Halse v. Murphy

774 P.2d 418, 237 Mont. 509, 46 State Rptr. 1009, 1989 Mont. LEXIS 153

Opinions

MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant Kristie Ann Halse appeals to this Court from a summary judgment of the Second Judicial District, Silver Bow County, in favor of respondent, Dr. James Murphy on a medical malpractice action which Halse had instituted on May 3, 1984.

Halse alleged that Dr. James Murphy was negligent when he failed to externally immobilize Halse’s fractured arm after he had removed a rod which he had inserted into the ulna bone of her right arm. The fracture was a result of a car accident. The initial medical records, entered when she was admitted to the hospital following the accident, indicate that Halse was 19 years old and well-nourished, appeared to be hypovolemic and had resultant hypovolemic shock; had a comminuted compound Monteggia’s fracture of the ulna; had a ruptured bladder and gross hematuria; had multiple face contusions with closed head injury; was comatose; and had multiple pelvic fractures. Dr. James Murphy repaired her right arm fracture. Two other physicians attended to the bladder repair and repair of inter-abdominal organs that were hemorrhaging. The fractures to the ulna could not be repaired by casting and surgery was necessary to repair the ulna and to insert a rod.

Halse was transferred to St. Peter’s Hospital in Helena on December 23, 1980 because she showed persistent renal failure. She underwent multiple renal dialysis procedures there. Her urinary function returned and she was transferred back to St. James Hospital in Butte where “she was begun on physical therapy.” Because of some persistent problems relating to nursing staff orders, the family transferred Kristie to the Sheridan Hospital in Sheridan, Montana, eight days later, on January 25, 1981. Her private physician accepted continuing care of the appellant.

In March, 1981, two and a half months after her fracture was repaired, Halse began experiencing palsy in her right hand. Dr. Murphy referred her to Dr. Charles Jennings, an orthopedic surgeon practicing in Great Falls, who specializes in hand problems, for a second opinion. Dr. Jennings’ medical records indicate that he removed the cast put on by Dr. Murphy in order to completely evaluate Halse’s injuries and to get good X-rays. The X-rays indicated that there was some displacement of the proximal fracture fragment which resulted in some relative shortening of the ulna; and that there was some callus at that site and that the distal fracture site showed “healing.” The medical records also stated that Halse was having considerable difficulty with elbow pain due to protrusion of the pin; and that Halse could not flex her elbow more than 30 degrees due to the pain.

Dr. Jennings wrote to Dr. Murphy stating his opinion that Halse would probably recover from the nerve palsy and that Halse had “not developed significant deformity” from this palsy. Dr. Jennings recommended that the pin be removed from the forearm because it was such an irritation to her. He also recommended that if the fracture were not stable enough without immobilization, Halse should be placed in an arm cast again; and that if the proximal fracture fragment appeared to be significantly unstable, he would open it, realign it and fit it with a plate and screws. Dr. Jennings had his occupational therapist fabricate a resting splint to be worn at night which would hold Halse’s wrist in slight extension and support the joints at 45 degree flexion. Dr. Jennings encouraged active motion of the wrist and fingers to regain range of movement.

Two weeks after consulting Dr. Jennings, Halse again saw Dr. Murphy. One week after that, on March 31, 1981, Halse was taken to the operating room at St. James where Dr. Murphy removed the pin under regional anesthetic. The hospital medical records indicate that a stab wound was made over the tip of the rod; an extractor was then screwed into the rod; and it was removed by means of a mallet. The wound was irrigated and the skin was closed with two sutures of stainless steel wire. A sterile dressing was applied and Halse left the operating room awake and in good condition to go to the ward. No bleeding occurred. Dr. Murphy did not recast the arm but gave Halse a removable splint to use as she deemed necessary.

Dr. Murphy continued to see Halse after the removal of the pin. It is at this stage that Halse, and subsequently Dr. Humberger, allege that Dr. Murphy was negligent. Halse asserts that Dr. Murphy did not X-ray the arm after removal of the rod, nor did he palpate the arm. Halse asserts that had he done so the unhealed fracture in the arm would have been detected. Dr. Humberger, in his late affidavit, states that if these facts are true, Dr. Murphy was negligent.

Halse moved to Great Falls in the summer of 1981. While there, she consulted Dr. Jennings’ associate, Dr. Bloemendaal and a Great Falls surgeon, Dr. Mungas.

