Kyriss v. State

No. 83-479

IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

JOANN KYRISS, in her capacity
as Conservator for Frank Templin,
Plaintiff and Respondent,

STATE OF MONTANA,
Defendant and Respondent,
and
W G E R A. GANFIELD, M.D. and
LEONARD f l . BENJAMIN, M.D.,
Defendants and Appellants.

APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell,
The Honorable Robert Boyd, Judge Presiding.

COUNSEL OF RECORD:
For Appellants:
James A. Robischon argued, Butte, Montana
For Respondents:
Hoyt & Trieweiler; Terry Trieweiler argued for
Kyriss, Whitefish, Montana
Sharon Morrison, (Kyriss), Helena, Montana
Allen B. Chronister argued for State, Agency
Legal Services, Helena, Montana

Submitted: June 13, 1985
Decided: October 3, 1985

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

This is a medical malpractice case in which the District
Court, Third Judicial District, Powell County, based on jury
verdict, entered judgment against Drs. Roger A. Ganfield and
Leonard M. Benjamin. The doctors appeal.
The principal issue in the case is whether the District
Court properly instructed the jury on the issue of causation
using the "legal cause" or "substantial factor" instruction
instead of the historic "proximate cause" instruction. We
determine tha.t the court instructed the jury properly.
The second principal issue is an outgrowth of the first
issue, for the doctors contend that there was not sufficient
competent evidence of proximate cause to justify a verdict
against them. We determine the evidence is sufficient.
Other issues raised by the doctors include their
contention that they were employees, not independent
contractors, of the State of Montana and thus entitled to be
immunized from plaintiff's judgment under section 2-9-305,
MCA; and a further issue respecting the jury's possession of
highlighted copies of the plaintiff's prison medical record
and color photographs of his right leg. We resolve these
issues against the doctors also.

Frank Templin is characterized on the prison records as
marginally mentally retarded and an alcoholic. He was born
in 1922 and finished the 8th grade in ten years. In 1947, he
enlisted in the Army from which he received an honorable
discharge. He re-enlisted in 1950 and served a tour of duty
in the Korean War, and was honorably discharged in 1953 for a
second time. In his Korean duty, he suffered frostbite on
both of his feet while working as a heavy equipment operator
in building roads.
After the service, he worked in saw mills and as a farm
laborer. He drank heavily however in the 1970s, was
considered an alcoholic and supported himself with welfare.
In 1973, Templ-in forged a $30 check drawn on a friend's
account to purchase wine. After 141 days in the Lincoln
County Jail, he entered a plea of guilty of forgery. He had
no prior juvenile record and no prior felony conviction, and
on March 7, 1974, he received a three-year deferred sentence.
One of the conditions of the deferred sentence was that he
complete an alcoholic treatment course at Galen, Montana, and
report regularly to a parole officer.
Templin completed the treatment at Galen on May 1, 1974,
and then requested permission to transfer his supervision to
Minnesota, where he hoped to find farm work. He was given
permission. Two weeks after his departure from Montana, when
he had not reported to his Minnesota supervisor, he was
declared a probation violator. A warrant was issued for his
arrest, he was returned to the District Court in Lincoln
County and there he was sentenced to 10 years imprisonment in
the Montana State Prison at Deer Lodge.
His incarceration at the prison was uneventful. He had
no conduct problems, was classified as minimum security risk,
did his job assignments, did not need supervision, and was
dependable. He was eligible for parole on January 11, 1976
but was apparently denied parole for failure to submit an
acceptable work program following parole. Therefore he
remained a prisoner at the Montana State Prison, where
eventually he sought treatment from Leonard Benjamin, M.D.,
the prison doctor, for an ingrown toenail on September 7,
1977.
We will set out the history of his medical treatment
more in detail when we discuss the sufficiency of the
evidence issue. It is enough to say now that following the
removal of his toenail, over a course of several weeks, and
several visits to the prison nurses, the prison doctors, and
stops at the prison infirmary, it was decided that he should
be released to the Veterans Administration Hospital in Helena
for treatment of what was obviously a gangrenous condition of
his right foot. The Veterans Administration Hospital would
not accept him unless he was paroled. His parole was
effected, he entered the Veterans Administration Hospital,
and there the lower portion of his right leg was amputated on
December 20, 1977.

