No. 92-210
IN THE SUPREME COURT OF THE STATE OF MONTANA
JAMES FALCON, individually, as
Personal Representative of the
Estate of Louise Falcon,
Plaintiff and Appellant,
HUNG CHEUNG, M.D., and FRANCES
MAHON DEACONESS HOSPITAL, a
Montana corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Erik B. Thueson, Thueson Law Office, Helena, Montana
For Respondent:
Dennis P. Clarke, Smith, Walsh, Clarke & Gregoire,
Great Falls, Montana, for Hung Cheung, M.D.;
Matthew W. Knierim, Glasgow, Montana, for Frances
Mahon peaconess Hospital
Submitted on Briefs: December 3, 1992
1 1993 Decided: March 18, 1993
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Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the Seventeenth Judicial
District Court, Valley County, granting summary judgment in favor
of the defendants and dismissing plaintiff's complaint. We affirm.
The issues on appeal are as follows:
1. Whether the District Court erred by excluding the testimony of
plaintiff's expert witness, Dr. Robin.
2. Whether the District Court erred in determining that no
competent expert testimony established that Dr. Cheung
deviated from the applicable standard of care in treating
Louise Falcon.
his is a medical malpractice action arising out of the death
of Louise Falcon (Falcon) on July 25, 1988. She died from internal
bleeding when a Swan-Ganz catheter, placed in her pulmonary artery
to monitor her heart, migrated and ruptured or pierced a branch of
the artery.
Earlier that day, Falcon entered the Frances Mahon Deaconess
Hospital in Glasgow, Montana (the Hospital). Her symptoms included
acute respiratory distress, pulmonary edema (fluid in the lungs),
declining blood pressure, rapid heart beat and arrhythmia among
other things. Falcon had suffered at least two prior heart attacks
and had been a heavy cigarette smoker. Dr. Stone, plaintiff's
expert witness, testified that she probably suffered from acute
congestive heart failure and would have likely died within hours
without medical attention.
Dr. Cheung attended Falcon in the emergency room. Dr. Cheung
was not board-certified in any specialties at the time. He treated
her with drugs that stabilized her condition and then decided to
insert a Swan-Ganz catheter to monitor various heart functions.
The Swan-Ganz catheter has a long tube with a balloon tip on
the end. The tip contains various electronic sensors that give
readings concerning the performance of the heart. An operator
inflates the balloon, momentarily blocking the blood flow. The
sensors in the tip then transmit readings concerning the various
pressures within the vascular system to a video monitor.
The readings obtained from the catheter are known as wedge
readings because of the way the balloon wedges against the artery
walls. The medical staff uses the information from the wedge
readings to further diagnose and treat the patient.
Before Dr. Cheung inserted the catheter, he explained to the
family the purpose of a Swan-Ganz catheter and the risks involved
in its use. A recognized risk of the Swan-Ganz catheter is that
its tip migrates and can perforate the pulmonary artery. If the
hole becomes extensive, the patient will die due to massive
internal bleeding. Dr. Cheung told the family that the catheter
could kill the patient.
To insert the catheter, Dr. Cheung cut a hole in Falcon's
subclavian vein, just below the clavicle. He threaded the device
into the hole and through the vein towards the heart. He
manipulated the device down the superior vena cava and inflated the
balloon tip of the catheter. With the aid of the flowing blood, he
moved the catheter into the right atrium, then through the right
ventricle of the heart and out into the pulmonary artery.
Once the catheter was in place, Dr. Cheung sutured the
catheter's sheath to Falcon's chest. He coiled the unused portion
of the catheter and taped it down under a sterile bandage. The
hospital staff then took an x-ray that showed the catheter properly
in place.
The Hospital had a special Swan-Ganz team of nurses that
monitored the catheter and periodically obtained wedge readings
from it after the doctor inserted the device into Falcon's body.
Dr. Cheung checked on her regularly and gave the nurses written
orders to obtain wedge readings every four hours. They actually
took readings at 8:00 a.m., 9:00 a.m., 10:OO a.m., 2:00 p.m., 4:00
p.m., and 6:00 p.m.
Falcon's condition improved throughout the day. That
afternoon, when her sons arrived from west of the continental
divide, she remarked that she was all right and that they need not
have made the trip.
Dr. Cheung left the hospital just before 4:00 p.m. Shortly
thereafter Falcon's respiratory rate increased.
Additionally, a nurse had trouble obtaining a proper wedge
during the 4:00 p.m. reading. Instead of wedging, the catheter tip
bounced around inside the pulmonary artery. The nurse attemptedto
correct the problem by withdrawing the catheter approximately one
inch, then inflating the balloon and slowly sliding it in, trying
to achieve a wedge. However, he was unsuccessful as the balloon
did not properly wedge.
