No. 86-30
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1987
VALORIE CLARK,
P l a i n t i f f and A p p e l l a n t ,
-vs-
T M E . NORRIS, M.D.
O
D e f e n d a n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
John W. Mahan a r g u e d , H e l e n a , Montana
O v e r f e l t Law F i r m ; Lee O v e r f e l t a r g u e d , B i l l i n g s ,
Montana
F o r Respondent :
Boone, K a r l b e r g & Haddon; Randy Cox a r g u e d and Sam
Haddon a r g u e d , M i s s o u l a , Montana
Submitted: November 2 5 , 1 9 8 6
Decided: March 1 0 , 1 9 8 7
MAR 1 0 1387
~i l e d :
Clerk
Justice John Conway Harrison delivered the Opinion of the
Court.
This case was tried to a jury in the First Judicial
District in and for Lewis and Clark County, Montana. The
defendant doctor was found not negligent and the plaintiff
patient appeals. We affirm.
Appellant, Valorie Clark, charged defendant, Dr. Tom
Norris, with medical negligence due to the perforation of her
uterus during the course of a surgical procedure known as a
dilation and curettage (D & C), which also resulted in damage
to her small intestine. At the time of the incident,
December 5, 1979, Clark was a twenty-eight year old mother of
two. About six weeks after she was diagnosed as pregnant,
the doctor determined the fetus was no longer alive and D & C
was necessary to remove the deteriorating tissue from the
uterus. This procedure is considered minor and patients are
handled as out-patients. As with any surgical procedure,
however, there are certain inherent risks. Perforation of
the uterus is a risk of this particular procedure. The risks
associated with not doing a D & C are continued bleeding,
infection, and severe psychological problems.
During the procedure in this case, Norris observed a
loop of bowel in the curette and immediately discontinued the
curettage. He realized the uterine wall had been perforated
and immediately called Dr. Johnson, a general surgeon. The
two doctors performed an exploratory laparotomy to examine
the small intestine and to repair any areas of damage. While
the abdomen was open all remaining degenerated fetal material
was removed, and the opening in the uterine wall was
repaired. Clark's recovery was routine. Resection of a
portion of the small bowel causes her to have chronic
diarrhea which is controlled by medication.
Appellant claims she did not receive a fair trial
because of numerous errors made by the District Court. She
argues the court should have given her res ipsa loquitur
instructions, should have admitted certain evidence, should
have taken judicial notice of a so called "conspiracy of
silence" among doctors, should not have allowed the
defendant, when called as an adverse witness, to be treated
as an expert witness, and should not have commented on
evidence crucial to one of her theories of liability.
When a jury verdict is appealed to this Court our
function is to determine whether there is substantial
credible evidence to support the verdict. Holenstein v.
Andrews (1975), 166 Mont. 60, 64, 530 P.2d 476, 478. We have
repeatedly noted:
The standard of review is substantial
evidence. If substantial evidence
supports the case of the prevailing party
the verdict will stand. The evidence
will be viewed in a light most favorable
to the party that prevailed at trial and,
if the evidence conflicts, the
credibility and weight given to the
evidence is the province of the jury and
not this Court.
Mountain West Farm Bureau Mutual Ins. v. Girton (Mont. 19851,
697 P.2d 1362, 1363, 42 St.Rep. 500, 501.
Clark claims two res ipsa loquitur instructions should
have been given the jury.
Plaintiff ' s [Clark's] Proposed
Instruction No. 12:
If you find from the evidence that the
Defendant physician caused injury to the
part of the patient's body not directly
involved in treatment he was
administering, and that part was a
healthy part in a remote place from the
field of operation, these facts permit
you to infer, even without any expert
testimony, that the Defendant was
negligent.
Plaintiff's [Clark's] Proposed
Instruction No. 13:
In order to find for the Plaintiff in
this case, you must determine from the
evidence whether the Defendant has
deviated from those standards of skill
and care as to which you have been
instructed.