LEGAL CAUSE
During the trial the doctors contended, and they contend
on appeal, that Frank Templin was suffering from a
pre-existing condition of arteriosclerosis of the blood
vessels of the legs, particularly of the right leg, and that
it was the arteriosclerosis which brought about the eventual
amputation of his right leg.
Templin contended that the doctors were negligent in
their medical treatment extended. to him. There was also an
issue of whether the State of Montana itself had exercised
its duty to provide reasonable and ordinary care for the life
and health of its prisoner.
The jury was given a special verdict form, which
required it to find with respect to each defendant whether
that particular defendant was negligent, and whether his or
its negligence contributed as a legal cause of injury or
dama.ge to the plaintiff. Those questions related to
defendants Roger Ganfield, Leonard Benjamin, Francis
Bertoglio and the State of Montana. The jury returned a
verdict that Roger Ganfield and. Leonard Benjamin were
negligent, and that their negligence contributed as a legal
cause of iniury or damage to the plaintiff. The jury found
in favor of the defendants Francis Bertoglio and the State of
Montana.
With respect to causation, the District Court instructed
the jury as follows:
Instruction No. 13
There may be more than one legal cause of an
injury. When negligent conduct of two or more
persons contributes concurrently as legal causes of
an injury, the conduct of each said persons is a
legal cause of the injury regardless of the extent
to which each contributes to the injury.
Instruction No. 14
A legal cause of an injury is a cause which is a
substantial factor in bringing about the injury.
Instruction No. 18
If you find that any negligent medical practice on
the part of the Defendants substantially reduced
the chances for saving Plaintiff's leg, then such a
reduction in chance can be a part of the legal
cause as defined in this instruction.
The District Court refused the defendant's offer of a
"proximate cause" instruction, which would have instructed
the jury that proximate cause is one which in a natural and
continuous sequence and unbroken by any new independent cause
produces the injury and without which the injury would not
have occurred.
The doctors contend that in refusing the proximate cause
instruction, and granting one for legal cause, the District
Court is establishing a new standard. The doctors rely on
our decision in Sztaba v. Great Northern Railway Co. (1966),
147 Mont. 185, 411 P.2d 379, where we said that the test most
generally employed determining causation is the "but for"
test. The doctors also point to Detert v. Lake County (~ont.
1984), 674 P.2d 1097, where we stated that the plaintiff in a
tort case must prove a breach of duty as a proximate cause of
the injury, and to Hendrickson v. Neiman (Mont. 1983), 665
P.2d 219, where we stated that to hold a party negligent per
se for a violation of the statute, the violation must
constitute a. proximate cause of the injury resulting in
damage.
Thus the doctors place squarely before us an issue of
grave importance, namely, is this Court so inseparably wedded
to the "but for" rule that in tort cases the liability of the
defendant must always be found in terms of proximate cause?
We answer no.
We reached this issue shortly ago in Rudeck v. Wright,
(Cause No. 84-84, Decided August 27, 1985), - Mont. ,

- P.2d -. There we said in part:
. .
. if two or more causes concur to bring about
an event, and any one of them, operating alone,
would have been sufficient to cause the identical
result, some other test is needed. In such cases
it is quite clear that each cause has in fact
played so important a part in producing the result
that responsibility should be imposed upon it; and
it is equally clear that neither can be absolved
from that responsibility upon the ground that the
identical harm would have occurred it, or there
would be no liability at all.
The "substantial factor" rule was developed
primarily for cases in which application of the
"but for" rule would allow each defendant to escape
responsibility because the conduct of one or more
others would have been sufficient to produce the
same result . ..
In this case, the problem has a slightly different
context: the doctors argue that a pre-existing condition of
arteriosclerosis caused the result. On that point the
doctors seek to escape liability. In Rudeck, we showed that
the "but for" rule is one which states that the defendant's
conduct is the proximate cause of the event if the event
would not have occurred but for that conduct. The inadequacy
of the "but for" rule for the purpose of this case should be
obvious. Under the "but for" rule, it could be argued, and
indeed was argued in the District Court and here on appeal,
that the amputation would have occurred in any event, and not
only "but for" the negligent treatment by the doctors.
If two causes concur to bring about an injury and either
cause would have been sufficient for the result, some test
for tort liability other than the "but for" rule is needed.
In the case of two such concurring causes, the proximate
cause instruction fails because a jury so instructed would
face an impossible task: It cannot then find the negligence
of one party a cause "without which the injury would not have
occurred." It was in grappling with this facet of tort
causation that courts developed the "substantial factor"
test. And-erson v. Minneapolis, St. Paul and Sault Ste. Marie
Railway Co. (Minn. 1920), 179 N.W. 45 affld., 185 N.W. 299
(1921).
Our adoption of the "substantial factor" test as
applicable to cases where two or more actors or factors may
be substantial causes of a harm is relatively late in coming.
The rule appeared in the first Restatement of Torts, § 431,
and is repeated in Restatement (Second) of Torts, § 431.
Other western states have found the requirement of causation
to be satisfied where the negligent act complained of is a

