Harris v. Hanson

Decision Date21 January 2009
Docket NumberNo. DA 07-0165.,DA 07-0165.
Citation2009 MT 13,201 P.3d 151
PartiesSandra K. HARRIS, Plaintiff and Appellant, v. John V. HANSON, M.D.; Anne W. Giuliano, M.D.; and Joe Dillard, M.D., Defendants and Appellees.
CourtMontana Supreme Court

For Appellant: Neel Hammond and Paul M. Warren, Cozzens, Harman, Warren & Harris, Billings, Montana.

For Appellees: Julie A. Lichte, Crowley, Haughey, Hanson, Toole & Dietrich, Bozeman, Montana (Anne W. Giuliano, M.D., and Joe Dillard, M.D.), John J. Russell, Brown Law Firm, Billings, Montana (John V. Hanson, M.D.).

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Sandra K. Harris (Harris) brought suit against John V. Hanson, M.D. (Hanson), Anne W. Giuliano, M.D. (Giuliano), and Joe Dillard, M.D. (Dillard), claiming they were professionally negligent in failing to diagnose her breast cancer from a mammogram performed in February of 2002, a mammogram performed in January of 2004, and an ultrasound performed in March of 2004. The case was tried before a jury which found the doctors were not negligent. Judgment was entered for the defendants and Harris appealed.

¶ 2 The issues raised are:

¶ 3 Issue 1: Did the District Court err in denying challenges for cause to jurors M.S. and C.N.?

¶ 4 Issue 2: Did the District Court err in admitting into evidence portions of the expert testimony of Dr. William Rodgers?

¶ 5 Issue 3: Did the District Court err in refusing Harris's proposed jury instructions relating to the damage aspect of "loss of chance" and apportionment of damages?


¶ 6 Between February 2000 and January 2004, Harris had four mammograms performed in Billings. The mammogram of February of 2002 was read by both Giuliano and Hanson. The process of having two radiologists read a mammogram is known as double reading. It is a standard practice in the field to increase accuracy. Hanson and Giuliano did not speak with each other prior to interpreting the February 2002 mammogram. Both Giuliano and Hanson read the mammogram as negative and without significant new findings since a prior mammogram of November 2000.

¶ 7 Harris's next mammogram was performed and read on January 7, 2004. Dillard compared the January 2004 mammogram to the one taken in February of 2002. At this time he did not speak with Hanson about his findings. Dillard noted an enlarging mass in the upper left outer quadrant of the left breast which measured 1.7 cm. Dillard opined that the mass was "probably benign" but requested prior studies so he could review them for additional comparison. Dillard testified that after reviewing the previously taken mammograms, he felt the mass was probably a lymph node. He assessed the mammograms as incomplete and decided that additional imaging evaluation was needed. Dillard recommended an ultrasound of the left breast.

¶ 8 On March 9, 2004, Hanson completed the ultrasound recommended by Dillard. Hanson determined the findings from the ultrasound were consistent with a lymph node. Hanson reviewed Dillard's films and reports from January of 2004, but did not discuss his findings from the ultrasound with Dillard.

¶ 9 In June of 2004 Harris herself discovered an abnormality in her left breast and consulted with her internist, Dr. Fishburn. Dr. Fishburn ordered a diagnostic mammogram, which was interpreted by Hanson in late July of 2004. Hanson interpreted the July 2004 mammogram as showing a change, a palpable abnormality, from the exam done in January of 2004. Due to this abnormality Hanson performed an ultrasound of the left breast and determined the changed region was suspicious for malignancy. He recommended a core needle biopsy, which was performed on August 2, 2004. The results of the biopsy confirmed Harris had a malignancy in her left breast.

¶ 10 On August 12, 2004, Harris underwent a left breast mastectomy. She also underwent aggressive chemotherapy and radiation therapy after her surgery. At the time of trial she had no current evidence of cancer.

¶ 11 A jury trial commenced January 29, 2007. During voir dire the following exchange took place between counsel for Harris, Neel Hammond (Hammond), and the potential juror M.S.:

Hammond: ... Dr. Hanson is represented by John Russell who is a partner with the Brown Law Firm. Anybody familiar with the Brown Law Firm or ... What's your familiarity with the Brown Law Firm?

M.S.: I work in risk management at the Billings Clinic and John has defended malpractice claims against Deaconess.

Hammond: Have you helped John in his litigation defense with medical malpractice at Deaconess?

M.S.: Yes.

Hammond: Have you ever been involved on a Plaintiff's behalf in medical malpractice cases?

M.S.: No.

Hammond: [M.S.], do you think that experience might affect your judgment sitting as a juror in this case?

M.S.: I would like to think not.

