NO. 87-479
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
1988
LAURENE GLOVER,
Plaintiff,
-vs-
J A Y T. BALLHAGEN, M.D.,
Defendant.
O R I G I N A L PROCEEDING:
COUNSEL O F RECORD:
For P l a i n t i f f :
J . D w a i n e R o y b a l argued; K e e f e r , Roybal, Hanson, Stacey
& Jarussi, B i l l i n g s , M o n t a n a
For D e f e n d a n t :
L a r r y E . R i l e y argued; Garlington, Lohn & Robinson,
Missoula, Montana
Submitted: May 5 , 1 9 8 8
Decided: June 2 2 , 1 9 8 8
Filed: UUN 2 2 1988
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is a medical malpractice case pending in United
States District Court, District of Montana, Missoula Divi-
sion. That court certified several questions of law to this
Court. We have restated the questions as follows:
1. In order to qualify as an expert witness on the
standard of care required of a board certified family practi-
tioner, must the witness be a board certified family
practitioner?
2. If not, then who may qualify as an expert to testify
on the standard of care required of a board certified family
practitioner?
We answer question one in the negative. As to question
two, qualification of an expert witness is a matter of dis-
cretion for the trial court; therefore, our opinion will be
limited to an explanation of the guidelines necessary for the
exercise of that discretion.
The only facts before this Court are those contained
within the trial court's certification order:
A board certified family practitioner practic-
ing in Ronan, Montana, is sued for malpractice.
The depositions indicate that the plaintiff intends
to use as experts, a board certified orthopod and a
board certified practitioner of internal medicine
and infectious diseases. Both are residents of the
state of Oregon, and there is nothing to show that
they have any knowledge of the standard of care in
Ronan, Montana.
In order to qualify as an expert witness on the standard
of care required of a board certified family practitioner,
must the witness be a board certified family practitioner?
The United States District Court specifically requested
an explanation of our holding in Aasheim v. Humherger (Mont.
1985), 695 P.2d 824, 42 St.Rep. 235. In that case, the
plaintiff brought a medical malpractice action against a
national board certified orthopedic surgeon, regarding that
doctor's treatment of her knee. The trial court refused to
give plaintiff's proposed instruction concerning the standard
of medical care. The jury returned a verdict for the defen-
dant doctor, and the plaintiff appealed. We held that the
instruction given by the court was unduly restrictive in that
it applied the ''same or similar" locality rule to a board
certified orthopedic surgeon. Aasheim, 695 P.2d at 826. We
reversed the district court's judgment, and, in doing so,
approved the plaintiff's proposed instruction which read as
follows (after modification by this Court):
By undertaking professional services to a patient,
a doctor represents that he has the necessary
degree of skill and learning to do so. That degree
of skill and learning is generally measured by the
skill and learning possessed by other doctors in
good standing practicing in the same specialty and
who hold the same national board certification.
It is the doctor's further duty to use that skill
and learning as ordinarily used in like cases by
other doctors practicing in that same specialty and
who hold the same national board certification.
The violation of any of these duties is negligence.
Aasheim, 695 P.2d at 826-27.
Dr. Ballhagen argues, in the present case, that the
result of our holding in Aasheim is that the only witness who
may testify concerning the standard of care of a doctor
practicing with a board certification is another doctor with
the same certification. He misconstrues our holding. We
held that the standard of care to which a board certified
specialist will be held must be that skill and learning
possessed by other doctors in good standing practicing in the
same specialty and who hold the same national board
certification. We did not declare, as a matter of law, that
doctors practicing in the same specialty were the only ones
who could testify as to that standard of care. For example,
in the past we have allowed a general practitioner to testify
as to the standard of care required of a specialist.
Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont.
305, 588 P.2d 493. In Aasheim, our inquiry was limited to
the applicability of the locality rule to national board
certified specialists.
Our holding in Aasheim did not address the same or
similar locality rule as it relates to board certified family
practitioners. The facts certified to us do not describe the
training and examination of board certified family practi-
tioners. Our assumption is that all board certified family
practitioners receive comparable training and pass the same
national board certification examination. As stated in
Aasheim, 695 P.2d at 827:
The locality rule was an outgrowth of disparity in
the quality of community medical practice. To the
credit of the medical profession, including its
excellent training and certification program, the
disparity has largely been eliminated.
