Kyriss v. State
| Decision Date | 03 October 1985 |
| Docket Number | No. 83-479,83-479 |
| Citation | 42 St.Rep. 1487,707 P.2d 5,218 Mont. 162 |
| Parties | Joann KYRISS, in her capacity as Conservator for Frank Templin, Plaintiff and Respondent, v. STATE of Montana, Defendant and Respondent, and Roger A. Ganfield, M.D. and Leonard M. Benjamin, M.D., Defendants and Appellants. |
| Court | Montana Supreme Court |
James A. Robischon argued, Butte, for defendants and appellants.
Hoyt & Trieweiler, Terry Trieweiler argued, Whitefish, Sharon Morrison, Helena, for Kyriss.
Allen B. Chronister argued, Agency Legal Services, Helena, for State.
This is a medical malpractice case in which the District Court, Third Judicial District, Powell County, based on jury verdict, entered judgment against Drs. Roger A. Ganfield and Leonard M. Benjamin. The doctors appeal.
The principal issue in the case is whether the District Court properly instructed the jury on the issue of causation using the "legal cause" or "substantial factor" instruction instead of the historic "proximate cause" instruction. We determine that the court instructed the jury properly.
The second principal issue is an outgrowth of the first issue, for the doctors contend that there was not sufficient competent evidence of proximate cause to justify a verdict against them. We determine the evidence is sufficient.
Other issues raised by the doctors include their contention that they were employees, not independent contractors, of the State of Montana and thus entitled to be immunized from plaintiff's judgment under section 2-9-305, MCA; and a further issue respecting the jury's possession of highlighted copies of the plaintiff's prison medical record and color photographs of his right leg. We resolve these issues against the doctors also.
Frank Templin is characterized on the prison records as marginally mentally retarded and an alcoholic. He was born in 1922 and finished the 8th grade in ten years. In 1947, he enlisted in the Army from which he received an honorable discharge. He re-enlisted in 1950 and served a tour of duty in the Korean War, and was honorably discharged in 1953 for a second time. In his Korean duty, he suffered frostbite on both of his feet while working as a heavy equipment operator in building roads.
After the service, he worked in saw mills and as a farm laborer. He drank heavily however in the 1970s, was considered an alcoholic and supported himself with welfare.
In 1973, Templin forged a $30 check drawn on a friend's account to purchase wine. After 141 days in the Lincoln County Jail, he entered a plea of guilty of forgery. He had no prior juvenile record and no prior felony conviction, and on March 7, 1974, he received a three-year deferred sentence. One of the conditions of the deferred sentence was that he complete an alcoholic treatment course at Galen, Montana, and report regularly to a parole officer.
Templin completed the treatment at Galen on May 1, 1974, and then requested permission to transfer his supervision to Minnesota, where he hoped to find farm work. He was given permission. Two weeks after his departure from Montana, when he had not reported to his Minnesota supervisor, he was declared a probation violator. A warrant was issued for his arrest, he was returned to the District Court in Lincoln County and there he was sentenced to 10 years imprisonment in the Montana State Prison at Deer Lodge.
His incarceration at the prison was uneventful. He had no conduct problems, was classified as a minimum security risk, did his job assignments, did not need supervision, and was dependable. He was eligible for parole on January 11, 1976 but was apparently denied parole for failure to submit an acceptable work program following parole. Therefore he remained a prisoner at the Montana State Prison, where eventually he sought treatment from Leonard Benjamin, M.D., the prison doctor, for an ingrown toenail on September 7, 1977.
We will set out the history of his medical treatment more in detail when we discuss the sufficiency of the evidence issue. It is enough to say now that following the removal of his toenail, over a course of several weeks, and several visits to the prison nurses, the prison doctors, and stops at the prison infirmary, it was decided that he should be released to the Veterans Administration Hospital in Helena for treatment of what was obviously a gangrenous condition of his right foot. The Veterans Administration Hospital would not accept him unless he was paroled. His parole was effected, he entered the Veterans Administration Hospital, and there the lower portion of his right leg was amputated on December 20, 1977.
During the trial the doctors contended, and they contend on appeal, that Frank Templin was suffering from a pre-existing condition of arteriosclerosis of the blood vessels of the legs, particularly of the right leg, and that it was the arteriosclerosis which brought about the eventual amputation of his right leg.
Templin contended that the doctors were negligent in their medical treatment extended to him. There was also an issue of whether the State of Montana itself had exercised its duty to provide reasonable and ordinary care for the life and health of its prisoner.
The jury was given a special verdict form, which required it to find with respect to each defendant whether that particular defendant was negligent, and whether his or its negligence contributed as a legal cause of injury or damage to the plaintiff. Those questions related to defendants Roger Ganfield, Leonard Benjamin, Francis Bertoglio and the State of Montana. The jury returned a verdict that Roger Ganfield and Leonard Benjamin were negligent, and that their negligence contributed as a legal cause of injury or damage to the plaintiff. The jury found in favor of the defendants Francis Bertoglio and the State of Montana.
