Hunsaker v. Bozeman Deaconess Foundation, 13576

• Citation: 35 St.Rep. 1647,179 Mont. 305,588 P.2d 493
• Decision Date: 30 November 1978
• Docket Number: No. 13576,13576
• Parties: Katherine W. HUNSAKER, Plaintiff and Appellant, v. BOZEMAN DEACONESS FOUNDATION, Defendant and Respondent.
• Court: Montana Supreme Court

Page 493

588 P.2d 493

179 Mont. 305

Katherine W. HUNSAKER, Plaintiff and Appellant, v. BOZEMAN DEACONESS FOUNDATION, Defendant and Respondent.

No. 13576.

Supreme Court of Montana.

Submitted Jan. 13, 1978.

Decided Nov. 14, 1978.

Rehearings Denied Nov. 30, 1978.

Arthur P. Acher, Robert F. Swanberg, argued, Helena, for plaintiff and appellant.

Anderson, Symmes, Forbes, Peete & Brown, Rockwood Brown, Jr., argued, Billings, Berg, Angel, Andriolo & Morgan, Charles F. Angel, argued, Bozeman, Robert T. Cummins argued, Helena, for defendant and respondent.

SHEA, Justice.

Plaintiffs appeal from a jury verdict and judgment entered in the District Court, Gallatin County, favoring defendants in an action for personal injuries.

This case involves three cases consolidated and tried together. Elzarus L. Hunsaker, one of the plaintiffs (now deceased), filed an action against the Bozeman Deaconess Foundation, operator of the Bozeman Deaconess Hospital, for personal injuries sustained because of alleged negligence in caring for him as a patient. Hunsaker also filed a separate suit against Drs. E. E. Bertagnolli and William S. Prunty, the treating physicians. In addition, Katherine W. Hunsaker, plaintiff's wife, filed a separate action against Bozeman Deaconess Hospital for its negligence in caring for her husband. Her claim for damages was a derivative action for loss of consortium. Each of the actions for negligence was based on the same incident.

Defendant William S. Prunty moved to consolidate all three actions under Rule 42, Mont.R.Civ.P. Boseman Deaconess also agreed to the consolidation. Over plaintiffs' objections, the court ordered consolidation.

The essential claim of plaintiff Elzarus Hunsaker is that the defendant physicians were negligent in diagnosing his condition and caring for him and that the hospital was negligent in caring for him. As a result of this, plaintiff received severe personal injuries when he ran out of a hospital security room, ran down the hall, and jumped through the solarium window, falling twenty feet to the ground below.

The facts giving rise to these claims follow. On November 8, 1969, Hunsaker, a rancher, was admitted to Bozeman Deaconess Hospital by his physician, Dr. E. E. Bertagnolli. Hunsaker had a previous history of heart problems. The diagnosis surrounding his admission was for emotional strain apparently stemming from family problems, and possible recurring heart problems. After admission, Hunsaker was nervous, hallucinated, and had at least one seizure.

On November 9, Hunsaker told an attendant he might be able to sleep if he didn't jump out the window. On November 10, Dr. Bertagnolli called Dr. Prunty, a psychiatrist, into the case. On November 12, Dr. Prunty had Hunsaker transferred from his first floor room to a security room on the second floor. This room was used for temporary observation and control of patients with mental problems, and for drying out alcoholics. All the furniture was moved out of the room with the exception of the bed. The room had a screened window and a double door entry with locks.

The first night Hunsaker was in the room, a male orderly remained with him until midnight. Written orders from the physicians were to "lock door, if unattended." The orderly testified that while he remained with Hunsaker, the door remained locked and that if he wanted to get out, he had to knock on the window and the night supervisor would come with her key and unlock the door. The night supervisor directly contradicted this testimony.

At midnight, a sitter, Mrs. Bisland, relieved the orderly. She was not a nurse but was an experienced aide. She was sixty years of age and approximately two hundred pounds. Hunsaker was fifty-four years of age, powerfully built, and approximately two hundred pounds. During the night, Hunsaker remained awake, occasionally hallucinated and talked and walked around the room. Each time he would do this, the sitter talked him into returning to bed.

In the early morning hours of November 13, at approximately 5:20 a. m., another patient entered Hunsaker's room. (There is a dispute whether this patient had also wandered into the room a little earlier on the same morning.) Hunsaker mistakenly believed the patient was his sister, and insisted on talking to her. The sitter was able to remove the other patient from the room and she talked Hunsaker into returning to bed. Suddenly, Hunsaker jumped out of bed, forced himself past the sitter, ran out of the room and down the hallway to a solarium at the end of the hall. There he jumped through the solarium windows, falling twenty feet to the ground below, and receiving serious and permanent injuries. Some time thereafter the instant actions were filed against the hospital and physicians.

