Dalton v. Kalispell Regional Hospital

846 P.2d 960, 256 Mont. 243, 50 State Rptr. 54, 1993 Mont. LEXIS 15
CourtMontana Supreme Court
DecidedJanuary 29, 1993
Docket91-532
StatusPublished
Cited by22 cases

This text of 846 P.2d 960 (Dalton v. Kalispell Regional Hospital) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dalton v. Kalispell Regional Hospital, 846 P.2d 960, 256 Mont. 243, 50 State Rptr. 54, 1993 Mont. LEXIS 15 (Mo. 1993).

Opinions

JUSTICE GRAY

delivered the Opinion of the Court.

Jack S. Dalton appeals from the grant of summary judgment in favor of Kalispell Regional Hospital by the First Judicial District Court, Lewis and Clark County. We affirm.

The following issues are presented on appeal:

1. Did the District Court err in requiring expert opinion testimony regarding standards of hospital care?

2. Did the District Court err in refusing to apply the doctrine of res ipsa loquitur?

The facts of this case relating to liability are not in dispute. Appellant Dalton was a patient of Dr. J. T. Laidlaw (Laidlaw), an orthopedic surgeon in Kalispell. Laidlaw determined that Dalton’s right hip should be replaced with a prosthetic device and decided to use the Harris-Galante I.

Laidlaw met with a representative of Zimmer-Jackson Associates, Inc. (ZJA), a company which markets prosthetic devices, on approximately September 12, 1986, to determine the proper device for Dalton’s surgery. It was determined that large sizes in the cups and reamers of the prosthetic device would be needed. The ZJA representative ordered the Harris-Galante I kit with oversized cups and reamers by telephone the same day.

Laidlaw’s office personnel called the operating room at Kalispell Regional Hospital (Hospital) on September 12, to reserve surgery [245]*245time for Dalton’s operation on October 2, 1986. Operating room personnel were advised that the surgery would be a right total hip replacement using the Harris-Galante I kit from ZJA. No reference to the need for large cups and reamers in the kit was made during this telephone call. Following its usual procedure, the Hospital then issued a confirming purchase order for the device.

The kit arrived at the Hospital the evening preceding the surgery. An operating room nurse inventoried the kit, checking each item against the packing list. No procedure existed by which the Hospital verified that the shipment received was the shipment actually ordered by the physician from the manufacturer.

After the surgery had begun, Laidlaw asked the nurse for a large reamer. It was discovered at that time that the kit did not contain the larger cups and reamers which had been ordered. After further inquiry, it became clear that the only kit which had been shipped by ZJA was that inventoried by the nurse; it contained only the standard size cups and reamers.

Laidlaw decided to close Dalton’s incision and terminate the surgery until the proper prosthetic device could be utilized. ZJA shipped the properly sized device later the same day. Dalton’s hip was replaced with the newly delivered device the following day.

The Hospital subsequently changed its procedure regarding verification of prosthetic devices ordered by physicians. In February, 1987, it instituted a procedure whereby the nurse assigned to the surgery checks the prosthetic device received and informs the physician if discrepancies between the special order requisition information and the shipment invoice are found.

Dalton filed a complaint against ZJA, Laidlaw and the Hospital. Settlements subsequently were entered into between both ZJA and Laidlaw and Dalton.

The Hospital moved for summary judgment asserting that Dalton had failed to name an expert witness who would testify as to the duty owed by the Hospital and a breach of that duty. Dalton admitted that he did not intend to produce expert opinion testimony regarding standards of hospital care. He contended that expert testimony was not required because the Hospital’s negligence is obvious and, indeed, admitted. He also argued that the doctrine of res ipsa loquitur applies to this case, eliminating the need for expert testimony.

On September 5,1991, the District Court entered its memorandum and order granting summary judgment in favor of the Hospital unless Dalton named a witness who would testify as to standard of care by [246]*246October 1,1991. No such witness having been named, judgment was entered against Dalton on October 4, 1991. This appeal followed.

Did the District Court err in requiring expert opinion testimony regarding standards of hospital care?

The District Court determined that, while exceptions exist to the general rule in malpractice actions that the standard of care must be established by expert testimony, the exceptions are not applicable in this case. Specifically, the court determined that the Hospital’s change in procedure several months after Dalton’s surgery did not establish its standard of care in October, 1986. The court concluded that the standard of care in this case was not something readily ascertainable by laypeople.

Dalton argues, first, that the Hospital’s duty to provide that which is necessary to perform surgery properly is not a matter requiring expert testimony. He relies on Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670, where we acknowledged an exception to the usual requirement of establishing a medical standard of care via expert testimony when the conduct complained of is readily ascertainable by a layperson.

We did recognize the exception cited by Dalton in Gratton. We refused, however, to apply that exception in Gratton, which involved the management of a staph infection following an open reduction surgery of a leg fracture, concluding that the cause of an infection is not readily ascertainable by a layperson. We similarly decline to apply the exception here.

The essence of Dalton’s argument is that the Hospital’s failure to take any action to determine the suitability of the prosthetic device, or to have any procedure in place to do so, is ample evidence from which a jury can reasonably infer negligence. We disagree. The Hospital’s lack of action is evidence of the Hospital’s lack of action and nothing more. As we stated in Gratton, “[w]hat is missing here is evidence of any standard of care against which the acts or omissions of the ... hospital staff can be measured to establish negligence ....” Gratton, 169 Mont, at 188, 189, 545 P.2d 670.

Dalton also argues that the Hospital’s own admissions of record bring the present case within the ambit of our cases holding that expert testimony in medical negligence cases is not required if a defendant’s own evidence establishes a standard of care and a deviation from that standard. He asserts that the Hospital’s evidence that it had no “checks and balances” in place in October, 1986, to ensure proper sizing and inventory of prosthetic devices and that, sub[247]*247sequent to the events at issue here, it inaugurated such procedures, establishes what the Hospital knew to be the applicable standard of care in October, 1986. In short, according to Dalton, no policy during the first pertinent time frame followed by a policy in the second equals an admission of an applicable standard of care during the first time frame. Aside from any questions regarding admissibility of evidence of the after-inaugurated procedure under the “remedial measures” provision of Rule 407, M.R.Evid., which we do not address here, we find this contention unpersuasive.

We have recognized the “defendant’s admissions” exception to the expert testimony requirement in several cases. In both

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Bluebook (online)
846 P.2d 960, 256 Mont. 243, 50 State Rptr. 54, 1993 Mont. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalton-v-kalispell-regional-hospital-mont-1993.