substantial factor is causing plaintiff Is injury. Alvey v.
Pioneer Oil Field Services (Alaska 1982), 648 P.2d 599;
Blackledge v. Harrington !Or. 19811, 624 P.2d 119, rev'd. 634
P.2d 243 (1981); Thomsen v. Rexall Drug and Chemical Company
(1965), 235 Cal.App.2d 755, 45 Cal. Rptr. 642; Mitchell v.
Branch (Hawaii 1961), 363 P.2d 969; Phelps v. Woodward
Construction Co. (Wyo. 19491, 204 P.2d 179.
Our adoption of the "substantial factor" test is in
acc~rdwith dicta found in Moen v. Peter Kiewit and Sons Co.
(Mont. 1982), 655 P.2d 482, 490, and Kiamas v. Mon-Kota, Inc.
(Mont. 1982), 639 P.2d 1155.

Sufficiency - Evidence
of
The doctors contend that there was not sufficient
competent evidence of proximate cause to justify a verdict
against them in favor of the plaintiff. They state that
although Templin's expert witness, Dr. Tom E. Norris, offered
evidence of improper medical treatment by the defendant
doctors, at no time did Dr. Norris testify that any of the
allegedly negligent acts or omissions of the doctors were the
proximate cause of the injury to Templin. The defendant
doctors then rely on the argument that proof of proximate
cause is necessary to establish liability. Since the "but
for" test is one of exclusion, the doctors contend that their
conduct is not the cause of the injury, if the event would
not have occurred without it.
In support of their contentions, defendant doctors point
to the cross-examination of Dr. Manuel White, who testified
that the blockage in Templin's artery was caused by
arteriosclerosis, and that this is a progressive disease,
which may have existed as early as two years prior to the
toenail incident. The doctor further stated that it was the
interruption of the blood suppl-y at the popliteal artery of
the right leg that caused the d.evelopment of gangrene.
We have already indicated above that in this case it was
proper to apply the "substantial factor" test and not the
"but for" rule to determine the liability. Nonetheless
because an issue is raised as to the sufficiency of the
evidence, we set out from the viewpoint of Templin the
testimony which supports the verdict in favor of Templin.
It is first necessary to understand that under a
contract with the prison authorities, it was a duty of Dr.
Benjamin, or someone from his office, to provide medical care
to prison inmates and that this obligation extend-ed to Frank
Templin during the times involved in this case.
Dr. Benjamin first examined Templin in 1974 and got from
Templin then a history that Templin had frostbite on his feet
while in the service in Korea.
On July 18, 1977, Templin was seen by a nurse at the
prison, complaining that his leg was going to sleep when he
was lying in bed, sitting, or walking too much. The doctor
testified that these symptoms are signs of circulatory
deficiency similar to claudication, which is pain in the
muscle or part of the body which lacks circulation.
On September 7, 1977, Nurse Kathleen Scalise saw Templin
at the old prison medical station. She found him in a great
deal of pain with a reddened and swollen foot. His right
great toe was red and inflamed and tender to touch. She
advised him to place his name on the next day's sick call
when Dr. Benjamin was scheduled to be there.
On September 8, 1977, Dr. Benjamin examined Templin's
right foot. Templin was complaining of a very sore toe.
Benjamin determined that Templin had a circulatory
insufficiency in his right lower leg. The doctor was una-ble
to find a pedal pulse. There were atrophic changes in the
right big toenail and venous swelling of the foot. Dr.
Benjamin prescribed removal of the toenail on the following
day.
On September 9, 1977, Dr. Ganfield, who is the associate
of Dr. Benjamin, removed the toenail and sent Templin back to
prison. The doctor admitted that the prison environment was
not sanitary and that he could at that time have admitted
Templin either to the prison infirmary or to a hospital, or
he could have referred Templin to a vascular surgeon.
On September 10, 1977, a licensed practical nurse,
Jackie Beatty, saw Templin several times during the day. He
was suffering pain for which she gave him a pain pill. She
cleansed his toe, and applied an ointment. She observed a
small amount of bleeding on the surface of his right great
toe, but no signs of infection. She saw him again on
September 11, 17, and 18 for observation and treatment.
During that time he was still being housed at the old prison.
On September 20, 1977, Dr. Benjamin prescribed an
antibiotic for Templin because he observed an indication of
infection in the area of the right great toe. On September
25, 1977, Nurse Beatty observed Templin again. At this time
his right large toe was black, and there was drainage. She
soaked his foot, recorded the condition of the foot, and
reported the condition to the doctor. Nurse Scalise also saw
him at the medical station, and observed that he was walking
with difficulty, that his toe was black and that there was a
reddened area over his right foot. He seemed unable to place
any weight on his foot.
 On September 26, 1977, he was again seen by Dr.
Benja.min, at the old prison medical station, and he decided
that Templin should be admitted to the prison infirmary.
After three days, Templin was discharged from the infirmary
by Dr. Benjamin and went back to the prison on September 29.
On September 30, 1977, Templin was again seen by Nurse
Beatty. Again his right toe was reddened, swollen and dark
black in color. However, red streaks were starting up the
right foot above the great toe. The nurse understood. that
the redness indicated infection. There was also a purulent
drainage, which also indicates infection.
Dr. Ga.nfield saw Templin in his office on September 30,
1977. Dr. Ganfield described his foot as having "mild
swelling, with several cuts noted on the ball of his foot and
heel. " Dr. Ganfield did not require Templin to be
hospitalized, nor send him to the infirmary, nor did he
consult with any surgeons or vascular specialists respecting
the condition of the foot, nor order a culture to determine
the type of infection present. Again, Templin returned to
the old prison.
On October 1, 1977, Nurse Beatty again saw Templin at
the old prison medical station. He still had purulent
drainage around the upper part of his right great toe, and it
was reddened a.nd inflamed. She saw him again on the next
day, October 2, 1977, made the same observations, a.nd
indicated he was having difficulty trying to walk. She
personally notified Dr. Ganfield of t.he signs of infection on
