No
No. 98-133
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 278
KATHE CAMPBELL and KEN CAMPBELL,
Plaintiffs and Appellants,
v.
C.R. CANTY, M.D.,
Defendant and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Thomas A. Olson, Judge presiding.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (1 of 17)4/20/2007 10:45:25 AM
No
COUNSEL OF RECORD:
For Appellants:
Michael J. Milodragovich, Milodragovich, Dale, Steinbrenner & Binney, Missoula, Montana
For Respondent:
E. Craig Daue, Garlington, Lohn & Robinson, Missoula, Montana
Submitted on Briefs: August 27, 1998
Decided: November 12, 1998
Filed:
__________________________________________
Clerk
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (2 of 17)4/20/2007 10:45:25 AM
No
Justice James C. Nelson delivered the Opinion of the Court.
¶1. Kathe Campbell (Kathe) was initially treated by Dr. Charles R. Canty (Dr.
Canty) after she was severely bitten by a donkey. Kathe and her husband, Ken,
(collectively referred to as "the Campbells") filed a complaint against Dr. Canty
alleging negligence in his care and treatment of Kathe. Trial was held in the District
Court for the Second Judicial District, Silver Bow County, wherein the jury found
that although Dr. Canty was negligent in his care of Kathe, Dr. Canty's negligence
did not cause injury to Kathe. We affirm.
¶2. The Campbells raise the following issues on appeal:
¶3. 1. Whether the evidence at trial established that Dr. Canty's negligence subjected
Kathe to an increased risk of harm and lessened her chances for a better result
thereby causing damage to Kathe.
¶4. 2. Whether the District Court erred in denying the Campbells' motion to alter or
amend the judgment and for a new trial.
Factual and Procedural Background
¶5. The Campbells own and operate a small ranch outside Butte. On May 30, 1993,
Ken Campbell (Ken) had just returned home from the hospital after major surgery,
thus Kathe set out on her own to attend to the ranch chores. When she attempted to
repair a fence where one of their donkeys was corralled, the animal attacked her.
The donkey knocked Kathe to the ground and pinned her there with the weight of his
body. Her left arm was trapped beneath her, but her right arm was exposed. The
donkey savagely and repeatedly bit Kathe on her right forearm before she was able
to free her left arm and fend him off. Kathe managed to make it to the door of their
house where Ken found her and called an ambulance.
¶6. Kathe was taken to St. James Community Hospital in Butte. The donkey's bites
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (3 of 17)4/20/2007 10:45:25 AM
No
had crushed the bones in Kathe's forearm and had caused shearing, crushing and
tearing of the skin, muscles, veins and nerves in her arm. Extensive amounts of
tissue, muscle and nerves were destroyed by the bites.
¶7. Dr. Canty was the orthopedic surgeon on call when Kathe was brought to the
hospital. After treatment by emergency room personnel to stabilize her vital signs,
Kathe was transferred to Dr. Canty's care. Dr. Canty, after examining the injury,
informed Kathe and her family that there was a possibility that amputation would be
necessary. Kathe asked Dr. Canty to save her arm.
¶8. In the initial surgery, Dr. Canty inserted a metal rod into the large bone in
Kathe's forearm. He cleaned the wound removing dead or dying tissue and muscle
along with debris deposited in the wound from the donkey's mouth. Dr. Canty noted
that the ulnar artery in Kathe's arm was injured and bruised, but the radial artery,
although also bruised, was intact. He traced the radial artery to make sure that blood
was flowing through the site of the injury and beyond.
¶9. In a second surgery approximately 68 hours later, Dr. Canty again cleaned the
wound and removed more dead and dying tissue and muscle. He noted at that time
that the ulnar artery was still bruised and, while it was pulsing a little, it was not
acting as a major circulatory link to the hand. He also noted that the radial artery
was still functioning and that there was a pulse through the site of the injury leading
him to believe that blood was still flowing through the injured forearm to the hand.
