DARLENE GILKEY,
DARLENE GILKEY,
Plaintiff and Appellant,
v.
MIKE SCHWEITZER, M.D.,
Defendant and Respondent.
No. 98-646.
295 Mont. 345
983 P.2d 869
Submitted on Briefs April 1, 1999.
Decided August 10, 1999.
Appeal from the District Court of Yellowstone County.
Thirteenth Judicial District.
Honorable Diane G. Barz, Judge.
Wife filed action individually and on behalf of the estate of her deceased husband against doctor
alleging he negligently inserted an epidural catheter in his thoracic spine, failed to obtain his informed
consent for the procedure and injury resulted. Summary
judgment was granted doctor for failure to establish a prima facie case. Wife appealed. The Supreme
Court, Justice Trieweiler, held that the district court abused its discretion when it decided wife's expert
witness was not qualified to testify.
Reversed and remanded.
For Appellant: James G. Edmiston III, Edmiston & Schermerhorn; Billings.
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DARLENE GILKEY,
For Respondent: Herbert I. Pierce III and Colette Baumgardner Davies, Crowley, Haughey, Hanson,
Toole & Dietrich, Billings.
JUSTICE TRIEWEILER delivered the opinion of the Court.
¶1 The plaintiff, Darlene Gilkey, individually and on behalf of the estate of her deceased husband,
Joseph Gilkey, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone
County, in which she alleged that the
defendant, Mike Schweitzer, M.D., failed to obtain her husband's informed consent for placement of an
epidural catheter in his
thoracic spine while under anesthesia and that Dr. Schweitzer negligently inserted the catheter, and that
as a result her husband
was injured. The District Court granted summary judgment to Dr. Schweitzer on the basis that Gilkey
failed to establish a
prima facie case. She appeals from that order and judgment. We reverse the judgment of the District
Court.
¶2 The issue on appeal is whether the District Court erred when it relied on the Daubert1 rule to exclude
opinion evidence offered by Gilkey to prove that the defendant breached the applicable standard of care.
FACTUAL BACKGROUND
¶3 The following facts were before the District Court by deposition or affidavit. Because Gilkey's claim
was resolved by summary judgment, we set forth the facts most favorable to her claim. However, we
note these facts are controverted and
factual issues have not been resolved.
¶4 Joseph Gilkey was afflicted with cancer of the colon and rectum which, despite treatment, spread to
his left lung. On June 4, 1991, he underwent a pneumonectomy to remove part of the lung. In order to
remove the lung, the procedure required that
a large incision be made from approximately the middle of Joseph's back to the middle of his chest.
¶5 Anesthesiologist Mike Schweitzer, M.D. discussed with Joseph the significant pain that he would
probably experience following the surgery and recommended that he be allowed to insert a "thoracic
spinal epidural catheter" between the vertebrae of Joseph's thoracic spine and alongside his spinal cord.
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DARLENE GILKEY,
From the catheter, anesthetic drugs could then be delivered directly to the area of the spinal cord nearest
the pain source. The purpose of this procedure was to significantly reduce Joseph's postsurgical pain
without administration of postoperative narcotics in a manner that would disburse them
throughout his entire body. Joseph consented to the procedure as described to him. Dr. Schweitzer later
admitted that, during his discussion with Joseph about the procedure, he did not differentiate the risks of
administering an epidural catheter while a
patient is asleep under general anesthesia as opposed to while a patient is awake.
¶6 Dr. Schweitzer's first attempt to insert the catheter failed, but on the second attempt, Joseph's medical
chart indicates that the catheter was inserted "without complications." However, after the surgery
Joseph's left leg was paralyzed. By the time he
left the hospital a few days later he was able to walk with a cane, but according to one of Gilkey's
medical experts, he continued to manifest objective signs of upper motor neuron injury until his death
from cancer approximately two and one-half
years later.
¶7 Gilkey retained Eric Grigsby, M.D. as an expert. It was his opinion that Dr. Schweitzer violated the
standard of care when he failed to inform Joseph that a greater risk was posed by the catheterization
procedure if it was administered while
Joseph was under general anesthesia, as opposed to while he was awake. Dr. Grigsby opined in his
deposition that Dr. Schweitzer breached the standard of care "with regard to ... informed consent."
