No. 13404 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

ALAN LLERA, 

Plaintiff and Appellant, 

BYRON R. WISNER, D.D.S. ; JON A. 

JOURDONN~S , D . D . s . ; ROBERT R . HYLTON, MID.; J. MCGARITY, c.R.N.A.; 

M.D. ANESTHESIA SERVICES; M. KEMP,R.N.; 

D. DRAKE, R.N.; and SAINT VINCENT'S HOSPITAL, 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding, 

Counsel of Record: 

For Appellant : 

Lewis Em Brueggemann argued, Billings, Montana 

For Respondents: 

Anderson, Symmes, Forbes, Peete and Brown, Billings, 

Montana 

Richard F. Cebull argued, Billings, Montana 

Weymouth Symmes argued, Billings, Montana 

Keef er and Roybal, Billings, Montana 

J. Dwaine Roybal argued, Billings, Montana 

Neil Keefer appeared, Billings, Montana 

Crowley, Haughey, Hanson,, Ghllagher and Toole, 

Billings, Montana 

Jack Ramirez argued, Billings, Montana 

Submitted: October 19, 1976 

Decided: DEC 2 0 19B 

DEC 2 0 1976 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from summary judgment entered in 

favor of all defendants in a dental malpractice action in 

the district court, Yellowstone County. 

Plaintiff Alan Llera brought action alleging malpractice 

resulting from an oral surgical procedure known as a partial 

glossectomy. Plaintiff alleges the malpractice occurred in 

the diagnosis of his problem and in the resultant operation. 

He alleges no informed consent was obtained nor were the risks 

and the alternatives to his tongue problem ever explained or 

discussed. 

Plaintiff alleges Dr. Joh A. Jourdonnais, the referring 

dentist, gave Dr. Byron Wisner no referral information at the 

time; that Dr. Hurly, the admitting doctor at St. Vincent's 

Hospital found nothing wrong with his tongue but did find enlarged tonsils; that Dr. Hylton, the anesthesiologist and his 

agents were negligent in allowing the operation; that two nurses, 

D. Drake and M. Kemp, did not provide the proper care; and 

finally that St. Vincent's hospital failed to exercise the proper 

degree of care for plaintiff. 

Plaintiff, a 20 year old man, went to see Dr. Jourdonnais, 

a Great Falls orthodontist, for treatment to reduce the gaps 

between his teeth. Dr. Jourdonnais, after treating plaintiff 

through the use of orthodontic appliances suspected that the 

space problem might be caused by what is known in the profession 

as "tongue thrust" which is an involuntary forward-thrusting 

movement of the tongue upon swallowing which forces the upper 
teeth apart. He discussed his conclusions with plaintiff and 

informed him of an operation that might help the problem. The 

doctor also informed plaintiff of a doctor in Billings, Montana 

who had special board certification as an oral surgeon, one Dr. 

Byron R. Wisner, who might perform the operation necessary to 

correct the tongue problem. Dr. Jourdonnais did not know Dr. 

Wisner personally, he had heard about him from another dentist. 

Plaintiff request an appointment with Dr. Wisner in Billings. 

Dr. Jourdonnais denied ever recommending an operation to 

plaintiff, but stated in his deposition that after discussing 

his diagnosis with plaintiff he merely made the appointment for 

him with Dr. Wisner. He sent Dr. Wisner his X-rays and a plastic 

mold of plaintiff's teeth but did not send his written diagnosis. 

Neither did he tell Dr. Wisner of his diagnosis as "tongue 

thrust" . 

Plaintiff' s appointment with Dr. Wisner was February 23, 

1973, in Billings. Dr. Wisner's diagnosis was "congential 

macroglassia" which in common terms is an oversized tongue. 

Dr. Wisner recommended surgery known as a partial glossectomy, 

which he performed on June 5, 1973 at St. inc cent's Hospital in 

Billings. This operation consisted of removal of a wedged shaped 

piece of the tongue to reduce its size. Prior to the surgery 

and upon entrance into the hospital, plaintiff was examined by 

Dr. John Hurly, as required by the rules of the hospital for any 

patient who was to undergo surgery. 

