NO. 84-166 

IN THE SUPR.EME COURT OF THE STATE OF MONTANA 

1985 

KATHLEEN AASHEIM, 

Plaintiff and Appellant, 

-vsFRANK W. HUMBERGER, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District 

In and for the County of Gallatin, 

The Honorable D pl 

,. -2- Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anderson, Edwards & Molloy; A. Clifford Edwards, 

Billings, Montana 

For Respondent: 

Berg, Coil, Stokes & Tollefsen; Don M. Hayes, 

Bozeman, Montana 

Submitted on Briefs: Dec. 27, 1984 

Decided: February 21, 1985 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Kathleen Aasheim, plaintiff in a medical malpractice 

action, appeals from a judgment entered by the District Court 

of the Eighteenth Judicial District in favor of defendant, 

Dr. Frank W. Humberger. 

Plaintiff brought this action to recover damages for 

alleged negligent medical treatment administered to her by 

defendant. A jury trial which began January 30, 1984 concluded with an eight to four defense verdict. Notice of 

entry of judgment was filed and sent to the parties on February 6, 1984. 

On May 15, 1979, July 26, 1979, August 16, 1979 and 

September 12, 1979 Kathy Aasheim consulted Dr. Humberger, a 

national hoard certified orthopedic surgeon, regarding problems with her left knee. Without ordering diagnostic x-ray 

films of Ms. Aasheim's knee during either of the four office 

examinations, Dr. Humberger diagnosed and treated Ms. 

Aasheim's condition as chondromalacia. When her condition 

did not improve with the treatment Dr. Humberger referred Ms. 

Aasheim to Dr. Todd Taylor Grant, in Santa Monica, California, for arthoroscopic surgery. Preoperative x-ray films 

taken September 26, 1979 revealed a giant cell tumor in 

plaintiff's left knee joint. Dr. Grant performed an en bloc 

resection on October 16, 1979. The resection surgery entailed removal of the tumor and all infected bone and soft 

tissue, which comprised the plaintiff's entire knee area. A 

prosthetic knee device was implanted. 

Plaintiff initiated this action alleging that Dr. 

Humberger's failure to order diagnostic films in May or July 

of 1979, resulted in her losing a chance to have less radical 

surgery and preserve her natural knee. It is plaintiff's 
contention that if defendant had discovered the giant cell 

tumor with films taken in May or July of 1979, it is rea.sonably probable that her knee would have been saved. 

Two issues are presented to this Court on appeal: 

1. Whether the District Court committed reversible 

error by improperly instructing the jury on the "locality 

rule" as the appropriate standard of care. 

2. Whether the District Court improperly refused an 

instruction on the doctrine of "loss of a chance." 

In establishing that the standard of care has been 

breached in a malpractice action, it is a matter of law for 

the court to determine the proper standard of care applicable 

to the case and instruct the jury on that standard. The 

trial judge instructed the jury on the stand.ard of medical 

care in the following instruction: 

INSTRUCTION NO. 8 

"By undertaking professional service to a patient a 

physician and surgeon represents that he has the 

necessary degree of skill and learning to do so. 

That degree of skill and learning is generally 

measured by the skill and learning possessed by 

other physicians and surgeons in good standing 

practicing in similar localities under similar 

circumstances. 

"It is his further duty to use that skill and 

learning as ordinarily used in like cases by reputable members of his profession practicing in 

similar localities and under similar circumstances 

and to be diligent and use his best judgment and 

learning in an effort to accomplish the purpose for 

which he is employed. 

"The violation of any of these duties is a form of 

negligence. 

"If you should find that the defendant failed to 

carry out any one or more of these duties and such 

failure was the proximate cause of the injury to 

which the plaintiff complains, then your verdict 

must be for the plaintiff. 

"The way in which you may decide whether the defendant possessed and used the knowledge and skill and 

care which the law demands of him is from evidence 
presented in this trial by doctors called as expert 

witnesses." 

In giving this instruction the trial court relied upon 

our holding in Tall Bull v. Whitney (1977), 172 Mont. 326, 

In -- Tall Bull this Court expanded the "locality rule" 

from requiring that medical testimony be based upon the 

standard found in the defendant's community to a standard. for 

the "same or similar localities." The expansion of the rule 

found its support in public policy articulated by Justice 

Haswell: 

"Initially we observe that the foundation of the 

'same locality' rule no longer exists . . . Today 

the accessibility of medical literature; the frequency and availability of national, regional, and 

state medical meetings; advances in communication 

of medical knowledge; and transportation advances, 

to name a few, no longer isolate the physician in a 

rural community in Montana from the opportunities 

and resources of physicians pra.cticing in the same 

medical community in the more populous regions of 

this state." 

