Rudeck v. Wright

No. 84-84
IN THE SUPREME COURT OF THE STATE OF MONTANA

ELIZABETH RUDECK, in her own right and
as Personal Representative of the
Estate of ALFRED LYNDON RUDECK,
also known as LYNDON RUDECK,
deceased,
Plaintiff and Respondent,

KERMIT J. WRIGHT, M.D., and HELENA
MEDICAL CLINIC, P.S.C.,
Defendants and Appellants.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.

COUNSEL OF RECORD:

For Appellants:
James A. Robischon argued, Butte, Montana
Dunlap & Caughlan, Butte, Montana
For Respondent:

Terry N. Trieweiler argued, Whitefish, Montana
Geoffrey L. Brazier, Helena, Montana

Submitted: May 22, 1985
Decided: September 12, 1985

f '

Filed:

Clerk
Bonorable Joel. G. Roth, Eistrict Judge, delivered the Opinion
of the Court.
This is a medical malpractice case which is commonly
referred to as a "foreign object" case. The case was tried
to a jury in Lewis and Clark County District Court and re-
sulted in a $75,000 verdict on the wrongful death claim and
zero on the survival claim. Following trial, plaintiff
Rudeck moved for a new trial. The District Judge ordered a
new trial. Defendant Wright appeals from that order and,
additionally, raises other issues for appellate review.
Plaintiff appeals the denial of her motion for a directed
verdict. We affirm the trial court's ruling requiring a new
trial.
The issues for review are as follows:
1. Was there error in granting plaintiff Rudeck's
motion for a new krial?
2. Was there error in granting plaintiff Rud.eckls
pretrial motion for partial summary judgment on the negli-
qence of defendant Wright?
3. Was there error in refusing to allow defendant
Wright to present testimony relating to the conduct of con-
current tort-feasors and a subsequent tort-feasor?
4. Was there error in the trial court's instruction on
legal causation rather than on proximate causation?
5. Was there error in denying plaintiff Rudeck's
motion for a directed verdict?

FACTS

On May 27, 1980, Mr. Rudeck, age seventy-four years and
a retired state employee residing with his wife in Helena,
Montana, was operated. on for a hernia by defendant Dr. Wright
at St. Peter's Community Hospital in Helena. During surgery,
defendant Wright placed a piece of surgical gauze measuring
about thirty centimeters by thirty centimeters and referred
to as a "lap mat" into the exposed abdominal cavity. The lap
mat was not removed prior to closing the incision.
Two surgical nurses, both employees of the hospital,
assisted defendant Wright during the operation. They were
responsible for the lap mat count, and they neglected to
inform defendant Wright of an unaccounted lap mat prior to
his closing.
Because no one was then aware of the foreign object
inside the patient, Mr. Rudeck was released from the hospital
on June 1, 1980, apparently recovering normally. However,
during the months that followed the wound continued to drain,
he began to lose his appetite, he lost weight, fluid began to
build up in his legs, and toward the end of September 1980
his color was becoming grayish. From the time he was re-
leased from the hospital on June 1 until September 29, 1980,
Mr. Rudeck remained under the care of defendant Wright and
was seen by defendant Wright on thirty-four occasions.
Defendant Wright, becoming concerned about the wound
and believing that X-rays of Mr. Rudeck's abdominal area were
necessary, referred Mr. Rudeck to Dr. Donald L. Pedersen, a
Helena radiologist, for X-rays. The X-rays were taken on
June 20, 1980. The X-rays revealed the presence of the lap
mat, but Dr. Pedersen did not detect the foreign object and,
hence, did not report the presence of the foreign object to
defendant Wright.
Mr. Rudeck's physical condition deteriorated to the
point that Mrs. Rudeck, on October 6, 1980, took it upon
herself to admit her husband to the Veterans Administration
Hospital at Fort Harrison in Helena.
X-rays were taken at the VA Hospital, and for the first
time the presence of the foreign object in Mr. Rudeck's
abdomen was detected. Mr. Rudeck was too ill and weak for
immediate surgery to remove the lap mat. He was then placed
under presurgical care at the VA Hospital. Before he re-
gained sufficient strength to tolerate another surgical
procedure, on October 24, 1980, Mr. Rudeck's condition rapid-
ly deteriorated, and he died that day.
An autopsy was performed at the VA Hospital on October
25, 1980, which confirmed the presence of the lap mat inside

