McCain v. Batson

• Decision Date: 18 August 1988
• Docket Number: No. 88-134,88-134
• Citation: 233 Mont. 288,760 P.2d 725
• Parties: Karen McCAIN, Plaintiff and Appellant, v. John BATSON, M.D., Defendant and Respondent.
• Court: Montana Supreme Court

Page 725

760 P.2d 725

233 Mont. 288

Karen McCAIN, Plaintiff and Appellant, v. John BATSON, M.D., Defendant and Respondent.

No. 88-134.

Supreme Court of Montana.

Submitted on Briefs June 30, 1988.

Decided Aug. 18, 1988.

James J. Screnar, Nash, Guenther, Zimmer & Screnar, Bozeman, for plaintiff and appellant.

Richard F. Cebull, Anderson, Brown Law Firm, Billings, for defendant and respondent.

HARRISON, Justice.

This is an appeal of summary judgment granted in favor of defendant John Batson, M.D. Plaintiff/appellant Karen McCain (McCain) brought this action in the District Court of the Eighth Judicial District, Gallatin County, Montana, the Honorable Joseph B. Gary presiding. McCain sought to recover damages for the negligent treatment of her injuries by the defendant/respondent, John Batson, M.D. (Dr. Batson). Dr. Batson sought summary judgment by invoking immunity of the Montana Good Samaritan Statute Sec. 27-1-714, MCA. On February 4, 1988 the District Court granted Dr. Batson's motion for summary judgment. McCain now appeals.

McCain and two friends, Sherry Warner (Warner) and Rosemary Checketts, (Checketts) spent a weekend in West Yellowstone, Montana, arriving the morning of September 25, 1982, from Ogden, Utah. They planned to stay with Warner in her condominium. That evening, after preparing and eating supper at home, the three friends decided to go into the town of West Yellowstone. The three decided to walk into town as Warner's truck battery was dead. The condominium was not far from town so they walked to the nearby Stagecoach Inn. After spending some time at the Inn, the women became separated and about 11:00 p.m. McCain decided to return alone to the condominium.

McCain was unfamiliar with the area and while walking back in the dark fell into an eight-foot deep excavation pit. The pit contained rebar set in concrete at six inch intervals. As a result of the fall she severely impaled her upper left leg on a piece of rebar. After extracting herself off the rebar, McCain crawled out of the pit and crawled to a lighted doorway of a nearby condominium. McCain rapped on the door of a condominium occupied by Dr. James Grindley, a Bozeman radiologist, and his wife. Mrs. Grindley answered the knock on the door. After McCain told Mrs. Grindley about her accident and injury, Dr. Grindley went to the Stagecoach Inn to retrieve her two friends. Throughout this time, Dr. Grindley did not mention he was a physician and McCain remained on the patio or lawn outside of the condominium. Dr. Grindley is a radiologist with extensive surgical and emergency room experience. He did not initially examine McCain's injury, and in a deposition Dr. Grindley admitted that he did not have any medical equipment at the condominium.

McCain's friends returned with Dr. Grindley and attempted to assist her. Warner, a surgical assistant had gotten her box of medical supplies and removed McCain's pant-leg with a pair of bandage scissors. At that time Dr. Grindley informed them that he was a physician. Dr. Grindley examined the wound and advised all present that while technically he could repair the wound, he had no desire to do so without being able to "debride it and clean it."

At deposition Dr. Grindley testified he then offered to drive McCain and her friends to the nearest hospital in Ashton, Idaho. They refused his offer and informed Dr. Grindley that they believed there was a doctor staying in town who could help them and that if they needed Dr. Grindley's services later, they would contact him.

Dr. Grindley further testified that at that time the wound may have "been bleeding a tiny bit ... and that her panty hose seemed to be holding the tissues all in good position so that it was minimizing any bleeding." McCain testified that at that time she had little pain and the leg was "dead, numb, dead." After taking McCain back to Warner's condominium, and some three hours after the accident, Warner was able to locate where defendant/respondent Dr. Batson was staying. Dr. Batson got up out of bed, left the condominium where he was staying and agreed to come to the Warner condominium to see what could be done. Dr. Batson testified that McCain was lying on a couch and that when he examined the wound he could see considerable dirt and mud in the wound. With the help of Warner and her surgical kit which contained instruments, suture, IV solutions, and other items that could be used to clean the wound, Dr. Batson debrided the wound as best he could. He then loosely sutured the wound and dressed it with bandages from the medical kit. All of this was done under the light of a lamp in the Warner condominium.

