Baylor v. Jacobson

• Decision Date: 04 August 1976
• Docket Number: No. 13212,13212
• Citation: 33 St.Rep. 662,552 P.2d 55,170 Mont. 234
• Parties: , 99 A.L.R.3d 891 Robin BAYLOR and Sarah J. Baylor, husband and wife, Plaintiffs and Appellants, v. Dr. David P. JACOBSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 55

552 P.2d 55

170 Mont. 234, 99 A.L.R.3d 891

Robin BAYLOR and Sarah J. Baylor, husband and wife Plaintiffs and Appellants, v. Dr. David P. JACOBSON, Defendant and Respondent.

No. 13212.

Supreme Court of Montana.

Submitted May 27, 1976.

Decided July 12, 1976.

Rehearing Denied Aug. 4, 1976.

Moore & Lumpus, James D. Moore (argued), Kalispell, for appellants.

Garlington, Lohn & Robinson, Larry E. Riley (argued), Missoula, for respondent.

HASWELL, Justice.

The district court of Missoula County granted summary judgment to defendant doctor in a medical malpractice action. Plaintiffs appeal.

Plaintiffs are Robin Baylor and Sarah J. Baylor, husband and wife, of Missoula, Montana. On December 13, 1970 Sarah Baylor slipped on the driveway at her home while getting out of her car and fractured her leg. She was taken by ambulance to St. Patrick's Hospital where her injuries were diagnosed as a spiral fracture of the tibia and a comminuted fracture of the fibula of her right leg.

Defendant, Dr. David O. Jacobson, a medical specialist in orthopedic surgery, performed a closed reduction and placed the leg in a cast. Sarah Baylor was confined to the hospital for four days and was seen daily by Dr. Jacobson. Following her release from the hospital, she was seen by Dr. Jacobson at his office on five occasions: December 24, 1970, January 21, 1971, February 18, 1971, March 17, 1971, and May 21, 1971. Her cast was completely removed on March 17, 1971. When Dr. Jacobson last saw Sarah Baylor on May 21, he made the following notation in his records:

'Still with pain about the tibia. No gross movement with manipulation but new x-rays show a remarkable paucity of callus formation considering the five months that have elapsed since her fracture. I would have anticipated further callus formation or some attempt at healing which has not occurred. Will reevaluate in one month and get new films and at that time perhaps manipulate under fluoroscope to determine any motion.'

According to the deposition of Sarah Baylor, Dr. Jacobson told her at this time that her leg was completely healed; that further treatment was unnecessary; to quit babying herself and ignore the pain; that she might even jump up and down on her leg; and did not advise her that the bone in her leg was slow in healing; that there was some question about nonunion; or anything along that line.

Sarah Baylor was scheduled to see Dr. Jacobson again in a month but she never returned. According to her deposition and that of her husband she did not return because she did not feel Dr. Jacobson could do anything further for her and that all he would do was send her to physical therapy. Instead she exercised the leg by walking back and forth across the floor at home with the help of her husband.

In any event, Sarah Baylor eventually consulted Dr. Clinton Craig, an orthopedic surgeon in Missoula, who took X-rays and told her that her leg had never healed and advised her to have surgery. A month or two later she consulted Dr. Paul Melvin, an orthopedic surgeon in Great Falls who X-rayed her leg, told her there was a nonunion and that she needed surgery. She next went to Dr. William J. McDonald, a Missoula orthopedic surgeon to get another opinion. He X-rayed her leg, told her she needed surgery, and referred her to Dr. Carlo Z. Biscaro, a Missoula orthopedic surgeon. The dates of these consultations are uncertain.

Dr. Biscaro performed a bone graft in March, 1973 at the Community Hospital in Missoula. In the late summer of 1973 Dr. Biscaro advised that the fracture had not healed and that further surgery was necessary. In November, 1973 Dr. Biscaro performed a bone graft, and inserted a metal screw and a Rush rod. By August, 1974 when Sarah Baylor's deposition was taken, the healing of the leg looked good although she was still scheduled for periodic visits to Dr. Biscaro and his associate.

The Baylors filed suit against Dr. Jacobson on April 2, 1974 alleging medical malpractice and seeking damages of $184,000. Defendant filed an answer which was substantially a general denial on July 11. This was subsequently amended to include the defense of contributory negligence. Interrogatories and answers were filed, depositions were taken, supplemental answers were filed, and a pretrial conference was held.

