Howard v. St. James Community Hosp., 04-411.

Decision Date31 January 2006
Docket NumberNo. 04-411.,04-411.
Citation331 Mont. 60,2006 MT 23,129 P.3d 126
PartiesAllen Olen HOWARD, Plaintiff and Appellant, v. ST. JAMES COMMUNITY HOSPITAL; Sisters of Charity of Leavenworth; Richard C. Thorne, M.D.; Prudence D. Whitworth, R.N.; Carmine McGivern, R.N.; Elena Icenoggle, R.N.; and Nancy Stone, R.N., Defendants, Respondents and Cross-Appellants.
CourtMontana Supreme Court

For Appellant: Kevin E. Vainio, Attorney at Law, Butte, Montana.

For Respondents: Lee Bruner, Poore, Roth & Robinson, Butte, Montana (Hospital), J. Daniel Hoven and Sara B. Stanton, Browning, Kaleczyc, Berry & Hoven, Helena, Montana (Thorne).

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Plaintiff and Appellant, Allen Olen Howard, filed a medical negligence lawsuit in the Second Judicial District Court against Defendants, St. James Community Hospital, Sisters of Charity of Leavenworth, Richard C. Thorne, M.D., Prudence D. Whitworth, R.N., Carmine McGivern, R.N., Elena Icenoggle, R.N. and Nancy Stone, R.N. All parties moved for summary judgment, and their motions were denied. The case went to trial, resulting in a unanimous jury verdict in favor of the defendants. Howard appeals the District Court's denial of his summary judgment and directed verdict motions, as well as the jury's verdict. St. James Community Hospital cross-appeals on behalf of itself and the four registered nurses. We affirm the District Court rulings, as well as the jury verdict. Because we affirm, we decline to address St. James's cross-appeal.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in denying Howard's motions for partial summary judgment and for a directed verdict regarding liability for alleged violations of the AIDS Prevention Act?

¶ 4 2. Did the District Court abuse its discretion in instructing the jury regarding (A) negligence and statutory damages, (B) res ipsa loquitur, and (C) the exception to the AIDS Prevention Act's informed consent provision?

¶ 5 3. Did the District Court abuse its discretion by excluding evidence of Howard's compression fractures to the spine?


¶ 6 On August 18, 1997, Howard, in the presence of his roommate, Rita Schultz, suffered a seizure in his home in Butte, Montana. At the time, Howard's then girlfriend and now wife, Pam Hunter, with whom he (along with his two sons) also lived, was at Montana Development Center where she worked as a Residential Nurse Supervisor. Schultz called Hunter to inform her of the seizure and then took Howard to St. James Hospital.

¶ 7 According to Dr. Thorne, Howard's emergency room physician, Howard initially appeared confused but behaved cooperatively. While Dr. Thorne recorded Howard's medical history, he met Schultz, whom, according to Dr. Thorne, introduced herself as Howard's roommate and girlfriend. (Dr. Thorne testified that this later confused him when Hunter also introduced herself as Howard's "girlfriend.") Because Howard did not exhibit typical signs of epilepsy, Dr. Thorne considered other possible causes of Howard's seizure, including trauma, infection, low oxygen, neurological conditions, drug and/or alcohol use, and AIDS encephalopathy. Dr. Thorne ordered tests to determine the cause of the seizure, including a CT scan of Howard's head, blood testing (a CBC and a 508 panel) and a chest X-ray. Prior to the administration of the tests, Hunter arrived, at which time Schultz departed the hospital.

¶ 8 After the CT scan, while still in the radiology suite, Howard suffered another grand mal seizure. Informed of the seizure, Dr. Thorne reported to radiology and observed Howard in a postical state, exhibiting confusion. According to Dr. Thorne and the treating nurses, Howard's behavior altered significantly, turning combative and violent — involving punching and kicking — to the point of raising significant safety issues for both Howard and those around him. The treatment Howard received from Dr. Thorne and the medical staff in the emergency room from this point forward is the basis of Howard's complaint.

