No. 13576
I t J THE SUFRCI'IE CrJUJiT OF THE STATE O F YONTANA
1978
IWTHERINE W. FIUMSAKER,
P l a i n t i f f and A p p e l l a n t ,
-vs-
BOZEJIAN DEACONESS FOUIJDATION ,
D e f e n d a n t a n d Respondent.
Appeal from: D i s t r i c t Court of t h e Eighteenth Z u d i c i a l
District,
H o n o r a b l e LeRoy L. P.lcKinnon, J u d g e p r e s i d i n q .
C o u n s e l o f Record:
For Appellant:
Acher and
>!- a n b e r g , H e l e n a , Pqontana
A r t h u r PJ a r q u e d , H e l e n a , Montana
F o r Respondent:
Anderson, Symmes, F o r b e s , P e e t e & Brown,
B i l l i n g s , Plontana
Rockwood Brown a r g u e d , B i l l i n q s , Nontana
Berg, A n q e l , A n d r i o l o & Morqan, Bozeman,
Montana
C h a r l e s F. Angel a r c u e d , Bozeman, Montana
R o b e r t Cummins a r g u e d , H e l e n a , Montana
Submitted: J a n u a r y 1 3 , 1978
~ e c i d e d h ' l:'
!
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Plaintiffs appeal from a jury verdict and judgment
entered in the District Court, Gallatin County, favoring
defendants in an action for personal injuries.
This case involves three cases consolidated and tried
together. Elzarus L. Hunsaker, one of the plaintiffs (now
deceased), filed an action against the Bozeman Deaconess
Foundation, operator of the Bozeman Deaconess Hospital,
for personal injuries sustained because of alleged negligence
in caring for him as a patient. Hunsaker also filed a
separate suit against Drs. E. E. Bertagnolli and William S.
Prunty, the treating physicians. In addition, Katherine W.
Hunsaker, plaintiff's wife, filed a separate action against
Bozeman Deaconess Hospital for its negligence in caring for
her husband. Her claim for damages was a derivative action
for loss of consortium. Each of the actions for negligence
was based on the same incident.
Defendant William S. Prunty moved to consolidate all
three actions under Rule 42, M0nt.R.Civ.P. Bozeman Deaconess
also agreed to the consolidation. Over plaintiffs' objections,
the court ordered consolidation.
The essential claim of plaintiff Elzarus Hunsaker is
that the defendant physicians were negligent in diagnosing
his condition and caring for him and that the hospital was
negligent in caring for him. As a result of this, plaintiff
received severe personal injuries when he ran out of a hospital
security room, ran down the hall, and jumped through the
solarium window, falling twenty feet to the ground below.
The facts giving rise to these claims follow. On
November 8, 1969, Hunsaker, a rancher, was admitted to
Bozeman Deaconess Hospital by his physician, Dr. E. E.
Bertagnolli. Hunsaker had a previous history of heart
problems. The diagnosis surrounding his admission was for
emotional strain apparently stemming from family problems,
and possible recurring heart problems. After admission,
Hunsaker was nervous, hallucinated, and had at least one
seizure.
On November 9, Hunsaker told an attendant he might be
able to sleep if he didn't jump out the window. On November
10, Dr. Bertagnolli called Dr. Prunty, a psychiatrist,
into the case. On November 12, Dr. Prunty had Hunsaker
transferred from his first floor room to a security room
on the second floor. This room was used for temporary
observation and control of patients with mental problems,
and for drying out alcoholics. All the furniture was moved
out of the room with the exception of the bed. The room
had a screened window and a double door entry with locks.
The first night Hunsaker was in the room, a male orderly
remained with him until midnight. Written orders from the
physicians were to "lock door, if unattended." The orderly
testified that while he remained with Hunsaker, the door
remained locked and that if he wanted to get out, he had
to knock on the window and the night supervisor would come
with her key and unlock the door. The night supervisor
directly contradicted this testimony.
At midnight, a sitter, Mrs. Bisland, relieved the
orderly. She was not a nurse but was an experienced aide.
She was sixty years of age and approximately two hundred pounds.
Hunsaker was fifty-four years of age, powerfully built, and
approximately two hundred pounds. During the night,
Hunsaker remained awake, occasionally hallucinated and
talked and walked around the room. Each time he would do
this, the sitter talked him into returning to bed.
In the early morning hours of November 13, at approxi-
mately 5:20 a.m., another patient entered Hunsaker's room.
(There is a dispute whether this patient had also wandered
into the room a little earlier on the same morning.)
Hunsaker mistakenly believed the patient was his sister, and
insisted on talking to her. The sitter was able to remove
the other patient from the room and she talked Hunsaker into
returning to bed. Suddenly, Hunsaker jumped out of bed,
forced himself past the sitter, ran out of the room and down
the hallway to a solarium at the end of the hall. There he
jumped through the solarium windows, falling twenty feet to
the ground below, and receiving serious and permanent injuries.
Some time thereafter the instant actions were filed against
the hospital and physicians.
Plaintiff Hunsaker generally alleged he was in a
condition of irrationality and mental incapacity at the time
he jumped through the window and that the hospital had
failed to take proper care of him, knowing he was in that
condition. He alleged the hospital failed to keep qualified
personnel, and failed to keep an adequate staff of nurses,
orderlies and hospital personnel. He further alleged the
hospital failed to keep Hunsaker in a section of a hospital
separated from other patients, and failed to provide facilities
which would prevent an escape while in a condition of mental
derangement and incapacity. He also alleged breaches of
hospital standards and state licensing laws.
Plaintiff's allegation of negligence against defendant
physicians was that they had failed to properly diagnose his
condition and consequently failed to properly care for him.