During surgery Dr. Wisner was assisted by a nurse, M. Kemp, 

who was trained and employed by Dr. Wisner for oral surgery. The 

anesthesiologist and the anesthetist, Dr. Robert R. Hylton and 
J. McGarity, respectively, members of M.D. Anesthesia Services, 

assisted in the aperation. One defendant, D. Drake was the 

circulating nurse and was an employee of St. inc cent's. Plaintiff remained in the hospital five days before returning home 

to Great Falls. Although a schedule was set up for plaintiff 

to see Dr. Wisner after leaving the hospital, he returned only 

once, on July 20, 1973. In his deposition, Dr. Wisner testified 

that on that call plaintiff had no complaints. He also testified he did tell plaintiff there was a chance of some loss of 

tongue mobility, speech impairment, loss of taste, and possibly 

it might not cure his tongue thrust when he was informed by 

plaintiff that Dr. Jourdonnais had discussed the operation with 

him and he wanted the operation. However, Dr. Wisner did say 

he told plaintiff that it was a difficult procedure that should 

be done in the hospital. Plaintiff said his reason for wanting 

the operation was because of the spacing and flaring of his teeth 

and the operation might help remove the pressure on those teeth. 

While denied by plaintiff and his mother, Dr. Wisner stated in 

his deposition that she was in favor of her son having the 

operation. 

During the one return visit to Dr. Wisner, no infection 

was noted in the tongue. On examination plaintiff also showed 

no taste nor sensory deficiency; the tongue had normal mobility 

and plaintiff could lick his lips. 

The hospital records and depositions indicate that plaintiff lost from 1100 to 1500 cc of blood and that two blood 

transfusions were required. Plaintiff alleges that expert testimony would indicate that 200 to 300 cc is a normal loss in this 

type of operation and the loss of such a large amount is an 
evidentiary fact tending to prove the ultimate fact the operation 

was not performed properly. 

Following the operation plaintiff returned to Great 

Falls and continued to have Dr. Jourdonnais do orthodontic 

work for him for some six months until plaintiff moved to Bozeman. 

Plaintiff stated in his deposition that when he went to see 

Dr. Wisner some six weeks after the operation his tongue was 

inflamed and that Dr. Wisner gave him some pills for the inflammation. Dr. Jourdonnais stated he had difficulty with plaintiff 

before and after the operation with plaintiff not keeping 

appointment dates, which interfered with his giving plaintiff 

constant care. 

Some six months after the operation in Billings, 

plaintiff had his tonsils and adenoids removed in Great Falls 

by Dr. W. J. Roberts. In his deposition, Dr. Roberts stated 

that at the time of his removing the tonsils they were enlarged 

and infected and in his opinion this infection was chronic. 

However, he stated when he first examined plaintiff in October 

1973, he found no acute infection. He further stated that while 

he doubted the tonsils would have interfered with the movement 

of plaintiff's tongue, the recurring inflammation could cause 

the tongue to be sore. 

Five issues are presented all directed to the granting 

of summary judgment to defendants. These issues can be summarized 

thus -- Was summary judgment proper: 

1) If there were genuine issues of fact as to any one or 

more of defendants? 

2) Where plaintiff moved for a continuance to locate 

additional expert testimony? 
3) Where there was expert testimony already before the 

court, or its equivalent? 

4) As to any one or more, or all of defendants, as a 

matter of law as pertaining to any one or more of the three 

causes of action? 

5) When defendants failed to comply with the notice 

requirements of Rule 56(c), M.R.Civ.P.? 

We note here that plaintiff's complaint against the 

defendants sets forth three causes of action, the first for 

lack of informed consent, the second for failure to use due 

care, (both sounding in tort); and the third against only 

defendant Wisner for breach of express warranty to obtain a 

specific result. Extensive discovery procedures followed the 

filing of the complaint, including seven depositions, several 

sets of interrogatories, numerous exhibits, and including articles 

from dental publications that considered the treatment of an 

"open bite" and " tongue thrust" condition. 