the deceased's abdomen. The lap mat had wadded up into a
ball about the size of an adult's fist ard the bowel had
wrapped around it, cutting off the blood supply to the lower
bowel and causing perforations in the bowel b~ith resulting
escape of fecal material-.
Following her husband's death, Mrs. Rudeck filed a
complaint against Dr. Wright and Dr. Pedersen. Two medical
malpractice claims were alleged: one in her own right for
alleged wrongful death, and one in her capacity as personal
representative of her deceased husband's estate for his
survival claim up to the time of his death.
Defendant Wright filed an answer, a cross-claim against
Dr. Pedersen seeking indemnity and a third party complaint
against St. Peter's Community Hospital seeking indemnity.
Dr. Pedersen answered the plaintiff's complaint and Dr.
Wright's cross-claim.
St. Peter's Hospital answered Dr. Wright's third party
complaint and filed a counter-claim against Dr. Wright seek-
ing indemnity.
 Plaintiff Rudeck, following discovery, filed a motion
for partial summary judgment against Dr. Wright and Dr.
Pedersen . Dr. Pedersen admitted liability and settled with
plaintiff Rudeck. The trial court granted partial sumrna,ry
judgment against defendant Wright on the negligence issue.
Prior to trial, St. Peter's Hospital settled with
plaintiff Rudeck.
Immediately prior to trial Dr. Wright moved to sever
his alleged. claims against Dr. Pedersen and the hospital from
plaintiff Rudeck's claims against him and sought to go to
trial on plaintiff Rudeck' s wrongful death claim and t.he
estate's survival claim. The trial court granted severance,
and the jury trial. on plaintiff Rudeck's claims against
defendant Wright commenced on November 28, 1983.
The jury returned a verdict awarding plaintiff Rudeck
$75,000 on her wrongful death claim and zero on the estate's
survival claim.
Thereafter, plaintiff Rudeck moved for a new trial
which was granted by the trial judge.
The issues on appeal, noted earlier herein, will now be
discussed.

ISSUE #l. PLAINTIFF RUDECK'S MOTION FOR A NEW TRIAL
There are several grounds upon which a new trial may he
granted. They are set forth i.n the seven subsections to
§ 25-11-102, MCA. The ground asserted by plaintiff Rudeck is
that the jury's verdict is against law. Subsection ( 6 ) of
the cited statute lists a verdict against law as being one
permissible ground for a new trial.
We hold that the jury's verdict in awarding damages on
the wrongful death claim and in awarding no damages on the
survival claim is totally inconsistent and is contrary to the
mandates of law. The trial judge was correct in granting
plaintiff Rudeck's motion for a new trial.
The question of defendant Wright's negligence had been
d-etermined by the court as a matter of law before the trial
started when plaintiff Rudeck's motion for partial summary
judgment on the negligence issue was granted. The jury only
had to consider the issue of whether or not defendant
Wright's negligence was the cause of Mr. Rudeck's death, and
if so, the amount of damages. In awarding $75,000 on the
wrongful death claim, the jury found that defendant Wright's
negligence was a substantial factor in causing the death.
If Mr. Rudeck's death was caused by the negligence of
defendant Wright, then the earlier injury to Mr. Rudeck which
culminated in his death must have been caused by the same
negligence. If the same negligence (leaving the lap mat
inside the patient) caused the personal injury to the living
Mr. Rudeck and that same negligence caused his later death,
the jury would be compelled to award damages for Mr. Rudeck's
personal injury (which were sought in the survival claim on
his behalf by the personal representative of his estate) as
well as awarding damages on the wrongful death claim. Be-
cause the jury did not do so, its verdict is inconsistent and
is against law.
A similar situation arose in the case of Abernathy v.
Eline Oil Field Services (Mont. 1982), 650 P.2d 772, 39
St.Rep. 1688, where the same negligent act (rear end colli-
sion) caused a personal injury to one person and the death of
another person. In that case the jury found that the same
act of negligence caused the personal injury to the one
person but not the death of the other person. A new trial
was ordered in that case because the verdicts were inconsis-
tent and against law. The jury's conclusion that the tort-
feasor had injured the one person mandated the further
conclusion that the same tort-feasor's same negligent act
also caused the death of the other person. Although two
persons were involved in the Abernathy case, whereas only one
person is involved in the instant case, the same conclusion
is reached because the same negligence of the same defendant
is the basis both for the wrongful death action, B 27-1-513,
MCA, and the survival action, S 27-1-501, BICA. (See Swanson
v. Champion International Corp. (1982), 1.97 Mont. 509, 646
P.2d 1166, for a discussion of actions permissible in Montana
for tortious death.)
Stated another way, in the instant case there would
have been no wrongful death without the earlier injury to the
living Mr. Rudeck.

