No. 8 8 - 1 3 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
KAREN McCAIN,
Plaintiff and Appellant,
-vs-
JOHN BATSON, M.D.,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James J. Screnar; Nash, Guenther, Zimmer & Screnar,
Bozeman, Montana
For Respondent :
Richard F. Cebull; Anderson, Brown Law Firm, ~illings,
Montana
Submitted on Briefs: June 30, 1 9 8 8
Decided: August 18, 1988
Filed: K 6 1 8 1988
'U
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal of summary judgment granted in favor
of defendant John Batson, M.D. Plaintiff/appellant Karen
McCain (McCain) brought this action in the District Court of
the Eighth Judicial District, Gallatin County, Montana, the
Honorable Joseph B. Gary presiding. McCain sought to recover
damages for the negligent treatment of her injuries by the
defendant/respondent, John Batson, M.D. (Dr. Batson). Dr.
Batson sought summary judgment by invoking immunity of the
Montana Good Samaritan Statute S 27-1-714, MCA. On February
4, 1988 the District Court granted Dr. Batson's motion for
summary judgment. McCain now appeals.
McCain and two friends, Sherry Warner (Warner) and
Rosemary Checketts, (Checketts) spent a weekend in West
Yellowstone, Montana, arriving the morning of September 25,
1982, from Ogden, Utah. They planned to stay with Warner in
her condominium. That evening, after preparing and eating
supper at home, the three friends decided to go into the town
of West Yellowstone. The three decided to walk into town as
Warner's truck battery was dead. The condominium was not far
from town so they walked to the nearby Stagecoach Inn. After
spending some time at the Inn, the women became separated and
about 11:OO p.m. McCain decided to return alone to the
condominium.
McCain was unfamiliar with the area and while walking
back in the dark fell into an eight-foot deep excavation pit.
The pit contained rebar set in concrete at six inch
intervals. As a result of the fall she severely impaled her
upper left leg on a piece of rebar. After extracting herself
off the rebar, McCain crawled out of the pit and crawled to a
lighted doorway of a nearby condominium. McCain rapped on
the door of a condominium occupied by Dr. James Grindley, a
Bozeman radiologist, and his wife. Mrs. Grindley answered
the knock on the door. After McCain told Mrs. Grindley about
her accident and injury, Dr. Grindley went to the Stagecoach
Inn to retrieve her two friends. Throughout this time, Dr.
Grindley did not mention he was a physician and McCain
remained on the patio or lawn outside of the condominium.
Dr. Grindley is a radiologist with extensive surgical and
emergency room experience. He did not initially examine
McCain's injury, and in a deposition Dr. Grindley admitted
that he did not have any medical equipment at the
condominium.
McCain's friends returned with Dr. Grindley and
attempted to assist her. Warner, a surgical assistant had
gotten her box of medical supplies and removed McCain's
pant-leg with a pair of bandage scissors. At that time Dr.
Grindley informed them that he was a physician. Dr. Grindley
examined the wound and advised all present that while
technically he could repair the wound, he had no desire to do
so without being able to "debride it and clean it."
At deposition Dr. Grindley testified he then offered to
drive McCain and her friends to the nearest hospital in
Ashton, Idaho. They refused his offer and informed Dr.
Grindley that they believed there was a doctor staying in
town who could help them and that if they needed Dr.
Grindley's services later, they would contact him.