The 6:00 p.m. wedge reading showed elevated pressures in the
patient's vascular system. The situation did not constitute an
emergency, but the nurse thought Dr. Cheung should know of the
change. The nurse unsuccessfully attempted to contact Dr. Cheung
several times between 6:00 and 8:00 p.m. Dr. Cheung finally got
the message and returned the nurse's call at 8:00 p.m.
The nurse explained the changes in the catheter wedge readings
and in Falcon's respiration to Dr. Cheung. Dr. Cheung told the
nurse to alter the patient's medication rate and to check her blood
pressure every five minutes.
Members of Falcon's family testified in their depositions that
her lungs were congested and she coughed up some blood at about
5:00 p.m. The nurse on duty was present, as was Falcon's daughter-
in-law, who was also a nurse at the Hospital. Neither of them was
unduly alarmed and the staff did not note the incident on Falcon's
medical records.
At about 8:30 p.m., Falcon began to have coughing spasms and
spit-up substantial amounts of blood. A nurse paged Dr. Cheung who
arrived at the Hospital within minutes.
Dr. Cheung noticed that the catheter was farther in than he
left it, so he began to withdraw it. He stopped after withdrawing
about fifteen centimeters of the catheter because the x-ray
technicians had arrived to determine the catheter's precise
location with an x-ray.
The x-ray showed that the catheter's tip was seven centimeters
farther into Falcon's body than Dr. Cheung had placed it and that
it had migrated into a peripheral branch of the pulmonary artery.
A portion of the catheter had coiled in a chamber of Falcon's
heart. Dr. Cheung withdrew the catheter from the pulmonary artery
to the area of the superior vena cava or the right atrium.
Dr. Cheung then had Falcon transferred by air ambulance to the
Montana Deaconess ~edical Center in Great Falls. The aircraft
picked her up at 1:50 a.m. and she arrived in Great Falls later
that morning. There, doctors re-inserted the catheter and
otherwise treated her, but she died a few hours later from damage
done to her pulmonary artery by the Swan-Ganz catheter.
The defendants, Dr. Cheung and the Frances Mahon Deaconess
Hospital, filed motions for summary judgment in this cause. They
based their motions on the grounds that neither the plaintiff's
expert Dr. Stone nor any of the defendants' experts established
that there was malpractice in Falcon's treatment.
After the motions were briefed, the plaintiff named Dr. Eugene
Robin as a new expert witness. After taking his deposition, the
defendants filed a motion to exclude his testimony on the grounds
that he was incompetent to testify on the standard of care in a
rural Montana hospital, such as the one in Glasgow.
Following oral arguments on the motions, the District Court
entered an order excluding Dr. Robin's testimony and granting
summary judgment in favor of the defendants. This appeal follows.
I.
Did the District Court err in excluding the testimony of
plaintiff's expert witness, Dr. Robin?
Whether a witness is competent to testify as an expert is a
question of law. Tallbull v. Whitney (1977), 172 Mont. 326, 335-
36, 564 P.2d 162, 167. Our review of a District Court's
conclusions of law is plenary. We determine whether the court's
conclusions are correct. Steer, Inc. v. Dep't of Revenue (1990),
245 Mont. 470, 474-75, 803 P.2d 601, 603.
Plaintiff contends that the court should have allowed Dr.
Robin's testimony because the Hospital's license review process is
subject to standards promulgated by the Joint Commission on
Accreditation of Hospitals (JCAH) . Plaintiff argues that a
national standard of care applies to all hospitals accredited by
the JCAH. Plaintiff further argues that because Dr. Robin is
familiar with other JCAH accredited hospitals, he is competent to
testify as to the standard of care applicable to a general
practitioner working at the hospital in Glasgow, Montana. We
disagree.
A hospital's election of review by the JCAH for state
licensing purposes does not somehow impose a new national legal
standard of medical care on the hospital's general practitioners.
We have rejected a national standard to help ensure that the rural
communities of this state retain their general practitioners and
can continue to provide essential medical services. Chapel v.
Allison (1990), 241 Mont. 83, 92, 785 P.2d 204, 209-10; see also
Swithin S. McGrath, Note, Standards of Medical Care for General
Practitioners in Montana: The Chapel Decision and a Move Toward a
National Standard, 53 Mont. L. Rev. 119, 121, 132 (1992).