ISSUE #2. WAS DR. WRIGHT NEGLIGENT AS A MATTER OF LAW
Was the trial judge correct when ruling as a matter of

law that Dr. Wright was negligent in leaving a foreign object
inside his patient during surgery?
Other states which have ruled on this issue are divided
in their holdings. There are three rules applied in the
different states.
1. The negligence per se rule. Those courts following
this rule hold that the failure of a surgeon to remove a
foreign object (sponge, needle, clamp, scissors) is negli-
gence per se. The theory i s that the surgeon has not mea-
.
sured up to the standard of care required of a surgeon in
exercising his professional skills. Consequently, the sur-
geon who violates the legally mandated standard of care of
exercising the professional care and skill which other pro-
fessionals in his specialty would exercise in the same or
similar circumstances is negligent per se.
The rule is best stated in the case of McCormick v.
Jones (Wash. 1929), 278 P. 181, 182, wherein the court said:
". .. We also think that the court can
say as a matter of law that when a
surgeon inadvertently introduces into a
wound a foreign substance, closes up the
wound, leaving the foreign substance in
the body, there being no possibility of
any good purpose resulting therefrom,
that act is negligence."
A general statement of the rule is found in 61
Arn.Jur.2d Physicians, Surgeons, Etc., 5 258 at 397-398:
"A surgeon undertaking to perform an
operation requiring the placing of
sponges in the incision does not com-
plete his undertaking until the sponges
are properly removed. Many cases of
malpractice arising out of surgical
operations result from the leaving of
surgical sponges or other foreign sub-
stances in the wound after the incision
has been closed. ...
Thus, there are
many cases which take the view that the
failure of a surgeon to remove all
sponges or foreign substances from a
surgical wound is neqligence per se
... I1