Dr. Grindley further testified that at that time the
wound may have "been bleeding a tiny bit .. . and that her
panty hose seemed to be holding the tissues all in good
position so that it was minimizing any bleeding." McCain
testified that at that time she had little pain and the leg
was "dead, numb, dead." After taking McCain back to Warner's
condominium, and some three hours after the accident, Warner
was able to locate where defendant/respondent Dr. Batson was
staying. Dr. Batson got up out of bed, left the condominium
where he was staying and agreed to come to the Warner
condominium to see what could be done. Dr. Batson testified
that McCain was lying on a couch and that when he examined
the wound he could see considerable dirt and mud in the
wound. With the help of Warner and her surgical kit which
contained instruments, suture, IV solutions, and other items
that could be used to clean the wound, Dr. Batson debrided
the wound as best he could. He then loosely sutured the
wound and dressed it with bandages from the medical kit. All
of this was done under the light of a lamp in the Warner
condominium
Dr. Grindley testified at deposition that he informed
all three women soon after the accident that the wound had to
be treated at a hospital and under a general anesthesia and
that the wound needed to be treated surgically. Dr. Batsonfs
evaluation of the injury mirrored Dr. Grindley's that this
was not an emergency situation but that McCain should go to a
hospital as soon as possible. Dr. Batson informed the women
that he would call the hospital in Ashton, Idaho and order
pain and antibiotic medication and a tetanus shot to be
available to McCain the next morning.
It should be noted that the reason McCain did not
immediately go to a hospital was that the ambulance at West
Yellowstone was not available as it had taken someone to
Bozeman, Montana, just before she was injured and would not
return until the next morning. As previously noted, the
truck used by the parties to travel to West Yellowstone had a
dead battery but would be repaired by the next morning. As
the hour was very late, the three spent the rest of the night
at the Warner condominium and planned on returning to Ogden
later that morning/early afternoon via Ashton, Idaho.
Dr. Batson testified that later that morning about
11:OO a.m., he returned to check on the three women. He
found them still packing and preparing to return to Ogden.
Dr. Batson said he advised them again that his suturing of
the wound was a first-aid type procedure and it was necessary
that they go to a hospital and have the wound properly
treated.
According to the deposition of Checketts, they did stop
at the Ashton, Idaho hospital where they got some pain
medication and antibiotics which served as treatment until
McCain returned to Ogden. They then drove on into Ogden
arriving at approximately 7 : 0 0 p.m. and took McCain to her
apartment where it was their understanding that McCain would
go to the hospital and see a doctor the next morning.
However, McCain did not go to the hospital or see a doctor
until about one week later. By this time her wound had
become infected and required considerable surgery and medical
treatment.
On September 25, 1985, three years to the date of the
injury, Dr. Batson was sued by McCain for suturing the wound
without adequate debriding, or cleansing of the contaminated
wound and for failing to inform anyone that the procedures
that he followed were not final procedures. In other words,
McCain claims he failed to inform her that the wound would
have to be opened up, recleansed, debrided, and resutered.
McCain alleges that this is a case of malpractice which has
caused her serious injury.
This case was presented to the District Court on
depositions of Sherry Clarey Warner, Karen McCain (plaintiff
and appellant), Rosemary Checketts, Dr. Wesley G. Harline,
Dr. Lee J. Malan (a surgeon who later operated on her at
Ogden, Utah), Dr. John Batson (defendant and respondent), and
Dr. James S. Grindley (the radiologist who first saw the
iniured McCane at his door). Based on the information
contained in the depositions, the District Court granted Dr.
Batson's motion for summary judgment. Attached to said
summary judgment was a memorandum of Judge Joseph Gary
concerning the reasons for his granting of summary judgment.
Several questions are presented for our consideration:
1. Did the District Court improperly find that the
provisions of the Montana Good Samaritan Statute, 5 27-1-714,
MCA, were applicable to an instance where the negligent care
rendered was remote in time and location to the scene of the
accident or emergency, and was otherwise without the purpose
of the act?
2. Did the District Court improperly usurp the
function of the jury by resolving questions of fact in its
grant of summary judgment?
The first issue concerns the Montana Good Samaritan
Statute, § 27-1-714, MCA, which reads:
(1) Any person licensed as a physician
and surcreon under the laws of the state
of ~ontana,any volunteer firefighter or
officer of any nonprofit volunteer fire
company, or any other person who in good
faith renders emergency care or
assistance without compensation except
as provided in subsection (2) at the
scene of an emergency or accident is not
liable for any civil damages for acts or
omissions other than damages occasioned
by gross negligence or by willful or
wanton acts or omissions by such person
in rendering such emergency care or
assistance.
