No. 91-532
IN THE SUPREME COURT OF THE STATE OF MONTANA
JACK S. DALTON,
Plaintiff and Appellant, ..: .'..J'
-vs-
KALISPELL REGIONAL HOSPITAL,
Defendant and
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randy K. Dix, Dix & Hunt Law Firm, Helena, Montana
For Respondent:
Stephen C. Berg, Warden, Christiansen, Johnson &
Berg, Kalispell, Montana
Submitted on Briefs: June 25, 1992
Decided: January 29, 1993
Filed:
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Jack S. Dalton appeals from the grant of summary judgment in
favor of Kalispell Regional Hospital by the First Judicial District
Court, Lewis and Clark County. We affirm.
The following issues are presented on appeal:
1. Did the District Court err in requiring expert opinion
testimony regarding standards of hospital care?
2. Did the District Court err in refusing to apply the
doctrine of res iasa louuitur?
The facts of this case relating to liability are not in
dispute. Appellant Dalton was a patient of Dr. J. T. Laidlaw
(Laidlaw), an orthopedic surgeon in Kalispell. Laidlaw determined
that Dalton's right hip should be replaced with a prosthetic device
and decided to use the Harris-Galante I.
Laidlaw met with a representative of Zimmer-Jackson
Associates, Inc. (ZJA), a company which markets prosthetic devices,
on approximately September 12, 1986, to determine the proper device
for Dalton's surgery. It was determined that large sizes in the
cups and reamers of the prosthetic device would be needed. The ZJA
representative ordered the Harris-Galante I kit with oversized cups
and reamers by telephone the same day.
Laidlaw's office personnel called the operating room at
Kalispell Regional Hospital (Hospital) on September 12, to reserve
surgery time for Dalton's operation on October 2, 1986. Operating
room personnel were advised that the surgery would be a right total
hip replacement using the Harris-Galante I kit from ZJA. No
reference to the need for large cups and reamers in the kit was
made during this telephone call. Following its usual procedure,
the Hospital then issued a confirming purchase order for the
device.
The kit arrived at the Hospital the evening preceding the
surgery. An operating room nurse inventoried the kit, checking
each item against the packing list. No procedure existed by which
the Hospital verified that the shipment received was the shipment
actually ordered by the physician from the manufacturer.
After the surgery had begun, Laidlaw asked the nurse for a
large reamer. It was discovered at that time that the kit did not
contain the larger cups and reamers which had been ordered. After
further inquiry, it became clear that the only kit which had been
shipped by ZJA was that inventoried by the nurse; it contained only
the standard size cups and reamers.
Laidlaw decided to close Dalton's incision and terminate the
surgery until the proper prosthetic device could be utilized. ZJA
shipped the properly sized device later the same day. Dalton's hip
was replaced with the newly delivered device the following day.
The Hospital subsequently changed its procedure regarding
verification of prosthetic devices ordered by physicians. In
February, 1987, it instituted a procedure whereby the nurse
assigned to the surgery checks the prosthetic device received and
informs the physician if discrepancies between the special order
requisition information and the shipment invoice are found.
Dalton filed a complaint against ZJA, Laidlaw and the
Hospital. Settlements subsequently were entered into between both
ZJA and Laidlaw and Dalton.
The ~ospitalmoved for summary judgment asserting that Dalton
had failed to name an expert witness who would testify as to the
duty owed by the Hospital and a breach of that duty. Dalton
admitted that he did not intend to produce expert opinion testimony
regarding standards of hospital care. He contended that expert
testimony was not required because the Hospital's negligence is
obvious and, indeed, admitted. He also argued that the doctrine of
res i ~ s aloauitur applies to this case, eliminating the need for
expert testimony.
On September 5, 1991, the District Court entered its
memorandum and order granting summary judgment in favor of the
Hospital unless Dalton named a witness who would testify as to
standard of care by October 1, 1991. No such witness having been
named, judgment was entered against Dalton on October 4, 1991.
This appeal followed.