As further discussed below, the legal standard of medical care
for non-board-certified general practitioners in Montana is
currently governed by the locality rule or an expanded version of
the locality rule, depending on the circumstances. See Chapel, 785
P.2d at 210. We hold that a non-board-certified general
practitioner in a rural Montana community is not subject to a
national standard of care, merely because the practitioner works at
a hospital that has chosen to utilize JCAH standards in its license
review process.
Plaintiff further contends that the use of a certain piece of
equipment, such as a Swan-Ganz catheter, can subject a non-board-
certified general practitioner to a national standard of medical
care. Plaintiff argues that Dr. Robin is competent to testify
concerning a national standard of care applicable to the use of a
Swan-Ganz catheter in Glasgow, Montana. We disagree.
As a factual matter, the standard of care for the use of a
particular medical device may be the same in a rural Montana
hospital as it is anywhere else in the nation. However, case law
governs the legal standard of medical care in Montana. See
Tallbull, 564 P.2d at 166-67; Chapel, 785 P.2d at 210. For an
expert witness in a medical malpractice case to be competent to
testify concerning the standard of care, the expert must qualify
under either Tallbull or Chapel, depending on when the defendant
treated the patient. See Chapel, 785 P.2d at 210.
The Chapel decision expanded Montana's legal standard of
medical care, but it does not apply in the present case. In Chapel
we stated that the new standard of care required of non-board-
certified general practitioners applies only if the doctor treated
the patient after March 31, 1990. Chapel, 785 P.2d at 210.
The present case accrued on July 25, 1988, which is before the
effective date of the new standard set forth in Chawel.
Consequently, the old locality rule delineated in Tallbull governs
this case. To testify as to the standard of care in this case
then, Dr. Robin must be familiar with the standard of practice in
Glasgow or a similar locality in Montana, considering geographical
location, size, and character of the community in general. See
Tallbull, 564 P.2d at 166-67.
The District Court excluded Dr. Robin's testimony because his
deposition showed that he did not know the standard of practice in
Glasgow or a similar community in Montana. The court based its
decision on the following.
Dr. Robin had never practiced medicine in Montana, nor had he
practiced in a rural hospital in another state. He became a
faculty member at a university hospital immediately after medical
school. His medical practice has consisted solely of practice in
university medical hospitals with 400 to 1000 beds and hundreds of
specialized physicians on staff.
The evidence showed that Dr. Robin was not familiar with the
standard of practice or the medical facilities in Glasgow, in a
similar locality in Montana, or even in a similar locality anywhere
else in the country.
On this basis, the District Court concluded Dr. Robin was not
competent to testify concerning the standard of care applicable to
a non-board-certified general practitioner in Glasgow, Montana.
The District Court was correct.
11.
Did the ~istrictCourt err in determining that no competent
expert testimony established that Dr. Cheung deviated from the
applicable standard of care in treating Louise Falcon?
The District Court granted summary judgment in favor of the
defendants because the plaintiff did not provide competent expert
testimony showing that a departure from the applicable standard of
care by the defendants caused Falcon's death. We hold that the
District Court was correct.
Plaintiff contends that a factual issue exists as to when the
catheter first began to injure Falcon. Falcon's relatives
testified that she coughed at 5 : 0 0 p.m. and some blood came up with
her sputum. Plaintiff argues that this testimony created an issue
of fact whether the catheter started to pierce her pulmonary artery
at that time, or at 8 : 3 0 when she coughed up copious quantities of
blood.
Plaintiff further contends that Dr. Cheung violated the
standard of care in several ways. First, plaintiff alleges that
Falcon's coughing of small amounts of blood at 5:00 p.m.
constituted an emergency and the nurses should have contacted Dr.
Cheung immediately. Second, plaintiff alleges that Dr. Cheung
violated the standard of care by not responding to calls and pages
from the nurses between 6:00 p.m. and 8:00 p.m. Third, plaintiff
implies that the catheter migrated because it was improperly
secured to Falcon's chest, although there is no evidence of this.
Fourth, plaintiff alleges that Dr. Cheung and the hospital violated
the standard of care because of delay in deciding to transfer
Falcon to another hospital after she coughed up massive amounts of
blood at 8:30 p.m.
These issues are not material issues of fact, however, until
the plaintiff produces a medical expert competent to establish the
applicable standard of care and a departure from the standard. See
Hunter v. Missoula Community Hospital (1988), 230 Mont. 300, 301,
7 5 0 P.2d 106, 106. In this case, the plaintiff did not provide
competent expert testimony establishing that a departure from the
applicable standard of care caused Falcon's death. Therefore,
plaintiff's alleged issues of fact leading to departures from the
standard of care are not material issues of fact. See Hunter, 750
P.2d at 106.