¶8 Dr. Schweitzer moved for summary judgment on the basis that there was no medical or scientific
basis to support Dr. Grigsby's conclusion that placement of a thoracic spinal epidural catheter while a
patient is anesthetized increases the risk of
injury. The District Court agreed and concluded that Dr. Grigsby's opinion regarding the standard of care
was inadmissible because it was not based on scientific evidence supported by reliable methodology or
research. The District Court awarded
summary judgment on the basis that without a qualified medical opinion, Gilkey could not prove
medical malpractice.
STANDARD OF REVIEW
¶9 Our standard of review on appeal from summary judgment orders is de novo. See Motarie v.
Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239,242, 907 P.2d 154, 156; Mead v.
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DARLENE GILKEY,
[295 Mont. 348] M.S.B., Inc. (1994), 264
Mont. 465,470, 872 P.2d 782, 785. We review a district court's summary judgment to determine whether
it was correctly decided pursuant to Rule 56, M.R.Civ.P., which provides that summary judgment is only
appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment
as a matter of law.
DISCUSSION
¶10 Did the District Court err when it relied on the Daubert rule to exclude Dr. Grigsby's opinion
regarding the proper standard of care?
¶11 The District Court concluded that Gilkey's efforts to establish a standard of care for informed
consent through expert witness testimony were efforts to introduce novel scientific evidence of the type
contemplated by this court in Hulse v. State of
Montana, 1998 MT 108, 289 Mont. 94, 961 P.2d 75, and by the United States Supreme Court in Daubert
v. Merrell Dow Pharm. (1993), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. The District Court
further concluded that Dr. Grigsby was not qualified pursuant to Rule 702, M.R.Evid., to testify
concerning the applicable standard of care in this case.
¶12 Gilkey contends that she sought to offer, through Dr. Grigsby, medical opinion testimony that Dr.
Schweitzer deviated from the appropriate standard of care as a result of his failure to obtain Joseph's
implied consent. She argues that Dr. Grigsby's
testimony was not offered to establish that placing the catheter during sleep deviates from the standard
of care, but to establish that a reasonable medical doctor would have informed his patient of the
difference in potential risks involved if the procedure is
performed while the patient is asleep rather than awake, and that without that advice, informed consent
could not be given. She contends that Dr. Grigsby's credentials as a Board Certified Anaesthesiologist,
qualified him to express that opinion.
¶13 Gilkey contends that Dr. Grigsby's opinion does not introduce the type of novel scientific evidence
contemplated by Hulse and Daubert, but simply the opinion of another medical professional as to what
information a doctor should provide to
his patient so that the patient may give his informed consent to a medical procedure.
¶14 Dr. Schweitzer contends that Dr. Grigsby's testimony articulates a novel theory, which is that there
is an increased risk from placing the catheter while asleep, rather than while awake. He contends that
because Dr. Grigsby's opinion relies on this theory to support his conclusion that it was necessary for Dr.
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DARLENE GILKEY,
Schweitzer to inform Joseph of the difference in levels of risk, Dr. Grigsby was required to show that his
opinion was arrived at by reliable scientific methods or that there was some medical literature or other
objective evidence supporting his opinion.
¶15 The District Court has broad discretion to determine whether evidence is relevant and admissible,
and absent a showing of abuse of discretion, the trial court's determination will not be overturned. See
Burlingham v. Mintz (1995), 270 Mont.
277,279, 891 P.2d 527, 529.
¶16 Rule 702, M.R.Evid. provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand 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.
¶17 [1] In Montana, the threshold obligation of a plaintiff in a medical malpractice case is twofold: first,
evidence must be presented to establish the standard of professional care in the type of case involved;
second, it must be shown that the doctor negligently departed from this recognized standard in his
treatment of the plaintiff. This is typically established through expert testimony because the conduct
complained of is usually not readily ascertainable by a layman. See Montana Deaconess Hosp.
v. Gratton (1976), 169 Mont. 185,189, 545 P.2d 670, 672.
¶18 "[T]he Daubert test should be used only to determine the admissibility of novel scientific evidence."
Hulse, ¶ 57, reaffirming State v. Cline (1996), 275 Mont. 46, 909 P.2d 1171. The issue in Daubert was
the admissibility of a novel scientific theory that the ingestion of the antinausea drug Bendectin by
pregnant women caused birth defects in their children. See Daubert, 509 U.S. at passim, 113 S. Ct. at
passim, 125 L. Ed. 2d at passim. Justice Blackmun, writing for the majority in Daubert, noted that in
addition to scientific expert testimony, "Rule 702 also applies to 'technical, or other specialized
knowledge.' [The Court's] discussion is limited to the scientific context because that is the nature of the
expertise offered here." Daubert, 509 U.S. at 590 n.8, 113 S. Ct. at 2795 n.8, 125 L. Ed. 2d at 481 n.8.