¶ 9 Dr. Thorne testified that because Howard's behavior turned dangerously violent, he ordered a dose of Valium. When Howard's combative impulses continued, Dr. Thorne ordered restraints, which Howard resisted. Howard calmed for a period of time, at which point Hunter (a nurse), who was present, discussed with Howard seeking treatment elsewhere. During this discussion, Hunter assisted Howard in removing the restraints. When the nursing staff realized the restraints had been removed, several personnel, against Howard's will, put him back in the hard leather straps. In light of Howard's two grand mal seizures and the heavy medication administered to him, Dr. Thorne believed Howard was not competent to make any medical decisions, and ordered that Howard should not leave the hospital.

¶ 10 Throughout Howard's ordeal, Hunter spoke with staff and Dr. Thorne about Howard's condition. She explained to Dr. Thorne that she was Howard's girlfriend and a nurse; she also provided Dr. Thorne information about Howard's medical history. Dr. Thorne discussed with Hunter performing a lumbar puncture on Howard to look for signs of infection or subarachnoid hemorrhage; Hunter agreed that Dr. Thorne should do the procedure. To ensure stillness during the procedure, Dr. Thorne administered more Valium to Howard.

¶ 11 Dr. Thorne also ordered an HIV test, as HIV is an infection that can turn into AIDS encephalopathy, a condition that can cause seizures. Neither Dr. Thorne, nor hospital personnel, requested Howard or Hunter's consent for the HIV test. At trial, Dr. Thorne testified that since he had "snowed" Howard with a great deal of medication, Howard lacked capacity to consent to the test. Howard also did not receive post-test counseling. The test results were subsequently sent to Howard by mail; they were negative.

¶ 12 Dr. Thorne arranged for Howard's transfer to the intensive care unit where he received care from a neurologist. After his release from the hospital, Howard, experiencing physical pain, spent a couple weeks off work recuperating. He saw a chiropractor who diagnosed him with back sprain and strain.

¶ 13 Howard subsequently brought this action against St. James to recover for alleged personal injuries suffered while in the emergency room.


¶ 14 Our review of a district court's grant or denial of a motion for summary judgment is de novo. Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by the district court. Pursuant to Rule 56, M.R.Civ.P., the movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred. Associated Press v. Crofts, 2004 MT 120, ¶ 11, 321 Mont. 193, ¶ 11, 89 P.3d 971, ¶ 11.

¶ 15 This Court reviews an order denying a motion for a directed verdict in a light most favorable to the non-moving party. The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a motion for judgment notwithstanding the verdict is not properly granted. Wise v. Ford Motor Co. (1997), 284 Mont. 336, 343, 943 P.2d 1310, 1314.

¶ 16 The standard of review for a district court's refusal to issue a proposed jury instruction is whether the court abused its discretion. In reviewing for abuse of discretion, this Court does not determine whether it agrees with the trial court. Rather, we consider whether the trial court, in its exercise of discretion, acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reasons in view of all circumstances. Byers v. Cummings, 2004 MT 69, ¶ 17, 320 Mont. 339, ¶ 17, 87 P.3d 465, ¶ 17.

¶ 17 When reviewing a district court's evidentiary ruling, our standard of review is whether the court abused its discretion. The district court has broad discretion in determining the admissibility of evidence. We will not reverse the district court unless the error be "of such character to have affected the result." Payne v. Knutson, 2004 MT 271, ¶ 20, 323 Mont. 165, ¶ 20, 99 P.3d 200, ¶ 20 (citation omitted).

1. Did the District Court err in denying Howard's motions for partial summary judgment and for a directed verdict regarding St. James's liability for alleged violations of the AIDS Prevention Act?

¶ 18 Howard argues that, as a matter of law, St. James violated the AIDS Prevention Act, § 50-16-1007, MCA, by performing an HIV test when he was unconscious or incompetent, without seeking informed consent from Hunter, whom he argues was his "significant other."

¶ 19 The AIDS Prevention Act reads in relevant part:

50-16-1007. Testing — counseling — informed consent — penalty. (1) An HIV-related test may be ordered only by a health care provider and only after receiving the informed consent of:

(a) the subject of the test;

(b) the subject's legal guardian;

(c) the subject's next of kin or significant other if:

(i) the subject is unconscious or otherwise mentally incapacitated

(ii) there is no legal guardian;

(iii) there are medical indications of an HIV-related condition; and

(iv) the test is advisable in order to determine the proper course of treatment of the subject; or

(d) the subject's next of kin or significant other or the person, if any, designated by the subject in hospital records to act on the subject's behalf if:

(i) the subject is in a hospital; and

(ii) the...

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