(2) Subsection (1) includes a person
properly trained under the laws of this
state who operates an ambulance to and
from the scene of an emergency or renders
emergency medical treatment on a
volunteer basis so long as the total
reimbursement received for such volunteer
services does not exceed 25% of his gross
annual income or $3,000 a calendar year,
whichever is greater.
(3) If a nonprofit subscription fire
company refuses to fight a fire on
nonsubscriber property, such refusal does
not constitute gross negligence or
willful or wanton act or omission.
According to the legislative history of $ 27-1-714, MCA,
3
(Good Samaritan Statute) it was passed by the Legislature in
1963, amended by 5 1, Chapter 390, Laws of Montana 1979, and
§ 1, Chapter 330, Law of Montana 1985, and 5 1, Chapter 133,
Laws of Montana 1987. Reference is made to the legislative
history of the Good Samaritan Statute because this is a first
impression case in this state on the interpretation of the
Good Samaritan Statute.
This Court has considered appellant McCain's initial
brief and reply brief and her argument appears to be that the
Good Samaritan Statute has no application to her situation.
McCain alleges that Dr. Batson was not a good samaritan and
recognizes that the Good Samaritan Statute provides immunity
from his malpractice. McCain first argues that a physictan
must demonstrate that he is a member of a protected class.
Dr. Batson was not a licensed physician in the state of
Montana, although he is licensed to practice in Wyoming and
Idaho. McCain argues he is, therefore, any person within the
meaning of the statute. While she agrees with the fact that
the doctor here is protected under the act, she alleges that
immunity only attaches to malpractice which is committed at
the scene of the accident or emergency.
She argues that after falling into the excavation pit,
McCain crawled to Dr. Grindley's condominium and she was
later carried to Warner's condominium. Therefore Dr.
Batson's care, such as it was, was too remote in time and
location to the scene of the accident. She alleges with this
result Dr. Batson could not demonstrate that this was an
"emergency" situation. McCain further argues that Dr.
Batson's negligent care was performed when he made a
"housecall" and he did not happen upon an emergency. McCain
argues that because Dr. Batson's negligent care was not
during an emergency situation, though her injuries were
serious, they were not life threatening and therefore the
best course of action would have been to postpone care until
she reached a hospital.
We, as the District Court did, have difficulty with
this argument. The central question presented to the
District Court and one which is subject to our review is
whether the Good Samaritan Statute applies. We find, as the
District Court did, that it does. Thus, the standard of
review is gross negligence and willful or wanton acts or
omissions rather than ordinary negligence--medical
malpractice. We agree with the District Court's finding that
after reviewing all of the deposition testimony, there is no
evidence whatsoever that there was such a serious level of
negligence exhibited by Dr. Batson to warrant any action in
this case.
The District Court noted the problem here was not that
there were differing versions of the facts but that the facts
were not ultimately pertinent to the decision. Only two of
the depositions indicate a fact variance. One is the
deposition of the appellant, McCain, which is to say the
least self-serving; second is the deposition of Dr. Grindley
who testified that he disagreed with the decision of Dr.
Batson in suturing the wound. Dr. Grindley added that the
manner of Dr. Batson's suturing indicated to him some
permanence of treatment. However, on cross-examination it
should be noted that it was Dr. Grindley's opinion that there
was neither gross negligence nor gross malpractice in this.
During the cross-examination Dr. Grindley was asked a number
of questions which are illustrative of his position.
Q. I get the impression that your
biggest criticism is the fact that he
sutured it.
A. Yes. I just don't know what the need
for it was, you know, if he was intending
for her to go to the hospital right away
and having it, you know, treated further.
Q. Now do you know what gross negligence
is on the part of a doctor as opposed to
ordinary malpractice or ordinary
negligence?