The interrelationship between the surgeon and the
sponge nurses is also explained in 61 Am.Jur.2df S 258 at
399, as follows:
"While the custom or usage of having a
'sponge nurse' account, both before and
after a surgical operation, for all
sponges used during the operation, has
been approved by some courts, it is
generally held that surgeons cannot
relieve themselves from liability for
injury to a patient caused by leaving a
sponge in the wound after an operation,
by the facts that such custom or usage
prevails in the community, and that they
followed and relied on such count as
conclusive that all sponges had been
accounted for. The reason for this rule
is that leaving a surgical sponge in the
abdominal cavity is a sort of case in
 which the type of harm itself raises so
strong an inference of negligence, and
the physician's duty to prevent harm is
so clear, that expert testimony is not.
required to establish the prevailing
standard of care, and the inference
arising from res ispa loquitur is not
refuted by the assertion that the
nurse's sponge count was reported as in
order, because such a report does not
relieve the operating and supervising
surgeon of his responsibility. . . ."
In Guilbeau v. St. Paul Fire and Marine Insurance Co.
(La.App. 1975) , 325 So.2d 395, an operating surgeon was held
to be negligent per se when he had placed a laparotomy pad in
the patient's body during colectomy surgery and it was left
there following surgery. Two surgical nurses on the hospital
surgical team had miscounted the pads and mistakenly reported
to the surgeon that all pads were accounted for.
In Harrison v. Wilkerson (Tenn. 1966), 405 S.W.2d 649,
the operating surgeon left a sponge inside the patient during
a Cesarean delivery when the two nurses assisting during the
surgery miscounted the sponges. The operating surgeon was
held to be negligent as a matter of law.
In Burke v. Washington Hospital Center (D.C. Cir.
1.973), 475 F.2d 364, an operating surgeon attempted to shift
responsibility for leaving a sponge in the patient's abdomen
during surgery by asserting that the attending nurse's sponge
count was in error. The court said at page 365, "[wlhile
this may be enough to support shared liability on the part of
the nurse's employer, Washington Hospital Center, it does not
relieve the operating and supervising surgeon of his respon-
sibility." Also see, 10 ALR3d 9; 12 ALR3d 1-017.
2. The res ipsa loquitur rule. This rule provides
that the failure of a surgeon to remove a foreign object
gives rise to an inference of negligence. The reasoning is
that when an instrumentality which causes injury, without any
fault of the injured person, is under the exclusive control
of the defendant at the time of the injury, and the injury
d.oes not occur if the one having such control uses proper
care, then the law infers negligence on the part of the one
in control as the cause of the injury. Negaard v. Feda
(1968), 152 Mont. 47, 446 P.22 436. Other medical malprac-
tice cases which discuss the res ipsa loquitur doctrine and
its applicability in a medical malpractice setting are Parks
v. Perry (N.C.App. 1984), 314 S.E.2d 287; Morgan v.
Willis-Knighton Medical Center (La.App. 1984), 456 So.2d 6 5 0 ;
Gallegor by Gal-legor v. Felder (Pa.Sup. 1984), 478 A.2d 34;
and Sammons v. Smith (Iowa 1984), 353 N.W.2d 380. Once the
presumption of negligence arises under the res ipsa rule, the
burden of rebutting the presumption shifts to the defendant.
3. The ordinary negligence rule. Here the failure of
the surgeon to remove the foreign object is simply evidence
of the surgeon's negligence. The plaintiff would have the
burden of proving by a preponderance of the evidence what the

standard of care is (through expert medical testimony! and
that the surgeon violated that standard of care. One element
in establishing a violation of the standard of care would be
proof of the surgeon's failure to remove the foreign object.
After considering the above three rules we conclude
that the best rule and the rule to be adopted in Montana is
the "negligence per set' rule. When a patient is on the
operating table, he has put his body and life into the hands
of the surgeon. If a foreign object is mistakenly left in
the patient's body, it seems to us that it takes no expert
medical testimony to establish that the surgeon was negli-
gent. The court can find negligence as a matter of law for
an obvious violation of the standard of care required.
Under either the ordinary negligence rule or the res
ipsa rule the surgeon would be attempting to totally avoid
his own liability by pointing his finger at the surgical
nurses who were also negligent in failing to correctly count
the sponges and at the radiologist who later took X-rays and
failed to detect the sponge and failed to inform the surgeon
of the presence of the sponge in the patient's abdomen so
that corrective surgery could immediately be performed.
The surgeon is the "captain of the ship" and he bears
the responsibility of the surgical procedure. McCullough v.
Bethany Medical. Center (Kan. 1 9 8 4 ) , 683 P.2d 1258. Other
persons, such as the surgical nurses who maintain the sponge
count, and such as the radiologist who later takes X-rays,
may also be negligent and liable as concurrent tort-feasors
or as a subsequent tort-feasor, but the surgeon who initially
was negligent in the first instance and whose original negli-
gence set in motion the concurrent and following negligent
acts or omissions should not be allowed to avoid his 1-iabili-
ty. The "negligence per sew rule would not allow the surgeon
to avoid his own negligence.