the right great toe. Dr. Ganfield changed the antibiotic,
but did nothing further.
Dr. Benjamin saw Templin October 4, 1.977, and at that
time knew that Templin had an infection in his right great
toe. He did not however change his course of treatment. Dr.
Benjamin also saw Templin on October 11, 1977.
After a lapse of three weeks, Dr. Benjamin again saw
Templin on November 4, 1977. At that time he admitted
Templin to the infirmary. Nurse Beatty observed that his
right foot was reddened, his toe black with purulent
drainage, and also now noticed a foul odor coming from his
right great toe. Dr. Benjamin testified that on this date,
Templin showed definite evidence of gangrenous changes in his
toe and heel. Dr. Benjamin then d.ecided that Templin should
he released to the Veterans Administration Hospital in
Helena, but that hospital would not accept Templin because he
was not paroled.
Glen McElderry, a licensed practical nurse, worked at
the prison and saw Templin in the month of November. Two
days after Templin's admission to the infirmary, McElderry
noticed a red streak going up Templin's right leg which
seemed to come from the infection in his toe. The doctors
were kept advised of Templin's condition.
On November 4, 1977, however, Templin had been sent to
the Powell County Hospital in Deer Lodge so that a culture
could be taken from his big toe. This wa.s done at Dr.
Bertoglio's instruction. Dr. Bertoglio diagnosed his
condition as an infected toe with a vascular insufficiency
and the culture showed a staph aureus infection. That
information was communicated to Dr. Benjamin.
By November 17, 1977, McElderry determined by measuring
that the length of the red streak on Templin's foot and leg
was 8 inches. He felt that Templin's infection was getting
worse. McElderry testified that Templin showed more
deterioration than improvement while he was in the infirmary.
 Templin was hospitalized at the Veterans Administration
Hospital in Helena on November 23, 1977. There he was
examined by Dr. Manuel White, a specialist in vascular and
thoracic surgery. In his examination of Templin, he found
good pulses in both groins, but no pulses in his feet or
behind his knees. He also observed a dark discoloration of
the great toe of Templin's right foot. There was moderate
swelling of both feet which was worse on the right, a missing
toenail on the right toe, and a foul odor. Dr. White ordered
an arteriogram. This type of X-ray film revealed that the
blood circulation in Templin's right leg was blocked at the
popliteal and the lower portion of the superficial femoral
arteries, that is, behind the knee and the lower part of the
thigh. He determined that Templin was suffering from
arteriosclerosis, which is a narrowing of the arteries by
thickening of the walls. The process of arteriosclerosis had
been going on at least two years. He found, however, that
the actual blockage in this case had resulted from blood
clots which had developed relatively recently. Dr. White
determined that surgery was necessary in order to relieve the
clogged vessels and to re-establish circulation. He operated
on Templin on December 12, 1977, and removed the blood clots.
He felt he had restored good circulation to the area where
the clots had been removed. The gangrenous condition which
he observed, however, was not reversed. It became necessary
on December 20, 1977, for Dr. White to amputate below the
knee of Templin's right leg. The amputation was necessary
because of gangrene and pain.
Dr. Tom Norris, plaintiff's medical expert, reviewed
Templin's medical records. He expressed an opinion that for
a patient who had Templin's symptoms on September 7, 1977,
and who had. also indications of poor circulation in his right
leg, the vascular problem should be dealt with first and then
the toenail problem. The reason is that surgery to an
extremity where there is a significant vascular lessening
presents a greater risk and the tissue is more prone to
complications due to the possibility of infection. An
infection in an area where blood supply is lessened will
produce complications more grave than if there are no
vascular problems.
Dr. Norris testified after a toenail is removed from a
patient in Templin's condition that the following care must
be more cautious than usual. The patient should not be
returned to an unsanitary environment. A determination
should be made of what bacteria is causing the infection so
as to treat the infection with appropriate antibiotics.
Aggressive treatment of the infection is necessary. If the
infection continues to worsen and the circulatory problems
are contributing to the worsening, it would be prudent to
have vascular surgical consultation. Because of the nurse's
observations on September 25, the patient should have been
hospitalized, careful evaluation of the infection by culture
should have been made, and intensive therapy with antibiotics
and consultation of a vascular surgeon should have occurred.
The time loss of two months almost certainly lessened the
chance of preventing amputation, and may have led to the
necessity of taking a larger part of the leg than earlier
treatment would have allowed. By November 4, under the
condition of Templin's leg a.t that time, the foot probably
could not have been saved, but it might have been possible to
complete the amputation at the ankle level. No standard of
medical care would make it reasonable to leave Templin in the
infirmary without vascular consultation for 19 days after
November 4, 1977.
We will not repeat all of the admissions with respect to
the care made by Dr. Benjamin and Dr. Ganfield. They readily
admitted that persons with vascular problems are more prone
to infections after surgery, that careful management of
persons with vascular complications is necessary and that
persons with gangrenous conditions appearing need careful
management.
When the sufficiency of evidence to support a jury
verdict is attacked, the function of this Court is to
determine if there is substantial credible evidence in the
record to support the verdict. We review the evidence in the
light most favorable to the party that prevailed in the
District Court, the presumption on appeal being that the
determination of the trial court is correct. Gunnels v. Hoyt
(Mont. 1981), 633 P.2d 1187; Groundwater v. Wright (1979),
180 Mont. 27, 588 P.2d 1003; Koger v. Halverson (1952), 125
Mont. 560, 242 P.2d 273.
There is substantial credible evidence in this record to
support the verdict of liability against the doctors in this
case.
IV