¶10. Kathe's family became dissatisfied with Dr. Canty's treatment of Kathe as they
began to realize that the condition of Kathe's hand was slowly deteriorating. Hence,
they took Kathe to Billings to be cared for by Dr. Curtis Settergren. Dr. Settergren is
a board certified orthopedic surgeon with an additional qualification in hand
surgery. He performed a number of surgeries on Kathe including a vein graft to
bypass the injured artery and to allow blood to flow past the injured portion of the
arm to the hand. While Kathe's fingers initially responded to the increased blood
flow from the bypass, the tissue in her fingers and hand began to die resulting in the
amputation of Kathe's arm below the elbow.
¶11. On June 12, 1995, the Campbells filed a complaint against Dr. Canty and St.
James Community Hospital alleging that Dr. Canty was negligent in his care and
treatment of Kathe. In their complaint, the Campbells alleged that Dr. Canty was
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (4 of 17)4/20/2007 10:45:25 AM
No
negligent in failing to recognize the occlusion of the radial artery; failing to conduct
or order objective testing of the blood flow to and from Kathe's hand; and failing to
consult with a vascular surgeon about performing a vein graft to bypass the injured
portion of Kathe's arm to allow blood to flow to Kathe's hand which still had some
viability. The Campbells also alleged that St. James Community Hospital was
negligent in failing to independently monitor the adequacy of the care Kathe
received. The hospital was subsequently dismissed from the suit with prejudice.
¶12. The case was tried to a jury on October 20 through 24, 1997. The jury was
instructed to consider whether Dr. Canty was negligent in his care of Kathe and, if
so, whether Dr. Canty's negligence caused an increased risk of harm to Kathe and/or
reduced her chance for obtaining a better result. The jury found Dr. Canty negligent
(without specifying what particular aspect of his care was negligent), however, they
found that Dr. Canty's negligence did not cause Kathe to suffer injury.
¶13. On November 13, 1997, the Campbells filed a "Motion to Alter or Amend
Judgment Regarding Issue of Causation and for Partial New Trial Regarding Issue
of Damages." In that motion, the Campbells requested that the District Court enter
an order notwithstanding the verdict that Dr. Canty's negligence had caused the
Campbells to suffer damages. The Campbells also requested that the District Court
order a partial new trial limited solely to the issue of damages sustained by the
Campbells.
¶14. The District Court issued its order denying the Campbells' motion on January
8, 1998. The court concluded that it was within the province of the jury to find
negligence but no causation of damages from that negligence. The Campbells
appealed contending that the uncontroverted evidence at trial established that Dr.
Canty's negligence caused Kathe damages because his negligence subjected her to an
increased risk of harm and as a result she lost a chance for a better result.
Issue 1.
¶15. Whether the evidence at trial established that Dr. Canty's negligence subjected
Kathe to an increased risk of harm and lessened her chances for a better result thereby
causing damage to Kathe.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (5 of 17)4/20/2007 10:45:25 AM
No
¶16. The jury rendered a verdict that Dr. Canty was negligent in his care of Kathe
but that this negligence did not cause injury to Kathe. The Campbells argue on
appeal that the jury impermissibly disregarded uncontroverted, credible evidence
that Dr. Canty breached his duty of care to Kathe causing compensable injury. The
Campbells contend that the jury failed to follow the instructed law of the case and
rendered a verdict that was not in accord with the evidence presented, thereby
rendering a verdict that was contrary to law.
¶17. In reviewing a jury verdict, we do not decide whether the verdict was correct or
whether the jury made the right decision. Wise v. Ford Motor Co. (1997), 284 Mont.
336, 343, 943 P.2d 1310, 1314. We only review whether there is substantial credible
evidence in the record to support the jury's verdict. Wise, 284 Mont. at 343, 943 P.2d
at 1314. See also C. Haydon Ltd. v. MT Min. Properties, Inc. (1997), 286 Mont. 138,
151, 951 P.2d 46, 54; Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 422, 913
P.2d 641, 646; Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976;
Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 295, 951 P.2d 1326,
1334.