Should you find that he has so deviated
in treating Valorie Clark by causing
injury to organs other than those being
treated, and that this negligence was the
cause of the injuries complained of by
Valorie Clark, you may find in favor of
Valorie Clark.
The proposed instructions mistate the law. While the
doctrine of res ipsa loquitur permits proof of what happened
to be made by circumstantial evidence, plaintiff,
nonetheless, must make a prima facie case that defendant
breached a duty of care before the question goes to the jury.
Subject to certain exceptions, there must be expert testimony
to establish negligence in a malpractice action. Collins v.
Itoh (1972), 160 Mont. 461, 470, 503 P.2d 36, 41. The mere
happening of an accident, in itself, is not evidence of
negligence in the ordinary negligence action. Nor is the
mere fact of injury or the occurrence of a bad result,
standing alone. The law does not require that for every
injury there must be a recovery of damages, but only imposes
liability for a breach of legal duty by defendant,
proximately causing injury to the plaintiff. Negaard v.
Estate of Feda (1968), 152 Mont. 47, 52, 446 P.2d 436,
439-440. Thus the instructions were properly refused.
We emphasize application of the doctrine of res ipsa
loquitur does not permit the jury to presume negligence of
the defendant, thus shifting the burden from plaintiff. We
point out that use of the terms "inference" and "presumption"
interchangeably results in confusion as to their legal
significance. If res ipsa loquitur is applicable in a
medical malpractice case, there is no presumption of
negligence.
The doctrine of res ipsa loquitur, set out in ~hitney
v. Northwest Greyhound Lines, Inc. (1952), 125 Mont. 528,
533, 242 P.2d 257, 259, has been quoted extensively by this
Court :
[Wlhen 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 is such as in the ordinary
course of things does not occur if 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.
Davis v. Trobough (1961), 139 Mont. 322, 326, 363 P.2d 727,
729. Negaard, supra at 53, 446 P.2d at 440. See also
Northwest Airlines, Inc. v. Rowe (8th Cir. 1955), 226 ~ . 2 d
365, 369.
In Negaard, supra, we declined to apply the doctrine of
res ipsa loquitur because there was no evidence to show the
result ordinarily would not have occurred had the defendant
exercised due care, or that the result was not to be
anticipated. At 51-52, 446 P.2d at 439. In fact, there was
much evidence to the contrary, as there is in the case before
us. Our holding in Negaard requires essentially the same
two part test set forth in Tangora v. Matanky (19851, 42
Cal.Rptr. 348, 352. Before the doctrine of res ipsa loquitur
can be applied in medical malpractice cases, defendant must
prove that the result complained of rarely occurs and that it
is not an inherent risk of the procedure.
Statistical evidence was introduced showing perforation
of the uterus occurs in a significant number of D & C
procedures. All the physicians who testified on the subject
agreed that perforation of the uterus is a known risk of a
D & C, which can and does occur, despite the exercise of
proper care. Dr. Gard, Clark's expert witness, who has far
fewer years experience than Dr. Norris, testified he had had
the same bad result twice. Yet he said he did not consider
himself to have been negligent. He did not testify the bad
result would not have occurred if proper care had been used.
The District Court properly refused to give Clark's res ipsa
instructions as she did not show perforation of the uterus
rarely occurs during a D & C, or that perforation of the
uterus is not an inherent risk of a D & C.
Clark claims the District Court should have admitted
the report of the liability claim Norris provided to his
insurance carrier, and the incident report prepared by St.
Peter's Hospital for its attorneys. Norris argues the
liability claim falls within the attorney-client work product
exception to discovery pursuant to Rule 26(b) (3), M.R.Civ.P.
and Kuiper v. District Court (Mont. 1981), 632 P.2d 694, 38
St.Rep. 1288. Clark argues it is not protected, citing
Cantrell v. Henderson (Mont. 1986), 718 P.2d 318, 43 St.Rep.
745. Norris's report of liability claim was filed after
Clark had filed her claim with the medical/legal panel. He
argues it was filed in anticipation of litigation.