Highlighted Copies
The doctors contend that the trial court abused its
discretion in allowing highlighted copies of Frank Templin's
medical records to go to the jury in its deliberation.
During the deposition of McElderry, as he was referring
to medical records of Templin, he was instructed by the
examining counsel to highlight portions of the record for his
testimony. These highlighted instruments were admitted into
evidence.
There were other copies of medical records not
highlighted in evidence which were also provided to the jury
during deliberation. The doctors objected to the highlighted
records going to the jury and contend that if the court had
kept the highlighted copies out, the jury would have been
deprived only of the highlighting and not of any of the
information contained in the medical records.
The supervision of the trial process is a matter in the
hands of the district judge. We find no manifest abuse of
discretion under this issue on the doctors' contention. It
is plain that under section 25-7-404, MCA, upon retiring to
deliberation, the jurors may take with them all papers which
have been received as evidence in the cause, except
depositions or papers which ought not to be taken from the
person having them in possession. The statutory direction is
clear.
Doctors also claim patent error because the District
Court allowed photographs of Templin's right leg to go to the
jury rather than have Templin exhibit the leg to the jury.
No objection was made at trial, so we do not find error on
this point.
v
Independent Contractors
(We treat this issue although the State contends that a
proper notice of appeal was not timely filed as to the
judgment in favor of the State. In any event, the issue must
be resolved for the State.)
The doctors contend that they were not independent
contractors, but were employees of the State of Montana, and
as such were entitled to the protection of Fnununity provided
by employees of the State under section 2-9-101(2), MCA.
The particular statutory provision follows:
"Employee" means an officer , employee, or servant
of a governmental entity, including elected or
appointed officials, and persons acting on behalf
of the governmental entity in any official capacity
temporarily or permanently in the service of the
governmental entity whether with or without
compensation, but the term employee shall not mean
a person or other legal entity while acting in the
capacity of an independent contractor under
contract to the governmental entity to which parts
1 through 3 apply in the event of a claim.
It is the contention of the doctors that they were
employees in this case because they were hired by the State
of Montana and. they performed services or functions under the
direction and control of the employer.
The facts relied. upon by the doctors are that Dr.
Renja.min was the only doctor employed by the State of Montana
for a number of years and. that he was employed as a prison
physician. The State of Montana provided Dr. Benjamin with
the facilities and a place for examining and treating the
Montana State Prison inmates. Nursing and other medical
supportive services were provided by the State to assist Dr.
Benjamin in his treatment and examination of the inmates.
Medications prescribed by Dr. Benjamin were filled and
administered through the pharmacy at the prison.
The doctors contend that although the prison did not
control the actual treatment that Dr. Benjamin gave to
various inmates, the prison did control and direct the
manner, the time and the availability of the medical services
provided to the inmates. The prison establishes days of the
week when prisoners are able to obtain medical services and
the time of day that the services are to be provided. Any
arrangements concerning the release of inmates for treatment
outside of the prison had to be made through the prison
administration.
Dr. Benjamin was paid for his medical services on a
salary basis and not by fee for each particular service
rendered, and was classified as a Physician IV for the
Montana State Prison and the Department of Administration
Personnel on October 31, 1974. The prison could terminate
Dr. Benjamin's services if it desired, and Dr. Benjamin
participated in the Montana Public Employees Retirement
System.
Dr. Ganfield, who had no contract with the State,
contends he was involved in the treatment of the plaintiff on
various dates when he acted in the role of a loaned servant
to the medical personnel at the Montana State Prison. See
Kish v. Montana State Prison (1973), 161 Mont. 297, 505 P.2d