¶18. We have previously stated that substantial evidence is that evidence that a
reasonable mind might accept as adequate to support a conclusion. Haydon, 286
Mont. at 151, 951 P.2d at 54 (citing Baird v. Norwest Bank (1992), 255 Mont. 317, 323,
843 P.2d 327, 331). Moreover, substantial evidence consists of more than a mere
scintilla of evidence, but may be less than a preponderance of evidence, and, although
it may be based on weak and conflicting evidence, in order to rise to the level of
substantial evidence, it must be greater than trifling or frivolous. Haydon, 286 Mont.
at 151, 951 P.2d at 54.
¶19. An attack upon a jury verdict as not supported by the evidence is proper only
when there is a complete absence of any credible evidence in support of the verdict.
All evidence and all inferences drawn therefrom must be considered in a light most
favorable to the adverse party. Haydon, 286 Mont. at 151, 951 P.2d at 54 (citing
Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051, 1053). Furthermore, if
conflicting evidence exists, the credibility and weight given to the evidence is in the
jury's province and we will not disturb the jury's findings unless they are inherently
impossible to believe. Wise, 284 Mont. at 339, 943 P.2d at 1312 (citing Okland v. Wolf
(1993), 258 Mont. 35, 39, 850 P.2d 302, 305; Silvis through Silvis v. Hobbs (1992), 251
Mont. 407, 411-12, 824 P.2d 1013, 1015-16).
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (6 of 17)4/20/2007 10:45:25 AM
No
¶20. The Campbells argue that the evidence on causation was uncontroverted. They
assert that their expert witness, Dr. Kenneth Wilson, a board-certified orthopedic
surgeon with an added qualification in hand surgery, firmly established that Dr.
Canty's negligence in failing to perform a bypass, or in failing to contact a vascular
surgeon to perform a bypass, lessened Kathe's chances of obtaining a better result
and caused Kathe to endure numerous surgeries which increased her risk of harm.
¶21. Contrary to the Campbells' assertions, Dr. Wilson's testimony on causation was
contradicted by Dr. Canty's expert witness, Dr. Stephen Sears, who is board certified
in orthopedic surgery, by Dr. Settergren and by Dr. Canty. Dr. Sears, Dr. Settergren
and Dr. Canty testified that the damage to Kathe's forearm from the bites was so
extensive, Kathe's chances of keeping her arm were minimal. They also testified that
Kathe was forced to endure numerous surgeries, not because of Dr. Canty's
negligence, but because of the continuing need to treat the extensive trauma to
Kathe's forearm.
¶22. Dr. Settergren whose testimony was preserved through a videotape which was
shown to the jury during trial, testified that the purpose of the bypass was to carry
blood and oxygen to the wrist and hand and that it would not have had any
significant affect on the massive trauma to the forearm. He also testified that
multiple surgeries were necessary because he continually had to remove tissue and
muscle from the bite area and, even if the bypass had been successful in saving
Kathe's hand, she still would have lost a substantial amount of tissue and muscle in
the area of the massive trauma on her forearm.
¶23. Although Dr. Settergren stated that there was a "chance" that the tissues of the
fingers could have been preserved had the bypass been done sooner, he testified as
follows at the close of his deposition:
Q. Doctor, as a general rule, when you are considering the need for amputation on an arm,
do you try to amputate as far out on the arm as possible?
A. As a general rule.
Q. And in Mrs. Campbell's case, if the only, if the loss of tissue in her hand was the only
reason for amputation, would you have amputated say, down at the wrist?
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (7 of 17)4/20/2007 10:45:25 AM
No
A. As far distal as I could.
Q. Yes. And is it fair to say that the reason in this case that she has an amputation below
the elbow is because of the massive tissue loss in the upper forearm from the bite?
A. Well, I chose my level by what I could cover it with. The longer level, the more tissue
you need to cover it-- and I didn't have, you know-- I left it as long as I could and still
cover the wound.