In order to come within the qualified immunity from
discovery pursuant to Rule 26 (b) (3), M.R.Civ.P., it must be
determined whether, in the light of the nature of the
document and factual situation in a particular case, the
document can fairly be said to have been prepared or obtained
because of the prospect of litigation. State ex rel. Corbin
v. Weaver (Ariz. 1984), 680 P.2d 833, 839; Status Time Corp.
(D.C.N.Y. 1982), 95 F.R.D. 27, 29. A report from the insured
to the insurer subsequent to the institution of a suit is
within the immunity, when it has been prepared because of the
prospect of litigation. Bredice v. Doctor's Hospital, Inc.
(D.C. D.C. 1970), 50 F.R.D. 249, 251, Hickman v. Taylor
(1947), 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.
Section 27-6-301, MCA, of the Montana Medical Legal
Panel Act provides:
Claimants shall submit a case for the
consideration of the panel prior to
filinq a complaint in any district
..
court-. (~m~hasisadded.)
This section makes submission of the case to the Panel
mandatory prior to the claimant's filing a complaint in
court. Proceedings before the panel therefore are a
condition precedent to and an integral part of the litigation
process. Kuiper, supra, at 700, 38 St.Rep. at 1294. There
is no doubt that upon submission of a case to the Montana
Medical Legal Panel there exists the prospect of litigation;
otherwise the proceedings before the Panel would have no
meaning.
In this case, claimant Clark filed and submitted her
case to the panel prior to the filing by Norris of his report
of the malpractice claim with his insurance carrier.
We hold that the report of Norris to his insurance
carrier made subsequent to the initiation of the Montana
Medical Legal Panel proceedings was in anticipation of
litigation and entitled to the qualified protection from
discovery pursuant to Rule 26(b)(3), M.R.Civ.P.
It is further noted that Norris answered four separate
sets of interrogatories and his deposition was taken.
Depositions of numerous physicians and health care personnel
connected with the case were taken. There is no evidence
indicating the report to the insurance carrier contains
statements which are contradictory to any other evidence
gathered. Clark had access to Norris's records, the clinic
records, and the hospital medical records.
Next we consider the hospital's incident report. While
there are certain communications between a hospital and its
attorney which are protected, the attorney-client
relationship does not automatically give rise to immunization
of every piece of paper a hospital files with its attorney.
A privilege cannot be created in a subject matter merely by
transmitting it to an attorney. When a person employed by a
corporation is instructed to make a report, the privilege of
that report is to be determined by the employer's purpose in
requiring the report. If the employer directs the taking of
a report for confidential transmittal to its attorney, the
communication may be privileged. Sierra Vista Hospital v.
Superior Court (1967), 56 Cal.Rptr. 387, 392.
The record is not clear as to the purpose of the report
in question. The hospital administrator testified hospital
administrative policy required an incident report. The
administrator keeps a copy of the report on file
"indefinitely" and forwards the report to the hospital's
attorney, regardless of whether litigation on that particular
incident ever materializes. We are not persuaded of the
requisite confidential nature of the reports necessary to
warrant their immunity from discovery afforded an
attorney-client relationship. There is no testimony as to
their purpose and we cannot read into the record something
which is not there. In today's litigious society, it is too
easy to argue everything is done in anticipation of
litigation, thereby narrowing the open discovery policy of
the Montana Rules of Civil Procediure.
Notwithstanding, any error is harmless in this case.
Clark made no showing of "substantial need of the [report] in
the preparation of [her] case," nor did she show that she was
"unable without undue hardship to obtain the substantial
equivalent of the [report] by other means. " Rule 26 (b)(3),
M.R.Civ.P. In fact there were a number of alternatives she
could have pursued. The scrub nurse who made out the report
could have been deposed and called to testify. Clark could
have filed a motion to produce. Norris could have been
questioned about whether he had written any comments on the
form or whether he had ever seen one of the forms. Any
prejudice suffered by Clark is not a result of the District
Court's refusal to allow discovery of the incident report.