We conclude that the holding in Aasheim should be ex-
tended to include board certified family practitioners. That
is, we hold that the standard of care to which a board certi-
fied family practitioner will be held is that skill and
learning possessed by other doctors in good standing practic-
ing with the same national board certification.
We answer the first certified question in the negative.
In order to qualify as an expert witness on the standard of
medical care required of a board certified family practition-
er, the witness may be, but does not have to be, a board
certified family practitioner.
Who may qualify as an expert to testify on the standard
of care required of a board certified family practitioner?
Rule 702, M.R.Evid., pertains to testimony by experts.
That rule provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge,
skill, experience, training, or education may
testify thereto in the form of an opinion or
otherwise.
The trial court has broad discretion in determining
whether a particular witness is qualified to testify as an
expert. Clark v. Norris (Mont. 1987), 734 P.2d 182, 187, 44
St.Rep. 444, 450.
In answer to the second question certified to this
Court, we hold that the party presenting a witness as an
expert must establish, to the satisfaction of the trial
court, that the witness possesses the requisite knowledge,
skill, experience, training, or education to testify as to
the diagnosis and treatment in question and as to the stan-
dard of care applicable to the physician charged with negli-
gence. With our holding under Issue I in mind, this means
that the witnesses in the present case must be qualified
pursuant to Rule 702 to testify as to the standard of care
required of a board certified family practitioner. That
qualification is for the trial court to determine.
-
We Concur:
RB KL-9-
4' Chief Justi
Q d - 4. %
Justices
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent.
The first certified question, in my opinion, should be
answered affirmatively. It is my view that a board certified
family practitioner should not have the required standard of
care determined by a medical specialist who is not also a
board certified family practitioner.
I am aware of this Court's reasonings that have done
away with the "locality rule" that has evolved into the
questions we are faced with in this case. Tall Bull v.
Whitney (1977), 172 Mont. 326, 564 P.2d 162; ~asheim v.
Humberger (Mont. 1985), 695 P.2d 824, 42 St.Rep. 235.
However, this is not a "locality rule'' advocation.
Respondent's brief appropriately addresses the problem
created by the majority opinion:
The family practitioner is typically the
physician found in the small towns and
communities around the State of Montana.
In the course of their working day, they
treat and attend to expectant mothers
and new mothers, young children, broken
bones, sickness and infection, the aches
and pains of the elderly, heart
troubles, weight problems, back
problems, do some surgery and attend to
emergencies. In doing that, they are
obviously practicing in the field of
obstetrics, pediatrics, orthopedic
surgery, internal medicine,
rheumatology, cardiology, dietary
medicine, dermatology, gastroenterology,
gynecology, surgery, emergency medicine
and often psychology.
To allow Appellant's experts in the case
now before the Court to testify against
Respondent would mean that the family
practitioner is not going to be held to
the standard of care of a family
practitioner but is going to be held to
the standard of care of a specialist in
whatever specialty the doctor happens to
be caring for a patient at that
particular time ...
The message that this Court would send
to the family practitioners in the State
of Montana would be that as you are
treating the expectant mother or new
mother, you will be expected to have the
same degree of training, skill and
experience as a specialist in obstetrics
and gynecology, as you are treating the
young children of your patients, you
will be held to the standard of care of
a pediatrician, as you are treating
various problems of bones and joints,
you will be held to the standard of care
of an orthopedic surgeon, etc.
The majority, by leaving discretion with thirty-six
individual district judges to determine the qualifications of
proposed medical witnesses to testify in another specialty,
has introduced an element of uncertainty that on legal and
public policy grounds, could be avoided by answering "yes" to
the first certified question. I would do so, and by doing
so, would find support in the concept of selecting as Medical
Legal Panel Members those "persons specializing in the same
field or discipline as the Health Care Provider." See,
$ 27-6-402 (2), MCA; Rule 9 (c), Montana Legal Panel Rules of
Evidence.
L'