Robertson that his
treatment of the colt fell below the standard of care in several
regards. First, he quotes certain testimonjj with regard to the
issue of informed consent. On the basis of our discussion and
conclusion on Issue 3 below, we do not review this testimony.
In addition, Zimmerman contends that Robertson admitted sub-
standard care with regard to the use of certain medications and
drains and his failure to obtain a culture or other determination
of the type of bacteria in the abscess. Zimmerman asserts that
these "admissions" were sufficient to withstand a directed verdict.
We have recognized the "defendant's admissions" exception to
the expert testimony requirement in several professional negligence
cases. We acknowledged, but refused to apply, the exception in
Dalton v. Kalispell Regional Hosp. (Mont. 1993), 846 P.2d 960, 50
St.Rep. 54; Hunter v. Missoula Community Hosp. (1988), 230 Mont.
300, 750 P.2d 106: and Hill v. Squibb & Sons, E.R. (1979), 181
Mont. 199, 592 P.2d 1383. In Thomas v. Merriam (1959), 135 Mont.
121, 127, 337 P.2d 604, 607, we applied the exception where the
physician's admissions to a member of plaintiff's family as to the
procedures he followed were sufficient to establish a deviation
from the standard of care.
The case before us is distinguishable from Thomas. Here,
Robertson testified that his use of certain medications was not
improper; similarly, he testified that it was not improper not to
obtain a culture on the bacteria present. Finally, Robertson
testified that his suction draining of the abscess prior to
actually inserting drains--which he did in August and September--
constituted appropriate treatment.
Robertson's testimony was that he believed his treatment and
care of the colt, including both the surgery and the post-surgical
treatment, fell within the applicable standard of care for
veterinarians in the Bozeman area. We conclude that the "defen-
dant's admissions" exception to the expert testimony requirement in
professional negligence actions is not applicable here. Zimmerman
having elicited no other expert testimony regarding deviations from
the standard of care, we hold that the District Court did not err
in directing a verdict for Robertson based on the absence of
required expert testimony.
Did the District Court abuse its discretion in refusing to
admit testimony regarding whether the defendant obtained the
informed consent of the horse's owner prior to surgery?
During trial, Zimmerman attempted to question Robertson on the
subject of whether Robertson had obtained his informed consent to
the allegedly risky cryptorchid surgical procedure. On the basis
of the pleadings alleging negligence during the surgery and the
post-surgical treatment, the District Court sustained defense
counsel's relevancy objections. Zimmerman argues that he was
entitled to pursue the subject and that the District Court's
refusal to admit the testimony warrants reversal.
Rulings on the admissibility of evidence are within the sound
discretion of the trial court and will not be overturned on appeal
absent an abuse of discretion. Bache v. Gilden (19921, 252 Mont.
178, 181, 827 P.2d 817, 819. Relevant evidence is evidence "having
any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or less
probable than it would be without the evidence." Rule 401,
M.R.Evid. Relevant evidence generally is admissible; "[elvidence
which is not relevant is not admissible." Rule 402, M.R.Evid.
Zimmerman's complaint alleged negligence by Robertson during
two stages of his treatment of the colt: 1) that, as a result of
his negligent and careless castration procedure, infection set in;
and 2) that he failed to promptly and properly treat the infection.
The negligence was alleged to be the cause of the colt's death and
Zimmerman's monetary damages. It is undisputed that the complaint
was sufficient to state claims for relief for professional
negligence under Rule 8(a), M.R.Civ.P.
The parties and the District Court entered into a Pretrial
Order (PTO) on September 24, 1992, some ten days prior to trial.
"Plaintiff's Contentions'' in the PTO centered on Zimmerman's
allegations that the surgical procedure was done under improper and
unsanitary conditions, that conditions in the recovery area also
were improper and unsanitary, that infection developed at the
surgical site as a proximate result of those conditions, and that
the colt died as a result of Robertson's failure to properly care
for it.
In addition, Zimmerman set forth his "Plaintiff's Issues of
Factw as follows in the PTO:
The following issues of fact, and no others, remain to be
litigated upon the trial.
1. The nature and condition of the area where the
castration/surgery was performed and its level of
sanitation.
2. The nature and condition of the area in which
the horse was placed to recover from the castra-
tion/surgery.
3. Whether the lack of sanitation and/or nature of
the surgical and recovery areas were the probable cause
of the infection to the surgical/castration area and/or
the respiratory infection.
4. The effect of the respiratory infection on the
infection in the surgical/castration area.
5. The nature and extent of treatment of infection
after it was discovered and care given by Defendant after
the infection was discovered.
6. The nature and extent of the loss suffered by
Plaintiff as a result of the loss of the horse.