891.
On the other hand, Templin points out that no other
person than Dr. Benjamin's firm, the Deer Lodge Clinic,
provided regular medical care to prison inmates during 1977.
If specialists were required, they had to be recommended
through Dr. Benjamin's office. He retained the right to
refer inmates at his discretion for additional specialized
care and he was permitted to perform services that were
necessary in the infirmary or at the Powell County Hospital,
depending upon his discretion. The criteria for referring
prisoners to other specialists were no different than for
referring any other patient in the community. The standard
of care that he was expected to provide was the same as the
standard of care for any other member of the community.
 The District Court determined that the doctors were
"independent contractors" and did not meet the definition of
employee.
First, Dr. Ganfield does not meet the test for a "loaned
servant" established in Kish v. Montana State Prison, 161
Mont. at 297, 505 P.2d at 891. In whose business was he
engaged? Although the prison has a direct and compelling
interest in the health of the prison inmates, it is apparent
from the record that Dr. Ganfield was conducting an
independent business as a physician and surgeon in Deer
Lad-get and that incidental to his independent medical
practice, he had occasion to treat Templin. Under whose
control, domination or direction was Dr. Ganfield? Again,
the record is clear that in administering medical services to
Templin, Dr. Ganfield relied on his own expertise in the
medical field and on the opinion of Dr. Benjamin, another
practitioner in the medical field. It is certain that the
State of Montana could not control, dominate or direct what
kinds of medical services, what diagnoses, and what
treatments he should accord Templin.
Almost for the same reasons that the loaned servant
doctrine does not apply to Dr. Ganfield, Dr. Benjamin must be
considered an "independent contractor." In Standard Chemical
J!lanufacturing Company v. Employment Security Division,
Department of Labor (1980), 185 Mont. 241, 605 P.2d 610, 612,
we set forth tests for determining whether persons were
independent contractors or employees for the purpose of
unemployment compensation tax. The conditions which must
exist to determine that personal services are not part of an
employment are that the individual is free from control. or
direction over the performance of his services, in fact and
under his contract; that the services are outside the usual
course of the business for which the services are performed;
and that the person performing the services is customarily
engaged in an independently established trade, occupation,
profession or business.
The medical services rendered to Templin by Dr. Benjamin
were completely within his medical discretion, without
direction or control from the prison authorities; the prison
authorities are not, nor could they be, engaged in the
practice of medicine. Dr. Eenjamin was customarily engaged
in an independently established profession as a practicing
member of a medical clinic in Deer Lodge.
We hold that Dr. Benjamin was an independent contractor
in the case at bar, and that Dr. Ganfield was not a "loaned
servant." Each is directly responsible, and the State is not
responsible on their behalf for the medical services the
doctors provided to Templin.
VI
Cross-Appeal
Templin cross-appeals on two grounds, that the District
Court should have directed a change of venue in this cause,
and that the Court improperly refused to tax the costs of
depositions used in the trial.
The cross-appellant Templin has asked us to affirm the
judgment obtained by him in the District Court, sitting in
Deer Lodge County, as against the contentions of the
appellant doctors. We have determined that affirmation is
proper. The issue, therefore, of venue in the District Court
is no longer before us, since we do not order a retrial.
After the verd,ictTemplin attempted to tax, in his costs
bill against the doctors, his expenses incurred for the
depositions of Drs. Tom Norris, Leonard Benjamin and Roger
Ganfield. On a motion by the doctors to tax costs, the costs
of depositions of the doctors were refused by the District
Court.
Templin contends that the depositions were used in the
trial of the case and accordingly the costs of taking
depositions are properly awarded to the prevailing party.
Morrison-Maierle, Inc. v. Selsco (1980), 186 Mont. 180, 606
P.2d 1085; Pfizer v. Madison County (1973), 161 Mont. 261,
505 P.2d 399.