Although the case at bar involves judging the conduct of 

a board certified orthopedic surgeon, the trial court imposed 

the "same or similar" locality rule. We find that the trial 

court's instruction was unduly restrictive and constituted 

reversible error. 

The Supreme Court of Nevada discussed abrogation of the 

locality rule when applied to special-ists in Orcutt v. Miller 

"In this age of ubiquitous national communication 

networks and increasing standardization of medical 

training, the underpinnings of the locality rule 

are extremely doubtful. Board certified specialists 

should be held to national standards of the 

specialty. " 

Plaintiff offered her proposed instruction no. 5 which, 

in relevant part, provides as follows: 

"By undertaking professional services to a patient, 

a doctor represents that he has the necessary 

degree of skill and learning to do so. That degree 
of skill and learning is generally measured by the 

skill and learning possessed by other doctors in 

good standing practicing in the same specialty and 

who hold the same national board certification. In 

this case, Defendant is required to perform to the 

standards of orthopedics. 

"It is the doctor's further duty to use that skill 

and learning as ordinarily used in like cases by 

other doctors practicing in that same specialty and 

who hold the same national board certification. 

"The violation of any of these duties is 

negligence." 

Board certified specialists receive comparable training 

and pass the same national board certification examination. 

The locality rule bears no rational relationship to standards 

relevant for judging specialists so certified. The locality 

rule was an outgrowth of disparity in the quality of community medical practice. To the credit of the medical profession, including its excellent training and certification 

program, the disparity has largely been eliminated. When the 

reason for a rule ceases to exist, courts should not hesitate 

to develop new legal principles more appropriate for the 

solution of modern problems. 

P1aintiffls proposed instruction no. 5 would have been 

an acceptable instruction for the trial court to give in this 

case. However, we would suggest that the sentence, "In this 

case, Defendant is required to perform to the standards of 

orthopedics" is surplusage, confusing, and should be omitted. 

The balance of the instruction is approved and failure to 

give the instruction constituted reversible error. 

The issue regarding failure of the trial court to instruct on "loss of chance" will arise upon retrial. Therefore, we examine the issues of causation including the legal 

doctrine of "loss of chance." 
First the court gave the "legal cause" instruction. 

However, instead of instructing on "loss of chance" in 

Instruction No. 14, the trial court told the jury: 

"In this case, the plaintiff is not required to 

prove for certain that defendant's negligence, if 

any, prevented her from receiving proper medical 

care. Medicine is not an exact science. Plaintiff 

is required only to show that negligence on the 

part of the defendant deprived her of a reasonable 

medical probability of obtaining a better result." 

This instruction is not a "loss of chance" instruction. 

Under the instruction given plaintiff would be required to 

prove, by a probability, that had early diagnosis and treatment been made plaintiff would have obtained a better result. 

In other words, plaintiff would have to establish that there 

was better than a 50/50 chance of obtaining a better result. 

Plaintiff sought to recover damages for "loss of 

chance. " R.estatement (Second) of Torts S 323 (1965) , reads: 

"One who undertakes . . . to render services to 

another which he should recognize as necessary for 

the protection of the other's person or things, is 

subject to liability to the other for physical harm 

resulting from his failure to exercise reasonable 

care to perform his undertaking, if 

" (a) his failure to exercise such care increases 

the risk of such harm, . . ." 

This section of the Restatement has been the subject of 

much discussion by appellate courts. A number of jurisdictions have held that where the defendant's conduct increased 

the risk of injury or death by decreasing chances for successful treatment there was a sufficient basis for allowing 

the case to go to the jury on the issue of ca-usation irrespective of whether the "medical probability" test was satisfied. See Herskovits v. Group Health Co-op (1983) , 99 Wa.2d 

609, 664 P.2d 474; McBride v. United States (9th Cir. 1.972), 

462 F.2d 72; Hamil v. Eashline (1978), 481 Pa.256, 392 A.2d 

1280; Kallenberg v. Beth Israel Hosp. (1974), 45 A.D.2d 177, 

357 N.Y.S.2d 508; Jeanes v. Milner (8th Cir. 1970), 428 F.2d 
598; Hicks v. United States (4th Cir. 1966), 368 F.2d 626. 

Some jurisdictions have rejected this approach, generally 

holding unless the plaintiff is able to show that it was more 

likely than not that the harm was caused by the defendant's 

negligence, proof of a decreased chance of cure or survival 

was not enough to take the causation question to the jury. 

Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 

Ohio St.2d 242, 272 N.E.2d 97; Hiser v. Randolph (Ct. App. 

1980), 126 Ariz. 608, 617 P.2d 774; Hanselmann v. McCardle 

(198O), 275 S.C. 46, 267 S.E.2d 531.; Cornfeldt v. Tongen 

(Minn. 1980), 295 M.W.2d 638. 

A detailed discussion of the issues surrounding "loss of 

chance" can be found in the recent Washington case of 

Herskovits v. Group Health Co-op, supra. Summary judgment 

for the defendamt was reversed and the case was remanded for 

trial. 

In Herskovits plaintiff's testimony was that plaintiff's 

decedent's chances for survival had been reduced from 39 

percent to 25 percent where decedent's cancer was delayed in 

diagnosis due to the negligence of the physician who failed. 

to make the original cancer determination. The Washington 

Court emphasized that the "loss of chance" test should be 

employed in connection with a "legal cause" instruction to 

assure that d.efendant ' s negligence was a substantial factor 

producing the "loss of chance." special concurring 

opinion in Herskovits referred to the excellent law review 

article entitled King, Causation, Valuation, and Chance - in 

Personal Injury Torts Involvinq Pre-existing Conditions and 

Future Consequences, 90 Yale L. J. 1353 (1981) . The author 

stated: 

"Causation has for the most part been treated as an 

all-or-nothing proposition. Either a loss was 

caused by the defendant or it was not . . . A 
plaintiff ordinarily should be required to prove by 

the applicable standard of proof that the defendant 

caused the loss in question. What caused the loss, 

however, should be a separate question from what 

the nature and extent of the loss are. This distinction seems to have eluded the courts, with the 

result that lost chances in many respects are 

compensated either as certainties or not at all. 

"To illustrate, consider the ca.se in which a doctor 

negligently fails to diagnose a patient's cancerous 

condition until it has become inoperable. Assume 

further that even with a timely diagnosis the 

patient would have had only a 30% chance of recovering from the disease and surviving over the long 

term. There are two ways of handling such a case. 

Under the traditional approach, this loss of 

not-better-than-even chance of recovering from the 

cancer would not be compensable because it did not 

appear more likely [tha-n] not that the patient 

would have survived with proper care. Recoverable 

damages, if any, would depend on the extent to 

which it appeared that cancer killed the patient 

sooner than it would have with timely diagnosis and 

treatment, and on the extent to which the delay in 

diagnosis aggravated the patient's condition, such 

as by causing additional pain. A more rational 

approach, however, would allow recovery for the 

loss of the chance of cure even though the chance 

was not better than even. The probability of 

long-term survival would be reflected in the amount 

of damages awarded for the loss of the chance. 

While the plaintiff here could not prove by a 

preponderance of the evidence that he was denied a 

cure by the defendant's negligence, he could show 

by a preponderance that he was deprived of a 30% 

chance of cure." 90 Yale L.J. at 1363-64. 

We feel that including "loss of chance" within causality 

recognizes the realities inherent in medical negligence 

litigation. People who seek medical treatment are diseased 

or injured. Failure to diagnose or properly treat denies the 

opportunity to recover. Including this lost opportunity 

within the causality embrace gives recognition to a real loss 

consequence of medical failure. 

We hold that under the facts of this case plaintiff is 

entitled to a "loss of chance" instruction. That instruction 

may in substance, reflect the substantive law found in Restatement (Second) of Torts § 323, supra. The trier of fact 

should determine whether defendant's negligence was a sub- 
stantial factor in reducing plaintiff's chances of obtaining 

a better result. 

The judgment of the trial court is vacated and the cause 

is remanded for a new trial consistent with the opinions 

herein expressed. 

We concur: i 

Mr. Justice L. C. Gulbrandson deems himself disqualified 

and did not participate in this decision.