Butler v. Domin

Citation2000 MT 312,15 P.3d 1189
Decision Date07 December 2000
Docket NumberNo. 99-455.,99-455.
PartiesDavid BUTLER, Plaintiff and Appellant, v. David J. DOMIN, M.D., d/b/a, David J. Domin, M.D., P.C.; Donald Ehrlich, M.D.; and St. Patrick Hospital; and Does I-IV, Defendants and Respondents.
CourtMontana Supreme Court

John E. Seidlitz, Jr., Seidlitz Law Office, Great Falls, MT, James P. O'Brien, O'Brien Law Offices, Missoula, MT, For Appellant.

Jeremy G. Thane, Worden, Thane & Haynes, P.C., Anita Harper Poe, Garlington, Lohn & Robinson, PLLP, Missoula, MT, Dana L. Christensen, Christensen, Moore, Cockrell & Cummings, P.C., Kalispell, MT, For Respondents.

Justice JIM REGNIER delivered the opinion of the Court.

¶ 1 David Butler appeals from the Opinion and Order entered by the Fourth Judicial District Court, Missoula County, granting summary judgment in favor of the Defendants. We affirm in part, reverse in part, and remand.

¶ 2 Butler's appeal raises the following issues:

¶ 3 1. Whether the District Court erred when it excluded expert testimony on the basis that it did not meet the standard of admissibility?

¶ 4 2. Whether the District Court erred when it granted summary judgment in favor of Drs. Ehrlich and Domin?

¶ 5 3. Whether the District Court erred when it concluded that the doctrine of res ipsa loquitur was not applicable?

¶ 6 4. Whether the District Court erred when it granted summary judgment in favor of St. Patrick Hospital?

BACKGROUND

¶ 7 David Butler was examined by Dr. Pat Frankl on November 4, 1992, for severe low back pain. Dr. Frankl referred Butler to Dr. Douglas Woolley in Missoula, Montana, for a same-day appointment due to the suddenness and severity of the pain. Based upon the findings of his examination, Dr. Woolley ordered an injection of a local anesthetic and steroid medication into the epidural space of Butler's spine, near the symptomatic area, to be performed at St. Patrick Hospital. On November 5, 1992, Butler reported to St. Patrick Hospital. Dr. Donald Ehrlich, an anesthesiologist, administered an injection in Butler's back at the L4-5 epidural space. On November 30, 1992, Butler was admitted to St. Patrick Hospital for a second epidural steroid injection. Dr. David J. Domin, also an anesthesiologist, administered this injection at Butler's L3-4 epidural space.

¶ 8 A biopsy of the disc space performed in February 1993 revealed the presence of Propionibacterium acnes (hereinafter "P. acnes"). Dr. Woolley referred Butler to Dr. L.F. Whitney, an infectious disease specialist. Following an examination and review of Butler's records and test results, Dr. Whitney diagnosed Butler as suffering from probable diskitis, an infection of the disc at the L5-S1 disc space, and osteomyelitis, an infection of the adjacent the L5 vertebral body.

¶ 9 On October 3, 1996, Butler filed a medical malpractice action against Dr. Ehrlich, Dr. Domin, and St. Patrick Hospital alleging that each of the Defendants was negligent in breaching the standard of care and causing his infection by failing to provide a sterile field prior to performing the epidural steroid injections. After a period of discovery conducted by the parties, each of the Defendants filed motions for summary judgment. Following a hearing on the motions, the District Court issued an Opinion and Order awarding summary judgment in favor of the Defendants. Butler appeals.

ISSUE ONE

¶ 10 Whether the District Court erred when it excluded expert testimony on the basis that it did not meet the standard of admissibility?

¶ 11 The District Court concluded that the testimony of Butler's medical expert, Dr. Paul Blaylock, did not meet the necessary standard of admissibility because "while Dr. Blaylock opined that the epidural injections were more likely to have caused the infection than a blood-borne cause, he was unable to say that one epidural injection was more likely than not to have caused Plaintiff's infection."