The doctors respond that the depositions were all
discovery depositions, and that the videotaped deposition of
Dr. Norris was stipulated to by the doctors as a matter of
convenience for the reason that Dr. Norris could not
otherwise be present at the trial. The doctors contend that
the depositions were not "used" in the trial-, and that the
District Court so found, although Templin contends that the
depositions were used for purposes of impeachment.
Our problem jn resolving this issue is that we do not
.
have before us a transcript of the proceedings in the
District Court and accordingly have no record on which to
make a decision. We have no basis, therefore, on which to
disturb the determination of costs by the District Court.
VI I

The judgment of the District Court is affirmed in all
respects. Costs on appeal to respondent.
We Concur:
,.,,-7

Chief Justice

District $.tCdge; 'sitting
for Mr. Justice Frank B.
Morrison, Jr.
Mr. J u s t i c e L. C. Gulbrandson, d i s s e n t i n g .

I respectfully dissent.

In my view, the defendant's proposed instruction on

" p r o x i m a t e c a u s e " s h o u l d h a v e been g i v e n t o t h e j u r y .

The " s u b s t a n t i a l f a c t o r ' ' t e s t was c l e a r l y d e v e l o p e d f o r

the situation where two causes concur to bring about an

event, and e i t h e r o n e o f them, o p e r a t i n g a l o n e , would h a v e

been s u f f i c i e n t t o c a u s e t h e i d e n t i c a l r e s u l t . That s p e c i a l

s i t u a t i o n o b v i o u s l y d o e s n o t o c c u r o f t e n and i s n o t p r e s e n t

i n t h i s case.

The m a j o r i t y appear t o have a d o p t e d t h e r u l e a s set

f o r t h i n t h e Restatement (Second) o f T o r t s , (5 431, b u t h a v e

ignored the requirements of 55 430, 433, 433A and 434.

Restatement (Second) o f T o r t s , 1965 E d i t i o n .

S e c t i o n 433, w i t h comment ( a ) r e a d s a s f o l l o w s :

Considerations Important i n Determining
Whether N e g l i g e n t Conduct i s S u b s t a n t i a l
F a c t o r i n P r o d u c i n g Harm.