On September 9, 1981, she was seen by Dr. Murphy in Bozeman and again on October 23, 1981. Murphy’s records show no complaint about her arm.

One year later, on October 29, 1982, Halse consulted physicians at the orthopedic department of the University of Washington. She was seen there by Dr. Theodore Greenlee. Dr. Greenlee X-rayed her arm and found that there was a non-union of the proximal ulnar fracture and possibly of the middle one-third of the distal ulnar fracture. He recommended, a bone graft and plating of her fracture. On November 9, 1982, Halse underwent surgery at the University of Washington. The two ulnar non-union sites were debrided and plates were attached to the bone.

On April 29, 1983, Halse was seen by Dr. Humberger in his office. Dr. Humberger’s records indicate that Halse’s wound was well healed. However, Dr. Humberger indicated that Halse had contracted osteomyelitis and that there “is a potential for the infection to flare up at any time.” Dr. Humberger discontinued Halse’s antibiotic treatment for the osteomyelitis on June 10, 1983. On July 22, 1983, Halse returned to Dr. Humberger with complaints of an aching sensation and tenderness in the ulna. The X-rays showed the wound to be well healed but there was a small lytic area beneath the plate which had been attached in Seattle. For this reason, Humberger put Halse back on Tegopen, a penicillin drug.

Humberger suggested removal of the plates and curettage of the bones. This was done on August 10, 1983. On August 22, 1983, the surgical staples were removed. The wound appeared well healed. Halse was advised, “warm soaks, active range of motion exercises, proper wound care, minimal resistance activity.” Two weeks later, on September 6, Dr. Humberger’s records indicate that the wound was healing well. He did not feel X-rays were necessary. He advised the same care of the arm as before and asked Halse to come back in one month.

One month later, October 6, Dr. Humberger’s records indicate that Halse bumped her arm while driving. She now had a transverse crack across the ulna and a small fracture through one of the screw holes. Dr. Humberger advised her to continue wearing her present splint, to perform range of motion exercises to the elbow and to remove the splint while bathing.

On October 25, Halse was started back on Tegopen again by Dr. Blackwood, an associate of Dr. Humberger, because she felt “the infection might be back.”

On November 3, Halse entered Dr. Humberger’s office without her brace and said she had no symptoms referable to her forearm. On physical examination, she was tender over the ulna but had good flexion/extension. The X-rays showed that the midshaft ulna fracture was in good position and alignment, but the bone was not healed. Dr. Humberger advised Halse of the necessity of wearing the splint to protect the ulna in hope that it would heal. He expressed his disappointment that Halse had not been wearing the splint. He noted that Halse was very discouraged in regard to the prolonged treatment necessary for her arm. Dr. Humberger advised her to wear her brace to protect her arm.

On December 13, 1983, X-rays showed that the new fracture was not healing.

On April 30, 1984, Halse commenced this action against Dr. Murphy. An answer was filed on August 8, 1984. Extensive discovery took place over a two year period. On July 16, 1987, appellant requested a trial date. Trial was set for September 22, 1987. On August 28, respondent made a motion for summary judgment. On September 1, twenty-one days before the trial date, Halse’s counsel withdrew. Two months later, on November 23, 1987, Attorney Michael Wheat requested, in writing, 30 additional days to evaluate Halse’s case and to respond to respondent’s motion for summary judgment. On January 1, 1988, respondent again noticed his motion for summary judgment and the motion was heard on February 5, 1988. Appellant again requested additional time to have “the file reviewed by a physician for an opinion.” The court again gave appellant thirty additional days (until March 6, 1988) to respond to the summary judgment motion.

On March 10, 1988, the respondent’s motion for summary judgment was granted. On April 7, 1988, Dr. Frank Humberger, in a written affidavit, stated, it was his opinion that, if facts were correct, that it was his opinion that Dr. Murphy was negligent in his care and treatment of Halse.

On April 21, 1988, appellant’s counsel filed a motion for relief from the judgment. Michael Wheat, appellant’s counsel, testified by affidavit that Halse had made every effort to locate expert testimony in her medical malpractice case. Halse was unable to elicit an opinion from Dr. Humberger concerning Dr. Murphy’s care and treatment of her. Appellant’s counsel contacted various medical doctors in California and New Mexico in an effort to obtain an expert opinion but to no avail.

