Chapel v. Allison

• Decision Date: 12 January 1990
• Docket Number: No. 88-550,88-550
• Citation: 241 Mont. 83,785 P.2d 204
• Parties: Lawrence A. CHAPEL, Plaintiff and Appellant, v. James G. ALLISON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 204

785 P.2d 204

241 Mont. 83

Lawrence A. CHAPEL, Plaintiff and Appellant, v. James G. ALLISON, Defendant and Respondent.

No. 88-550.

Supreme Court of Montana.

Submitted Oct. 17, 1989.

Decided Jan. 12, 1990.

Monte Beck, argued, Larry W. Moran, Bozeman, for plaintiff and appellant.

Gary L. Walton, argued, and John Davis, Poore, Roth & Robinson, Butte, for defendant and respondent.

W. William Leaphart, argued, Mt. Trial Lawyers' Assoc., R. Stephen Browning, Browning, Kaleczyc, Berry & Hoven, Mt. Hosp. Assoc., Helena, Gerald J. Neely, Mt. Medical Assoc., Billings, for amicus curiae.

SHEEHY, Justice.

Lawrence A. Chapel sued Dr. James G. Allison for malpractice in the District Court, Sixth Judicial District, Park County. At the close of Chapel's case in chief, before a jury, the District Court granted Dr. Allison's motion for a directed verdict on the basis that Chapel failed to present sufficient evidence to meet his burden of proof. Chapel appeals the judgment in directed verdict to this Court. We reverse and remand for a new trial under the conditions hereafter set forth.

The sole issue upon which we base our reversal is that the District Court erred by granting Dr. Allison's motion for a directed verdict.

Chapel was injured when he was kicked by a horse on February 18, 1983. He was taken to the emergency room at Livingston Memorial Hospital where he was treated by Dr. James G. Allison. The doctor diagnosed the fracture as "comminuted undisplaced fracture of the infra condylar region of the left tibia" after viewing X-rays. There was an open wound proximal to the tibia. He applied a long leg cast extending from Chapel's mid-thigh down to and including his foot.

Chapel was released from the hospital on February 21, 1983. He was readmitted on February 25, 1983 for treatment of a blood clot which had lodged in his lung. By stipulation of counsel this case does not involve any allegation of negligence of Dr. Allison because of the blood clot.

The cast was removed May 2, 1983. Chapel's leg exhibited a varus deformity (bow-leggedness) which required surgery, a procedure called an "osteotomy," to straighten the bowed leg. This surgery was performed September 19, 1984 in Billings, Montana, at St. Vincent Hospital by Dr. Richard Snider who removed a piece of bone from Chapel's leg.

I.

Dr. Allison practices in Livingston, Montana, as a licensed non-board-certified general practice physician (thus legally entitled to treat Chapel's injuries). He treated Chapel at the emergency room of Livingston Memorial Hospital and did not refer Chapel to an orthopedic specialist.

Chapel had been a patient of Dr. Allison's for nearly 20 years, the doctor treating ailments from common illnesses up to and including sprains, fractures, and an initial treatment for a ruptured disc.

Chapel's injury was of the kind which would fall within the area of practice of an orthopedic surgeon. It would also fall within the area of practice of a properly qualified general practitioner who possessed the requisite degree of knowledge and skill for treating his patient, but a general practitioner is not trained, excluding experience, at a level a board-certified orthopedic surgeon would be trained. Dr. Allison did not hold himself out to Chapel to be anything other than a general practitioner when he undertook the treatment of Chapel. Dr. Allison claimed during the litigation that he possessed the requisite degree of knowledge for treating Chapel because of his 24 years of practice in which he had treated 1,000 fractures, 50 of which involved the tibia and 15 of which involved the tibial plateau, and one instance of the same injury, but without the wound overlying the fracture site.

The expert testimony produced by the plaintiff Chapel came from an orthopedic surgeon from Denman, Massachusetts, Dr. Stephen Sand, board-certified in the speciality of orthopedic surgery. His testimony was as follows:

Q. Based upon what you have learned by reviewing all of the documents that we mentioned, have you been able to form a reasonable judgment on what the standards of care are in the Livingston-Bozeman area in Montana for the care and treatment of an injury such as was sustained by Mr. Chapel by a general practitioner?

. . . . .