All defendants filed general denials of negligence, but
filed no special defenses as to Alzarus Hunsaker. They did
allege however, apparently as contributory negligence on the
part of Katherine Hunsaker, that she failed to give them
correct information as to her husband's prior habits con-
cerning the use of alcohol and prescription drugs.
Plaintiffs raise a host of errors which they contend
entitle them to a new trial. Generally, they fall into the
following categories: (1) the court improperly allowed each
defendant to have four peremptory challenges while confining
the plaintiffs to four peremptory challenges between them;
(2) the court improperly refused opinion testimony from
plaintiffs' expert witnesses; (3) other errors were made in
admitting evidence; and (4) several errors were made in
instructing the jury, primarily with regard to the doctrine
of - ipsa- 1
res and on the question of expert medical
testimony.
Plaintiffs first contend the District Court improperly
granted each of the defendants four peremptory challenges
because they did not in fact have "hostile" interests as
required by statute. Section 93-5010, R.C.M. 1947, provides
in relevant part: " . .. Each party is entitled to four
peremptory challenges."
This court has long recognized the inherent problems in
presiding over jury trials where there are multiple parties.
Recognizing the potential unfairness of uneven peremptory
challenges, this Court held that "each party" in terms of
the statute, means "each side", unless the position of co-
plaintiffs or co-defendants is shown to be "hostile" to each
other. Mullery v. Great Northern Ry. Co. (1915), 50 Mont.
408, 148 P. 323; Leary v. Kelly Pipe Co. (1976), 169 Mont.
511, 549 P. 2d 813. As a practical matter plaintiffs rarely
have "hostile" interests to each other, and therefore the
question is usually one of how many peremptory challanges
co-defendants shall have. This Court has never set forth
any rules as to what co-defendants must present to the trial
court to prove they are "hostile" to each other. The closest
we have come is we have indicated in Mullery and Leary that
"hostility" can be shown by the "pleadings, representations,
or evidence."
In Mullery, in determining that the co-defendants must
prove they are "hostile" to each other, we stated:
". .
. Whether such hostility must appear on the
face of the pleadings, or whether it may be shown
in some other way at the time the jury is selected,
we need not determine because no such hostility
was ever made to appear in any way in the case at
bar. .. As between them there was not, by pleading,
representation, or evidence, any conflict of
interest disclosed or any issue of any sort. . ."
148 P. at 326.
Accordingly, we concluded the District Court was correct
in allowing multiple defendants to have a total of four
peremptory challenges. It is clear however, this Court did
examine the case to determine if there was any hostility and
determined there was none.
In Leary, the District Court granted multiple
defendants eight peremptory challenges, as opposed to the
plaintiff's four, and we upheld the District Court on the
ground the plaintiff had shown no prejudice. In holding
that Leary must show prejudice before he would be entitled
to a reversal, we stated:
". . . In the instant case Leary has advanced
no fact which indicates material injury, nor
has he attempted to show that objectionable
jurors sat on the case. Thus the first issue
must be resolved in favor of defendants."
169 Mont. at 516.
We did not, however, discuss the facts as to how the District
Court reached his decision--that is, whether there was in
fact hostility between the co-defendants.
The very nature of the problem makes appellate review
extremely difficult. Is it sufficient to place the burden
on either party to show he has been prejudiced by the trial
court's ruling on the question of peremptory challenges?
Indeed, in most instances, proving prejudice, (normally, that
a juror who sat on the case was prejudiced against one of
the other parties), and if the court had ruled properly the
result would most probably have been different. In the
ordinary case, proving prejudice may be an impossible burden.
As a result, if at the appellate level we concentrate on the
actual conduct of a juror as opposed to the correctness of
the trial court's ruling, the decision of the trial court is
virtually unreviewable. The correctness of the trial court's
decision is effectively eliminated from our consideration.
Rather, our attention is focused on the conduct of the jury,
which in most cases we are in no position to determine.
The problems are magnified by the procedure that usually
takes place. Frequently there is no record or only a scanty
record of what happened in the trial court. The usual situation
is the parties do not notify the court and opposing parties
in advance of trial that each co-defendant, for example,
will ask for four peremptory challenges. Perhaps in some
situations the parties do not disclose their intentions until
the time has come to start exercising the peremptory challenges.
Suddenly the court and plaintiff is confronted with defense
motions asking to have four peremptory challenges for each
defendant. In many situations the trial court will be taken
by surprise and will not have sufficient time to reflect on
whether the co-defendants are in fact "hostile". The opposing
party, moreover, may also be caught by surprise and is not
prepared to answer the contentions of the co-defendants.
The court is compelled to rule without having the benefit of
a thorough briefing by the parties to the action. The result
is that when a case comes to us on appeal, we have no basis
to determine if, at the time the trial court made its ruling,
it was correct. We are compelled rather, to look at the
entire record in hindsight to determine if the parties were
in fact "hostile" during the course of the trial. Moreover,
even if we agreed with an appellant that the District Court
ruling was in error, we would not reverse unless the appellant
could also prove actual prejudice. This is hardly a standard
of review designed to get at the root of the problem. The
focus should be on whether the ruling was correct at the time
it was made.
What happened in this case is illustrative of the general
problem. Before the commencement of the trial there was no
indication that plaintiffs or defendants would be asking each
to have four peremptory challenges. Just as questioning of
the jurors was about to start, the trial court asked the parties
if they had agreed on a challenge procedure. If the court had
- 8-
not done this it does not appear the parties would have
brought the matter to the court's attention until the time
came to actually start exercising the peremptory challenges.
There is a two-page discussion on the record where the
parties seek to make their positions known to the court. No
law was provided to the court and the pleadings or other
factors which may show "hostility" were not discussed.
