Glover v. Ballhagen

• Decision Date: 22 June 1988
• Docket Number: No. 87-479,87-479
• Court: Montana Supreme Court
• Parties: Laurene GLOVER, Plaintiff, v. Jay T. BALLHAGEN, M.D., Defendant.

Page 1166

756 P.2d 1166

232 Mont. 427

Laurene GLOVER, Plaintiff, v. Jay T. BALLHAGEN, M.D., Defendant.

No. 87-479.

Supreme Court of Montana.

Submitted May 5, 1988.

Decided June 22, 1988.

J. Dwaine Roybal argued; Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, for plaintiff.

Larry E. Riley argued; Garlington, Lohn & Robinson, Missoula, for defendant.

WEBER, Justice.

This is a medical malpractice case pending in United States District Court, District of Montana, Missoula Division. That court certified several questions of law to this Court. We have restated the questions as follows:

1. In order to qualify as an expert witness on the standard of care required of a board certified family practitioner, must the witness be a board certified family practitioner?

2. If not, then who may qualify as an expert to testify on the standard of care required of a board certified family practitioner?

We answer question one in the negative. As to question two, qualification of an expert witness is a matter of discretion for the trial court; therefore, our opinion will be limited to an explanation of the guidelines necessary for the exercise of that discretion.

The only facts before this Court are those contained within the trial court's certification order:

A board certified family practitioner practicing in Ronan, Montana, is sued for malpractice. The depositions indicate that the plaintiff intends to use as experts, a board certified orthopod and a board certified practitioner of internal medicine and infectious diseases. Both are residents of the state of Oregon, and there is nothing to show that they have any knowledge of the standard of care in Ronan, Montana.

I

In order to qualify as an expert witness on the standard of care required of a board certified family practitioner, must the witness be a board certified family practitioner?

The United States District Court specifically requested an explanation of our holding in Aasheim v. Humberger (Mont.1985), 695 P.2d 824, 42 St.Rep. 235. In that case, the plaintiff brought a medical malpractice action against a national board certified orthopedic surgeon, regarding that doctor's treatment of her knee. The trial court refused to give plaintiff's proposed instruction concerning the standard of medical care. The jury returned a verdict for the defendant doctor, and the plaintiff appealed. We held that the instruction given by the court was unduly restrictive in that it applied the "same or similar" locality rule to a board certified orthopedic surgeon. Aasheim, 695 P.2d at 826. We reversed the district court's judgment, and, in doing so, approved the plaintiff's proposed instruction which read as follows (after modification by this Court):

By undertaking professional services to a patient, a doctor represents that he has the necessary degree of skill and learning to do so. That degree of skill and learning is generally measured by the skill and learning possessed by other doctors in good standing practicing in the same specialty and who hold the same national board certification.

It is the doctor's further duty to use that skill and learning as ordinarily used in like cases by other doctors practicing in that same specialty and who hold the same national board certification.

The violation of any of these duties is negligence.

Aasheim, 695 P.2d at 826-27.

Dr. Ballhagen argues, in the present case, that the result of our holding in Aasheim- is that the only witness who may testify concerning the standard of care of a doctor practicing with a board certification is another doctor with the same certification. He misconstrues our holding. We held that the standard of care to which a board certified specialist will be held must be that skill and learning possessed by other doctors in good standing practicing in the same specialty and who hold the same national board certification. We did not declare, as a matter of law, that doctors practicing in the same specialty were the only ones who could testify as to that standard of care. For example, in the past we have allowed a general practitioner to testify as to the standard of care required of a specialist. Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 588 P.2d 493. In Aasheim, our inquiry was limited to the applicability of the locality rule to national board certified specialists.

Our holding in Aasheim did not address the same or similar locality rule as it relates to board certified family practitioners. The facts certified to us do not describe the training and examination of board certified family practitioners. Our assumption is that all board certified family practitioners receive comparable training and pass the same national board certification examination. As stated in Aasheim, 695 P.2d at 827:

The locality rule was an outgrowth of disparity in the quality of community medical practice. To the credit of the medical profession, including its excellent training and certification program, the disparity has largely been eliminated.

We conclude that the holding in Aasheim should be extended to include board certified family practitioners. That is, we hold that the standard of care to which a board certified family practitioner will be held is that skill and learning possessed by other doctors in good standing practicing with the same national board certification.

We answer the first certified question in the negative. In order to qualify as an expert witness on the standard of medical care required of a board certified family practitioner, the witness may be, but does not have to be, a board certified family practitioner.

II

Who may qualify as an expert to...