Dr. Grindley testified at deposition that he informed all three women soon after the accident that the wound had to be treated at a hospital and under a general anesthesia and that the wound needed to be treated surgically. Dr. Batson's evaluation of the injury mirrored Dr. Grindley's that this was not an emergency situation but that McCain should go to a hospital as soon as possible. Dr. Batson informed the women that he would call the hospital in Ashton, Idaho and order pain and antibiotic medication and a tetanus shot to be available to McCain the next morning.

It should be noted that the reason McCain did not immediately go to a hospital was that the ambulance at West Yellowstone was not available as it had taken someone to Bozeman, Montana, just before she was injured and would not return until the next morning. As previously noted, the truck used by the parties to travel to West Yellowstone had a dead battery but would be repaired by the next morning. As the hour was very late, the three spent the rest of the night at the Warner condominium and planned on returning to Ogden later that morning/early afternoon via Ashton, Idaho.

Dr. Batson testified that later that morning about 11:00 a.m., he returned to check on the three women. He found them still packing and preparing to return to Ogden. Dr. Batson said he advised them again that his suturing of the wound was a first-aid type procedure and it was necessary that they go to a hospital and have the wound properly treated.

According to the deposition of Checketts, they did stop at the Ashton, Idaho hospital where they got some pain medication and antibiotics which served as treatment until McCain returned to Ogden. They then drove on into Ogden arriving at approximately 7:00 p.m. and took McCain to her apartment where it was their understanding that McCain would go to the hospital and see a doctor the next morning. However, McCain did not go to the hospital or see a doctor until about one week later. By this time her wound had become infected and required considerable surgery and medical treatment.

On September 25, 1985, three years to the date of the injury, Dr. Batson was sued by McCain for suturing the wound without adequate debriding, or cleansing of the contaminated wound and for failing to inform anyone that the procedures that he followed were not final procedures. In other words, McCain claims he failed to inform her that the wound would have to be opened up, recleansed, debrided, and resutered. McCain alleges that this is a case of malpractice which has caused her serious injury.

This case was presented to the District Court on depositions of Sherry Clarey Warner, Karen McCain (plaintiff and appellant), Rosemary Checketts, Dr. Wesley G. Harline, Dr. Lee J. Malan (a surgeon who later operated on her at Ogden, Utah), Dr. John Batson (defendant and respondent), and Dr. James S. Grindley (the radiologist who first saw the injured McCane at his door). Based on the information contained in the depositions, the District Court granted Dr. Batson's motion for summary judgment. Attached to said summary judgment was a memorandum of Judge Joseph Gary concerning the reasons for his granting of summary judgment.

Several questions are presented for our consideration:

1. Did the District Court improperly find that the provisions of the Montana Good Samaritan Statute, Sec. 27-1-714, MCA, were applicable to an instance where the negligent care rendered was remote in time and location to the scene of the accident or emergency, and was otherwise without the purpose of the act?

2. Did the District Court improperly usurp the function of the jury by resolving questions of fact in its grant of summary judgment?

The first issue concerns the Montana Good Samaritan Statute, Sec. 27-1-714, MCA, which reads:

(1) Any person licensed as a physician and surgeon under the laws of the state of Montana, any volunteer firefighter or officer of any nonprofit volunteer fire company, or any other person who in good faith renders emergency care or assistance without compensation except as provided in subsection (2) at the scene of an emergency or accident is not liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care or assistance.

(2) Subsection (1) includes a person properly trained under the laws of this state who operates an ambulance to and from the scene of an emergency or renders emergency medical treatment on a volunteer basis so long as the total reimbursement received for such volunteer services does not exceed 25% of his gross annual income or $3,000 a calendar year, whichever is greater.

(3) If a nonprofit subscription fire company refuses to fight a fire on nonsubscriber property, such refusal does not constitute gross negligence or willful or wanton act or omission.

According to the legislative history of Sec. 27-1-714, MCA, (Good Samaritan Statute) it was passed by the Legislature in 1963, amended by Sec. 1, Chapter 390, Laws of Montana 1979, and Sec. 1, Chapter 330, Law of Montana 1985, and Sec. 1, Chapter 133, Laws of Montana 1987. Reference is made to the legislative history of the Good Samaritan Statute because this is a first ...