No. 13404 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

ALAN LLERA, Plaintiff and Appellant,

BYRON R. WISNER, D.D.S. 

### ;JONA. 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 theThirteenth Judicial District, Honorable C. B. Sande, Judge presiding, Counsel of Record: For Appellant

### : Lewis 

### EmBrueggemann argued, Billings, Montana For Respondents: Anderson, Symmes, Forbes, Peete and Brown, Billings,

Montana Richard F. Cebull argued, Billings, Montana Weymouth Symmes argued, Billings, Montana Keeferand Roybal, Billings, Montana 

### J. Dwaine Roybal argued, Billings, Montana Neil Keefer appeared, Billings, Montana Crowley, Haughey, Hanson,,Ghllagher and Toole,

Billings, Montana 

### JackRamirez argued, Billings, Montana

Submitted: October 19, 1976

Decided: 

## DEC

## 20

# 19B DEC20 

## 1976Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This isan appeal from summary judgment entered in favor of alldefendants ina dentalmalpractice action in the districtcourt, Yellowstone County. Plaintiff Alan Llera brought action allegingmalpractice resulting from an oral surgical procedure known as a partial glossectomy. Plaintiff alleges themalpractice occurred in the diagnosis of his problem and inthe resultant operation. He alleges no informed consent was obtained nor were the risks and the alternatives tohis tongue problem ever explained or discussed. Plaintiff alleges Dr. Joh A. Jourdonnais, the referring dentist, gave Dr. Byron Wisner no referral information atthe time; that Dr. Hurly, the admitting doctor atSt. Vincent's Hospital found nothing wrong with his tongue but did find enlarged tonsils; thatDr. Hylton, the anesthesiologist and his agents were negligent inallowing the operation; that two nurses, D. Drake and M. Kemp, didnot provide the proper care; and finally that St. Vincent's hospital failed to exercise the proper degree of care forplaintiff. Plaintiff, a 20 year old man, went to seeDr. Jourdonnais, a Great Falls orthodontist, for treatment toreduce 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 

### isknown in the profession

as "tongue thrust" which 

### is an involuntary forward-thrusting movement of the tongue upon swallowing which forces the upperteeth 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 inBillings, Montana who had specialboard certificationas 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 inBillings. 

### Dr. Jourdonnais denied ever recommending an operation to plaintiff, but stated inhis deposition that afterdiscussing his diagnosis with plaintiff he merely made the appointment for him with Dr. Wisner. He sent

### Dr. Wisner hisX-rays and a plastic mold of plaintiff's teethbut did not send hiswritten diagnosis. Neither did he tell

### Dr. Wisner of his diagnosis as "tongue thrust"

# . Plaintiff'

### s appointment with Dr. Wisner was February 23, 1973, inBillings. 

### 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 atSt. 

### inc cent's Hospital in Billings. This operation consisted of removal of a wedged shaped piece of the tongue toreduce 

### 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 thehospital for any patient who was toundergo surgery. During surgery Dr. Wisner was assistedby a nurse, M. Kemp, who was trained and employed by Dr. Wisner for oral surgery. The anesthesiologist and the anesthetist, 

### Dr. Robert R. Hylton andJ. McGarity, respectively, members of M.D. Anesthesia Services, assisted inthe aperation. One defendant, D. Drake was the circulating nurse and was an employee of St. 

### inc cent's. Plaintiff remained inthe hospital five days before returning home toGreat Falls. Although a schedulewas setup for plaintiff to seeDr. Wisner after leaving the hospital, he returned only once, on July 20, 1973. Inhis deposition, Dr. Wisner testified that on that callplaintiff had no complaints. He also testifiedhe did tellplaintiff therewas 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 thatDr. 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 forwanting the operationwas because of the spacing and flaring of his teeth and the operationmight help remove the pressure on those teeth. While denied by plaintiff and his mother, Dr. Wisner stated in his deposition that shewas infavor of her son having the operation. During the one returnvisit toDr. Wisner, no infection

was noted in the tongue. On examination plaintiff also showed

no tastenor sensory deficiency; the tongue had normal mobility and plaintiff could lickhis 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 inthis type of operation and the loss of such a large amount is anevidentiary fact tending to prove the ultimate fact the operation

was not performed properly. Following the operation plaintiff returned toGreat Falls and continued tohave Dr. Jourdonnais do orthodontic work forhim for some sixmonths until plaintiff moved toBozeman. Plaintiff stated inhis deposition thatwhen he went to see Dr. Wisner some sixweeks after the operation his tongue was inflamed and that Dr. Wisner gave him some pills for the inflammation. Dr. Jourdonnais statedhe had difficultywith plaintiff before and after the operation with plaintiff not keeping appointment dates, which interfered with his giving plaintiff constant care. Some sixmonths after the operation inBillings, plaintiff had his tonsils and adenoids removed inGreat Falls by Dr. W. J. Roberts. In his deposition, Dr. Roberts stated that atthe time of his removing the tonsils they were enlarged and infected and inhis opinion this infectionwas chronic. However, he statedwhen he first examined plaintiff inOctober 1973, he found no acute infection. He further stated thatwhile he doubted the tonsils would have interfered with the movement of plaintiff's tongue, the recurring inflammation could cause the tongue tobe sore. Five issues arepresented alldirected to the granting of summary judgment to defendants. These issues can be summarized thus

