Hunter by Hunter v. Missoula Community Hosp.
| Decision Date | 10 February 1988 |
| Docket Number | No. 87-295,87-295 |
| Parties | Rebecca HUNTER, a minor child, by her Guardian and Grandfather, Albert HUNTER, Plaintiff and Appellant, v. MISSOULA COMMUNITY HOSPITAL, Charles E. Bell, M.D. and Daniel A. Harper, M.D., Defendants and Respondents. |
| Court | Montana Supreme Court |
Small, Hatch, Doubek & Pyfer, John C. Doubek argued, Helena, for plaintiff and appellant.
Garlington, Lohn & Robinson, Larry E. Riley argued, Missoula, for defendants and respondents.
In this medical malpractice case, we hold that there was no genuine issue of material fact where plaintiff failed to produce a medical expert competent to establish by testimony the applicable standard of medical care and a departure from that standard. Therefore, the District Court, Fourth Judicial District, Missoula County, correctly granted a summary judgment in favor of the medical personnel. We also determine that the doctrine of res ipsa loquitur is not applicable to this case.
In so holding, we determine that plaintiff's case does not come within the rule that third party expert testimony is not necessary if a medical defendant's own testimony establishes the standard of care and departure from it.
Rebecca Hunter was one of twins born on June 29, 1979, at Missoula Community Hospital. Her twin brother was delivered naturally, but Rebecca was delivered by caesarian section. Rebecca was premature with a birth weight of 3 pounds 4 ounces, born at 32 weeks. Her attending physician was Dr. Charles Bell, and on the day of her birth, Dr. Bell called in Dr. Daniel Harper, a neonatologist, for consultation. Thereafter, she was under the care of these doctors until her discharge from the hospital.
On the day of her birth, Rebecca was placed in an oxygen hood. Her condition, however, was deteriorating, and it was determined that she had hyaline membrane disease, a lung deficiency resulting from her prematurity. Approximately 30 hours after her birth, Dr. Harper inserted in Rebecca's right nostril a nasal tracheal tube (NT tube), which extended through the external nose to the posterior pharynx past the vocal cords into the larynx. Dr. Harper testified that the placement of the tube was necessary to "preserve life and function." The external end of the tube was attached by means of an adaptor to the respirator. The mechanical result was that a mixture of air was forced through the NT tube into the lungs of the child to expand the lungs. The pressure was stopped at intervals during which the air was expelled from the child's lungs. The NT tube was 3.0 millimeters in diameter, strong enough to take the pressure and at the same time flexible enough to be inserted as described.
The medical notes of the doctors and nurses indicate that the NT tube was in the child from June 30, 1979 until July 3, 1979, when it was removed. During the period that the tube was present in the child, as shown by the nurses' notes, one of the nurses attempted to reposition the NT tube to relieve pressure on the nasal cartilage. On the day following the removal, July 4, 1979, according to the medical records, there was a brown mucous discharge from the child's right nostril. All the medical evidence agrees that stenosis, or narrowing of the orifice, occurred. One of the nurses noted a questionable necrotic condition.
After the removal of the NT tube, the doctors ordered the insertion of a feeding tube or tubes. These tubes were necessary until the child acquired the sucking reflex. One of the tubes was inserted far enough in the internal organs of the child to take the food past the stomach. Later a tube was utilized to insert food into the stomach itself. The medical records do not show whether these tubes were inserted through the right nostril, the left nostril, or through the mouth, nor do they show the duration of time that the tube or tubes were left inserted in the child. The medical testimony indicates that the feeding tubes were more flexible than the NT tube.
Dr. Harper's deposition testimony with respect to the placement of the NT tube is that the tube exited the right nostril in line with the air passage, and then was taped across the moustache area to the side of the face. A further tape was placed on the tip of the nose, straight up the bridge of the nose to the forehead, so as to present a triangular pattern. Dr. Harper testified that it would be impossible to tape the NT tube in any other way because it would not be long enough. The external end of the NT tube was cut to fit the respirator adaptor.
During the time that the baby was in the hospital, until her discharge in July, 1979, she was frequently visited by her grandfather, grandmother and mother. Each of these witnesses maintained that the NT tube or a tube like it was in the right nostril of the child from June 30 until the date of her discharge and that if more than one tube was used, that in all cases the tube was inserted in the right nostril of the baby. Moreover, they maintained that the NT tube from where it exited the right nostril, was taken directly up over her nose, past the left eye, and taped to her forehead in such manner that the pressure from the tube on the cartilage of the baby's nostril was increased. They contend that this condition prevailed for the entire time that the baby was in the hospital from June 30.
On July 23, Dr. Bell noted that Rebecca had a "stenotic R nares" and brought in one Dr. French, an ear, nose and throat specialist for consultation. It was determined that further treatment would not be undertaken at that time until the child had grown older and stouter, sufficiently able to undertake medical repair. At the time of the deposition (1985), the medical repair had not been undertaken. It is contended that the nose of the child is distorted and that the right nares is almost, if not completely blocked. The condition may be irreparable.
The allegations of malpractice against the medical personnel, as cited by the appellant in brief are that the initial insertion and the way in which the NT tube was positioned and affixed to the face of the baby was improper, and that it was thereafter improper to insert another tube into the same stenotic right nostril of the baby; and that this subsequent tube or tubes were similarly and improperly affixed and maintained to the face of the baby.
Dr. Harper testified in his deposition that if the NT tube had been affixed to the baby's face as described by the grandparents and moth...
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