Zimmerman v. Robertson

• Decision Date: 21 June 1993
• Docket Number: No. 92-562,92-562
• Citation: 854 P.2d 338,259 Mont. 105
• Parties: Robert ZIMMERMAN, Plaintiff and Appellant, v. G.D. ROBERTSON, D.V.M., d/b/a Bozeman Veterinary Hospital, Defendant and Respondent.
• Court: Montana Supreme Court

Page 338

854 P.2d 338

259 Mont. 105

Robert ZIMMERMAN, Plaintiff and Appellant, v. G.D. ROBERTSON, D.V.M., d/b/a Bozeman Veterinary Hospital,

Defendant and Respondent.

No. 92-562.

Supreme Court of Montana.

Submitted on Briefs May 20, 1993.

Decided June 21, 1993.

Jerrold L. Nye, Nye & Meyer, Billings, for plaintiff and appellant.

Geoffrey R. Keller, Matovich, Addy & Keller, Billings, for defendant and respondent.

GRAY, Justice.

Robert Zimmerman appeals from a judgment on directed verdict entered in favor of G.D. Robertson by the Thirteenth Judicial District Court, Yellowstone County. We affirm.

We restate the issues on appeal as follows:

1. Is expert testimony required in a negligence action against a veterinarian?

2. Did the defendant's testimony constitute sufficient evidence of deviations from the standard of care to enable the plaintiff to withstand a directed verdict?

3. Did the District Court abuse its discretion in refusing to admit testimony regarding whether the defendant obtained the informed consent of the horse's owner prior to surgery?

Robert Zimmerman placed a colt in the care of Sarah Vaessen at the Bridger Canyon Stallion Station (BCSS) in March of 1991. In early May, Vaessen contacted veterinarian G.D. Robertson with regard to castration of a number of colts, including Zimmerman's. Robertson discovered that Zimmerman's colt was cryptorchid (one retracted testicle); the colt was transported to Robertson's clinic where cryptorchid surgery and castration was performed.

The colt was returned to the BCSS in mid-May. On May 24, 1991, Robertson was called to treat the colt for an upper respiratory infection. He treated the colt with antibiotics daily through the end of May; the infection appeared to be responding.

To facilitate the healing process, Robertson applied Dermago 2 to the surgical site on June 7. He was called back to the BCSS on June 19 regarding an infection at the surgical site; the colt was transported back to Robertson's clinic. Robertson treated the colt with antibiotics, other medications and drains. The colt died on October 6, 1991. An autopsy was performed and a large abscess was discovered in the spleen; in addition, streptococcus zooepidemicus bacteria was isolated.

Zimmerman filed a complaint against Robertson claiming negligence in both the surgical procedure and post-surgery treatment. A jury trial began on October 5, 1992. Zimmerman testified and also called Vaessen and Robertson as witnesses. Robertson moved for a directed verdict at the close of Zimmerman's case. The District Court granted the motion on October 6, concluding that Zimmerman had failed to provide necessary expert testimony. Zimmerman appeals.

Is expert testimony required in a negligence action against a veterinarian?

Zimmerman contends that expert testimony should not be required in an action against a veterinarian. We disagree.

We have not previously addressed the specific question of whether expert testimony is required in a negligence action against a veterinarian in Montana. In Carlson v. Morton (1987), 229 Mont. 234, 745 P.2d 1133, however, we discussed the elements a plaintiff must prove in any professional negligence action, stating that in such actions "[n]egligence cannot be inferred from the simple fact that a loss occurred." Carlson, 745 P.2d at 1136 (citations omitted). We went on to observe that, while the field of legal malpractice was relatively new in Montana, it was undisputed that expert testimony supporting a departure from "the prevalent standard of medical care" was required in medical malpractice actions. Carlson, 745 P.2d at 1136. Indeed, by that time, the necessity of expert testimony to establish the standard of care had been extended to professional negligence actions against dentists, orthodontists, manufacturers of pharmaceuticals, and abstractors of title. Carlson, 745 P.2d at 1136-1137 (citations omitted). We extended that requirement to actions against attorneys.

The rationale for requiring expert testimony in professional negligence actions has been summarized by Professors Prosser and Keeton:

Professional persons in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. Most of the decided cases have dealt with surgeons and other doctors, but the same is undoubtedly true of dentists, pharmacists, psychiatrists, veterinarians, lawyers, architects and engineers, accountants, abstractors of title, and many other professions and skilled trades.