Halse’s motion for relief from final judgment was under the provisions of Rule 60(b), M.R.Civ.P. That rule provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

“. . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”

Rule 59(b) provides:

“Time for motion. A motion for a new trial shall be served not later than 10 days after service of notice of the entry of the judgment.”

The first issue before this Court is whether an opinion of a trial expert, offered for the first time after final judgment and based upon a fact asserted by the plaintiff and within her knowledge prior to the judgment, can constitute “newly discovered evidence” under Rule 60, M.R.Civ.P. We see no reason to distinguish between opinion evidence and other kinds of evidence, if the opinion evidence itself meets the tests ordinarily required of newly discovered evidence.

This case is not a judgment as a result of a trial on the merits. The negligence issue presented by Halse was never litigated. The purposes of our Rules of Civil Procedure are to speed up court processes and facilitate the deciding of cases on their merits.

The new rules encourage disposition of cases quickly and on the merits, and it is a serious matter when a party moves to have a case disposed of on grounds other than the merits. Rambur v. Diehl Lumber Co. (1964), 144 Mont. 84, 394 P.2d 745.

6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore’s Federal Practice ¶ 60.23 [3] (2d ed. 1983) states:

“. . . [I]f new evidence is discovered, or by due diligence could have been, in time for a new trial under Rule 59(b), then a motion for a new trial must be made within that time; and that party cannot delay beyond that time and seek relief under Rule 60(b)(2) .... If so, the motion must be made within a reasonable time, and, in any event, not later than one year after the ‘judgment, order or proceeding was entered or taken.’ ”

6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore’s Federal Practice ¶ 60.23 [4] (2d ed. 1983) states:

“[F]or relief to be granted under Rule 60(b)(2), the failure to produce the evidence at the trial must not have been caused by the moving party’s lack of due diligence.”

The failure to produce the evidence at the trial must not have been caused by the moving party’s lack of due diligence. See Kansas City Area Transportation v. State of Missouri (8th Cir. 1981), 640 F.2d 173. For years, Halse’s counsel sought extensions to obtain an expert who would testify in her behalf. It would be unjust for this Court to deny Halse her day in court.

The history of Rule 59(b) has aided us in making this decision.

“Original Rule 59(b) made an exception for a motion for new trial on the ground of newly discovered evidence by providing that such a motion could be made within the time allowed for appeal, which, at that time, was three months as a general proposition. The grounds for substantial relief from a final judgment under original Rule 60(b) did not originally include newly discovered evidence . . .; The 1946 revision of the Rules did the following things. It eliminated the exception in Rule 59(b) relative to a motion for a new trial on the ground of newly discovered evidence, so that a motion under Rule 59 on this ground, as on any other ground, must be served not later than 10 days after the entry of judgment. (Emphasis added.)

“. . .If new evidence is discovered, or by due diligence could have been, in time to move for a new trial under Rule 59 then a party is subject to the 10 day limit of Rule 59; and such a timely motion destroys the finality of the judgment for purposes of appeal. Otherwise a party may move under Rule 60(b) within a reasonable time, but not more than one year after the judgment was entered. Such a motion under 60(b) does not affect the finality of the judgment or suspend its operation.”

6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore’s Federal Practice ¶ 59.04 (2d ed. 1983).

The evidence must be admissible and credible, must be of such a material and controlling nature as will probably change the outcome. 6A J. Moore, J, Lucas & G. Grotheer, Jr. Moore’s Federal Practice ¶ 60.23 [4]. Twenty-four days after respondent’s summary judgment was granted, Dr. Humberger testified by signed affidavit that when he gave his deposition testimony on December 22, 1986, he was unable to render an opinion concerning Kristie’s case because he had not had the opportunity to review Dr. Murphy’s notes and records. This fact shows the requisite diligence on Halse’s part.

The belated evidence submitted by Dr. Humberger would have precluded the granting of the summary judgment. For this reason, the summary judgment must be reversed.

The second issue before this Court is whether this expert opinion, if it is “newly discovered evidence,” would change the outcome where it simply shows that the defendant was negligent but fails to show that such negligence was the proximate cause of any injury. In our court system, it is the jury, not witnesses, who decide such questions of negligence.

We reverse the judgment and remand this action to the District Court for further proceedings.

MR. JUSTICES WEBER, McDONOUGH and HUNT concur.