We have carefully reviewed the posture of the cause 

at the time all defendants filed motions for summary judgment 

and at the time such motions were heard. We affirm such summary 

judgments as to six defendants without further discussion other 

than to note we find the record concerning these six totally 

fails to disclose genuine issues of material fact on any theory 

of pleading advanced by plaintiff. These six defendants are: 

Robert R. Hylton, M.D.; J. McGarity, C.R.N.A.; M.D. Anesthesia 

Services; M. Kemp, R.N.; D. Drake, R.N.; and Saint Vincent's 

Hospital. See: Montana Deaconess Hospital v. Gratton, - 

Mont . , 545 P.2d 670, 33 St.Rep. 128; Collins v. Itoh, 160 

Mont.461, 503 P.2d 36; Maki v. Murray Hospital, 91 Mont. 251, 

7 P.2d 228; Davis v. Trobough, 139 Mont. 322, 363 P.2d 727. 
The summary judgments granted Dr. Jourdonnais and Dr. 

Wisner, will be discussed individually. 

As to Dr. Jourdonnais, the summary judgment resulted 

after no facts were developed that revealed any deviation from 

the established standards of treatment by orthodontists and 

after it was shown that no harm came to plaintiff resulting from 

the treatment by Dr. Jourdonnais. It is of import to note that 

the court did not grant this defendant's motion for summary 

judgment until after plaintiff's attorney told the court he could 

not produce any additional expert witness testimony against 

Jourdonnais other than that before the court. 

The record is bare of any testimony of another orthodontist, 

dentist, medical doctor, or other expert that the professional 

service rendered plaintiff by this defendant was in any manner 

improper or negligent. In truth, plaintiff has no complaint as 

to the orthodontic work, but directs his complaints as to 

Jourdonnais' diagnosis and his failure to warn plaintiff of the 

seriousness of the operation called a "partial glossectomy". 

Before the district court was the deposition of Dr. Morgan 

Allison, Ohio State University, an internationally recognized 

oral surgeon. His testimony shows clearly that there was no 

error in diagnosis by Dr. Jourdonnais and his treatment of 

plaintiff is a recognized and acceptable method of treatment. 

Here we have a referring doctor being faulted on the 

referral, because plaintiff is dissatisfied. We find no case 

law cited by plaintiff or by our research of the question, that 

holds a recommendation of a physician to another will subject 

the latter to liability for the recommendation, absent a showing 

of partnership or employment or agency. The recommended physician 
is treated as an independent contractor, liable for his own 

torts. Graddy v. New Y~rk Medical College, 243 N.Y.S.2d 940; 

Oldis v. La Societe Francaise de Bienfaisance Mutuelle, 130 

C.A.2d 461, 279 P.2d 184; Huber v. Protestant Deaconess Hospital 

Ass'n, 127 Ind.App. 565, 133 N.E.2d 864; Myers v. Holborn, 

58 N.J.L. 193, 33 A. 389; 70 C.J.S. Physicians and Surgeons, 

$54(d), p. 978. 

We do not find plaintiff's allegation that defendant 

Jourdonnais was negligent due to the lack of informed consent 

supported by any evidence. Again we can find no case where 

liability for failure to inform is found against one other 

than the physician who undertakes the operation. Here, defendant Jourdonnais did not advise plaintiff on the surgical 

procedure because he did not have knowledge of it other than 

reading. He stated he explained to plaintiff that he knew of 

the procedure having been performed; he knew nothing about it; 

he did not recommend it; but if plaintiff felt his situation 

was serious enough in his own mind, and he wanted further information on the procedure, then he would put him in touch with 

him 

Dr. Wisner. He told plaintiff he would put/in touch with Dr. 

Wisner for information only. On this basis he contacted Dr. 

Wisner, made an appointment for plaintiff, and sent all his 

records to Dr. Wisner, The rule is that the physician who prepares to perform a medical or surgical procedure has the obligation to explain that procedure to the patient -- not the referral 

doctor. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617; 

Mitchell v. Robinson, (Mo. 1960), 334 S.W.2d 11; Harwick v. 

/I @p Harris, (El&;! 1964), 166 S. 2d 912. 
The accepted view is that the sufficiency of the physician's disclosure is a matter to be measured against acceptable 

medical practice. Plaintiff is required to produce expert 

testimony to establish a standard of medical practice and show 

defendant's deviation from that standard. Zebarth v. Swedish 

Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1. The record 

presented to the district court in the instant case lacks any 

evidence of a standard for an orthodontist, or of one that 

refers patients to another specialist. The testimony of Dr. 

Schultz, an oral surgeon of Great Falls, does not supply the 

standard necessary to sustain plaintiff's position here. 

We find summary judgment proper as to defendant 

Jourdonnais. 

