Zimmerman v. Robertson

854 P.2d 338, 259 Mont. 105, 50 State Rptr. 703, 1993 Mont. LEXIS 183
CourtMontana Supreme Court
DecidedJune 21, 1993
Docket92-562
StatusPublished
Cited by34 cases

This text of 854 P.2d 338 (Zimmerman v. Robertson) 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
Zimmerman v. Robertson, 854 P.2d 338, 259 Mont. 105, 50 State Rptr. 703, 1993 Mont. LEXIS 183 (Mo. 1993).

Opinions

JUSTICE GRAY

delivered the Opinion of the Court.

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 [107]*107retracted testicle); the colt was transported to Robertson’s clinic where cryptorchid surgery and castration was performed.

The colt was returned to the BOSS 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 BOSS 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 “[njegligence 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.

[108]*108The 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 [109]*109that 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.

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Bluebook (online)
854 P.2d 338, 259 Mont. 105, 50 State Rptr. 703, 1993 Mont. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmerman-v-robertson-mont-1993.