THE WITNESS: No, I guess I really
couldn't give you a real good definition
of that. I imagine it's where you had
some idea maybe that you were operating
out of the boundaries that you should be
operating in or working in as a
physician.
BY MR. CEBULL [respondent' s attorney] :
Q. Well are you critical of anything
that Dr. Batson did other than suturing
the wound?
A. I'm not sure, you know, really what
he did. You've told me what he did and,
no, I couldn't say that I could be
critical because I really don't know what.
else he did. I haven't read those
depositions or anything so I don't know.
Q. But you are critical of the suturing,
right?
A. Right. I really just don't know why
you would put sutures in and then send
someone off to the emergency room to have
the wound treated further.
Q. And then as I understand it, you
arrived at this opinion, or you arrived
at this criticism of Dr. Batson for him
placing the sutures in the wound before
you came here today, didn't you?
A. Yes.
Q. Okay. Now in your opinion, was the
placement of those sutures in the wound
by Dr. Batson gross negligence?
A. I don't know where he placed them.
Do you mean just putting them in there?
Q. I mean just the fact that he sutured
the wound. That's my understanding of
your criticism of Dr. Batson.
A. I don't know that I would call it
gross negligence, but it's just -- it's
not the customary thing that a physician
would do in treating -- giving first aid
to a wound, In other words.
Q. Well, generally, you know that if a
physician violates an acceptable standard
of care, that's malpractice, negligence,
you know that, don't you?
A. Uh huh.
Q. Okay. And I get the impression that
you are saying that Dr. Batson's suturing
this wound was a violation of an
acceptable standard of care.
A. I would think so. I think if he
intended to -- had thought that he had
debrided it and cleaned it out thoroughly
and had done the primary care of the
wound and sutured it then, I wouldn't
have much argument with that. But from
what you tell me, where he puts just a
few sutures in it and then sent her off
to the emergency room to have it further
treated, I say why? Why subject a
patient to sticking them with a needle
and whatever you do to put sutures in
just to have them taken out in an hour or
so, so it can be cleaned out?
Q. Well, what have you been told about
whether this was temporary or permanent,
final suturing?
A. Well, you just alluded to it a while
ago.
Q. I know, but have you been told
anything before that?
A. I'm not sure that I have.
Q. Well, if Dr. Batson had intended this
to be a final repair job and he had
debrided it and cleansed it, at least in
his judgment as good as he could, would
the fact that an infection occurred later
on indicate to you that he committed
malpractice?
A. No. Because a certain percentage of
wounds, like I said, would get infected
regardless of how thorough a job you do
of cleaning them.
Q. Even if they are done in a hospital
in an OR suite with general anesthesia
and everything, right?
A. Right.
Q. Well, in your opinion, if this was a
temporary suturing job by Dr. Batson, did
that, in your opinion, constitute gross
negligence, gross malpractice?
A. Well, you see you really haven't told
me what gross malpractice is yet or gross
negligence.
Q. Well, it's a heck of a lot worse than
ordinary malpractice.
A. I guess in my opinion I still would
say -- I would say it's what most people,
most physicians would not do that if they
expected the patient, within an hour or
so, to be at a facility where they would
have it done and so why do it?
Q. Okay.
A. When a dressing will do the same
thing.
Q. Are you going to testify in this case
that Dr. Batson committed gross
malpractice, gross negligence, in
suturing that wound if it was a temporary
repair?
A. From your description of gross
negligence, I would probably say no. You
see, I might change my mind. You've made
a lot of this hypothetical and you said
that if he had all of the equipment
available, if everything was in that box
and he had some other things available,
you know, could he have done it. And I
said yes but, you know, it was my opinion
that I was not about to sew up that kind
of a wound, you know, with the equipment
I could see in the box there and feel
like I was doing a service to the
patient.
Dr. Grindley later testified in deposition:
Q. Well, apparently before today you had
formulated an opinion that Dr. Batson had
committed at least ordinary malpractice,
ordinary negligence, right?