A. My opinion, based on the review of the information that you have stated, and my contact with a general practitioner in the area, is that a general practitioner would not, under ordinary circumstances, handle this type of case or injury.

After testimony was admitted, the court allowed extensive voir dire examination by opposing counsel of Dr. Sand and upheld the propriety of his opinion over objection.

At the close of Chapel's case in chief, counsel for Dr. Allison moved for a directed verdict on the issue of liability, contending that Chapel had failed to sustain his burden by a preponderance of the evidence that any problems with his leg resulted from the negligence of Dr. Allison. The court granted the motion for a directed verdict.

Later, in dismissing the jury, the District Court stated reasons for the directed verdict. The District Court said that proof of the competency of Dr. Sand to testify in the matter was "very shaky;" that the plaintiff did not call Dr. Kurtz, a Bozeman doctor, upon whom Dr. Sand had relied for information as to the area of practice for a general practitioner; that Dr. Allison had testified that in his opinion Chapel was bow-legged before the accident and despite the leg injury and disc surgery the same year, that Chapel was able to go elk hunting in the mountains for a two-week period; that the other doctors whose testimony appeared in the case have all in effect said that there was no fault [which came from depositions not used at the trial]; that the reports of the radiologist showed no displacement of Chapel's bones in the X-rays; that the plaintiff had failed to rebut Dr. Allison's testimony that plates, screws and bolts should not be used in an open fracture treatment because of possible risk of infection, or Dr. Allison's testimony that it would be improper to insert a needle or orthoscopic instrument in Chapel's knee; or that general anesthesia was not used and should not be used; that Dr. Allison further testified that further manipulation of the bones might have done more possible harm than good, and other elements of the testimony. In effect, the District Court weighed the testimony as opposed to the evidence of Dr. Sand that "a general practitioner would not under ordinary circumstances handle this type of case or injury."

This court stated in Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 721 P.2d 303, 317, the following:

A motion for directed verdict is properly granted only in the complete absence of any evidence to warrant submission to the jury, and all inferences of fact must be considered in the light most favorable to the opposing party. Jacques v. Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319; if the evidence viewed in a light most favorable to plaintiff indicates reasonable men might differ as to the conclusions drawn from the evidence, a directed verdict is not proper. Weber v. Blue Cross of Montana (1982), 196 Mont. 454, 643 P.2d 198.

Chapel himself testified that it was obvious to him that his leg was crooked as it was cast, that it caused him a good deal of pain about which he complained to the doctor and about which the doctor did nothing. Mrs. Chapel also testified that she was concerned about her husband and informed Dr. Allison that she wanted her husband to receive the best possible medical attention and to let her know if the doctor could not handle the case. Chapel inquired of the doctor whether his leg would remain in the shape that it was cast.

The findings relied on by the District Court in this case show that it weighed the plaintiff's evidence, ultimately finding in favor of the defendant. The power of weighing the evidence belongs to the jury. Therefore, on the basis that the District Court improperly granted a directed verdict, we reverse and remand the cause for further proceedings in accordance with this opinion.

II.

During pretrial procedures before the District Court, the plaintiff made a motion in limine that the "same locality rule" (infra) was not applicable in this case. The court denied the motion, saying:

The court specifically determines that the rule applicable in this case is that Dr. Allison will be held to the standard of care in February 1983 of a licensed general practitioner, who is not board certified, in the same or similar communities within Montana. Provided, however, experts from elsewhere and in other specialties will be considered competent to testify if they are medically qualified and if they are in fact familiar with the standards for a general practitioner in Livingston or similar communities in Montana at the time in question.

The order of the court correctly reflected the status of the law in Montana relating to the standard of care applicable to general practitioners.

Formerly, the standard of care required of a physician or surgeon in treating a patient was to exercise as reasonable care and skill which "is usually exercised by physicians or surgeons of good standing of the same system or school of practice in the community in which he resides, having due regard to the condition of medical or surgical science at that time." Hansen v. Pock (1920), 57 Mont. 51, 59, 187 P. 282, 285. The "same locality rule" restricted the geographical area from which the degree of care exercised by a physician or surgeon could be determined to the community in which the doctor resided.

In Tallbull v. Whitney (1977), 172 Mont. 326, 564 P.2d 162, this Court examined the "same locality rule" and determined that the foundation for it no longer existed. The reasons given were that the accessibility of medical literature, the frequency and availability of national, regional and state medical...