Defendants generally took the position that because each
could be subject to a separate judgment that each was entitled
to four peremptory challenges. Without discussing the
pleadings or proposed evidence that might show "hostility"
the trial court set forth no reasons for its ruling and
simply concluded: "four peremptories to the plaintiff and
four to each defendant."
We thus have a situation under Leary, where the plaintiffs
have a burden to prove not that the District Court was
right, but that the plaintiffs were prejudiced by the ruling.
As previously indicated, it is virtually impossible to prove
prejudice in such a situation. Certainly an adverse result
should not be the governing standard. The result is that
there is an uncontrolled discretion in the District Court to
rule any way it desires with the losing party having the
laboring oar to show that Et was actually prejudiced. In
this context, the correctness of the District Court's ruling
evaporates and the issue on appeal becomes one of proving
that the jury was somehow prejudiced against one of the
parties and thereby precluded a fair trial. We believe the
correctness of the District Court's decision should be a
factor in our review.
In the present case, because the record at the time the
court entered its ruling, is devoid of evidence showing the
parties were "hostile", we are necessarily compelled to take
a hindsight approach to the question and make our determination
from the trial record.
-9-
The defense theories of the hospital and defendant
physicians meshed like the finest gearshift mechanism.
The hospital asserted it followed and had the duty to follow
the physicians' orders in the absence of an emergency. The
defendant physicians assert that they gave proper orders.
The physicians also testified that no emergency existed and
therefore the hospital properly followed their orders and was
not required to take independent action to protect Hunsaker
from himself. The physicians testified the hospital provided
the best possible care under the circumstances, and there is
no indication that hospital witnesses found the slightest
degree of fault with the physicians' care of the patient.
Jury instructions were synchronized between the hospital
and defendant physicians. Neither the hospital nor the physicians
objected to any instruction offered by the other. Defendants
did not try to pass the blame off to each other. It is true
each defendant had his own interest to protect in that each
could have suffered an adverse jury verdict--but there is no
showing that their interests were hostile to each other.
In considering the number of peremptory challenges allowed
to each side, the trial court must, of necessity, make its
best judgment based on the facts that are presented to it
before its ruling. It is necessary it have certain leeway,
for even in the days of discovery, the twists and turns of a
trial are unpredictable. If there is a sound basis for its
ruling in the record and the reasons for the ruling are set
forth in the record, the ruling should not be reversed on appeal
even though it may have developed during the course of the trial
that the court should have made a different ruling. A hindsight
approach to review in this circumstance is not appropriate.
On the other hand, if there is not a sound basis in the record
-10-
at the time of the ruling, and if the reasons for the ruling
are not set forth, we cannot say the parties have had the
benefit of the trial court's best judgment. The discretion
exercised under these circumstances is no discretion at all.
While we cannot evaluate the effect of error in granting
additional peremptory challenges to one side or refusing to
grant additional peremptory challenges to one side, we cannot
blind ourselves to the advantages conferred on one side by
having additional peremptory challenges. Where is the trial
lawyer who would not like to have twelve peremptory challenges
to his opponent's four? It is precisely for this reason that
the correctness of the trial court's decision must be part of
the review process on appeal.
We are in an era where multi-party litigation is pro-
liferating. The issue involving the number of peremptory
challenges allowed each side is likely to be a continuing one--
because each case must, of necessity, be resolved on an
individual basis. It is imperative in reviewing the proceedings
of the trial court that this Court have a complete record
with relation to the motions made and the rulings on the number
of peremptory challenges to be allowed each side. It is
incumbent, therefore, upon trial counsel and the District Court
to make a proper record.
The existing civil procedure rules, particularly the
pretrial conference as provided for in Rule 16, Mont.R.Civ.P.,
are ideally suited for the resolution of issues relating to
the number of peremptory challenges to be allowed each side.
Rule 16 provides in part:
"In any action, the court may in its
discretion direct the attorneys for the
parties to appear before it for a con-
ference to consider:
" (6) Such other matters as may aid in
the disposition of the action."
The District Courts should seriously consider the
use of the pretrial conference as the best procedure to be
used in resolving questions such as the number of peremptory
challenges to be allowed each side. If for some rare reason
the District Court holds no pretrial. conference, the question
of peremptory challenges should be raised by appropriate
written motion filed before the commencement of jury selection,
and it should set forth all facts and references tending to
support his claim of hostility. In any case, the opposing
party or parties should be given adequate time to respond to
the claims of hostility.
The trial court should, as a bare minimum, rule on the
peremptory challenge issue before the questioning of jurors
begins. To afford a basis for review, it should expressly
set forth in the record the reasons for its ruling and the
facts on which it relies in making its decision.
In a related peremptory challenge issue, Mrs. Hunsaker
asserts she should have been given four peremptory challenges
because of her own action against the hospital. We find no
error. Her cause of action is one for loss of consortium,
and is a derivative in nature. The success of her claim
depended on the success of her husband's claim for personal
injuries against the hospital. The nature of the lawsuits
precludes any claim of hostility existing between Mr. and
Mrs. Hunsaker.
Plaintiffs raise several issues concerning the trial
court's refusal to allow plaintiffs' expert witnesses to
testify to the standards of care required of Rozeman Deaconess
Hospital and the diagnosis and care given to Hunsaker by the
defendant physicians. We first will set forth the facts
giving rise to these issues.