A. I wouldn't say that. I just think
he's braver than I was to try to -- you
know, if he was going to try to do
primary care of that wound there in some
condominium or in his wherever he was
staying, you know, he was braver than I
was to attack that kind of situation
without what I would like to have
available, you know, to do it, and if he
was doing it just kind of as a first aid
thing, then I really have no idea why he
would put sutures in the patient's leg.
When questioned later regarding deposition testimony from
McCainls treating physicians in Utah, one being a plastic
surgeon and the other being a general practitioner, Dr.
Grindley answered as follows:
Q. Now these physicians down in Utah,
their depositions have been taken -- the
one a plastic surgeon and another I'm not
really sure what his specialty was, but
you don't know what they have said about
this?
A. No, I don't.
Q. If they said that, in their opinion,
Dr. Batson didn't commit malpractice in
any way, you would disagree with them
then, I guess.
A. I couldn't really -- you know, it
just comes back to the same thing, you
know, I don't know actually what he did
do, I didn't see what he did work with,
whether he was doing a primary closure
with it. And if I could see what he had
used and if I felt it was appropriate,
then I would say, you know, it probably
was appropriate treatment for her. But,
you know, just to put stitches into a
wound like this and send someone off to
the hospital to have it further repaired,
I just don't think that's customary
practice.
When asked if he offered to treat McCain's wound, Dr.
Grindley stated:
No. Just like I said earlier, I just
told her that I technically could repair
the wound with what she had there
[Warner's medical kit] , but that I just
felt that I would not want to do it
without having a better circumstance to
debride the wound thoroughly and
thoroughly cleanse it and irrigate it
before it was sewn up.
Well, what I was basically saying was
that I wouldn't do it and I felt like
they ought to go to the nearest hospital,
which was in Ashton, Idaho, and their car
wasn't starting and I told them that I
would be glad to take them over there to
Ashton if they wanted me to.
It is interesting to note that from the time the first
Good Samaritan Statute was passed in 1959, up until 1981,
only fourteen reported cases in other jurisdictions dealt
with those jurisdictions' statutes, and only five cases where
the statute was found applicable. See, Good Samaritan Laws--
Who Needs Them?: The Current State - - Samaritan
of Good
Protection - - United States, 21 S.Tex.L.J. 341 at 350
in the
(1981).
A review of Good Samaritan statutes of other states
indicates that the medical situation must be an emergency
situation before immunity can be invoked, yet few states have
defined the term "emergency" in their statutes, 21 S.Tex.L.J.
at 346. In Colby v. Schwartz (1978), 78 Cal.App.3d 885, 144
Cal.Rptr. 624, the California Court of Appeals addressed the
competing interest in numerous other states' statutes. In
Colby that court set forth the reason for the enactment of
the Good Samaritan statutes. That court noted:
The enactment of Good Samaritan
legislation represents the resolution of
competing interests. On the one hand,
there is an interest in the vindication
of the rights of the malpractice victim.
On the other hand, there is the need to
encourage physicians to render emergency
medical care when they otherwise might
not. Where applicable, the legislation
favors the latter over the former.
Colby, 78 Cal.App.3d at 893-894, 144 Cal.Rptr. at 628-629.
We find that that is the central reason for the legislation
here in Montana and that the standard of review is one of
gross negligence and willful or wanton acts or omissions,
rather than ordinary negligence/medical malpractice.
Here Dr. Batson rendered temporary first-aid with
limited medical equipment having been awakened early in the
morning to do this for McCain and thereafter having warned
her and her two companions that it was necessary to obtain
immediate care both in Ashton, Idaho and when she got home to
Ogden, Utah. As previously noted all parties agree, except
McCain and Dr. Grindley, that what was done under the
circumstances was a first-aid treatment by Dr. Batson with
directions to immediately seek help when she got home and the
fact that she waited over a week before seeking further
medical treatment resulted in infection and the necessary
surgery that followed. McCain's treating physician and
treating surgeon both testified that under the circumstances
what Dr. Batson did was neither negligent nor malpractice.