. . . . .

Since juries composed of laymen are normally incompetent to pass judgment on [such] questions ... it has been held in the great majority of malpractice cases that there can be no finding of negligence in the absence of expert testimony to support it....

Carlson, 745 P.2d at 1137, citing Prosser and Keeton on The Law of Torts, § 32, 5th Edition, (1984).

As we did in Carlson in a professional negligence action against an attorney, we conclude here that expert testimony is necessary to establish the applicable standard of care in an action against a veterinarian which arises from the veterinarian's professional capacity. Matters concerning the standard of care owed by a veterinarian during and after surgery are outside the common experience and knowledge of lay jurors; expert testimony is necessary to assist them in resolving such cases.

Our conclusion on this issue was clearly foreshadowed in Carlson. We note, as well, that other jurisdictions have adopted the expert testimony requirement in veterinary negligence actions. In Utah, for example, expert testimony is required to show that a veterinarian did not exercise the care and diligence ordinarily exercised by skilled veterinarians doing the same type of work in the community, and that the failure caused the injury. Posnien v. Rogers (Utah 1975), 533 P.2d 120, 121-122. See also 71 A.L.R.4th 811, Veterinary Malpractice, 823-825.

Zimmerman's argument that differences in training, conditions of practice and expected standards between veterinary doctors and physicians weigh against requiring expert testimony in negligence actions against veterinarians is not persuasive. Requiring expert testimony is not the equivalent of applying the same standards to veterinarians as are applied to physicians. Indeed, expert testimony regarding the standard of care owed by a veterinarian may reflect that the appropriate standard of care for veterinarians is significantly less than that required of physicians. We do not determine the appropriate standard of care merely by requiring expert testimony on the subject.

Did the defendant's testimony constitute sufficient evidence of deviations from the standard of care to enable the plaintiff to withstand a directed verdict?

Zimmerman argues that Robertson's own testimony established deviations from the applicable standard of care and that, on that basis, the District Court erred in directing a verdict for Robertson. We disagree.

Zimmerman advances "admissions" by Robertson that his treatment of the colt fell below the standard of care in several regards. First, he quotes certain testimony with regard to the issue of informed consent. On the basis of our discussion and conclusion on Issue 3 below, we do not review this testimony.

In addition, Zimmerman contends that Robertson admitted sub-standard care with regard to the use of certain medications and drains and his failure to obtain a culture or other determination of the type of bacteria in the abscess. Zimmerman asserts that these "admissions" were sufficient to withstand a directed verdict.

We have recognized the "defendant's admissions" exception to the expert testimony requirement in several professional negligence cases. We acknowledged, but refused to apply, the exception in Dalton v. Kalispell Regional Hosp. (Mont.1993), 846 P.2d 960, 50 St.Rep. 54; Hunter v. Missoula Community Hosp. (1988), 230 Mont. 300, 750 P.2d 106; and Hill v. Squibb & Sons, E.R. (1979), 181 Mont. 199, 592 P.2d 1383. In Thomas v. Merriam (1959), 135 Mont. 121, 127, 337 P.2d 604, 607, we applied the exception where the physician's admissions to a member of plaintiff's family as to the procedures he followed were sufficient to establish a deviation from the standard of care.

The case before us is distinguishable from Thomas. Here, Robertson testified that his use of certain medications was not improper; similarly, he testified that it was not improper not to obtain a culture on the bacteria present. Finally, Robertson testified that his suction draining of the abscess prior to actually inserting drains--which he did in August and September--constituted appropriate treatment.

Robertson's testimony was that he believed his treatment and care of the colt, including both the surgery and the post-surgical treatment, fell within the applicable standard of care for veterinarians in the Bozeman area. We conclude that the "defendant's admissions" exception to the expert testimony requirement in professional negligence actions is not applicable here. Zimmerman having elicited no other expert testimony regarding deviations from the standard of care, we hold that the District Court did not err in directing a verdict for Robertson based on the absence of required expert testimony.

Did the District Court abuse its discretion in refusing to admit testimony regarding whether the defendant obtained the informed consent of the horse's owner prior to surgery?

During trial, Zimmerman attempted to question Robertson on the subject of whether Robertson had obtained his informed consent to the...