Hammond: So you think you can make a fair and impartial judgment in this case?

M.S.: Yes.

Hammond: Anybody else familiar with the Brown Law Firm or with John Russell? Now, the Plaintiff's attorneys in this case are myself and Paul Warren. Paul Warren is a long-time experienced attorney with Cozzens, Harman, Warren and Harris firm here in Billings. Are any of you personally familiar with Paul or with any of the employees of Cozzens, Harman, Warren and Harris? [M.S.], once again? What has been your involvement with the Cozzens Law Firm?

M.S.: The Cozzens Law Firm has, at time, filed malpractice suits against Billings Clinic.

Hammond: Now, [M.S.], I want to ask you another question, and that is, have you ever been on the same side in your career as the Cozzens Law Firm or any of the members of the Cozzens Law Firm?

M.S.: No.

Hammond: Your Honor, I move to excuse [M.S.] for cause.

At this time counsel for Hanson, John Russell (Russell), asked to voir dire the potential juror and the following exchange occurred:

Russell: [M.S.], do you have opportunities to review cases where patients complain to you that their care was, they had a problem with their care by a doctor at the Billings Clinic?

M.S.: Yes, that's my job.

Russell: And have you had cases where you've investigated that, talked to the physician, and decided yeah, there is a basis for a complaint here, and you've agreed with the patient?

M.S.: Absolutely.

Russell: So you have seen both sides of the malpractice situation in your job, is that fair to say?

M.S.: Correct.

Russell: And despite the fact that you know me and we've worked 5 together, do you think you can set that aside, listen to the evidence, before you make up your mind, be fair and impartial, and decide the case based on the evidence, setting aside whatever you know about me or don't know about me?

M.S.: Yes, I do.

Russell: I'd object to the challenge for cause.

Hammond then asked:

Hammond: [M.S.], you have assisted patients with money claims. Have you ever assisted patients when they took their civil rights to sue on their behalf into a courtroom?

M.S.: No.

Hammond: Have you ever advised them to seek Plaintiff's counsel?

M.S.: Yes, occasionally I have.

Hammond: And did you testify for them when they went to court?

M.S.: No.

Hammond: Your Honor, I renew my motion to excuse this juror for cause.

The judge denied the renewed motion, because M.S. said she thought she could be fair and look at the facts of this case independently. M.S. was later removed by Harris using a peremptory challenge.

¶ 12 Later during voir dire by Julie Lichte (Lichte), counsel for Dillard and Giuliano, the following exchange occurred:

C.N.: I think our firm has legal work done by Crowley, the firm that I work for. [Lichte is associated with the Crowley law firm.]

Lichte: Yeah, and you're [C.N.]?

C.N.: Mm-hmm.

Lichte: What type of work, or what's the relationship?

C.N.: It's a consulting engineering firm and they do contract work.

Lichte: Do you come into contact with lawyers at the Crowley Law Firm as part of your responsibilities?

C.N.: No.

Lichte: And the law firm acts as a consultant on legal affairs for your company, is that right?

C.N.: Yeah.

Lichte: And you're a civil engineer?

C.N.: Correct.

Lichte: Do you know any of the attorneys at the Crowley Firm personally?

C.N.: Um, Len Smith, and uh, Neil who I think is in your Bozeman office.

Lichte: Neil Westesen? Okay. How do you know Len and Neil?

C.N.: Len's a friend from school and Neil I met through their basketball team, which I play.

Lichte: Oh, okay. Is there anything about your business relationship with the Crowley Law Firm or the fact that you know Len Smith or Neil Westesen that you think might influence or impact your ability to make decisions in this case?

C.N.: No.

¶ 13 After voir dire was completed the parties convened in chambers and Hammond made a motion to excuse C.N. for cause. The court denied the motion. Hammond did not use a peremptory challenge to strike C.N. and he served as a juror.

¶ 14 During the trial, Giuliano and Dillard called Dr. William Rodgers (Rodgers) as a witness during their case in chief. Rodgers has a Ph.D. in cell biology and embryology, completed medical school and completed both a residency in anatomic and clinical pathology and a cancer research fellowship. Over Harris's objection, Rodgers testified that Harris's particular cancer would be invisible on x-ray and that it had been present for ten years prior to July of 2004.

¶ 15 The parties submitted proposed jury instructions. Harris offered a damage instruction considering "loss of chance." Defense counsel objected to this instruction and the court refused it. Harris objected to Giuliano and Dillard's proposed jury instruction 23 concerning the apportionment of damages, which the District Court accepted as its Instruction 20. The District Court rejected Harris's proposed instruction on the same subject.

¶ 16 The jury reached a defense verdict, finding none of the three doctors were negligent.


¶ 17 This Court reviews a district court...

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