-12-
One of the main themes of Hunsaker's case was that
he was suffering from toxic psychosis and defendants failed
to properly diagnose this condition and take adequate steps
to protect Hunsaker from himself. Dr. Townsend, one of
plaintiffs' experts, testified that toxic psychosis could
be caused by medications, or substances administered to the
patient which cause metabolic deran~rnentofthe brain which
thus influences behavioral changes. The same psychosis could
be caused by withdrawal of certain drugs or substances from
the patient. Plaintiffs contended that when Hunsaker exhibited
the symptoms of toxic psychosis the defendant physician did
not take the required steps to assure Hunsaker would not jump
out the window. Defendant physicians, on the other hand,
deny he was suffering from toxic psychosis, and contend he
was admitted to the hospital for emotional problems relating
to family difficulties and for possible recurring heart
problems.
Dr. Bayles, one of plaintiffs' experts, testified that
he had treated Hunsaker in times past, and his examination
of the hospital and medical records after Hunsaker's admission
to the hospital revealed Hunsaker was sufferinq from toxic
psychosis and should have been treated and cared for as
suffering from such. Also introduced in evidence were standards
for hospital accreditation of the joint commission on
accreditation of hospitals, the Montanq licensing law and
standards, and the rules and regulations of the medical staff
of Bozeman Deaconess Hospital. One of the issues was whether
the hospital failed to follow the standards in caring for
Hunsaker. Plaintiffs set forth a hypothetical set of facts
to Dr. Bayles, but the District Court sustained a general
objection when plaintiffs asked the question based on those
facts. The question was rephrased, and the witness was asked:
"Q. Having in mind the record that I
just mentioned, would you tell us in what
respects, in your opinion, the standards
of good hospital practice in effect in
Bozeman in November in 1969 were not
adhered to?"
In sustaining an objection the court stated:
". .. Well, I am going to sustain the
objection on this one . .
. I think the
Jury can determine whether the rules are
applied as well as any other person can. As
long as they have the rules and the facts."
Plaintiffs also questioned Dr. Bayles on the issue of
whether the door to Hunsaker's hospital security room should
have been locked at all times, even though a sitter was in
the room with him. Plaintiffs contended a locked door would
have prevented other patients from wandering into the security
room and disturbing Hunsaker, and ultimately, that a locked
door would have prevented Hunsaker from leaving his room
and jumping out the window. The physicians' orders to the
nurses stated: "Lock door if patient unattended."
Dr. Bayles was asked if it was sound medical practice
to "recommend that the door be opened or closed even though
a sitter is in attendance?" The court sustained an objection
that the answer would invade the province of the jury. Two
nurses testified their interpretation of the order meant the
door would be locked if Hunsaker was by himself, but if someone
was attending him, the door would be open. On the other hand,
the court permitted the defendants to put in evidence that
the order was a proper one, and that it was sound medical
practice under the circumstances of this case, to leave the
door open if someone was attending Hunsaker at the time.
While testifying as an expert witness for the hospital, a
psychiatrist concluded the order was a proper one and that
it was sound medical practice to leave the door open as long
as Hunsaker was being attended. The end result is the jury
heard only the defense side of this issue. The prejudice is
clear.
Another issue during the course of Dr. Bayles' testi-
mony was whether Hunsaker's symptoms of the evening before
he jumped out the window were such that the nurses or other
hospital personnel should have called the attending physicians
and alerted them to Hunsaker's changed condition. Dr. Bayles
was asked if the symptoms were a clear warning to the
hospital staff to call the treating physicians. The court
sustained an objection that it would invade the province of
the jury. In the defendants' case-in-chief, however, the
court permitted, over plaintiffs' objections, both defendant
physicians to testify that Hunsaker's symptoms were not
sufficient to require the nurses or hospital personnel to
notify the treating physicians. Again, the prejudice is
clear.
A recurring theme of defendant Prunty's objections was
that Dr. Bayles could not testify as to Dr. Prunty's diagnosis
and treatment of Hunsaker because Dr. Prunty was a specialist
(psychiatrist) and Dr. Bayles was not. In Baerman v. Reisinger
(D.C. Cir. 1966), 363 F.2d 309, the trial judge refused to
allow a general practitioner testify on behalf of a plaintiff
in an action filed against a cardiologist. In reversing,
the court concluded:
"It is settled law that '[a] physician is
not incompetent to testify as an expert
merely because he is not a specialist in
the particular field of which he speaks.'"
The court reasoned the training and specialization of the
witness goes to the weight of the evidence rather than to
the admissibility.
Other courts have also adopted the rule allowing a
general practitioner to testify in a negligence suit against
a specialist. The objection that one is not a specialist,
goes to the weight of the testimony rather than to one's
-15-
competency to testify. Harold v. Radman (Maryland 1976), 31
Md.App. 184, 355 A.2d 477; Wolfinger v. Frey (~aryland
1960), 223 Md. 184, 162 A.2d 745; Frost v. Mayo Clinic
(1969), 304 F.Supp. 285; Barnes v. St. Francis Hospital &
School of Nursing, Inc. (1976), 211 Kan. 315, 507 P.2d 288;
Benzmiller v. Swanson (N.D. 1962), 117 N.W. 2d 281. Accordingly,
we conclude that Dr. Bayles was qualified to testify even
though he was not a psychiatrist.
We turn next to plaintiffs' contention that Dr. Bayles
should have been permitted to explain how the hospital rules
operated and whether the hospital violated the rules. It
is rare in a case involving a medical question that experts
are not called by both plaintiffs and defendants to explain
the techniques, practices and intricacies involved in the
case. Except perhaps in the most blatant case, the jury would
become helplessly mired without the aid of expert medical
testimony. A physician would normally be in the best position
to explain how the rules operate and whether they were properly
followed in a particular case. Undoubtedly, this would be
of great benefit to the jury.