¶ 12 Butler contends that Dr. Blaylock testified that the epidural injection performed by Dr. Ehrlich more likely than not caused his infection. Drs. Domin and Ehrlich contend that Dr. Blaylock was unable to say which epidural steroid injection more likely than not caused Butler's infection. They claim that the District Court properly excluded Dr. Blaylock's testimony on the basis that it did not meet the minimum standard of reliability required for such testimony to be presented to a jury.

¶ 13 A district court's decision to exclude expert testimony is a discretionary ruling which we review to determine whether the trial court abused its discretion. Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, ¶ 71, 297 Mont. 33, ¶ 71, 991 P.2d 915, ¶ 71. Rule 702, M.R.Evid., provides that "[i]f 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." In Dallas v. Burlington Northern, Inc. (1984), 212 Mont. 514, 689 P.2d 273, we clarified the evidentiary standard required for the admissibility of medical opinions. We stated that a medical expert's opinion is admissible if it is based on an opinion that it is "more likely than not." Dallas, 212 Mont. at 523, 689 P.2d at 277.

¶ 14 Dr. Blaylock's testimony certainly cannot be touted as a model of clarity. We appreciate the frustration of the District Court in trying to sort out exactly what Dr. Blaylock was trying to say. No doubt Dr. Blaylock was attempting to perform the impossible task of including both Drs. Domin and Ehrlich as culpable parties by his testimony, however, the upshot was a confusing presentation. After carefully examining Dr. Blaylock's deposition, however, we reach the following conclusions with respect to the District Court's order.

¶ 15 The District Court did not abuse its discretion by excluding Dr. Blaylock's testimony with regard to whether Dr. Domin's injection caused Butler's infection. Dr. Blaylock's testimony regarding Dr. Domin does not meet the "more likely than not" standard. To summarize, Dr. Blaylock testified in his deposition that the epidural injections more likely than not caused Butler's infection. With regard to Dr. Domin's conduct, however, Dr. Blaylock testified that his injection "could have" caused Butler's infection. Could have indicates that it is possible that Dr. Domin's injection caused Butler's infection. Could have does not indicate that it was "more likely than not."

¶ 16 After scrutinizing the deposition, however, we conclude that the District Court abused its discretion in excluding the testimony of Dr. Blaylock with regard to whether Dr. Ehrlich's injection caused Butler's infection. Dr. Blaylock testified as follows:

A. [Blaylock] We have got two anesthesiologist[s] who equally could have caused this infection because of the circumstances, the location, and the time, and all of the other facts in this case and the organism pointing to the cause.
If I had to cho[o]se between one or the other-as I answered it very specifically-purely based on the location of the needle and not based on really anything else, other than the location of the needle and Dr. Ehrlich's testimony that he spent less than the [sic] minute in prepping the back, in my opinion it's more probable than not that his injection was the more likely cause of this seeding.
Q. [Counsel for Dr. Domin] Okay. And I expect that you understand this, but let me just clarify it a little more. In Montana the standard for giving an expert opinion in a medical malpractice case of a medical opinion is more probable than not, which is greater than 50 percent. Is it your opinion that it is more probable that [sic] not that Dr. Ehrlich's epidural steroid injection caused this infection?
A. Yes.

¶ 17 Dr. Blaylock testified that in his opinion Dr. Ehrlich's injection more likely than not caused Butler's infection and he testified as to the basis for his opinion. Although Dr. Blaylock attempted to implicate both doctors by stating that they both "could have" caused the infection, he limited his testimony by stating that it was "more probable than not" that Dr. Ehrlich's injection caused Butler's infection. This testimony should have been admitted.

ISSUE TWO

¶ 18 Whether the District Court erred when it granted summary judgment in favor of Drs. Ehrlich and Domin?

¶ 19 Our standard of review in appeals from summary judgment rulings is de novo. Motarie v. Northern Mont. Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶ 20 In a summary judgment proceeding, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences will be drawn in favor of the party opposing summary judgment. Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 22, 297 Mont. 336, ¶ 22, 993 P.2d 11, ¶ 22. Consequently, we will view the evidence in the light most favorable to Butler and draw all reasonable inferences in his favor.

¶ 21 In order to survive a motion for summary judgment in a negligence action, a...

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