In Montana, a defendant doctor is entitled to summary judgment
as a matter of law if the plaintiff fails to present competent
expert medical testimony that establishes the applicable standard
of medical care, that the defendant departed from the standard, and
that the departure from the standard proximately caused plaintiff's
injury. Montana Deaconess Hospital v. Gratton (1976), 169 Mont.
185, 190, 545 P.2d 670, 673: Hunter, 750 P.2d at 106.
As discussed above, plaintiff's expert Dr. Robin, was not
competent to testify concerning the applicable standard of care.
His testimony, therefore, cannot establish that a departure from
the applicable standard of care caused Falcon's death.
As to plaintiff's expert Dr. Stone, at one point in his
deposition, he agreed that "had it not been for the failure to
follow the standard of care for a Swan-Ganz catheter, Louise Falcon
would have survived the disease process for which she was
originally hospitalized. The medical records do not indicate that
she died of the illness for which she was admitted."
At other places in his deposition, however, Dr. Stone
clarified his statement, indicating that although the catheter
killed Falcon, negligence in its use did not cause her death. This
conforms with the testimony of the defendants' expert witnesses who
agree that the Swan-Ganz catheter killed Falcon, but deny that any
departure from the standard of care by the defendants caused
Falcon's death.
Dr. Stone testified directly that Dr. Cheung was not clearly
negligent in his prompt decision to use the catheter, rather it was
a "question of whether there is some error in judgment that might
have contributed to some negligence." He was unsure whether it was
appropriate to use a Swan-Ganz catheter in a rural hospital under
the circumstances. But after learning more about the situation, he
testified that this might be one of the cases where its use was
appropriate and its use was certainly not outside the standard of
care. He further testified that Dr. Cheung's behavior "fell within
the range of acceptable medical treatment."
Dr. Stone opined that perhaps the catheter migrated because it
was improperly secured or maybe because someone pushed it in
further. But he admitted there was no evidence that anyone
manipulated the catheter in a manner that would cause it to
migrate. He presented no evidence that the catheter was improperly
secured. In addition, Dr. Stone testified that he had lost two
patients due to pulmonary hemorrhaging caused by Swan-Ganz
catheters.
Dr. Stone did not believe that the problems in locating Dr.
Cheung between 6:00 and 8:00 p.m. had anything to do with the cause
of Falcon's death. He testified that there was no evidence that
the catheter either migrated or caused problems before 8:30 p.m.,
and that the record indicated that Falcon's condition was fine at
8:00 p.m.
~nitially in his deposition, Dr. Stone raised the issue of
whether the hospital staff should have transferred Falcon to a
larger facility more promptly after she coughed massive quantities
of blood. Later, however, he went on to testify that it was not
inappropriate for the Hospital to retain the patient as long as it
did. He testified that, not knowing of the overall hospital
situation, he merely raisedthe question to further explore whether
or not a delay in transferring the patient was an issue.
In summary, Dr. Stone did not specify any departure from the
standard of care that caused Falcon's death, therefore the
defendants are entitled to summary judgment as a matter of law.
See Montana Deaconess Hospital, 545 p.2d at 673; Hunter, 750 P.2d
at 106. The District Court was correct in granting summary
judgment because the plaintiff failed to present competent expert
testimony showing that a departure from the applicable standard of
care by the defendants caused Falcon's death. Affirmed.
~ustice
We Concur:
Justices
Justice Terry N. Trieweiler did not participate in this opinion.
Justice William E. Hunt, Sr., dissenting.
I dissent. The majority states the second issue to be whether
the District Court erred in determining that there was no competent
expert testimony establishing that Dr. Cheung deviated from the
applicable standard of care in treating Louise Falcon.
A material issue of fact is raised when a plaintiff produces
a medical expert competent to establish the applicable standard of
care and that the defendant departed from that standard which
proximately caused plaintiff's injury. Gratton, 545 P.2d at 673.
In his deposition, Dr. Stone agreed that:
[Hlad it not been for the failure to follow the standard
of care for a Swan-Ganz catheter, Louise Falcon would
have survived the disease process for which she was
originally hospitalized. The medical records do not
indicate that she died of the illness for which she was
admitted.
In my opinion, this statement alone creates a material issue
of fact that Dr. Cheung departed from the applicable standard of
care which proximately caused Falcon's death. Based upon this
statement, the court should have denied summary judgment and
allowed the case to proceed to trial.
With the advent of the technological and information
revolutions, there is no reason why a patient living in Glasgow
does not deserve the same standard of care as a patient living
anywhere else in the nation. The need for rural doctors in Montana
does not excuse a physician's negligence. I would reverse the
summary judgment and allow this case to proceed to trial.