Q. You did what the injury would allow and what you had left over to work with?
A. Yeah, what viable tissue I had to cover the bone with.
¶24. Furthermore, while Dr. Wilson testified that there was a 90 to 95% chance that
Kathe "would have had a very functional extremity," Dr. Settergren testified that he
told Kathe from the beginning that with the extensive damage to the muscles and
nerves in her forearm caused by the bite, the tissue could be preserved but "function
could be little more than a paperweight."
¶25. In like manner, Dr. Sears testified that, although he did not disagree with Dr.
Wilson's statement that Kathe lost her hand because of the failure of the radial
artery to perfuse and nourish the hand, amputations are generally performed as far
out on the arm as possible and if Kathe's only problem had been a lack of circulation
through the radial and/or ulnar arteries into the hand, the amputation would have
been at the wrist, not below the elbow. Additionally, Dr. Sears stated that in an
injury such as Kathe's, there is every reason to expect that there would be continuing
tissue loss after the time of the first surgery. He explained that because of the
shearing action in the bite, the skin was pulled loose in places from the nerves and
veins causing the surrounding tissue to die off. He noted that even after Kathe
transferred to Billings, there continued to be tissue death in the forearm making it
necessary for Dr. Settergren to perform multiple surgeries on Kathe's arm to remove
this dead and dying tissue.
¶26. Dr. Sears further testified that the bypass eventually performed by Dr.
Settergren was not designed to help the tissue in the forearm as the artery that feeds
that tissue branches off above the elbow into smaller arteries and those arteries
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (8 of 17)4/20/2007 10:45:25 AM
No
weren't damaged. He stated that the damage at the wound was not coming from a
lack of blood, but from the bite trauma itself.
¶27. Dr. Canty testified that he was dubious about Kathe's chances with bypass
surgery as there has to be tissue that is capable of accepting the blood brought in by
the bypass as well as a means available for the blood to flow back out. He stated that
he did not believe that was the situation in Kathe's case because of the massive
trauma to her forearm.
¶28. By the same token, contrary to Dr. Wilson's opinion that waiting almost 72
hours to perform the second surgery increased the risk of infection and lessened
Kathe's chances for a better result, Dr. Sears testified that the delay in this case was
appropriate. He stated that the standard time for a second debridement and closure
of the wound is three to five days depending on the magnitude of the wound. Dr.
Sears explained that the reason a doctor waits to close a wound of this type is that
when a wound is contaminated as in a bite, the bacteria grows faster if the wound is
covered. If the wound is left open, it stays cleaner and there is less tissue to debride
the second time. He stated that the "ideal thing is, when you go back in three days, if
it looks good, you can close it safely; whereas if I close it on the date of the injury,
your infection rate goes up dramatically." Indeed, Dr. Settergren testified that the
two debridements performed by Dr. Canty were adequate as there were no signs of
infection when Dr. Settergren first examined Kathe's injury.
¶29. In summary, much of the testimony on causation of the Campbells' expert
witness, Dr. Wilson, was contradicted by Dr. Sears, Dr. Settergren and by Dr. Canty.
Indeed, while Dr. Wilson testified that the amputation of Campbell's hand was a
direct result of not having the artery bypassed earlier, both Dr. Sears and Dr.
Settergren testified that if Campbell's only problem had been a lack of circulation
through the arteries into the hand, the amputation would have been closer to the
wrist and not below the elbow. The evidence supports the finding that Kathe's wound
was so devastating that, even if the bypass had been done earlier, it would not have
prevented amputation, thus, the jury could legitimately conclude that Dr. Canty's
negligence did not lessen Kathe's chance for obtaining a better result.
¶30. Furthermore, the evidence also supports a finding that the numerous surgeries
Kathe endured were not intended to salvage Dr. Canty's negligence, but instead,
were a last-ditch attempt to accomplish a result that was doomed from the beginning
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (9 of 17)4/20/2007 10:45:25 AM
No
to fail because of the devastation of the original injury. Thus, the jury could
legitimately conclude that Dr. Canty's negligence did not cause Kathe to suffer an
increased risk of harm.