ISSUE #3. EXCLUSION OF EVIDENCE OF CONDUCT
OF CONCURRENT AND SUBSEQUENT TORT-FRASORS
Prior to trial, defendant Wright successfully moved to
sever his cross-claim against Dr. Pedersen and his third
party claim against St. Peter's Community Hospital. Also
prior to trial plaintiff Rudeck successfully moved to exclude
evidence of the acts and omissions of the surgical nurses and
of Dr. Pedersen. Consequently, the trial commenced on
plaintiff Rudeck's wrongful death claim and on the estate's
survival claim against only one defendant, and that defendant
was Dr. Wright.
Defendant Wright contends he should have been allowed
to present evidence of the separate negligence of the nurses
and the separate negligence of Dr. Pedersen in an attempt to
immunize himself from liability for his own negligence.
Because we view the negligence of the nurses as sepa-
rate but concurrent negligence and the negligence of Dr.
Pedersen as separate but subsequent negligence, we will
discuss the status of the concurrent tort-feasors and the
subsequent tort-feasor separately.
As to the nurses' negligence, it is clear that the
sponge count and the surgical procedure are occurring simul-
taneously. We hold that if the effect of defendant Wright's
negligence in leaving a foreign object inside his patient's
wound actively and continuously acts to cause harm to his
patient, the fact that the active and substantially simulta-
neous negligent act of the nurses is also a substantial
factor in bringing about the harm to the patient does not
protect Dr. Wright from liability. Moreover, the nurses (and
the hospital) are not relieved of liability for their own
negligent acts or omissions. See, 2 Restatement of Torts 2d,
Section 439.
As to Dr. Pedersen's negligence, it is clear that his
negligent conduct occurred about three weeks after Dr.
Wright's negligent act and, hence, not concurrently there-
with. It is noted that Dr. Wright referred Mr. Rudeck to Dr.
Pedersen for the X-rays. The question is whether or not the
subsequent and independent negligent act of Dr. Pedersen in
misreading the X-rays can relieve Dr. Wright from his own
liability. We hold that if Mr. Rudeck's injury and death
resulted from the original negligence of defendant Wright in
failing to remove the 1-ap mat and also his injury and death
in part resulted from a risk (misreading the X-rays) inherent
in the later medical procedure of taking X-rays which were
required to discover the reason for Mr. Rudeck's post-surgery
problems, the original tort-feasor (d-efendantWright) remains
liable regardless of whether the later medical procedure was
done in a negligent manner. The reason is that the chain of
causation remains unbroken. However, it should be remembered
that, although the original tort-feasor is liable for the
additional harm created by the intervening tort-feasor (Dr.
Pedersen) , the intervening tort-fea.sor is not relieved of
liability for his own negligent act. Dooley, - Modern Tort
1

- S 10.04.
Law,
The law requires that at times a tort-feasor must
answer for the subsequent negligence of a doctor. The clas-
sic situation is where a person is injured in an auto acci-
dent due to the negligence of a tort-feasor and is required
to submit to medical treatment. If the treating doctor is
negligent in his treatment of the injured person, the origi-
nal tort-feasor must answer to the injured person for the
malpractice of the doctor. That principle of tort liability
is based on the theory that the original negligent act is a
proximate cause of the subsequent injury caused by the mal-
practice. See, 61 Am.Jur.2d Physicians, Surgeons, Etc.,
§ 301 at 448. In the present case, the original tort-feasor
is a surgeon and the subsequent negligence is that of a
radiologist. We hold the same principle of tort liability
applies when two negligent doctors are the tort-feasors as
when the two tort-feasors are a negligent driver and a
malpracticing doctor.
In Graham v. Whitaker (S.C. 1 9 8 4 ) , 321 S.E.2d 40, an
ophthalmologist was negligent in putting eye drops into a
patient's eyes and not warning of blurred vision and. of not
providing a safe place for the patient. The patient fell and
broke her hip. A surgeon operated on her hip and due to his
negligence the patient developed an infection and needed a
hip replacement. The court in that case held the original
tort-feasor was liable for the intervening negligence of the
operating surgeon.
In summary on this issue of excluding evidence of the
nurses' concurrent negligence and of Dr. Pedersen's subse-
quent separate negligence, we hold that such evidence was
irrelevant during the trial on the issue of whether Dr.
Wright's negligence caused the injury and death of Mr.
R.udeck.

