Campbell v. Canty

Decision Date12 November 1998
Docket NumberNo. 98-133,98-133
Parties, 1998 MT 278 Kathe CAMPBELL and Ken Campbell, Plaintiffs and Appellants, v. C.R. CANTY, M.D., Defendant and Respondent.
CourtMontana Supreme Court

Rehearing Denied Dec. 17, 1998.

Michael J. Milodragovich, Milodragovich, Dale, Steinbrenner & Binney, Missoula, for Appellants.

E. Craig Daue, Garlington, Lohn & Robinson, Missoula, for Respondent.

NELSON, Justice.

¶1 Kathe Campbell (Kathe) was initially treated by Dr. Charles R. Canty(Dr. Canty) after she was severely bitten by a donkey. Kathe and her husband, Ken, (collectively referred to as "the Campbells") filed a complaint against Dr. Canty alleging negligence in his care and treatment of Kathe. Trial was held in the District Court for the Second Judicial District, Silver Bow County, wherein the jury found that although Dr. Canty was negligent in his care of Kathe, Dr. Canty's negligence did not cause injury to Kathe. We affirm.

¶2 The Campbells raise the following issues on appeal:

¶3 1. Whether the evidence at trial established that Dr. Canty's negligence subjected Kathe to an increased risk of harm and lessened her chances for a better result thereby causing damage to Kathe.

¶4 2. Whether the District Court erred in denying the Campbells' motion to alter or amend the judgment and for a new trial.

Factual And Procedural Background

¶5 The Campbells own and operate a small ranch outside Butte. On May 30, 1993, Ken Campbell (Ken) had just returned home from the hospital after major surgery, thus Kathe set out on her own to attend to the ranch chores. When she attempted to repair a fence where one of their donkeys was corralled, the animal attacked her. The donkey knocked Kathe to the ground and pinned her there with the weight of his body. Her left arm was trapped beneath her, but her right arm was exposed. The donkey savagely and repeatedly bit Kathe on her right forearm before she was able to free her left arm and fend him off. Kathe managed to make it to the door of their house where Ken found her and called an ambulance.

¶6 Kathe was taken to St. James Community Hospital in Butte. The donkey's bites had crushed the bones in Kathe's forearm and had caused shearing, crushing and tearing of the skin, muscles, veins and nerves in her arm. Extensive amounts of tissue, muscle and nerves were destroyed by the bites.

¶7 Dr. Canty was the orthopedic surgeon on call when Kathe was brought to the hospital. After treatment by emergency room personnel to stabilize her vital signs, Kathe was transferred to Dr. Canty's care. Dr. Canty, after examining the injury, informed Kathe and her family that there was a possibility that amputation would be necessary. Kathe asked Dr. Canty to save her arm.

¶8 In the initial surgery, Dr. Canty inserted a metal rod into the large bone in Kathe's forearm. He cleaned the wound removing dead or dying tissue and muscle along with debris deposited in the wound from the donkey's mouth. Dr. Canty noted that the ulnar artery in Kathe's arm was injured and bruised, but the radial artery, although also bruised, was intact. He traced the radial artery to make sure that blood was flowing through the site of the injury and beyond.

¶9 In a second surgery approximately 68 hours later, Dr. Canty again cleaned the wound and removed more dead and dying tissue and muscle. He noted at that time that the ulnar artery was still bruised and, while it was pulsing a little, it was not acting as a major circulatory link to the hand. He also noted that the radial artery was still functioning and that there was a pulse through the site of the injury leading him to believe that blood was still flowing through the injured forearm to the hand.

¶10 Kathe's family became dissatisfied with Dr. Canty's treatment of Kathe as they began to realize that the condition of Kathe's hand was slowly deteriorating. Hence, they took Kathe to Billings to be cared for by Dr. Curtis Settergren. Dr. Settergren is a board certified orthopedic surgeon with an additional qualification in hand surgery. He performed a number of surgeries on Kathe including a vein graft to bypass the injured artery and to allow blood to flow past the injured portion of the arm to the hand. While Kathe's fingers initially responded to the increased blood flow from the bypass, the tissue in her fingers and hand began to die resulting in the amputation of Kathe's arm below the elbow.