¶31. While conflicting evidence does exist in this case regarding whether Dr. Canty's
negligence caused injury to Kathe, as we stated elsewhere in this opinion, the
credibility and weight given to that evidence is in the jury's province. Wise, 284
Mont. at 339, 943 P.2d at 1312. Thus, since we conclude that the jury's findings are
not "inherently impossible to believe," we will not disturb those findings. Wise, 284
Mont. at 339, 943 P.2d at 1312. Moreover, considering all of the evidence and all
inferences that may be drawn therefrom in a light most favorable to Dr. Canty, as we
are constrained to do, we hold that there is substantial credible evidence in the
record to support the jury's verdict.
¶32. Accordingly, we uphold the jury verdict in this case and we affirm the judgment
of the District Court.
Issue 2.
¶33. Whether the District Court erred in denying the Campbells' motion to alter or
amend the judgment and for a new trial.
¶34. After the jury rendered its verdict in this case and the District Court had
entered its judgment on that verdict, the Campbells filed a motion to alter or amend
the judgment, pursuant to Rule 59(g), M.R.Civ.P., regarding the issue of causation
and a motion for a new trial, pursuant to Rule 59(a), M.R.Civ.P., regarding the issue
of damages. The Campbells contended that the jury impermissibly disregarded the
substantial and uncontested evidence presented at trial and that they failed to follow
the law of the case. The District Court denied the Campbells' motion stating that it
was within the province of the jury to listen to and evaluate the demeanor and
credibility of the witnesses and that the court would not second guess the
deliberations and decision of the jury.
¶35. The amendment of a judgment is within the discretion of a district court, thus
we review a court's grant or denial of a motion to amend for an abuse of discretion.
Bevacqua v. Union Pacific R. Co., 1998 MT 120, ¶ 36, 960 P.2d 273, ¶ 36, 55 St.Rep.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (10 of 17)4/20/2007 10:45:25 AM
No
469, ¶ 36 (citing Estate of Nielsen v. Pardis (1994), 265 Mont. 470, 478, 878 P.2d 234,
238). An abuse of discretion occurs when a district court acts arbitrarily without
conscientious judgment or exceeds the bounds of reason resulting in substantial
injustice. Tanner, 275 Mont. at 430, 913 P.2d at 651 (citing Investigative Records of
City of Columbus Pol. Dept. (1995), 272 Mont. 486, 488, 901 P.2d 565, 567).
¶36. In addition, the decision to grant or deny a new trial is within the sound
discretion of the trial judge and we will not disturb that decision absent a showing of
manifest abuse of that discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 30,
955 P.2d 160, ¶ 30, 55 St.Rep. 198, ¶ 30 (citing Jim's Excavating Service v. HKM
Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259).
¶37. The Campbells contend on appeal that, in view of the "uncontested" evidence,
the jury's verdict in this case clearly mandated the District Court to grant their
request to amend the judgment finding that Dr. Canty's negligence caused the
Campbells to suffer damages and to order a new trial to determine the amount of
those damages. Contrary to the Campbells' contentions, the evidence on causation
was not "uncontested" as our discussion in the previous issue demonstrated.
Moreover, the District Court was correct in concluding that it is within the province
of the jury to listen to and evaluate the demeanor and credibility of the witnesses.
Wise, 284 Mont. at 339, 943 P.2d at 1312.
¶38. There being no indication that the District Court "acted arbitrarily without
conscientious judgment" or that the court exceeded "the bounds of reason resulting
in substantial injustice," Tanner, 275 Mont. at 430, 913 P.2d at 651, we conclude that
the District Court did not abuse its discretion in denying the Campbells' motion to
alter or amend the judgment or for a new trial.