The following considerations are in
t h e m s e l v e s o r i n c o m b i n a t i o n w i t h one
another important i n determining whether
t h e a c t o r ' s conduct i s a s u b s t a n t i a l
f a c t o r i n b r i n g i n g a b o u t harm t o a n o t h e r :

( a ) t h e number o f o t h e r f a c t o r s which
c o n t r i b u t e i n p r o d u c i n g t h e harm and t h e
e x t e n t o f t h e e f f e c t which t h e y h a v e i n
p r o d u c i n g it;

(b) whether the actor's conduct has
c r e a t e d a f o r c e o r series o f f o r c e s which
a r e i n c o n t i n u o u s and a c t i v e o p e r a t i o n up
t o t h e t i m e o f t h e harm, o r h a s c r e a t e d a
s i t u a t i o n h a r m l e s s u n l e s s a c t e d upon by
o t h e r f o r c e s f o r which t h e a c t o r i s n o t
responsible;

(c) lapse of t i m e .

See R e p o r t e r ' s Notes.

Comment :

a. The considerations stated i n t h i s
Section are important in three
 particulars. F i r s t , they a r e important
a s c o n s i d e r a t i o n s which t h e j u r y s h o u l d
t a k e i n t o a c c o u n t when t h e s u b s t a n t i a l
f a c t o r q u e s t i o n i s l e f t t o them. Second,
t h e y a r e important t o t h e t r i a l judge i n
s o framing h i s i n s t r u c t i o n s a s t o c a l l
t h e j u r y ' s a t t e n t i o n t o such o f t h e s e
considerations a s are pertinent t o the
f a c t s which t h e jury might reasonably
i n f e r from t h e e v i d e n c e . Third, they a r e
important to a c o u r t i n determining
w h e t h e r upon t h e e v i d e n c e t h e r e i s room
f o r a r e a s o n a b l e d i f f e r e n c e of o p i n i o n a s
t o whether t h e d e f e n d a n t ' s negligence i s
a s u b s t a n t i a l f a c t o r i n bringing about
t h e o t h e r ' s harm.

C o u r t ' s i n s t r u c t i o n no. 1 4 , "A l e g a l c a u s e o f an in-jury

i s a c a u s e which i s a s u b s t a n t i a l f a c t o r i n b r i n g i n g a b o u t

t h e i n j u r y " was t h e o n l y d e f i n i t i o n a l i n s t r u c t i o n g i v e n t h e

j u r y , a n d , i n my o p i n i o n , i s i n c o m p l e t e and i n a d e q u a t e .

The c a s e o f Alvey v. P i o n e e r O i l f i e l d S e r v i c e s ( A l a s k a

1 9 8 2 ) , 648 P.2d 599, h a s been c i t e d i n t h e m a j o r i t y o p i n i o n

as supporting authority for the "substantial factor" rule.

T h a t c a s e c i t e s S h a r p v . F a i r b a n k s N o r t h S t a r Borough ( A l a s k a

1 9 7 7 ) , 5 6 9 P.2d 1 7 8 , where t h e f o l l o w i n g i s s e t f o r t h on p a g e

Among t h e e l e m e n t s a d o p t e d by t h i s c o u r t
a s n e c e s s a r y t o make o u t a c l a i m f o r
relief based on negligence is "[a]
reasonable close causal connection
between t h e c o n d u c t and t h e r e s u l t i n g
injury.
specifically,
.. [proximate cause]. "
negligent conduct
More
may
p r o p e r l y b e found t o b e a " l e g a l c a u s e "
of a p l a i n t i f f ' s injury i f the negligent
act "was more likely than not a
substantial factor in bringing about
[the] injury." T h i s t e s t was f u r t h e r
c l a r i f i e d i n S t a t e v. A b b o t t , where w e
said:

"Normally, in order to satisfy the
s u b s t a n t i a l f a c t o r t e s t i t must b e shown
b o t h t h a t t h e a c c i d e n t would n o t have
happened 'but for' the defendant's
n e g l i g e n c e and t h a t t h e n e g l i g e n t a c t was
s o important i n bringing about t h e i n j u r y
t h a t r e a s o n a b l e men would r e g a r d i t a s a
c a u s e and a t t a c h r e s p o n s i b i l i t y t o i t . I'
 The c i t a t i o n s t o e a r l i e r A l a s k a c a s e s i n d i c a t e t h a t t h e

Supreme C o u r t o f A l a s k a h a s a d o p t e d t h e R e s t a t e m e n t (Second)

a s s e t f o r t h i n 5 s 4 3 0 , 4 3 1 , 432, 435 and o t h e r s ,

I would agree if t h i s Court were to adopt S S 430
t h r o u g h 435, Re s t a t e m e n t (Second) o f T o r t s , 1965 E d i t i o n , and

would reverse and remand for a new t r i a l with appropriate

jury instructions. ,
'/9