Here, Zimmerman set forth his factual contentions and factual
issues remaining for trial with some particularity. Those factual
issues requiring litigation corresponded to the two areas of
negligence alleged in the complaint, namely, the surgical care and
post-surgical treatment.
A pretrial order controls the subsequent course of the action.
Rule 16(e), M.R.Civ.P. Indeed, the PTO in this case specifically
provided that it would govern the course of trial. The purpose of
pretrial orders is to prevent surprise, simplify the issues and
permit counsel to prepare their case for trial on the basis of the
pretrial order. Workman v. McIntyre Const. Co. (1980), 190 Mont.
5, 617 P.2d 1281.
Here, nothing in the pretrial order raised as a factual issue
to be litigated the matter of an alleged failure to obtain
Zimmerman's informed consent prior to the surgery. Under these
specific circumstances, testimony regarding that alleged failure
was irrelevant to the factual issues identified by Zimmerman
himself in the PTO; it did not tend to make the existence of any
fact of consequence to the determination of Robertson's negligence
during either the surgery or the post-surgery period more or less
probable. Permitting the introduction of this new factual matter,
first raised during trial, would undermine the purposes pretrial
orders are intended to serve.
Citing numerous cases, Zimmerman argues that the failure of a
doctor to obtain proper consent prior to medical treatment is
malpractice. As set forth above, however, testimony relating to
informed consent simply was not related to his specified allega-
tions of negligence.
Furthermore, Zimmerman relies primarily on Canterbury v.
Spence (D.C.Cir. 1972), 464 F.2d 772; and Scott v. Bradford (Okla.
1979), 606 P.2d 554, for the necessary elements of a lack of
informed consent action. We need not address here the substantive
questions relating to such an action in Montana. We note only that
the cases generally support the proposition that a medical
malpractice claim premised on a theory of lack of informed consent
is a separate cause of action rather than an "element" in an
otherwise specifically alleged claim of professional negligence, as
Zimmerman asserts. In Canterbury, the plaintiff sought personal
injury damages based, alternatively, on alleged surgical negli-
gence, alleged negligence in post-operative care, and an alleged
negligent failure by the doctor to disclose the risks inherent in
the operation. Canterbury, 464 F.2d at 776. Similarly, in Scott,
the Oklahoma Supreme Court had before it a claim that the defendant
failed to advise of the risks involved in, or available alterna-
tives to, surgery; it set forth the elements that a plaintiff in a
medical malpractice action based on a theory of lack of informed
consent "must alleqe and prove." a,P.2d
606 at 559 (emphasis
added).
These cases support our conclusion that Zimmerman did not
sufficiently raise the informed consent issue prior to trial in
either his pleadings or the pretrial order. We hold that the
District Court did not abuse its discretion in refusing to admit
testimony regarding whether the defendant obtained the informed
consent of the horse's owner prior to surgery.
AFFIRMED.
"-
We concur:
Justice Terry N. Trieweiler specially concurring.
Based on the unique facts and the available record in this
case, I concur with the result of the majority opinion, although I
do not agree w t n all that is said in that opinion.
ii
I would especially caution Montana practitioners not to draw
unwarranted conclusions that this case establishes any rules for
pleading or procedure.
The Montana Rules of Civil Procedure require only notice
pleading; and there is no requirement that the facts alleged in a
pretrial order be any more specific than those alleged in a
complaint.
In the typical professional negligence claim, it is sufficient
that the plaintiff allege that the defendant was negligent. It is
up to the defendant through the use of discovery to define the
specific bases for that general allegation. In this case, we have
no record before this Court of what, if any, discovery was
conducted by either party. In addition, plaintiff chose, although
he was not required to do so, to very specifically articulate each
factual basis for his claim of negligence in the pretrial order.
Without knowing more about the extent of discovery, and based
simply on the limited record before this Court, it is reasonable to
conclude, based on plaintiff's affirmative allegations, that
defendant was surprised when the issue of informed consent was
raised for the first time during trial. Under these limited
circumstances, I conclude that the District Court did not abuse its
discretion by excluding evidence on the issue of informed consent.
13
However, by concurring in this opinion, I do not intend to in
any way add to the present requirements for pleading and proving
claims of professional, or any other type of, negligence. Neither
do I intend to lessen the burden on either plaintiffs or defendants
to use pretrial discovery to fully explore the factual bases for
the other party's general claims.
Justice William E. Hunt, Sr., joins in the foregoing concurrence.
P r
Justice
June 21, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Jerrold L. Nye
Nye & Meyer
3317 Third Ave. No.
Billings, MT 59101
Geoffrey R. Keller
Matovich, Addy & Keller
225 Petroleum Bldg.
2812 First Ave. No.
Billings, MT 59101
ED SMITH
eLEiuc OF THE SUPREME COURT