Clark predicates error on the District Court's refusal
to take judicial notice of the so-called conspiracy of
silence in the medical community. Rule 201(b), M.R.Fvid.
says :
[A] fact to be judicially noticed must be
one not subject to reasonable dispute in
that it is either (1) generally known
within the territorial jurisdiction of
the trial court or (2) capable of
accurate and ready determination by
resort to sources whose accuracy cannot
be reasonably questioned.
The statement made by Clark's counsel does not fall
within the category of the type of facts which can he
judicially noticed. Examples of the kinds of facts which are
generally known and can be judicially noticed found in
Montana case law include the fact that wet floors are
slippery, Clark v. Worrall (1965), 146 Mont. 374, 380, 406
P.2d 822, 825; "there is a vast difference between profit and
gross receipts," State ex rel. Schultz-Lindsey v. Board of
raised at trial or in chambers, although Clark had an
opportunity to do so either time. Because there is no
evidence this failure affected her right to a fair trial, we
will not consider this alleged error.
The jury verdict is affirmed.
We concur: A
Justices
-
Judge of the ~istrictCourt
sitting for Mr. Justice Frank
B. Morrison, Jr.
Equalization (1965), 145 Mont. 380, 401, 403 P.2d 635, 646;
or that on the death of the governor the lieutenant governor
becomes governor. Holtz v. Babcock (1964), 143 Mont. 341,
370, 389 P.2d 869, 884. Whether or not there is a conspiracy
of silence in the medical community is a subject of
considerable debate.
In the same vein, Clark's claim the District Court's
comment on certain testimony destroyed her theory likewise is
without merit. Clark called Norris as an adverse witness.
During his testimony the court permitted him to "answer
fully," or explain his answer, because he was an expert.
" [A] trial judge's determination of the qualifications of a
witness is conclusive unless shown to be an abuse of
discretion or a clear error of law." Soo Line Railroad Co.
v. Freuhauf Corp. (8th Cir. 1977), 547 F.2d 1365, 1374.
Clark argues Norris was not called as an expert, and as ar?
adverse witness he should not he allowed to explain his
answers because she, then, had no control over her main
witness. In at lea-st one previous Montana case, a doctor who
also was a defendant, testified as an expert witness. Maki
v. Murray Hospital (1932), 91 Mont. 251, 266, 7 P.2d 228,
232.
Rule 702, M.R.Evid. permits "a witness qualified as an
expert by knowledge, skill, experience, training, or
education [to] testify . .. in the form of an opinion or
otherwise" if this "specialized knowledge will assist the
trier of fact to understand the evidence or to determine a
fact in issue [ .1 "
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 ... Undoubtedly this would be
of great benefit to the jury.
Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont.
305, 322, 588 P.2d 493, 503.
Clark claims Norris had a chance to explain and
re-explain his justification for doing what he did, thus
emphasizing his defense theory and destroying her
circumstantial evidence. A careful reading of the transcript
convinces us this is not so. The question in the specific
incident complained of was unanswerable without an
explanation, because it was inartfully framed. There is no
mutual exclusivity in being both an expert and the defendant.
While examination of the witness may not have proceeded
exactly as Clark would have preferred, there is no evidence
she could not illicit from Norris those facts she considered
relevant.
Although Norris did not offer opinion testimony, even
had he rendered an opinion, it was not conclusive of the
issue and the jury was free to accept or reject it.
Richardson v. Ford Motor Co. (1973), 163 Mont. 347, 353, 516
P.2d 1153, 1156. It does not appear to have prejudiced
Clark's case to have Norris explain his answers. We find no
reason to preclude him from doing so.
Clark claims the District Court commented on the
evidence in violation of Rule 614 (b), M.R.Evid. While it is
true the District Court cannot comment on the evidence, State
v. Fuller (1906), 34 Mont. 12, 26, 85 P. 369, 374, it also is
true that failure to object waives a claim of error unless a
substantial right of the party is affected. Halldorson v.
Halldorson (1977), 175 Mont. 170, 173, 573 P.2d 169, 172,
Rule 103 (a)(1), M.R.Evid. Objection to the comment was not