Montana Deaconess Hospital v. Gratton, 13027

• Decision Date: 22 January 1976
• Docket Number: No. 13027,13027
• Citation: 33 St.Rep. 128,545 P.2d 670,169 Mont. 185
• Parties: MONTANA DEACONESS HOSPITAL, a Non-Profit Corporation, Plaintiff and Respondent, v. George B. GRATTON, Defendant and Counterclaimant and Appellant, Gertrude Gratton, Plaintiff and Counterclaimant and Appellant, Judith Graham, M.D., and J. C. Wolgamot, M.D., Additional Defendants on Counterclaim and Respondent.
• Court: Montana Supreme Court

Page 670

545 P.2d 670

169 Mont. 185

MONTANA DEACONESS HOSPITAL, a Non-Profit Corporation Plaintiff and Respondent, v. George B. GRATTON, Defendant and Counterclaimant and Appellant Gertrude Gratton, Plaintiff and Counterclaimant and Appellant Judith Graham, M.D., and J. C. Wolgamot, M.D., Additional Defendants on Counterclaim and Respondent.

No. 13027.

Supreme Court of Montana.

Submitted Dec. 10, 1975.

Decided Jan. 22, 1976.

McKittrick & Duffy, Joseph W. Duffy argued and D. Patrick McKittrick, appeared, Great Falls, for appellants.

Jardine, Stephenson, Blewett & Weaver, John D. Stephenson, Jr. argued, Great Falls, Smith, Emmons & Baillie, William L. Baillie argued, Great Falls, Church, Harris, Johnson & Williams, Great Falls, for respondents.

HASWELL, Justice.

A patient and his wife appeal from a summary judgment against them in their medical malpractice claim against two doctors and a hospital. The summary judgment was entered in the district court of Cascade County by Hon. Truman G. Bradford, district judge.

Appellants are George B. Gratton, the patient, and Gertrude Gratton, his wife. Respondents are two Great Falls doctors, Judith Graham, M.D. and J. C. Wolgamot, M.D., and the Montana Deaconess Hospital, a nonprofit corporation.

On June 14, 1970, Gratton fell and fractured his right shoulder. He was hospitalized at the Montana Deaconess Hospital in Great Falls from June 14 to June 30 during which time Dr. Wolgamot, an orthopedic surgeon, performed an open reduction of the fracture. During this hospitalization Dr. Graham also treated Gratton for a pre-existing seizure disorder. At the time Gratton was discharged from the hospital on June 30 his surgical wound appeared to be healed.

During the next two months, Gratton was seen periodically by both Dr. Graham and Dr. Wolgamot. Gratton was rehospitalized on September 10 following the breaking and draining of what appeared to be a boil in the area of the surgical incision. Cultures taken from the drainage revealed a staph infection and later showed the presence of a pseudomonas organism.

Gratton remained hospitalized until October 16 during which time he was treated by Dr. Wolgamot and was also seen from time to time by Dr. Graham.

Following his discharge from the hospital the second time, Gratton's infection persisted. Gratton was hospitalized a third time from November 18 to November 24. Later Gratton was treated at the Mayo Clinic in Rochester, Minnesota, but he claims his right arm is still disabled.

In June, 1971, the hospital sued Gratton for the balance of $546.40 allegedly owing from Gratton's third hospitalization. Gratton answered claiming the hospital overcharged for its facilities and services and that the sole reason for his second and third periods of hospitalization was the infection caused by the hospital's negligence during his first hospitalization. Gratton also counterclaimed for damages against the hospital and doctors based on medical malpractice in an amount exceeding $100,000.

Gertrude Gratton alleges a claim against the doctors and the hospital based on medical malpractice in an amount in excess of $75,000.

Extensive discovery was undertaken by all parties consisting of depositions, interrogatories and answers, requests for admissions, and production of medical records for inspection and copying for a period of approximately 3 1/2 years. On March 5, 1975, the district court granted summary judgment to the two doctors and the hospital on appellant's claim of medical malpractice, leaving the hospital's original action for collection of the balance of the hospital bill undisturbed. The Grattons appeal from this summary judgment.

The issue on appeal is whether this summary judgment is correct.

Summary judgment is proper:

'* * * if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *' Rule 56(c), M.R.Civ.P.

Here a review of the record before the district court discloses no genuine issue of material fact. The Grattons have pointed out numerous factual issues principally relating to the time of the infection, its source, the diagnosis of Gratton's condition, and the treatment given him. If all these questions were ultimately resolved in favor of the Grattons, they still could not prevail. Hence, they are not material facts in the context of the case before us. What is missing here is evidence of any standard of care against which the acts or omissions of the doctors or the hospital staff can be measured to establish negligence on the part of either.

When the record discloses no genuine issue of material fact, the party opposing summary judgment has the burden of presenting evidence of a material and substantial nature raising a genuine issue of material fact. Rickard v. Paradis, Mont. 539 P.2d 718, 32 St.Rep. 834; Roope v. Anaconda Co., 159 Mont. 28, 494 P.2d 922. The Grattons have failed to carry this burden and have not met their initial evidentiary obligations.

In Evans v. Bernhard, 23 Ariz. App. 413, 533 P.2d 721, the court granted summary judgment in favor of a general practitioner on the basis of absence of any proof of a standard of medical care, observing that in a malpractice case the plaintiff's threshhold obligation involves two evidentiary steps:

'First, evidence must be presented to establish the applicable standard of medical practice in the particular type of case involved and second, it must also be shown that the doctor negligently departed from this recognized standard in his treatment of the plaintiff. In order to make this threshold breach of duty actionable, it must then be shown that the breach of duty was the legal cause of the plaintiff's injuries. Stallcup v. Coscarart, 79 Ariz. 42, 46, 282 P.2d 791, 793 (1955). The medical standard of care must be established by expert medical testimony unless the conduct complained of is readily ascertainable by a layman. Kalar v. MacCollum, 17 Ariz.App. 176, 496 P.2d 602 (1972). However, third party expert testimony is not always necessary as this standard can be established by the defendant doctor's own testimony. Vigil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967).'

The cause of an infection is not readily ascertainable by a layman and the Grattons have not presented expert medical proof establishing the required standard of medical care. The testimony elicited from Drs Wolgamot and Graham as to their treatment of Gratton as well as their past experience with infections has not established a standard of medical care or a deviation therefrom. A defendant doctor's...