ISSUE #4. LEGAL CAUSE OR PROXIMATE CAUSE
The trial judge instructed the jury that the plaintiff
was entitled to damages "legally caused" by Dr. Wright's
negligence. In defining "legal cause" the judge instructed
as follows:
"A legal cause of a death is a cause
which is a substantial factor in bring-
ing about the death."
Defendant Wright, on the other hand, offered the stan-
dard. instruction on "proximate cause" as follows:
"The proximate cause of an injury or
damage is that cause which in a natural
and continuous sequence, unbroken by any
new or independent cause, produces the
injury or damage, and without which it
would not have occurred."
 Rear in mind that the present case involves an original
tort-feasor (Dr. Wright) , concurrent tort-feasors (nurses),
and a subsequent tort-feasor (Dr. Pedersen) each of whom
committed negligent acts and each of whom may be separately
liable.
The proximate cause rule (commonly known as the "but
for" rule) may be stated as follows: The defendant's conduct
is a cause of the event if the event would not have occurred
but for that conduct; or conversely, the defendant's conduct
is not a cause of the event, if the event would have occurred
without it.
The "but for" rule serves to explain the vast majority
of cases wherein a causation instruction is required. Howev-
er, there is one type of situation in which it fails. 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 without
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 v~ould
allow each defendant to escape responsibil-ity because the
conduct of one or more others would have been sufficient to
produce the same result. It is possible, and more helpful,
to apply an alternative formulation that addresses directly
the need for declining to fol-low the "but for" rule in this
context. The alternative formulation is this: When the
conduct of two or more actors is so related to an event that
their combined conduct, viewed as a whole, is a "but for"
cause of event, and application of the "but for" rule to them
individually would absolve all of them, the conduct of each
is a cause in fact of the event.
The fact situation in which this kind of grouping of
defendants is permissible occurs relatively infrequently.
The case where this does occur is the case in which each
defendant bears a like relationship to the event. Each seeks
to escape liability for a reason that, if recognized, would
likewise protect each other defendant in the group. Prosser
and Keeton, - - -of Torts, 5th ed. at 266-278.
The Law
In Snead v. United States (D. D.C. 1.9841, 595 F.Supp.
658, a medical malpractice action was brought under the
Federal Tort Claims Act alleging negligence in medical. ser-
vices performed by government gynecologists. The female
patient and her husband alleged that in performi-ng medical
services the gynecologists failed to practice medicine in
accordance with the required standard of care in examining
the patient and that their departure from the required stan-
dard of care resulted in their failure to detect that pa-
tient's existent hut preinvasive cervical cancer and was a
substantial factor bringing about the progression and metas-
tasis of that malignancy. At 665 the court held:
"In cases involving alleged medical
mismanagement of a patient's existing
and potentially fatal condition, the
appropriate test for causation is the
'substantial factor' test. Under this
test, plaintiffs must show that the
defendant's deviation from the standard
of care was a 'substantial factor'
bringing about Mrs. Snead's present
condition. . . ."
 In Capone v. Donovan (Pa.Sup. 1984), 480 A.2d 1249, a
college football. player broke his arm during a scrimmage. He
was treated by two doctors immediately. When his arm failed
to heal properly, he went to a third doctor. Several months
later when the arm still had not healed properly, he went to
a fourth doctor who performed surgery to correct the injury.
After the patient sued the third doctor for malpractice and
settled with him, the patient then sued the first two doctors
for malpractice. On the causation issue the court said at
1251:

"If two or more causes combine to pro-
duce a single harm which is incapable of
being divided on a logical, reasonable,
or practical basis, and each cause is a
substantial factor in bringing about the
harm, an arbitrary apportionment should
not be made. . . ."
We conclude that the instant case is just such an
infrequent case where the "but for" rule is inapplicable and
the "legal cause" ("substantial factor") rule is the correct
instruction to give to the jury.
We do not intend by this decision to abolish the tradi-
tional "proximat-ecause" rule and replace it with the "legal
cause" rule. It is the holding of this decision that in view
of the particular facts involved in the present case the
"legal cause" rule is applicable herein.