In the early case of State v. Cassill et al. (1924), 70
Mont. 433, 227 P. 49, this Court held that witnesses who
were qualified as experts in accounting and bookkeeping could
explain the meaning of various entries because the information
would be helpful to the jury. Explaining the application of
the hospital rules to the facts of this case would be equally
as helpful to the jury. Since Cassill, this Court has upheld
the use of expert testimony in many factual situations. Indeed,
this Court has created many exceptions to the rule prohibiting
opinion testimony because we have recognized the inherent
need for expert opinions if the -factfinding process is going
to be realistic and meaningful. Note, 37 Mont.L.Rev. 267
(1976). The new Mont.R.Evid., which will apply to this case
upon retrial, are explicit in allowing opinion evidence.
Rules 701 through 705, Mont.R.Evid.
We have long held moreover, that where there is a need
for expert testimony, and where the expert is qualified, the
opinion, in the form of a conclusion ". . . may be stated
by a qualified expert, even though the conclusion is a
statement of an ultimate fact to be found by the jury."
Kelley v. John R. Daily Co. (1919), 56 Mont. 63, 181 P. 326;
Copenhaver et al. v. Northern Pac. Ry. Co. (1911), 42 Mont.
453, 113 P. 467.
Under the new rules the only limitation on the expert
is that he be qualified by reason of "knowledge, skill,
experience, training or education . . ." (Rule 702. ) The
range of possible testimony is all "scientific, technical,
or other specialized knowledge" which would aid the trier of
fact. (Rule 702.) Even the time honored hypothetical
question is no longer required as a condition to giving expert
testimony. (Rule 705.) And, an expert can give his opinion
on the ultimate issue in the case. (Rule 704.) The means by
which any weakness in the basis of the opinion should be
revealed is through cross-examination. (Rule 705.)
The trial court should have permitted Dr. Bayles to
explain his interpretation and application of the rules to
the facts of the case. If Dr. Bayles was in error, any
weaknesses in his opinion would have been exposed by cross-
examination. Moreover, the defendant physicians, in their
own testimony, would have been quick to reveal his errors.
We conclude also the court improperly restricted Dr.
Bayles' opinions as to whether the security room should have
been locked while someone was attending Hunsaker and
whether Hunsaker's physical symptoms on the evening before,
demanded that the nurses contact the attending physicians
to inform them of Hunsaker's changed condition. These errors
were compounded because the defendants were permitted to
introduce evidence on both of these questions. The jury
was entitled to know what plaintiffs' witnesses had to say
on the same subjects.
Plaintiffs also contend Dr. Townsend should have been
permitted to testify to the standards of care in Bozeman,
Montana, for the care of a patient who is mentally disturbed
by reason of toxic psychosis or some related disease. Plaintiffs
called Dr. Townsend who was to testify as an expert as to the
standard of care for diagnosing and treating toxic psychosis
in Bozeman, Montana. As an internist and hematologist the
area of organic and toxic psychosis was within Dr. Townsend's
specialty. He had extensive experience in hospitals of
varying sizes throughout the United States. The defendants
do not dispute his general qualifications but simply contend
he had not practiced in a hospital similar in size to that of
Bozeman Deaconess and therefore was not qualified to testify
as to the standards of care at Bozeman Deaconess.
In past years Dr. Townsend had practiced in hospitals
similar in size to Bozeman Deaconess. It appears moreover,
plaintiffs were asking him what the standard of care was in
Bozeman Deaconess, not what the standard of care was in
other hospitals similar in size to Bozeman Deaconess. Dr.
Townsend had gone over Hunsaker's medical and hospital records
and had acquainted himself with the standard of practice in
Bozeman by talking with a Bozeman doctor who practiced in
the hospital. He was prepared to testify as to what Bozeman
-18-
Deaconess and defendant physicians should have done to
properly handle a case of toxic psychosis. The record
while Dr. Townsend was on the witness stand, is punctuated
with successful defense objections on numerous grounds, but
mainly directed to foundation--that is, his familiarity
with practice in a hospital the size of Bozeman Deaconess.
Finally, however, plaintiffs asked the following question:
"Q: Based upon what you learned by reviewing
the chart that we made reference to and the
various other documents, the by-laws, the
licensing laws, are you able to form a
reasonable judgment of what the standards
of care are in Bozeman, Montana, for the
care of a patient who is mentally disturbed
by reason of toxic psychosis or some related
disease?"
Because of defense objections, the court refused to let
Dr. Townsend go beyond a "yes" answer. In explaining his
ruling the court stated: "You [defense counsel] have pretty
well established that any knowledge he has here is hearsay.
I have tried to go as far as I can. It seems to me we are
just wasting time. "
It is difficult to imagine any expert testimony that
does not to a degree, rely on information that from a strict
legal standpoint is hearsay. If this Court were to prohibit
all expert opinions which rely on hearsay evidence, the
courthouse doors would be virtually closed to the giving of
expert opinion on any subject. In this technical world in
which we live, the need for expert medical opinion to help
resolve factual disputes has never been greater. The special
problems involving medical testimony and hearsay evidence have
been succinctly summarized in Vol. 53 Texas Law Review (No.
2, January, 1975), where the author states:
"A doctor's methods for gathering the facts
on which to base his opinion, unfortunately,
do not always mesh well with evidence law.
The hearsay rule, which generally excludes
statements made out of court and offered to
establish the truth of the matters asserted,
would prevent a doctor from testifying to
virtually anything that he has learned from
others. Moreover, since the rules regarding
opinion testimony commonly prevent experts
from basing their opinions on hearsay, the
rule would seem to prevent a doctor from
rendering an opinion in court. The rule,
however, is not so rigid. Experts may in
fact base their opinions on their general
education and training and their continued
medical readings even though these sources
are technically hearsay. Hearsay restrictions
still apply, however, when the expert turns
from his general background to the facts of
the particular case.