Did the District Court err in requiring expert opinion
testimony regarding standards of hospital care?
The District Court determined that, while exceptions exist to
the general rule in malpractice actions that the standard of care
must be established by expert testimony, the exceptions are not
applicable in this case. Specifically, the court determined that
the Hospital's change in procedure several months after Dalton's
surgery did not establish its standard of care in October, 1986.
The court concluded that the standard of care in this case was not
something readily ascertainable by laypeople.
Dalton argues, first, that the Hospital's duty to provide that
which is necessary to perform surgery properly is not a matter
requiring expert testimony. He relies on Montana Deaconess
Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670, where we
acknowledged an exception to the usual requirement of establishing
a medical standard of care via expert testimony when the conduct
complained of is readily ascertainable by a Layperson.
We did recognize the exception cited by Dalton in Gratton. We
refused, however, to apply that exception in Gratton, which
involved the management of a staph infection following an open
reduction surgery of a leg fracture, concluding that the cause of
an infection is not readily ascertainable by a layperson. We
similarly decline to apply the exception here.
The essence of Dalton's argument is that the Hospital's
failure to take any action to determine the suitability of the
prosthetic device, or to have any procedure in place to do so, is
ample evidence from which a jury can reasonably infer negligence.
We disagree. The Hospital's lack of action is evidence of the
Hospital's lack of action and nothing more. As we stated in
Gratton, "[wlhat is missing here is evidence of any standard of
care against which the acts or omissions of the . . . hospital
staff can be measured to establish negligence. .. . Gratton,
169 Mont. at 188, 189,
Dalton also argues that the Hospital's own admissions of
record bring the present case within the ambit of our cases holding
that expert testimony in medical negligence cases is not required
if a defendant's own evidence establishes a standard of care and a
deviation from that standard. He asserts that the Hospital's
evidence that it had no l'checks and balances" in place in October,
1986, to ensure proper sizing and inventory of prosthetic devices
and that, subsequent to the events at issue here, it inaugurated
such procedures, establishes what the Hospital knew to be the
applicable standard of care in October, 1986. In short, according
to Dalton, no policy during the first pertinent time frame followed
by a policy in the second equals an admission of an applicable
standard of care during the first time frame. Aside from any
questions regarding admissibility of evidence of the after-
inaugurated procedure under the "remedial measures" provision of
Rule 407, M.R.Evid., which we do not address here, we find this
contention unpersuasive.
We have recognized the "defendantlsadmissions" exception to
the expert testimony requirement in several cases. In both Hunter
v. Missoula Community Hospital (l988), 230 Mont. 300, 750 P.2d 106,
and Hill v. Squibb (1979), 181 Mont. 199, 592 P.2d 1383, we
acknowledged, but refused to apply, the exception.
In Thomas v. Merriam (1959), 135 Mont. 121, 337 P.2d 604, a
physician testified to the standard of care. The defendant
physician was deceased by the time of trial; however, his
admissions to a member of the plaintiff patient's family as to the
procedure he followed were sufficient to establish a deviation from
the standard of care.
The case before us is distinguishable from Thomas. As
discussed above, Thomas involved a defendant's admissions of the
procedures he followed. Independent expert testimony established
the standard of care against which the defendant's admissions could
be measured. Here, the Hospital's "admissions1' regarding its
policies and procedures are matters of fact equivalent to the
defendant physician's in Thomas. Absent expert testimony
establishing the standard of care, however, there is nothing
against which the Hospital's admissions can be measured. Thus,
there is no way for a jury to determine whether or not the
Hospital's procedures in October, 1986, constituted a deviation
from the applicable standard.
Dalton's assertions that the policy instituted by the Hospital
in February, 1987, establishes the applicable standard of care
either at that time or during October, 1986, ring no less hollow
for the frequency with which they are repeated. This is not an
appropriate case for application of the "defendant's admissionsN
exception to the general rule requiring expert testimony to
establish the standard of care in medical negligence cases.