When plaintiffs failed to provide the name of their expert witness and answer defendant's interrogatories concerning this expert by April 11, 1975 as agreed, the district court granted defendant's motion and dismissed the entire litigation. This was subsequently vacated and the court granted plaintiffs until August 1, 1975 to name their expert and answer defendant's previous interrogatories concerning him. On July 29, 1975 plaintiffs stated they had an expert and answered further as follows:

'Dr. Biscaro's deposition will be taken on July 31, 1975. He may be the only expert. If his testimony does not relate the negligence to plaintiff's condition, an expert will be retained and the background information sought herein immediately furnished.'

The other interrogatories were answered 'Not applicable'.

Defendant moved for summary judgment. It was briefed by both defendant and plaintiffs, and orally argued. On September 30, 1975 the district court granted defendant a summary judgment. The order granting summary judgment is set forth in full:

'Larry E. Riley, Esq., counsel for the Defendant in this action, Dr. David P. Jacobson, has filed a Motion For Summary Judgment and has based his motion upon the documents in the court file, including depositions and Answers to Interrogatories.

'This action is a malpractice action. The facts show that the Plaintiff, Sarah J. Baylor, sustained a fracture of the right leg. She was treated by the Defendant, and after about five and one-half months refused to return for an appointment with Dr. Jacobson. The condition of Plaintiff's leg was such that surgical treatment was required about twenty-six months after the accident.

'The Plaintiffs designated Carlo Z. Biscaro, M.D., as the expert medical witness to be called on behalf of the Plaintiffs at time of trial. Dr. Biscaro's deposition was taken and he repeatedly stated that in his opinion there was proper care and treatment of Sarah J. Baylor by Dr. Jacobson.

'The Court finds that Sarah J. Baylor's refusal to continue medical treatment is a proximate cause of her subsequent problems with her leg.

'The Court further finds that the Plaintiffs' expert medical witness has not testified to any conduct on the part of Dr. David P. jacobson which can be termed medical malpractice. Therefore,

'IT IS HEREBY ORDERED that the Defendant's Motion For Summary Judgment be granted without costs to any party.'

On October 1 plaintiffs filed amended answers to defendant's interrogatories, identifying a New York doctor, Dr. Robert Tuby, as their expert witness and answering the other interrogatories. Plaintiffs' answer to interrogatory No. 12 sets forth the substance of Dr. Tuby's testimony:

'Dr. Tuby will testify that it was a deviation from acceptable medical practice to remove the cast at the time it was removed and to prescribe exercise therapy when there was practically no callus formation about the fracture site. He will further state that it was a deviation from acceptable medical practice to tell the patient that the injury was healed when it was not healed as shown by the X-ray films. Dr. Tuby will state that the exercise therapy and removal of the cast caused the lack of union, subsequent development of a bone necrosis, the subsequent surgical procedures, and the result which has (been) obtained.'

Plaintiffs filed their notice of appeal from the summary judgment against them on October 10, 1975.

The ultimate issue on appeal is whether summary judgment for defendant was properly granted. This turns on two underlying issues.

(1) Is there sufficient expert testimony to raise a genuine issue of malpractice?

(2) Is there a genuine issue of material fact concerning contributory negligence on the part of Sarah Baylor?

As background for our analysis of the issues, we note several basic rules of law applicable to medical malpractice actions. The gist of a malpractice action is negligence on the part of defendant. Negaard v. Feda,152 Mont. 47, 446 P.2d 436, and cases cited therein. The mere fact of injury or the occurrence of a bad result, standing alone, is no proof of negligence in the ordinary malpractice action. Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487. The law does not require that for every injury there must be a recovery of damages, but only imposes liability for a breach of legal duty by a doctor proximately causing injury to the patient. Loudon v. Scott,supra.

The legal duty imposed on a doctor has been described by this Court in the following language:

'* * * The law requires a physician or surgeon to possess the skill and learning which is possessed by the average member of the medical profession in good standing, and to apply such skill and learning with ordinary and reasonable care. He is not an insurer, nor is a good result impliedly guaranteed. His obligation is merely to exercise such reasonable care and skill in the treatment of the patient as is usually exercised by physicians or surgeons of good standing, of the same school of practice in the community in which he resides, with due regard to the condition to the patient and the progress of medical or surgical science at the time. * * *' Dunn v. Beck, 80 Mont. 414, 421, 260 P. 1047, 1049.

The legal duty or standard of care imposed upon a medical specialist, such as the orthopedic surgeon in this case, is set forth in the following passage in 21 A.L.R.3d 953:

'* * * the general proposition that a physician or surgeon who holds himself out as having special knowledge and skill in the treatment of some particular organ or disease must exercise, in his treatment of one who employs him as a specialist, that...