The general fact situation as it relates to Dr. Wisner 

has been heretofore set out. He is a board certified oral 

surgeon who before practicing in Billings, served a three year 

residency under Dr. Morgan ~llison of Ohio State University. 

Dr. Allison in his deposition stated Dr. Wisner was fully qualified to perform the "partial glossectomy" and after reviewing 

all the depositions in this case, along with the records of the 

surgical procedure, he found no indication of any improper procedure on the part of Dr. Wisner in performing the operation. 

With this background in mind, we review the background 

of this complaint. The operation was performed in June 1973. 

The complaint was filed March 5, 1975. Extensive discovery 

followed and the trial date of February 2, 1976 was continued 

to May 17, 1976 to complete such discovery. Motion for 

summary judgment was filed and served by defendant Wisner on 

May 7, 1976. After reviewing the depositions of Dr. Schultz and 
and Dr.~Jourdonnais, which showed that after examining plaintiff 

after his operation they found no residual damage or evidence 

to sustain the problems he complained of, the court granted the 

motion for summary judgment on May 17, 1976. 

We note here that at the time of the hearing on summary 

judgment, the attorney for plaintiff did not object to notice 

on the hearing of less than the ten days allowed by statute, 

and admitted that "he had no qualified expert testimony other 

than the depositions which this Court has read", all of which 

appears in the trial court's judgment. 

All parties to this action agree that four cases control 

the issues before us. Donathan v. McConnell, 121 Mont. 230, 

193 P.2d 819; Negaard v. Feda, 152 Mont. 47, 446 P.2d 436; 

Montana Deaconess Hospital v. Gratton, - Mont . , 545 P. 2d 

670, 33 St.Rep. 128, 130, 132; Collins v. Itoh, 160 Mont. 461, 

503 P.2d 36. 

Donathan - established that in Montana a dentist,. owes 

the same duty as a physician to his patient. 

In Gratton this Court held summary judgment is proper: 

"I* * * 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." 

Also Gratton held that where no genuine issue of fact has been 

raised that the opposing party has the burden of presenting 

evidence of material and substantial nature raising such issue, 

noting that when plaintiff fails to do so, summary judgment 

must issue. The question of the establishment of a standard 

of care against which the acts or omissions could be measured 

to establish negligence is quoted from Evans v. Bernhard, 23 

Ariz.App. 413, 533 P.2d 721,723: 
I"* * * 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. * * * The medical standard of care must be 

established by expert medical testimony unless the conduct complained of is readily ascertainable by a layman. * * * However, third party expert testimony is 

not always necessary as this standard can be established 

by the defendant doctor's own testimony.'" 

Plaintiff in relying upon Donathan acknowledges that 

the rule established there controls this case. In a later case, 

Negaard the duties owed by a dentist were fully set forth, and 

those principles apply to the instant case. 

At the time of the hearing on summary judgment, plaintiff 

here was in the same position as were the Grattons, appellants 

in Montana Deaconess Hospital in their appeal to this Court. 

Plaintiff complains of numerous factual issues principally relating 

to the diagnosis of his condition, the procedure used to correct 

it, and the treatment given him. If all the questions were 

resolved in his favor, he still, could not prevail for he 

had no qualified expert testimony five days before trial date to 

show that defendant Wisner departed from the recognized standard 

of care in his treatment of plaintiff. The doctors he alleged 

as his experts were not "deposed" and several indicated no 

intent to travel to Billings to testify on May 17, 1976. 

Plaintiff stated he intended to call, as experts, Drs. 

Baldwin and Roberts of Great Falls, however he previously 

admitted that Dr. Baldwin would not testify at trial or by 

deposition. Sa at the time of the summary judgment ruling, he 

was down to one possible witness Dr. W. J. Roberts, a physician 
whose testimony was to provide the standard of care for an 

oral surgeon. Dr. Roberts, a board certified ear, nose and 

throat specialist, under the standard set by this Court in 

Collins, could not qualify as an expert against Dr. Wisner as 

to the standard of care that is usually exercised by an oral 

surgeon. This is true too as to his testimony about the fact 

the tonsils created an infected area in the oral cavity that 

could have caused an infection to the tongue. This Court 

in Gratton noted: 

"The presence of an infection following an operation 

or open reduction of a fracture does not establish 

negligence. [Citing cases] .I1 

According to his deposition, Dr. Roberts knew nothing about 

a partial glossectomy until after he examined plaintiff before 

removing his tonsils and the only knowledge he had was gained 

thereafter after discussing the procedure with oral surgeons 

in Great Falls. 