We hold the District Court did not err in requiring expert
opinion testimony regarding standards of hospital care.
Did the District Court err in refusing to apply the doctrine
of res i ~ s alocruitur?
The District Court determined that the doctrine of res ivsa
locruitur is not applicable here in that, under these facts, it
cannot be said that the prosthetic device was under the Hospital's
exclusive control. The court also noted that application of the
doctrine does not shift a plaintiff's burden of making a prima
facie case of breach of a duty of care in a medical negligence
case.
Dalton is correct in asserting that res i ~ s aloauitur may be
applicable in certain malpractice cases in Montana. But his res
loauitur argument is, to a large extent, merely an extension
of his other arguments for not being required to produce an expert
witness to establish a standard of care. It is here that this
argument misses the mark.
Where applicable, the doctrine of res i ~ s aloauitur "permits
proof of what happened to be made by circumstantial evidence. ..
.'I Clark v. Norris (l987), 226 Mont. 43, 48, 734 P.2d 182, 185.
The doctrine, if applicable in a medical malpractice case, does not
permit a presumption of negligence; a plaintiff still "must make a
prima facie case that defendant breached a duty of care before the
question goes to the jury." -
Id. In the case before us, Dalton
does not seek application of res i m locruitur for purposes of
proving what happened by circumstantial evidence; what happened is
clear and undisputed. Rather, he seeks application of the doctrine
in order to avoid producing the expert testimony required to
establish a prima facie case of duty of care and breach thereof.
Under Clark, this is an inappropriate application of res iDsa
loauitur.
Furthermore, we agree with the District Court that the
nexclusive controlgg
element of res i ~ s aloauitur is not met under
these facts. The instrumentality, if considered to be the
improperly sized prosthetic device, was not under the exclusive
control of the Hospital at the time of the injury. If the
gginstrumentalityw considered to be the communication or lack
is
thereof--between Laidlaw, ZJA and the Hospital-itw was never in the
exclusive control of the Hospital. Therefore, we conclude that the
doctrine of res i ~ s a
locruitur is not applicable to the case before
us; the District Court did not err in refusing to apply it.
Affirmed.
' Chief Justice cT
Justices
Justice Terry N. Trieweiler, concurring in part and dissenting in
part.
I concur with that part of the majority opinion which holds
that the doctrine of res iasa loauitur is not applicable to the
facts in this case. I dissent from that part of the majority
opinion which holds that expert testimony was necessary to
establish the negligence of Kalispell Regional Hospital.
The majority correctly notes that in Montana we have
recognized an exception to the usual requirement of expert
testimony to prove a medical standard of care when the conduct
complained of is readily ascertainable by a lay person. There are
no cases in Montana where that exception has been applied.
However, when we look to other jurisdictions which have applied the
exception it is clear that it should be applied to the facts in
this case.
For example, in McKniglzt v St. Francis Hospital, Etc. (Kan. 1978) , 585
.
P.2d 984, the issue was also whether inter-hospital communication
had been adequate. In that case, plaintiff, an elderly lady, was
admitted to the hospital by her physician with the diagnosis of
hypertension, heart cardiovascular disease and a mild cerebral
accident on the left side. She was in an extremely weak condition
and her physician prescribed x-ray examination. That procedure
required that a requisition form be filled out by a nurse who was
employed by the hospital. That form provided a space for her
history but no information pertaining to the plaintiff's diagnosis
or condition was provided. She was taken to the radiology
department where she collapsed during a vertical x-ray exam because
she was not provided with assistance to stand erect. The plaintiff
contended, and the trial court agreed, that the hospital's failure
to advise the radiology department of the plaintiff's weakened
condition and history was the proximate cause of her fall and
resulting injury. However, on appeal, the defendant contended that
the plaintiff had a duty to present expert testimony regarding the
hospital's duty of care and that it did not do so. Of particular
relevance to this case was the hospital's contention that:
The plaintiff did not present expert testimony that
there is a duty to include this type of information on
the X-ray requisition form or that the defendant hospital
violated any duty in failing to provide the radiology
department with such information.