ISSUE #5. THE DENIAL OF PLAINTIFF
RUDECK'S MOTION FOR A DIRECTED VERDICT
At the conclusion of defendant Wright's evidence,
plaintiff Rudeck moved for a directed verdict to the effect
that defendant Wright's negligence was the legal cause of Mr.
Rudeck's death. The trial court denied the motion, and we
affirm that ruling.
 There was evidence presented during the trial by defen-
dant Wright's witnesses that the cause of death was acute
broncho-pneumonia or heart disease and lung disease. Because
there was conflicting evidence on the issue of the cause of
Mr. Rudeck's death, the trial court was correct in denying
the plaintiff's motion for a directed verdict.
We affirm all of the District Court's rulings and
remand the case for a new trial.

Judge, sitting in place of Mr.
Justice Frank B. Morrison, Jr.

We concur:
Mr. J u s t i c e Fred J. Weber c o n c u r s and d i s s e n t s a s f o l l o w s :

I c o n c u r i n t h e m a j o r i t y o p i n i o n a s t o i s s u e 1 and i t s

conclusion t h a t t h e r e was no e r r o r i n g r a n t i n g p l a i n t i f f ' s

motion for a new t r i a l . I a l s o concur with the majority

o p i n i o n a s t o i s s u e 5 i n h o l d i n g t h a t t h e r e was no e r r o r i n

denying the plaintiff's motion for a directed verdict. I

r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n a s t o i s s u e s

2 , 3 and 4 .

The majority opinion indicates that the two surgical

n u r s e s who a s s i s t e d t h e d e f e n d a n t i n t h e o p e r a t i o n n e g l e c t e d

t o i n f o r m D r . W r i g h t o f a n uncounted l a p mat. The d e p o s i t i o n

of the nurse making the count discloses that she told

Dr. W r i g h t , "Your sponge c o u n t i s c o r r e c t . " In addition, the

e v i d e n c e d i s c l o s e d t h a t t h e 'lap mat had a t a g t h a t made i t

v i s i b l e on x - r a y s , but the radiologist failed t o identify the

tag.

As t o issue 2, I disagree with t h e majority conclusion

that Dr. W r i g h t was n e g l i g e n t a s a m a t t e r o f law b e c a u s e t h e

l a p mat was l e f t i n s i d e t h e p a t i e n t . Such a r u l e may h a v e

been a p p r o p r i a t e a number o f y e a r s a g o when it was d i f f i c u l t ,

if not impossible, to obtain adequate medical testimony

regarding the conduct of a surgeon, or prior t o Montana's

adoption of the modern theory of comparative negligence.

I f i n d no need f o r s u c h a p e r se r u l e f o r t h e p r o t e c t i o n

of plaintiffs. I would p r e f e r t h e o r d i n a r y n e g l i g e n c e r u l e

u n d e r which t h e p l a i n t i f f would h a v e t h e b u r d e n o f p r o v i n g

that the surgeon had violated the applicable standard of

care. Following that proof, the surgeon would have the

o p p o r t u n i t y t o p r e s e n t h i s own e v i d e n c e on t h e s t a n d a r d o f

care. More important in a c a s e such a s t h e p r e s e n t , the

s u r g e o n would a l s o h a v e t h e o p p o r t u n i t y t o p r e s e n t e v i d e n c e

as to negligence on the part of the nurses and the

radiologist. That evidence i s excluded under t h e negligence

per se r u l e o f the present opinion. I believe a jury is
c a p a b l e o f d e t e r m i n i n g w h e t h e r a m e d i c a l d o c t o r h a s met t h e

requisite standard of c a r e and comparing any n e g l i g e n c e on

t h e p a r t o f t h e s u r g e o n , t h e h o s p i t a l t h r o u g h i t s n u r s e s , and

the radiologist.

I would also accept the res ipsa loquitur rule as

described i n t h e majority opinion. While t h i s d o e s p l a c e a

b u r d e n on t h e s u r g e o n , i t a t l e a s t g i v e s t h e o p p o r t u n i t y f o r

t h e surgeon t o p r e s e n t t h e evidence t h a t s u p p o r t s h i s view o f

t h e case.