Plaintiff claims "lack of informed consent1'. There was 

nothing before the trial court in way of deposition or other 

documents which set forth the standard of dental care required 

of dentists in informing their patients with respect to risks 

that might result from the performance of an operation such as 

performed on plaintiff. No showing was made with respect to 

disclosure required of a dental practitioner prior to the performance of a partial glossectomy. In so far as could be determined, this may have been the first such operation in this area. 

Plaintiff recognizes that under Negaard expert testimony is 

required to establish the "informed consent" doctrine, but argues 

he has carried that burden of proof in the depositions of 

Jourdonnais, Wisner, Schultz, Roberts and Allison. As previously 
noted, these depositions do not present the necessary testimony 

from any qualified expert that establishes such standard. 

We next consider the blood loss issue. We find no testimony showing the loss of blood during the operation could 

result in plaintiff's alleged residual complications. Dr. 

Morgan Allison, defendant's expert, testified in his deposition 

that this was unusual bleeding for the partial glossectomy 

on 

but wentlto state that plaintiff did not suffer any complications 

from this loss because of the transfusions he received. We 

find no testimony of any of those deposed alleging plaintiff 

suffered an* compensable damage or complication resulting from 

an abnormal loss of blood. 

Next we consider plaintiff's allegations the operation 

was unnecessary and unwarranted. The record is devoid of any 

testimony supporting these allegations. Some doctors might 

have proceeded with a different treatment before resorting to 

the surgery, but none testified that it was unnecessary or 

unwarranted. The choice was one of medical or dental judgment. 

Plaintiff argues this Court's holding in Baylor v. <-.- ', ... - ,>.b ..AJacobson, Mont . , W2P.2d 55, 33 St.Rep. 662, is authority to allow -him to go to the jury. He alleges there was 

expert testimony or its equivalent in the record indicating 

the operation should be performed only after "everything else 

fails" and that the operation should not have been performed at 

all in this case. We do not agree. In Baylor the majority 

found an offer of proof of the required standard of care 

and the defendant's breach thereof in the medical testimony 

of a Dr. Robert Tuby whose identity the plaintiff revealed 

in an amended answer, filed a day after the summary judgment. 
Here, no expert medical testimony is available to establish 

any general issue of material fact concerning the required 

standard of care Dr. Wisner allegedly deviated from. 

In plaintiff's complaint, as a third cause of action, 

he alleged he agreed to pay defendant Dr. Wisner $283.20, as 

consideration for his promise, warranty and performance of the 

operation. He alleges defendant breached this warranty, but 

plaintiff shows no reliance on same. The record indicates the 

amount plaintiff paid for the surgical procedure (the operation) 

but shows no warranty, While it is the law of Montana that if 

the contract was merely that defendant was to perform a surgical 

operation, then the law requires that the defendant possess 

the skill and learning possessed by the average member of his 

profession in the community and to use those skills and learning 

in a reasonable and prudent manner. He does not become a 

guarantor of the results of such operation. 

We find summary judgment proper as to defendant Wisner. 

Plaintiff raises for the first time on appeal the failure 

to give at least ten days notice of time fixed for hearing the 

motions on summary judgments as required by Rule 56(c), M.R. 

Civ.P. However, plaintiff fails to recognize that he must timely 

object to the rule requirement. Failure to do so waives the 

defect. 10 Wright & Miller, Federal Practice and Procedure: 

Civil 3 2719, p. 451; 6 Moore's Federal Practice V56,14[1], p. 

56-357. Also, plaintiff failed to raise his objection before 

the trial court. An objection raised for the first time on 

appeal is not timely and will not be considered by this Court. 
Berdine v. Sanders County, 164 Mont. 206, 520 P.2d 650; 

Carpenter v. Free, 138 Mont. 552, 357 P.2d 882. See also: 

Rule 61, M.R.Civ.P. 

The orders of the district court granting summary 

judgments are affirmed, 

Justices 

QdkL 

IJbn. Jack L. Green, District Judge, Y sitting for ~ustice Wesley Castles.