¶11 On June 12, 1995, the Campbells filed a complaint against Dr. Canty and St. James Community Hospital alleging that Dr. Canty was negligent in his care and treatment of Kathe. In their complaint, the Campbells alleged that Dr. Canty was negligent in failing to recognize the occlusion of the radial artery; failing to conduct or order objective testing of the blood flow to and from Kathe's hand; and failing to consult with a vascular surgeon about performing a vein graft to bypass the injured portion of Kathe's arm to allow blood to flow to Kathe's hand which still had some viability. The Campbells also alleged that St. James Community Hospital was negligent in failing to independently monitor the adequacy of the care Kathe received. The hospital was subsequently dismissed from the suit with prejudice.

¶12 The case was tried to a jury on October 20 through 24, 1997. The jury was instructed to consider whether Dr. Canty was negligent in his care of Kathe and, if so, whether Dr. Canty's negligence caused an increased risk of harm to Kathe and/or reduced her chance for obtaining a better result. The jury found Dr. Canty negligent (without specifying what particular aspect of his care was negligent), however, they found that Dr. Canty's negligence did not cause Kathe to suffer injury.

¶13 On November 13, 1997, the Campbells filed a "Motion to Alter or Amend Judgment Regarding Issue of Causation and for Partial New Trial Regarding Issue of Damages." In that motion, the Campbells requested that the District Court enter an order notwithstanding the verdict that Dr. Canty's negligence had caused the Campbells to suffer damages. The Campbells also requested that the District Court order a partial new trial limited solely to the issue of damages sustained by the Campbells.

¶14 The District Court issued its order denying the Campbells' motion on January 8, 1998. The court concluded that it was within the province of the jury to find negligence but no causation of damages from that negligence. The Campbells appealed contending that the uncontroverted evidence at trial established that Dr. Canty's negligence caused Kathe damages because his negligence subjected her to an increased risk of harm and as a result she lost a chance for a better result.

Issue 1.

¶15 Whether the evidence at trial established that Dr. Canty's negligence subjected Kathe to an increased risk of harm and lessened her chances for a better result thereby causing damage to Kathe.

¶16 The jury rendered a verdict that Dr. Canty was negligent in his care of Kathe but that this negligence did not cause injury to Kathe. The Campbells argue on appeal that the jury impermissibly disregarded uncontroverted, credible evidence that Dr. Canty breached his duty of care to Kathe causing compensable injury. The Campbells contend that the jury failed to follow the instructed law of the case and rendered a verdict that was not in accord with the evidence presented, thereby rendering a verdict that was contrary to law.

¶17 In reviewing a jury verdict, we do not decide whether the verdict was correct or whether the jury made the right decision. Wise v. Ford Motor Co. (1997), 284 Mont. 336, 343, 943 P.2d 1310, 1314. We only review whether there is substantial credible evidence in the record to support the jury's verdict. Wise, 284 Mont. at 343, 943 P.2d at 1314. See also C. Haydon Ltd. v. MT Min. Properties, Inc. (1997), 286 Mont. 138, 151, 951 P.2d 46, 54; Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 422, 913 P.2d 641, 646; Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976; Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 295, 951 P.2d 1326, 1334.

¶18 We have previously stated that substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion. Haydon, 286 Mont. at 151, 951 P.2d at 54 (citing Baird v. Norwest Bank(1992), 255 Mont. 317, 323, 843 P.2d 327, 331). Moreover, substantial evidence consists of more than a mere scintilla of evidence, but may be less than a preponderance of evidence, and, although it may be based on weak and conflicting evidence, in order to rise to the level of substantial evidence, it must be greater than trifling or frivolous. Haydon, 286 Mont. at 151, 951 P.2d at 54.

¶19 An attack upon a jury verdict as not supported by the evidence is proper only when there is a complete absence of any credible evidence in support of the verdict. All evidence and all inferences drawn therefrom must be considered in a light most favorable to the adverse party. Haydon, 286 Mont. at 151, 951 P.2d at 54 (citing Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051, 1053). Furthermore, if conflicting evidence exists, the credibility and weight given to the evidence is in the jury's province and we will not disturb the jury's findings unless they are inherently impossible to believe. Wise, 284 Mont. at 339, 943 P.2d at 1312 (citing Okland v. Wolf (1993), 258 Mont. 35, 39, 850 P.2d 302, 305; Silvis through Silvis v. Hobbs (1992), 251 Mont. 407, 411-12, 824 P.2d 1013, 1015-16).

¶20 The Campbells argue that the evidence on causation was uncontroverted. They assert that their expert witness, Dr. Kenneth Wilson, a board-certified orthopedic surgeon with an added qualification in hand surgery, firmly established that Dr. Canty's negligence in failing to perform a bypass, or in failing to contact a vascular surgeon to perform a bypass, lessened Kathe's chances of...

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