"The hearsay rule restricts the free flow of
medical testimony in two interrelated ways.
First, it limits the circumstances in which
the doctor may repeat in court, or base an
opinion on, the statements that others have
made about a patient's condition. Second,
it restricts the circumstances in which a
party may introduce a doctor's written opinion
about a patient's condition. Since both
restrictions conflict with the manner in
which doctors commonly perform their non-
judicial functions, each at least creates
an inconvenience for both litigants and the
medical profession and may deprive the fact-
finders of valuable evidence." Vol. 53 at
p. 297.
In the present case, the jury was deprived of valuable
evidence which it could have weighed alongside that of the
defendants and their experts. It would have been helpful
if the jury had the witness's opinion as to the proper methods
for diagnosing, treating and handling a patient with toxic
or organic psychosis. The focal point of the offered testimony
was not that of hospitals similar to Bozeman Deaconess, but
that of Bozeman Deaconess itself. That Dr. Townsend may have
relied on hearsay information to acquire this knowledge is
something that could have been explored on cross-examination.
The offered opinion went to the weiqht of the testimony and
not to the competency of Dr. Townsend to render the opinion.
Plaintiffs also complain that the defendant hospital
was permitted to ask improper questions of the hospital
supervisor who was on duty at the time that Hunsaker jumped
out the window. The questions were asked her after plaintiffs
had concluded their examination of her under the adverse
witness rule. She gave her opinions on the adequacy and
competency of the personnel at the hospital while Hunsaker
was a patient. Plaintiffs claim that no foundation was laid
for this testimony, but her background and qualifications
were established in detail during defendant hospital's examina-
tion of the witness. Plaintiffs did not object to this
testimony. It is true that the opinion testimony elicited
went beyond the scope of the examination-in-chief and no
reason appears why the supervisor could not have been called
to testify while the defendant hospital was putting on its
case. We do not however, consider this error to be prejudicial.
On the other hand, it was prejudicial error to permit
the nurse supervisor to testify that another nurse-supervisor
(whose testimony was read into the record by deposition) was
"honest and trustworthy." That testimony took on added
weight when it is considered that the nurse-supervisor
testified directly contrary to one of plaintiff's witnesses
on the question of whether the security room was locked. An
orderly testified that he attended Hunsaker on the 4:00 p.m.
to 12:OO p.m. shift and that the nurse-supervisor kept him
locked in the security room while attending Hunsaker. If
the orderly wanted to leave the room for any reason he had
to knock on the heavy glass window and the nurse-supervisor
came with the key and opened the door. The nurse-supervisor
testified (by deposition) that the orderly was never locked
in the room with the patient. The testimony that this super-
visor was "honest and trustworthy1'clearly took on the form
-21-
of character testimony for which there was no foundation.
Indeed, character was never put in issue.
The next series of claimed errors relates to the
doctrine of - - loquitur and the court's instructions
res ipsa
on the doctrine. Over defendants' objections the court
instructed the jury on the doctrine of -- loquitur.
res ipsa
Under the instructions the jury was entitled to find that
the doctrine applied not only to the hospital hut also to
the defendant physicians. The instruction given was the
standard jury instruction on - - loquitur as found in
res ipsa
the Montana Jury Instruction Guide (No. 22.00.). It was given
without modification. In addition to this instruction,
the plaintiffs offered supplemental instructions on res ipsa
loquitur but the trial court refused each of them. Plaintiffs
assign this as error.
We note at the outset that the doctrine, in the context
of this case, did not apply to the defendant physicians. In
Maki v. Murray Hospital (1932), 91 Mont. 251, 7 P.2d 228,
this Court held that - - loquitur applied in an analogous
res ipsa
situation to the defendant hospital. The plaintiffs here
offered no theory at trial nor to this Court as to why the
doctrine should apply to the defendant physicians. The defendant
physicians were not attending Hunsaker at the time he jumped
out the hospital window. Indeed, they were not even in the
hospital. Whether the defendant physicians had made the proper
diagnosis of Hunsaker's condition or had given the proper
orders to the hospital personnel, was covered by specific
allegations of negligence. It stretches the doctrine of -
res
ipsa loquitur beyond the breaking point to apply the doctrine
to the physicians under these facts.
In its application to the hospital, the - - loquitur
res ipsa
instruction, although setting forth the elements, should have
-22-
been modified to fit in the context of this case. Plain-
tiffs did offer another instruction in simpler terms, but
the instruction was refused. We note moreover, that the
District Court refused an instruction offered by plaintiffs
distinguishing circumstantial evidence from direct evidence.
- - loquitur, is, of course, a form of circumstantia.1
Res ipsa
evidence, and the instruction defining circumstantial evidence
should have been given.
The trial court instructed the jury that. "the mere fact
of an injury or the occurrence of a bad result, standing
alone, is no proof whatsoever of negligence in an action
such this. I Plaintiffs contend this was error, particularly
'
in a situation where the plaintiffs r@ly- upon - ipsa
res
loquitur. In the ordinary negligence case we would agree,
but in a professional negligence action, it is not error to
give an instruction that an unsuccessful effort, a mistake,
or an error in judgment is not necessarily negligent.
In Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d
263, an ordinary negligence action, we condemned an "unavoidable
accident" instruction. There we concluded that it injected
a straw issue into the case and is confusing to the jury.
This is somewhat akin to "the mere fact of an injury" instruction
as was given in this case. In Gagosian v. Burdick's
Television & Appliances (1967), 254 Cal.App.2d 316, 62 Cal.