As we have previously noted in the testimony of Dr.
Grindley, he did not and could not testify that Dr. Batson
was guilty of gross negligence or willful or wanton acts or
omissions. Absent any proof of gross negligence on the part
of Dr. Batson, McCain claims that the Good Samaritan Statute
did not apply to the facts of this case, and that therefore
proof of ordinary negligence is all that she had to prove in
her claim against Dr. Batson. She does this by arguing that
summary judgment was improper. The general rule surroundinq
summary judgment and whether it should or should not be
granted has been well set forth in the decisions of this
Court. As respondent noted we need not go to the Eighth
Circuit, the states of Indiana, Louisiana and Hawaii for
decisions regarding the appropriateness of summary judgment.
Rule 56(c), M.R.Civ.P. provides for a case of this
type. In Shimsky v. Valley Credit (1984), 208 Mont. 186, 676
P.2d 1308, this Court held that when a case is disposed of
below on a motion for summary judgment before a judge sitting
without a jury and no testimony is taken as the facts are
relatively uncontested, the scope of review is much broader
than in other appeals and the Supreme Court is free to make
its own examination of the entire case and reach a conclusion
in accordance with its findings. Shimsky, 676 P.2d at 1310.
Furthermore, the Court will uphold the result below if it is
correct, regardless of the reasons given below for the
result. See, Montana Department of Natural Resources and
Conservation v. Clark Fork Logging Co., Inc. (19821, 1 9 8
Mont. 494, 646 P.2d 1207.
Here the District Court very carefully noted the
elements contained in S 27-1-714, MCA, Montana's Good
Samaritan Statute:
Any person licensed as a physician and
surgeon under the laws of the State of
Montana, ... or any other person who in
good faith renders emergency care or
assistance without compensation ... at
the scene of an emergency or accident is
not liable for any civil damages for acts
or omissions other than damages
occasioned by gross negligence or by
willful or wanton acts or omissions by
such person in rendering such emergency
care or assistance.
The District Court carefully noted the plaintiff's
contention, that Dr. Batson offered care gratuitously and for
no compensation, the plaintiff's concession that Dr. Ratson
was in a protected and immune class, the plaintiff's denial
that there was an emergency at the scene of the accident and
the plaintiff's conclusion, therefore, that the act does not
apply in this case.
The court carefully analyzed the testimony that was
given and finds that there was an "emergency" situation and
no gross negligence or willful or wanton acts were committed.
The court further found that all of the elements of the Good
Samaritan Statute were met and that its standard of gross
negligence applied to the facts in this case. While this
Court generally prefers a trial on the merits of a case to
dismissal by summary judgment, we affirm the District Court
in its findings. We are willing to look at the facts
presented and not force a defendant to go through a
prolonged, expensive and emotionally debilitating trial for
such well intended and medically accepted deeds as Dr. Batson
performed at West Yellowstone, Montana. The relevant and
material facts point to this conclusion and the ultimate
question is a matter of law. We further agree with the
District Court in this case that Dr. Batson was a good
samaritan, that he acted in an emergency, and since there has
been no showing of gross negligence, the decision of the
District Court to grant summary judgment is affirmed.
n
We concur:
L+,d2
ief Justice '
. * -
Justice John C. Sheehy, dissenting:
The recent penchant of this Court to approve summary
judgments from the District Court where genuine issues of
material fact exist is shown again in this case. There are
two genuine issues of material fact presented here: ( 1 )
whether an emergency existed requiring, as a good samaritan,
the assistance of Dr. Batson; and (2) if the answer to the
first query is affirmative, whether Batson was guilty of
gross negligence; and if the answer is no to the first query,
whether he was guilty of ordinary negligence.