Plaintiff Hunsaker generally alleged he was in a condition of irrationality and mental incapacity at the time he jumped through the window and that the hospital had failed to take proper care of him, knowing he was in that condition. He alleged the hospital failed to keep qualified personnel, and failed to keep an adequate staff of nurses, orderlies and hospital personnel. He further alleged the hospital failed to keep Hunsaker in a section of a hospital separated from other patients, and failed to provide facilities which would prevent an escape while in a condition of mental derangement and incapacity. He also alleged breaches of hospital standards and state licensing laws.

Plaintiff's allegation of negligence against defendant physicians was that they had failed to properly diagnose his condition and consequently failed to properly care for him.

All defendants filed general denials of negligence, but filed no special defenses as to Elzarus Hunsaker. They did allege however, apparently as contributory negligence on the part of Katherine Hunsaker, that she failed to give them correct information as to her husband's prior habits concerning the use of alcohol and prescription drugs.

Plaintiffs raise a host of errors which they contend entitle them to a new trial. Generally, they fall into the following categories: (1) the court improperly allowed each defendant to have four peremptory challenges while confining the plaintiffs to four peremptory challenges between them; (2) the court improperly refused opinion testimony from plaintiffs' expert witnesses; (3) other errors were made in admitting evidence; and (4) several errors were made in instructing the jury, primarily with regard to the doctrine of Res ipsa loquitur and on the question of expert medical testimony.

Plaintiffs first contend the District Court improperly granted each of the defendants four peremptory challenges because they did not in fact have "hostile" interests as required by statute. Section 93-5010, R.C.M.1947, provides in relevant part: ". . . Each party is entitled to four peremptory challenges."

This court has long recognized the inherent problems in presiding over jury trials where there are multiple parties. Recognizing the potential unfairness of uneven peremptory challenges, this Court held that "each party" in terms of the statute, means "each side", unless the position of co-plaintiffs or co-defendants is shown to be "hostile" to each other. Mullery v. Great Northern Ry. Co. (1915), 50 Mont. 408, 148 P. 323; Leary v. Kelly Pipe Co. (1976), 169 Mont. 511, 549 P.2d 813. As a practical matter plaintiffs rarely have "hostile" interests to each other, and therefore the question is usually one of how many peremptory challenges co-defendants shall have. This Court has never set forth any rules as to what co-defendants must present to the trial court to prove they are "hostile" to each other. The closest we have come is we have indicated in Mullery and Leary that "hostility" can be shown by the "pleadings, representations, or evidence."

In Mullery, in determining that the co-defendants must prove they are "hostile" to each other, we stated:

". . . Whether such hostility must appear on the face of the pleadings, or whether it may be shown in some other way at the time the jury is selected, we need not determine, because no such hostility was ever made to appear in any way in the case at bar . . . As between them there was not, by pleading, representation, or evidence, any conflict of interest disclosed or any issue of any sort . . ." 148 P. at 326.

Accordingly, we concluded the District Court was correct in allowing multiple defendants to have a total of four peremptory challenges. It is clear, however, this Court did examine the case to determine if there was any hostility and determined there was none.

In Leary, the District Court granted multiple defendants eight peremptory challenges, as opposed to the plaintiff's four, and we upheld the District Court on the ground the plaintiff had shown no prejudice. In holding that Leary must show prejudice before he would be entitled to a reversal, we stated:

". . . In the instant case Leary has advanced no fact which indicates material injury, nor has he attempted to show that objectionable jurors sat on the case. Thus the first issue must be resolved in favor of defendants." 169 Mont. at 516, 549 P.2d at 816.

We did not, however, discuss the facts as to how the District Court reached his decision that is, whether there was in fact hostility between the co-defendants.

The very nature of the problem makes appellate review extremely difficult. Is it sufficient to place the burden on either party to show he has been prejudiced by the trial court's ruling on the question of peremptory challenges? Indeed, in most instances, proving prejudice, (normally, that a juror who sat on the case was prejudiced against one of the other parties), and if the court had ruled properly the result would most probably have been different. In the ordinary case, proving prejudice may be an impossible burden. As a result, if at the appellate level we concentrate on the actual conduct of a juror as opposed...