¶39. Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (11 of 17)4/20/2007 10:45:25 AM
No
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
Justice Terry N. Trieweiler dissenting.
¶40. I dissent from the majority's conclusion that there was substantial evidence to
support the jury's verdict that the defendant's negligence did not cause damage to
the plaintiffs.
¶41. The District Court correctly instructed the jury that "[a] doctor's negligence is a
cause of damage to the plaintiff if it causes increased risk of harm to the plaintiff or
reduces his chance for obtaining a better result." Montana Pattern Jury Instruction
(Civil) 3.11; Aasheim v. Humberger (1985), 215 Mont. 127, 132, 695 P.2d 824, 827-28.
¶42. Plaintiffs contended that the defendant, C.R. Canty, M.D., was negligent by
failing to adequately diagnose impairment to the blood flow through Kathe
Campbell's radial artery, and by failing to consult a specialist so that the necessary
circulation of blood to her injured hand could be restored.
¶43. The evidence was that her medical records disclosed impairment to that blood
flow by mid-day, June 2, 1993, but that other than arranging for her transfer to
Billings, nothing was done by Dr. Canty to treat that impairment, and that it was
first treated by Curtis R. Settergren, M.D., more than thirty hours later. It was
uncontroverted that human tissue which is denied blood for as little as four to six
hours cannot survive.
¶44. Furthermore, Dr. Kenneth Wilson gave the following testimony:
Q. [APPELLANTS' COUNSEL] Is it adequate orthopedic surgical care to simply allow
the hand to remain there untreated when there's suboptimal blood flow to the hand?
A. That's just not acceptable.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (12 of 17)4/20/2007 10:45:25 AM
No
Q. Would you explain why?
A. Well, if there's suboptimal flow and you don't monitor it, there's a high likelihood that
the hand's going to die.
Q. Does that high likelihood increase the opportunity for increased risk to the patient; in
other words, a more severe outcome could happen to the patient?
A. No question about it.
Q. Does it -- does that same problem yield a greater likelihood of having a poorer result of
the hospitalization and treatment?
A. Yes.
....
Q. And what effect did that have on Kathe Campbell's ability to obtain a good result
during her care under Dr. Canty at St. James Community Hospital?
A. That was the major reason she ended up with a bad result.
Q. Did that failure to call in other doctors or to do the graft result in an increased chance of
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (13 of 17)4/20/2007 10:45:25 AM
No
risk to Kathe Campbell, in your opinion?
A. Definitely.
Q. And did it also heighten the probability that she would get a worse result?
A. Yes.
....
Q. Now, with respect to those percentages, whether it was a 75 percent chance of a likely
outcome or a 90 percent chance of a likely outcome, is it still your testimony that the
likelihood of a successful outcome was reduced or eliminated by the failure to deal with
the circulatory emergency that Kathe had?
A. That's correct.
Q. And was it similarly reduced or eliminated by the failure to recognize that circulation
emergency?
A. Yes.
Q. And similarly, was the likelihood of a successful outcome reduced or eliminated by the
failure to monitor and to test objectively, to have orders given that would have someone
do that?
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (14 of 17)4/20/2007 10:45:25 AM
No
A. Yes.
Q. Were those percentages similarly reduced by the failure to have some kind of handy
access through the fixed fiberglass cast so that testing could, in fact, be done?
A. Yes.
Q. Did that reduction in the percentage of successful outcome indicate a higher probability
of harm to Kathe Campbell as a result of those inactions that I've just listed off?
A. Most definitely.
¶45. Only three other physicians testified, Dr. Canty and Dr. Settergren, and Dr.
Canty's retained expert, Stephen R. Sears, M.D.
¶46. Dr. Canty did not testify directly on the issue of causation, as characterized by
the District Court's instruction. Neither did Dr. Sears. Nor is direct testimony from
either witness on that issue cited in the majority opinion.