I do not believe that the negligence per se r u l e is

appropriate in modern medical practice, where different

people a r e responsible f o r various a c t i v i t i e s during a sur-

gery e For example, it may be the sole duty of an
anesthesiologist t o monitor a p a t i e n t ' s blood p r e s s u r e and

coloring in order t o a l e r t t h e operating physician t o any

sign of heart failure or oxygen deprivation. In complex

p r o c e d u r e s s u c h a s open h e a r t s u r g e r y , two o r more t e a m s o f

doctors may be required t o worlc on different parts of a

patient's body at the same time. Under modern surgica 1.

procedures, it is impractical to assume that a "chief"

s u r g e o n c a n p e r f o r m s u r g e r y and s i m u l t a n e o u s 7 y s u p e r v i s e and

monitor every a c t i v i t y o f each of t h e p a r t i e s involved i n t h e

opera t i o n . It is also impractical to suggest that the

"chief" surgeon is strictly liable for the conduct of

e v e r y o n e who a s s i s t e d i n t h e s u r g i c a l p r o c e d u r e .

Likewise, I see no r e a s o n why a s u r g e o n s h o u l d b e h e l d

n e g l i g e n t p e r se f o r r e l y i n g on t h e e x p e r t i s e o f a s p e c i a l i s t

whose advice is sought for diagnostic purposes. I would

t r u s t t h e jury t o determine whether, u n d e r a11 t h e c i r c u m -

stances of the case, t h e s u r g e o n ' s r e l i a n c e on t h e e x p e r t ' s

a d v i c e was r e a s o n a b l e . I would a l s o t r u s t t h e j u r y t o com-

p a r e any n e g l i g e n t c o n d u c t o n t h e p a r t o f t h e s u r g e o n w i t h a

radiologist's negligent reading of post-operative x-rays.
 Under issue 3, the majority opinion excludes the

evidence of the conduct of the concurrent tortfeasor, the

nurses making the sponge count, and the subsequent

tortfeasor, the radiologist. A s i n d i c a t e d under i s s u e 2 , I

b e l i e v e t h a t evidence should properly be admissible a s a p a r t

of t h e d e f e n s e o f t h e d e f e n d a n t d o c t o r .

On i s s u e 4 , t h e m a j o r i t y o p i n i o n approved t h e g i v i n g o f

t h e following " l e g a l cause" i n s t r u c t i o n :

A l e g a l c a u s e o f a d e a t h 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 about
t h e death.

I t a p p e a r s t h e i n s t r u c t i o n was b a s e d upon B A J I 3 . 7 6 , Califor-

nia Jury Instructions C i v i l ( r e v . 6 t h e d . Supp. 1983) , which
states that a l e g a l cause of i n j u r y i s a c a u s e which i s a

substantial f a c t o r i n bringing about t h e injury. B A J I 3.75

i s a proximate cause instruction similar t o the proximate

cause i n s t r u c t i o n p r o p o s e d by t h e d e f e n d a n t . The U s e Note

following B A J I 3.76 a d v i s e s t h a t where i n j u r y may h a v e re-

s u l t e d from e i t h e r o f two c a u s e s o p e r a t i n g a l o n e , the legal

cause instruction should be given, not the instruction on

proximate cause.

I n s u b s t a n c e , t h e same r a t i o n a l e was u s e d by t h e m a j o r i -

t y opinion f o r concluding t h a t t h e l e g a l cause i n s t r u c t i o n

was c o r r e c t l y g i v e n . Unfortunately, t h a t reasoning does n o t

a.pply i n t h e p r e s e n t c a s e . While it i s t r u e t h a t t h e r e were

n u r s e s who can be classed a s concurrent t o r t f e a s o r s and a

r a d i o l o g i s t who c a n b e classed a s a subsequent t o r t f e a s o r ,

a l l of those other parties are no longer parties to the

present action. Dr. Wright i s t h e o n l y defendant. Since t h e

reasons given f o r use of t h e l e g a l cause i n s t r u c t i o n a r e not

p r e s e n t i n t h i s c a s e , I would c o n c l u d e t h a t a p r o x i m a t e c a u s e

i n s t r u c t i o n p r o p e r l y s h o u l d have been g i v e n .
Mr. J u s t i c e L. C. Gulbrandson and
Harrison concur i n t h e f o r e g o i

Ld h - t i h e sd
s c a C , b m