Clark v. Norris

• Decision Date: 14 April 1987
• Docket Number: No. 86-30,86-30
• Citation: 44 St.Rep. 444,734 P.2d 182,226 Mont. 43
• Parties: Valorie CLARK, Plaintiff and Appellant, v. Tom E. NORRIS, M.D., Defendant and Respondent.
• Court: Montana Supreme Court

Page 182

734 P.2d 182

226 Mont. 43

Valorie CLARK, Plaintiff and Appellant, v. Tom E. NORRIS, M.D., Defendant and Respondent.

No. 86-30.

Supreme Court of Montana.

Submitted Nov. 25, 1986.

Decided March 10, 1987.

Rehearing Denied April 14, 1987.

John W. Mahan argued, Helena, Overfelt Law Firm; Lee Overfelt argued, Billings, for plaintiff and appellant.

Boone, Karlberg & Haddon; Randy Cox argued and Sam Haddon argued, Missoula, for defendant and respondent.

HARRISON, Justice.

This case was tried to a jury in the First Judicial District in and for Lewis and Clark County, Montana. The defendant doctor was found not negligent and the plaintiff patient appeals. We affirm.

Appellant, Valorie Clark, charged defendant, Dr. Tom Norris, with medical negligence due to the perforation of her uterus during the course of a surgical procedure known as a dilation and curettage (D & C), which also resulted in damage to her small intestine. At the time of the incident, December 5, 1979, Clark was a twenty-eight year old mother of two. About six weeks after she was diagnosed as pregnant, the doctor determined the fetus was no longer alive and D & C was necessary to remove the deteriorating tissue from the uterus. This procedure is considered minor and patients are handled as out-patients. As with any surgical procedure, however, there are certain inherent risks. Perforation of the uterus is a risk of this particular procedure. The risks associated with not doing a D & C are continued bleeding, infection, and severe psychological problems.

During the procedure in this case, Norris observed a loop of bowel in the curette and immediately discontinued the curettage. He realized the uterine wall had been perforated and immediately called Dr. Johnson, a general surgeon. The two doctors performed an exploratory laparotomy to examine the small intestine and to repair any areas of damage. While the abdomen was open all remaining degenerated fetal material was removed, and the opening in the uterine wall was repaired. Clark's recovery was routine. Resection of a portion of the small bowel causes her to have chronic diarrhea which is controlled by medication.

Appellant claims she did not receive a fair trial because of numerous errors made by the District Court. She argues the court should have given her res ipsa loquitur instructions, should have admitted certain evidence, should have taken judicial notice of a so called "conspiracy of silence" among doctors, should not have allowed the defendant, when called as an adverse witness, to be treated as an expert witness, and should not have commented on evidence crucial to one of her theories of liability.

When a jury verdict is appealed to this Court our function is to determine whether there is substantial credible evidence to support the verdict. Holenstein v. Andrews (1975), 166 Mont. 60, 64, 530 P.2d 476, 478. We have repeatedly noted:

The standard of review is substantial evidence. If substantial evidence supports the case of the prevailing party the verdict will stand. The evidence will be viewed in a light most favorable to the party that prevailed at trial and, if the evidence conflicts, the credibility and weight given to the evidence is the province of the jury and not this Court.

Mountain West Farm Bureau Mutual Ins. v. Girton (Mont.1985), 697 P.2d 1362, 1363, 42 St.Rep. 500, 501.

Clark claims two res ipsa loquitur instructions should have been given the jury.

Plaintiff's [Clark's] Proposed Instruction No. 12:

If you find from the evidence that the Defendant physician caused injury to the part of the patient's body not directly involved in treatment he was administering, and that part was a healthy part in a remote place from the field of operation, these facts permit you to infer, even without any expert testimony, that the Defendant was negligent.

Plaintiff's [Clark's] Proposed Instruction No. 13:

In order to find for the Plaintiff in this case, you must determine from the evidence whether the Defendant has deviated from those standards of skill and care as to which you have been instructed.

Should you find that he has so deviated in treating Valorie Clark by causing injury to organs other than those being treated, and that this negligence was the cause of the injuries complained of by Valorie Clark, you may find in favor of Valorie Clark.