Rptr. 70, California eliminated "the mere fact of an injury"
instruction from ordinary negligence actions, stating:
". .
. Since it but elucidates the obvious
to the jury, and need not be given to meet
any rule of appellate procedure, we join
heartily in the recommendation of its authors
for its 'decent burial.' The trial judge who
strikes the 'mere happening' instruction from
his instruction book and completely erases it
from his memory will save time in instruction
and much in retrial after reversal."
We also conclude that in an ordinary negligence action
that such instruction should be given a "decent burial"
in this State.
In professional malpractice actions however, California
retains a modified form of "the mere fact of an injury"
instruction. For example, California Jury Instructions,
Civil (BAJI, 6th Edition, 1977), Instruction No. 6.02 states:
"A physician and surgeon is not negligent
merely because [his efforts are unsuccessful]
[he makes a mistake] [he errs in judgment] in
the matter for which he was engaged.
"However, if the physician and surgeon was
negligent as defined in these instructions,
it is not a defense that he did the best
he could. "
We believe this is a proper instruction. Also see instruction
no. 6.37.2 which has similar application to actions against
other professionals, such as lawyers.
Plaintiffs next contend that the court erred in giving
an instruction on medical negligence which concluded with
the following sentence:
". .. A doctor is not liable for a mere
error in judgment, provided he does what
he thinks is best after a careful examination."
Plaintiffs contend that the test of negligence is not for
a doctor to do what he thinks is best, but whether he used
the required knowledge and training in making the judgment to
do what he thinks is best. The language used was modified
to an extend by the words "after a careful examination",
but a different instruction should be given. The instruction
set forth in the preceding issue is sufficient.
The court refused plaintiffs' instruction that Hunsaker
would not lose the benefit of the application of the doctrine
of - ipsa loquitur by introducing evidence tending to show
res
specific acts of negligence. In Whitney v. Northwest Greyhound
(1952), 125 Mont. 528, 535, 242 P.2d 257, this Court stated:
"Where res ipsa loquitur is otherwise
applicable, a plaintiff does not lose
the benefit of that presumption by
alleging specific acts of negligence
of the carrier which he fails to prove . . ."
We note however, that under the other instructions, given in
the case at hand, there was no basis for the jury to conclude
that the plaintiff was precluded from relying on res ipsa
--
loquitur because he alleged specific acts of negligence.
-
Accordingly, we find no error.
Plaintiffs further contend that the trial court should
have instructed the jury that exclusive control of the
instrument did not mean physical control at the time plaintiff
sustained his injuries. But the facts of this case did not
require such an instruction. In Baumgartner v. National
Cash Register (1965), 146 Mont. 346, 406 P.2d 686, we held
that actual physical control at the time of the accident is
not required. The facts of that case differ materially from
the facts of the instant case.
In Baumgartner, plaintiff suffered an electrical shock
from a cash register manufactured and distributed by the
defendant. Undoubtedly, for -- loquitur to apply in
res ipsa
that factual context, plaintiff was not required to prove
that National Cash Register Company had actual physical
control over the cash register at the time plaintiff was
shocked. In the instant case the defendant hospital did not
dispute that it had physical control over the operations of
the hospital and the security room of the hospital. Under
these facts the court properly refused the instruction.
At the request of defendant hospital, the court gave
the following instruction relating to expert testimony and
the application of -- loquitur:
res ipsa
"In determining whether the accident was of
such a nature that it does not ordinarily
occur if the party in control exercises
reasonable care, you must examine whether
that determination involves the resort to
medical opinion and judgment beyond the
common knowledge of a layman. If you find
that the cause of the accident was so
inextricably bound up in a course of
medical judgment beyond the common knowledge
of laymen, then the previously described
inference of negligence does not apply in
this case."
The instruction is not one that should be given to
a jury as a barrier to overcome before it can apply the
doctrine of - ipsa loquitur.
res At the conclusion of the
case the evidence was such that the trial must have concluded
--
that the elements of res ipsa loquitur were satisfied and
that the injuries received by Hunsaker were not so inextricably
bound up in an antecedent course of treatment involving the
exercise of medical judgment beyond the common knowledge of
laymen. The instruction served only to confuse the jury.
As its last contention of error in instructing the jury
plaintiffs contend that the District Court improperly instructed
the jury that in the absence of an emergency the nurses and
other hospital personnel are bound to follow the orders of
the treating physician. The instruction was proper. Neither
case cited by plaintiffs is applicable to the facts of this
case. In Livingston Hospital v. White (Ky. 1952), 245 S.W.2d
927, the attending staff physician made a note on a hospital
form recommending that the patient be kept under "special
observation for suicide or escape." The hospital staff left
the patient unattended and the patient jumped through a
window severly injuring himself. This is a clear case of
the hospital personnel not following the physician's order.
In Rural Education Ass'n. v. Anderson (Tenn. 1953), 261 S.W.2d
151, the patient's family physician before he went on an extended
vacation instructed the hospital staff to keep a loose sur-
veillance on the patient. While the physician was on vacation,
the patient became critical and increased observation was
required. Later a staff physician order increased surveillance,
but the hospital staff left the patient unguarded on the
third floor of the hospital. The patient jumped through
the window and received extensive injuries. This was a
clear case of an emergency situation where the hospital
failed to increase surveillance when it was needed and
actually ordered by staff physician.
We agree with the statement contained in Mesedahl
v. St. Luke's Hospital Ass'n. of Duluth (1935), 194 Minn.