With respect to causation, the District Court instructed the jury as follows:
There may be more than one legal cause of an injury. When negligent conduct of two or more persons contributes concurrently as legal causes of an injury, the conduct of each said persons is a legal cause of the injury regardless of the extent to which each contributes to the injury.
A legal cause of an injury is a cause which is a substantial factor in bringing about the injury.
If you find that any negligent medical practice on the part of the Defendants substantially reduced the chances for saving Plaintiff's leg, then such a reduction in chance can be a part of the legal cause as defined in this instruction.
The District Court refused the defendant's offer of a "proximate cause" instruction, which would have instructed the jury that proximate cause is one which in a natural and continuous sequence and unbroken by any new independent cause produces the injury and without which the injury would not have occurred.
The doctors contend that in refusing the proximate cause instruction, and granting one for legal cause, the District Court is establishing a new standard. The doctors rely on our decision in Sztaba v. Great Northern Railway Co. (1966), 147 Mont. 185, 411 P.2d 379, where we said that the test most generally employed in determining causation is the "but for" test. The doctors also point to Detert v. Lake County (Mont.1984), 674 P.2d 1097, where we stated that the plaintiff in a tort case must prove a breach of duty as a proximate cause of the injury, and to Hendrickson v. Neiman (Mont.1983), 665 P.2d 219, where we stated that to hold a party negligent per se for a violation of the statute, the violation must constitute a proximate cause of the injury resulting in damage.
Thus the doctors place squarely before us an issue of grave importance, namely, is this Court so inseparably wedded to the "but for" rule that in tort cases the liability of the defendant must always be found in terms of proximate cause? We answer no.
We reached this issue shortly ago in Rudeck v. Wright, (1985), --- Mont. ---, 709 P.2d 621. There we said in part:
... if two or more causes concur to bring about an event, and any one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred it, or there would be no liability at all.
The "substantial factor" rule was developed primarily for cases in which application of the "but for" rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result ...
In this case, the problem has a slightly different context: the doctors argue that a pre-existing condition of arteriosclerosis caused the result. On that point the doctors seek to escape liability. In Rudeck, we showed that the "but for" rule is one which states that the defendant's conduct is the proximate cause of the event if the event would not have occurred but for that conduct. The inadequacy of the "but for" rule for the purpose of this case should be obvious. Under the "but for" rule, it could be argued, and indeed was argued in the District Court and here on appeal, that the amputation would have occurred in any event, and not only "but for" the negligent treatment by the doctors.
If two causes concur to bring about an injury and either cause would have been sufficient for the result, some test for tort liability other than the "but for" rule is needed. In the case of two such concurring causes, the proximate cause instruction fails because a jury so instructed would face an impossible task: It cannot then find the negligence of one party a cause "without which the injury would not...
To continue reading
Request your trial
-
Busta v. Columbus Hosp. Corp.
... ... He formed the opinion that at the time Delbert attempted to leave the hospital he was suffering from delirium or an acute confusional state caused by the fact that his brain was receiving inadequate oxygen and possibly contributed to by the numerous medications which were being ... Wright (1985), 218 Mont. 41, 709 P.2d 621, and Kyriss v. State (1985), 218 Mont. 162, 707 P.2d 5. We held that when either the "but for" test or the "substantial factor" test was satisfied, a party has ... ...
-
Larson-Murphy v. Steiner, 98-441.
... ... ? 8 Hoskin Road is a two-lane, paved county highway that it is neither a state highway nor a part of the federal-aid primary highway system. The undisputed facts indicate that the road sees fairly significant motor vehicle ... 480, 484-85, 373 P.2d 951, 953 ; Sztaba v. Great Northern Ry. Co. (1966), 147 Mont. 185, 197, 411 P.2d 379, 386, overruled in party by Kyriss v. State (1985), 218 Mont. 162, 707 P.2d 5 ; Hightower v. Alley (1957), 132 Mont. 349, 355, 318 P.2d 243, 247 ; Fulton v. Chouteau County ... ...
- Hamlin Constr. & Dev. Co. v. Mont. Dep't of Transp.
- Covey v. Brishka
-
Incompetent Jail and Prison Doctors
...M., & Donaldson, M. S. (2000). To error is human: Building a safer health system. Washington, DC: National Academy Press. Kyriss v. State, 707 P.2d 5 (Mont. 1985).LeFay v. Coopersmith, 576 A.2d 192 (Me. 1990).Lezin, K. (1996). Life at Lorton: An examination of prisoners’ rights at the Distr......
-
Medical Malpractice in Correctional Facilities: State Tort Remedies for Inappropriate and Inadequate Health Care Administered to Prisoners
...M., & Donaldson, M. S. (2000). To error is human: Building a safer health system. Washington, DC: National Academy Press. Kyriss v. State, 707 P.2d 5 (Mont. LeFay v. Coopersmith, 576 A.2d 192 (Me. 1990). Maeve, M. K. (1997). Nursing practice with incarcerated women: Caring within mandated a......