We said in Kronen v. Richter (Mont. 19841, 683 P.2d
Summary judgment is never to be used as a
substitute for trial if a factual controversy
exists (citing a case). Summary judgment is only
proper if the pleadings, depositions, answers to
interrogatories and admissions on file show that
there is no genuine issue of material fact (citing
acase) . ..
In granting a motion for summary judgment, the
discretion of the District Court, and of this Court in
reviewing documents is limited.
A discussion of discretion divides into two parts:
Discretion in granting and in denying a motion for
summary judgment. As we shall see, the Court
cannot draw upon any discretionary power to grant
summary judgment; the Court may however exercise
its sound discretion in denying a motion of summary
judgment although on the record the movant has made
out a case therefor.
6 Moore's Federal Practice (Part 11), page 56-601, T 56.15[6]
(1987).
The plaintiff has lost this appeal because the facts are
not appealing. The District Court expressed the problem:
The court would admit to some problems of keeping
an impartial perspective in this case, but is
satisfied, when all is said and done, that this is
a fair decision based on thorough research,
sufficient facts, and clear rules of law.
Nonetheless, the court cannot help but wonder where
our society is taking itself by bringing cases like
this to the courtroom. We may be well on our way
to making an endangered species out of good
samaritans who are forced to stifle their good
impulses out of fear of being taken to court. If
this is the trend, it is indeed unfortunate.
The other side of that coin is that if Karen McCain has
sustained serious and permanent damages to her leg because
Dr. Batson, instead of rendering aid sufficient for the
moment, in effect, "overtreated" her, she is entitled to have
her case heard in court, even though Dr. Batson acted from
the best of impulses.
The first issue here was whether an emergency existed at
the time of Dr. Batson's treatment. The District Court
balanced those issues of fact and decided that an emergency
existed. In doing so, it determined a question of fact, an
improper procedure where summary judgment is concerned.
First, the District Court ticked off the facts which
contended for no emergency: There was no major blood loss;
her life was not in danger and she was not going to die; she
would not lose the limb; the leg had a numb sensation and
there was an absence of pain immediately following the
injury; and she was neurologically intact. Opposing that,
said the court, was that the witnesses agreed the cut was
extremely serious, possibly bone deep; there was no hospital
in town; the Ashton hospital had no anesthesia facilities;
there was no available ambulance; no police officer or other
friends to provide transportation to a hospital; and reason
to believe the "limb was at risk." Not mentioned by the
District Court was the testimony of Dr. Grindley that a
simple dressing would suffice under the circumstances, and
that suturing the wound presented a case of final repair.
Since there existed a genuine issue of material fact,
one that should have been decided by a trier of fact, such as
a jury, the issue should not have been decided on summary
judgment.
The second issue of fact was whether the attendance by
the doctor in this case constituted either ordinary or gross
negligence. The majority, without defining gross negligence
in this instance, has determined that there was no gross
negligence on the part of the defendant doctor. None of the
witnesses defined what was meant by gross negligence. The
only definition on which this Court relies is the following:
Q. Well, in your opinion, if this was a temporary
suturing job by Dr. Batson, did that, in your
opinion, constitute gross negligence, gross
malpractice?
A. Well, you see you really haven't told me what
gross malpractice is yet or gross negligence.
Q. Well, it's a heck of a lot worse than ordinary
malpractice.
If any District Court in Montana had given a jury an
instruction that so defined gross negligence, we would in
high dudgeon reject it as inadequate. Here, the majority,
without otherwise defining gross negligence as it applies
under the Good Samaritan statute, undertakes no other
definition to resolve the fact issue of gross negligence.
We might entertain in ourselves a serious doubt that the
plaintiff would prevail if she had been permitted to take her
case to a jury to resolve the fact issues. Our personal
feelings about the propriety of a case have no place in
deciding questions on summary judgment. If issues of fact
exist, as Professor Moore notes, supra, there is no
discretion, in our Court or in the District Court, to grant
summary judgment.
I would reverse and remand for further proceedings.
Justice