The proposed instructions misstate the law. While the doctrine of res ipsa loquitur permits proof of what happened to be made by circumstantial evidence, plaintiff, nonetheless, must make a prima facie case that defendant breached a duty of care before the question goes to the jury. Subject to certain exceptions, there must be expert testimony to establish negligence in a malpractice action. Collins v. Itoh (1972), 160 Mont. 461, 470, 503 P.2d 36, 41. The mere happening of an accident, in itself, is not evidence of negligence in the ordinary negligence action. Nor is the mere fact of injury or the occurrence of a bad result, standing alone. 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 defendant, proximately causing injury to the plaintiff. Negaard v. Estate of Feda (1968), 152 Mont. 47, 52, 446 P.2d 436, 439-440. Thus the instructions were properly refused.

We emphasize application of the doctrine of res ipsa loquitur does not permit the jury to presume negligence of the defendant, thus shifting the burden from plaintiff. We point out that use of the terms "inference" and "presumption" interchangeably results in confusion as to their legal significance. If res ipsa loquitur is applicable in a medical malpractice case, there is no presumption of negligence.

The doctrine of res ipsa loquitur, set out in Whitney v. Northwest Greyhound Lines, Inc. (1952), 125 Mont. 528, 533, 242 P.2d 257, 259, has been quoted extensively by this Court:

[W]hen an instrumentality which causes injury without any fault of the injured person, is under the exclusive control of the defendant at the time of the injury, and the injury is such as in the ordinary course of things does not occur if one having such control uses proper care, then the law infers negligence on the part of the one in control as the cause of the injury.

Davis v. Trobough (1961), 139 Mont. 322, 326, 363 P.2d 727, 729. Negaard, supra at 53, 446 P.2d at 440. See also Northwest Airlines, Inc. v. Rowe (8th Cir.1955), 226 F.2d 365, 369.

In Negaard, supra, we declined to apply the doctrine of res ipsa loquitur because there was no evidence to show the result ordinarily would not have occurred had the defendant exercised due care, or that the result was not to be anticipated. At 51-52, 446 P.2d at 439. In fact, there was much evidence to the contrary, as there is in the case before us. Our holding in Negaard requires essentially the same two part test set forth in Tangora v. Matanky (1964), 231 Cal.App.2d 468, 42 Cal.Rptr. 348, 352. Before the doctrine of res ipsa loquitur can be applied in medical malpractice cases, plaintiff must prove that the result complained of rarely occurs and that it is not an inherent risk of the procedure.

Statistical evidence was introduced showing perforation of the uterus occurs in a significant number of D & C procedures. All the physicians who testified on the subject agreed that perforation of the uterus is a known risk of a D & C, which can and does occur, despite the exercise of proper care. Dr. Gard, Clark's expert witness, who has far fewer years experience than Dr. Norris, testified he had had the same bad result twice. Yet he said he did not consider himself to have been negligent. He did not testify the bad result would not have occurred if proper care had been used. The District Court properly refused to give Clark's res ipsa instructions as she did not show perforation of the uterus rarely occurs during a D & C, or that perforation of the uterus is not an inherent risk of a D & C.

Clark claims the District Court should have admitted the report of the liability claim Norris provided to his insurance carrier, and the incident report prepared by St. Peter's Hospital for its attorneys. Norris argues the liability claim falls within the attorney-client work product exception to discovery pursuant to Rule 26(b)(3), M.R.Civ.P. and Kuiper v. District Court (Mont.1981), 632 P.2d 694, 38 St.Rep. 1288. Clark argues it is not protected, citing Cantrell v. Henderson (Mont.1986), 718 P.2d 318, 43 St.Rep. 745. Norris's report of liability claim was filed after Clark had filed her claim with the medical/legal panel. He argues it was filed in anticipation of litigation.

In order to come within the qualified immunity from discovery pursuant to Rule 26(b)(3), M.R.Civ.P., it must be determined whether, in the light of the nature of the document and factual situation in a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. State ex rel. Corbin v. Weaver (1984), 140 Ariz. 123, 680 P.2d 833, 839; Status Time Corp. (D.C.N.Y.1982), 95 F.R.D. 27, 29. A report from the insured to the insurer subsequent to the institution of a suit is within the immunity, when it has been prepared because of the prospect of litigation. Bredice v. Doctor's Hospital, Inc. (D.C.D.C.1970), 50 F.R.D. 249, 251, Hickman v. Taylor (1947), 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.

Section 27-6-301, MCA, of the Montana Medical Legal Panel Act provides:

Claimants shall submit a case for the consideration of the panel prior to filing a complaint in any district court ... (Emphasis added.)

This section makes submission of the case to the Panel mandatory prior to the claimant's filing a complaint in court. Proceedings before the panel therefore are a condition precedent to and an integral part of the litigation process. Kuiper, supra, at 700, 38 St.Rep. at 1294. There is no doubt that upon submission of a case to the Montana...