198, 259 N.W. 819:
". .. The nurses and internes at a
general hospital are charged with the
duty of carrying out the instructions
of the attending physician, except in cases
of emergency. Such of necessity must be the
rule. When a patient enters a hospital upon
the advice of a physician chosen by him, he
naturallly desires and expects, and has the
right to expect, that the instructions of
his physician will be complied with. He
relies upon the skill of his own doctor; he
knows nothing of the ability of the internes
and nurses. Where an emergency arises, it is,
of course, incumbent upon the nurses or internes
to exercise their own judgment until report can
be made to and instructions received from the
attending physician. . ."
The problem of jury instructions with which we were
faced in this case and with which we have been increasingly
confronted with, impels us to discuss the subject of jury
instructions. The -- loquitur instruction given in
res ipsa
this case, without any modification, was taken from the
Montana Jury Instruction Guide, Instruction No. 22.00. This
instruction was adopted verbatim from an earlier edition
of California Jury Instructions. The instruction is cumber-
some and extremely difficult to understand. We note, however,
that for several years now, the California instructions on
- ipsa loquitur have been substantially revised. Presently,
res
there are several instructions relating to - - loquitur.
res ipsa
California has had extensive litigation in the field
of hospital and medical malpractice and undoubtedly because
of this, specific instructions on the application of res
-
ipsa loquitur to this area of the law, have been drafted
by the bench and bar. (California Jury Instructions, Civil,
6th ed., Instructions NG. 6.35, 6.36.) Comparatively speaking,
this State has had little litigation in this area. Con-
sequently, decisional law in this state is sparse. The
trial bench and trial bar areencouraged to seriously consider
the use of pattern jury instructions from other states as
long as they are not inconsistent with the law of this
state. Even if inconsistent, the form of the instruction can
be used as a model for drafting one that complies with the
law of this State. The committees drafting these instructions
have labored long and hard to create fair and meaningful
instructions. Not only will considerable time and effort be
saved by using these pattern instructions, but more importantly,
the chances of the jury receiving proper instructions are
considerably enhanced.
We note also that counsel frequently draft instructions
at the last moment with little thought given as to whether
they are fair and accurate statements of the law. They are
frequently drafted from an adversary position and as a
result they tend to unfairly benefit one of the adversaries.
That is not the purpose of jury instructions. Jury instructions
are no place to make final arguments. In addition to being
easily understood, instructions should be a fair statement
of the law and not slanted to the side of one adversary or
the other.
Another problem that this Court frequently confronts
is that counsel or the trial bench too often draft instructions
in the literal language of the opinions of this court or the
courts of other jurisdictions. While occasionally a statement
in an opinion may also be a good jury instruction, we
emphasize that opinions are not designed to be jury
instructions. We are confident that the trial bench, together
with counsel, if they take sufficient time and effort, can
draft instructions that are better jury guides to the law
than the literal language taken from court opinions. We
encourage the bench and bar to take the time to do so.
Finally, it would greatly aid in the submission of
proper instructions to the jury, if the District Courts would
adopt and compel enforcement of a local court rule ,reqairing
that jury instructions be submitted to the court, with
appropriate supporting authority, before commencement of the
trial.
There are several more claims of error asserted by
plaintiffs but our decision on them would not be helpful to
the retrial of this cause. If the issues do arise at the
next trial, they will not be in the same context as presented
to us in this appeal.
The judgment is vacated and the cause is remanded for
a new trial.
We Concur:
4Chief Justice
Justices
Mr. J u s t i c e John Conway H a r r i s o n c o n c u r r i n g i n p a r t and d i s -
senting i n part:
I concur i n t h e r e s u l t r e a c h e d by t h e m a j o r i t y b u t n o t
i n a l l t h a t is said therein. S p e c i f i c a l l y , i n r e g a r d t o two
h o l d i n g s of t h e o p i n i o n :
F i r s t , a s t o t h e charge t h a t t h e h o s p i t a l f a i l e d t o u s e
t h e s t a n d a r d of c a r e r e q u i r e d , and t h e d e n i a l of t h e t e s t i m o n y
of D r . B a y l e s ' t e s t i m o n y on t h a t s t a n d a r d , I would s u s t a i n
t h e t r i a l j u d g e ' s d e n i a l o f t h i s t e s t i m o n y on t h e ground t h a t
t h e t r a n s c r i p t f a i l e d t o show t h a t D r . B a y l e s was f a m i l i a r
with those standards .
Second, I would s u s t a i n t h e t r i a l j u d g e ' s r e f u s a l t o
a l l o w D r . Townsend's t e s t i m o n y on t h e s t a n d a r d of c a r e re-
q u i r e d by b o t h t h e h o s p i t a l and t h e d o c t o r s a t t e n d i n g M r .
Hunsaker. Dr. Townsend p r a c t i c e d i n t h e f e d e r a l l y e s t a b l i s h e d
h o s p i t a l s and, i n m o p i n i o n , had no e x p e r t i s e a s t o t h e
y
s t a n d a r d s i n l o c a l Montana m e d i c a l i n s t i t u t i o n s . For t h e
same r e a s o n s , I d i d n o t concur i n t h i s C o u r t ' s o p i n i o n i n the
c a s e of T a l l b u l l v. Whitney ( 1 9 7 7 ) , Mon t . , 564 P . 2d
162, 34 St.Rep. 356.
Mr. Chief Justice Frank I. Haswell specially concurring:
I concur with the result in the majority opinion but
not in all that is said therein.
I would grant a new trial on the following grounds for
the reasons set forth in the majority opinion:
(1) Reversible error in excluding the expert opinion
evidence of Dr. Dayles and Dr. Townsend;
(2) Reversible error in admitting the testimony of
nurse-supervisor Augney that another nurse-supervisor was "honest
and trustworthy".
Chief Justice \