¶47. Dr. Settergren's testimony is, at best, inconsistent regarding the issue of
causation. At one point, when asked if an earlier bypass would have increased the
likelihood of full revascularization to Kathe's extremity, he testified that he could not
say the outcome would have been different. However, that testimony did not, in
substance, directly contradict the testimony on causation given by Dr. Wilson. He did
testify that had Kathe's arm been saved, it would have been substantially impaired.
However, that is not the equivalent of testifying that she suffered no damage by the
defendant's failure to timely diagnose and treat her obstructed radial artery. Few
would disagree that a substantially impaired extremity is better than no extremity.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (15 of 17)4/20/2007 10:45:25 AM
No
¶48. At another point in his testimony, however, Dr. Settergren testified that it was
possible, although he could not testify that it was probable, that an amputation could
have been avoided by more timely vascular treatment, and at a later point in his
testimony he stated more specifically that had the bypass been done closer in time to
the circulatory failure to assure better flow of blood to Kathe's fingers, there was a
chance that the tissues of the fingers could have been preserved.
¶49. Furthermore, everything about the course of Dr. Settergren's treatment suggests
that Kathe had a chance of successful treatment, had that treatment been timely. By
the time she arrived in Billings, he stated that her hand had become ischemic, which
meant that there was inadequate blood flow to maintain the tissue at that location.
Nevertheless, even at that point, with partial necrosis of the hand apparent, he felt it
was worth a try to revascularize the hand by using a bypass from the proximal radial
artery (toward the elbow) to the distal artery (in the direction of her hand). He felt
that some circulation could be reestablished to the hand by bypassing the area of the
artery that had been injured. Dr. Settergren testified that he would not have done a
bypass procedure of that type unless there was a possibility of retaining the
appendage. However, everyone agreed that the longer circulation is cut off to a part
of the body, the less likely it is that the life of the tissue at that location can be
salvaged.
¶50. The jury found that the defendant was negligent and, therefore, necessarily
found that he should have diagnosed the impairment to Kathe's circulation sooner
and referred her for treatment. Based on the uncontroverted evidence regarding
causation, the jury could not have found that a delay in that treatment did not at
least reduce Kathe's chance for obtaining a better result. She was required to prove
nothing more.
¶51. Contrary to the implication from the majority opinion, the issue in this case was
not why Dr. Settergren amputated at the level where he did, nor the degree of
function that Kathe would have had in her hand, had it been saved by timely
restoration of circulation. Nor was it Kathe's contention, as suggested in the majority
opinion, that lack of circulation through the radial and ulnar arteries was her only
problem. Although damage to the forearm may have contributed to the level of
amputation, it was Kathe's contention that her hand was salvageable and that the
amputation would not have been necessary, had her hand received timely restoration
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (16 of 17)4/20/2007 10:45:25 AM
No
of circulation.
¶52. Finally, Dr. Canty's testimony that he was dubious about Kathe's chances of
successful bypass surgery did not directly address the issue of causation. He was
discussing his state of mind before impairment to circulation through the radial
artery had even been diagnosed, and his opinion did not even directly relate to
Kathe's hand, but instead related to the condition of her forearm. Furthermore,
however Dr. Canty's observation is characterized, it was not an opinion expressed in
terms of medical probability, nor did it in any other way discuss the issue of
causation, as it was defined by the court. Nothing cited in the majority opinion
contradicts Dr. Wilson's testimony regarding causation.
¶53. For these reasons, I dissent from the majority opinion. After thoroughly
reviewing the testimony of all medical witnesses, I conclude that there was no
evidence to contradict the testimony of Dr. Wilson that the negligence of the
defendant reduced Kathe Campbell's chance for obtaining a better result.
Furthermore, all of the medical principles agreed upon by the expert witnesses lead
to the inevitable conclusion that the failure to treat Kathe's loss of circulation to the
then viable tissue in her hand in a timely manner led to its necrosis and the ultimate
need for the amputation of her arm.
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-133_(11-12-98)_Opinion_.htm (17 of 17)4/20/2007 10:45:25 AM