However, on appeal, tbe Supreme Court of Kansas set forth a
more complete explanation of the "common knowledgelt exception to
the rule requiring expert testimony in malpractice cases and held
that expert testimony was not required in that case. In discussing
the rule the court in Mcfizigltt stated:
There is a common knowledge exception to the rule
requiring expert medical testimony in malpractice cases.
This common knowledge exception applies if what is
alleged to have occurred in the diagnosis, treatment, and
care of a patient is so obviously lacking in reasonable
care and the results are so bad that the lack of
reasonable care would be apparent to and within the
common knowledge and experience of mankind generally.
Webb v Lungstrum, 223 Kan. 487
. ... 575 P.2d 22 (1978).
This "common knowledge exception" was stated in a
different manner in Hiatt as follows:
"Expert medical testimony is ordinarily
required to establish negligence on the part
of either a physician or a hospital in their
care and treatment of a patient, unless the
medical procedures employed are so patently
bad that negligence or lack of skill is
manifest to a lay observer or other acts
complained of could be regarded as negligent
by applying the common knowledge and
experience of mankind."
The common knowledge exception to the rule requiring
expert testimony in malpractice cases was applicable in
the case at hand. ...
McKnight, 585 p.2d at 986-87. In accord is WashingtonHuspitalCenterv.
Butler (U.S. App.D.C. l967), 384 F.2d. 331.
As in the Mcfiight case the issue in this case was whether the
information included in the hospital 1 s internal requisition form
provided sufficient safeguards to the plaintiff.
Marilyn Meyers was the circulating nurse in charge of
Kalispell Regional Hospital's operating room who ordered the
plaintiff's prosthesis. She filled out the order form which was
sent to the purchasing department which placed the order with the
company which manufactured the prosthesis. However, nowhere in the
purchasing form was the size of the prosthesis indicated even
though she acknowledged that the prosthesis came in various sizes.
Jayne Wangerin was the scrub nurse whose responsibility it was
to gather the instruments and supplies that would be necessary for
plaintiff s surgery and bring them to the operating room. When
plaintiff's prosthesis arrived the day before or the morning of his
operation, she checked the contents of the container in which it
was shipped against the information on the packing slip which was
sent with the package. She also checked the contents against the
manufacturer's catalog which indicated those parts that should come
with that prosthesis. However, at no time did she determine from
either Doctor Laidlaw, from Marilyn Meyers or from the purchasing
department what the appropriate size of the prosthesis should be.
The hospital acknowledged by the procedure that it employed
that some inspection of what was sent by the manufacturer was
necessary. The people who checked what was sent also acknowledged
that the prosthetic device that was received comes in various
sizes. With this information it does not require an expert to
conclude that any meaningful inspection would have to determine
whether the appropriate size was sent. Expert testimony should not
be necessary to establish that the hospital was negligent when it
failed to consider whether the parts shipped were the appropriate
size until the plaintiff lay on the operating table with an open
incision.
It does not take a rocket scientist to figure out that if it
is reasonable to inspect prosthetic devices that are shipped to the
hospital; if an important characteristic of the prosthetic device
is its size; and if the operating physician relies on confirmation
that the appropriate prosthetic device has been sent before he
opens up a patient for implantation of that device, then a
reasonable inspection should include a determination that the
correct size has been received.
Just as in the cited cases, this case involves an internal
communication at the hospital in the form of a requisition sheet
which did not include adequate information and therefore
communications within the hospital were inadequate to assure the
plaintiff's safety. That fact can be deduced from the common
knowledge possessed by lay people and does not require expert
testimony for its proof.
For these reasons, I dissent from the majority opinion. I
would reverse the summary judgment of the District Court and remand
this case to the District Court for a trial to determine whether or
not Kalispell Regional Hospital was negligent when it purchased the
wrong sized prosthetic device for implantation into the patient's
hip and did not let his treating physician know until after
plaintiff's surgery had begun.
/