¶19 The issue in Hulse was the admissibility of opinion testimony from a police officer that a person's
failure of the Horizontal Gaze Nystagmus (HGN) field sobriety test accurately predicted intoxication.
See Hulse, ¶ 43. The defendant argued that the
HGN test was novel scientific evidence to which the Daubert test must be applied. We disagreed that
Daubert applied to the facts in that case. It is equally important to note what was said about Daubert's
application to circumstances such as these. Citing with approval, decisions from other jurisdictions that
involved medical opinion testimony,
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we stated:
Other jurisdictions have similarly held that Daubert is limited to novel scientific evidence. Recently, a
federal district court concluded that "Fed.R.Evid. 702 is still viable and the principles enunciated in
Daubert should be narrowly limited to controversial and novel scientific evidence." Thornton v.
Caterpillar, Inc. (D.S.C. 1997), 951 F.Supp. 575, 578 (holding that mechanical engineer's testimony
concerning design defect and lack of adequate warning fell within technical and specialized knowledge,
"not within the narrowly limited area of unique, untested and novel scientific evidence as enunciated in
Daubert"). See Waitek v. Dalkon Shield Claimants Trust (N.D. Iowa 1996), 934 F.Supp. 1068, 1087-89
n.10 (providing an extensive list of federal courts so holding) (concluding in the case sub judice that
Daubert did not apply to a gynecologist's expert testimony because his opinions "were not based on a
novel scientific test or a unique, controversial methodology or technique; rather, he based his opinions
on his experience and training as both a gynecologist and as a doctor experienced in the use of and
medical problems associated with the Dalkon Shield"). See also Williams v. Hedican (Iowa 1997), 561
N.W.2d 817, 825-27 (concluding, in dicta, that the approach taken in Thornton and other federal courts
restricting Daubert in favor of a conventional Rule 702 analysis was reasonable); Collins v.
Commonwealth (Ky. 1997), 951 S.W.2d 569, 574-75 (concluding that although the court previously
adopted the Daubert analysis, Daubert was not triggered because the doctor's expert testimony
concerned basic female anatomical findings that"did not involve any novel scientific techniques or
theories"); and State v. Hodgson (Minn. 1994), 512 N.W.2d 95, 98 (acknowledging that Minnesota
follows the Frye test and declining to address the impact of Daubert because the issue sub judice
involved the expert testimony of a forensic odontologist concerning bite mark
analysis which was not a novel or emerging type of scientific evidence).
See Hulse, ¶ 58 (emphasis added).
¶20 In this case, Gilkey sought to establish through Dr. Grigsby's testimony the amount of information
an anesthesiologist should provide to his patient in order to obtain the patient's informed consent prior to
performing a procedure to insert a
thoracic spinal epidural catheter. Dr. Grigsby's opinion required the specialized knowledge of a medical
professional. It did not involve novel scientific evidence. Therefore, we conclude that it was not subject
to the Daubert foundational requirements.
¶21 Dr. Schweitzer has argued that there is no scientific evidence that there is an increased risk to the
patient when the catheter is placed during sleep. Gilkey responds that a patient's simple ability to
experience and report pain, if awake, makes the procedure safer while awake and that this common
sense observation does not require scientific support. These arguments go to the weight of Dr. Grigsby's
opinion, rather than to the admissibility of the opinion.
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DARLENE GILKEY,
¶22 [2] We conclude that the District Court abused its discretion when it decided that Dr. Grigsby was
not qualified to testify to the applicable standard of care in this case and that his testimony was not
admissible. We reverse the decision of the
District Court to exclude Dr. Grigsby's testimony.
¶23 The District Court's award of summary judgment was based on its conclusion that without expert
testimony which established a standard of care, Gilkey could not establish the existence of a legal duty
as part of her prima facie case. Because we conclude that the District Court erred when it excluded Dr.
Grigsby's opinion testimony, we reverse the order which granted summary judgment and remand for
proceedings consistent with our decision.
CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, NELSON and GRAY concur.
1. Daubert v. Merrell Dow Pharm. (1993), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469.
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