# --Was summaryjudgment proper: 1) If therewere 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 therewas expert testimony already before the court, or 

### its equivalent? 

### 4) As to any one ormore, or allof defendants, as a matter of law as pertaining to any one ormore of the three

causes of action? 5) When defendants failed tocomply 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 touse due care, (both sounding intort); and the third against only defendant Wisner forbreach 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 atthe time alldefendants filedmotions for summaryjudgment and atthe time such motions were heard. We affirm such summary judgments as to sixdefendants without further discussion other than tonote we find the record concerning these sixtotally failstodisclose genuine issues of material fact on any theory of pleading advanced by plaintiff. These sixdefendants 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 SaintVincent'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, 91Mont. 251, 

### 7 P.2d 228; Davis v. Trobough, 139Mont. 322, 363 P.2d 727.

### The summary judgmentsgranted Dr. Jourdonnais and Dr. Wisner,will be discussed individually. As to Dr. Jourdonnais,the summary judgment resulted after no factswere developed that revealed any deviation from the established standards of treatmentby 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 courthe could not produce any additional expertwitness 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 orthodonticwork,but directs his complaints as to Jourdonnais' diagnosis and his failure to warn plaintiff of the seriousness of the operationcalled a "partial glossectomy". Before the district courtwas 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. Herewe 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 forhis own torts. Graddy v. New Y~rk Medical College, 243 N.Y.S.2d 940; Oldis v. La SocieteFrancaise de Bienfaisance Mutuelle, 130 C.A.2d 461, 279 P.2d 184; Huber 

### v. Protestant Deaconess Hospital Ass'n, 127 Ind.App. 565, 133N.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 findno casewhere liability for failureto 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 statedhe explained toplaintiff that he knew of the procedure having been performed; he knew nothing about it; he did not recommend it;but if plaintiff felthis situation

was serious enough inhis own mind, and he wanted further information on the procedure, then he would put him intouch with him 

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

### Dr. Wisner for information only. On thisbasis he contacted Dr. Wisner, made an appointment forplaintiff, and sent allhis records to

### Dr. Wisner, The rule 

### is that the physician who prepares toperform 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 tobe 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, 81Wash.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 sustainplaintiff'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 surgeonwho before practicing inBillings, served a three year residency under 

### Dr. Morgan ~llison of Ohio State University. Dr. Allison in his deposition stated Dr. Wisner was fully qualified toperform the "partial glossectomy" and after reviewing allthe depositions in this case, along with the records of the surgicalprocedure, he found no indication of any improper procedure on the part of 

### Dr. Wisner inperforming the operation. With thisbackground inmind, we review thebackground of this complaint. The operation was performed inJune 1973. The complaint was filedMarch 5, 1975. Extensive discovery followed and the trialdate of February 2, 1976was continued toMay 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 andand 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 atthe time of the hearing on summary judgment, the attorney for plaintiff did not object tonotice

on the hearing of less than the ten days allowed by statute, and admitted that "he had no qualified expert testimony other than the depositionswhich this Court has read", 

### allof which appears inthe trialcourt's judgment. Allparties to this action agree that four cases control the issues before us. Donathan v. McConnell, 121Mont. 230, 193P.2d 819; Negaard 

### v. Feda, 152Mont. 47, 446 P.2d 436; Montana Deaconess Hospital 

### v. Gratton, Mont

# . - ,545 P.2d 670, 33 St.Rep. 128, 130, 132; Collins 

### v. Itoh, 160Mont. 461, 503 P.2d 36. Donathan

## - established that inMontana a dentist,.owes the same duty as a physician tohis patient. InGratton this Court held summary judgment 

### isproper:

"I* 

# ** if the pleadings, depositions, answers to interrogatories, and admissions on file show that there 

### isno genuine issue as to any material fact and that the moving party 

### isentitled to judgment as a matter of law. 

# ** *' Rule 56(c), M.R.Civ.P." Also Gratton held that where no genuine issue of facthas been raised that the opposing party has theburden of presenting evidence of material and substantial nature raising such issue, noting thatwhen plaintiff fails todo 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 inthe particular type of case involved and second, it must alsobe shown that the doctor negligently departed from thisrecognized standard inhis treatment of the plaintiff. In order tomake this threshold breach of duty actionable,it must thenbe shown that the breach of dutywas the legal cause of the plaintiff's injuries.

# *

# ** The medical standard of caremust be establishedby 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 inrelying upon Donathan acknowledges that the rule established there controls this case. In a later case, Negaard the duties owed by a dentistwere fully 

### set forth, and those principles apply tothe instant case. Atthe time of the hearing on summary judgment, plaintiff here was inthe same position aswere the Grattons, appellants inMontana Deaconess Hospital intheir appeal to thisCourt. 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 allthe questions were resolved inhis favor, he 

### still,could not prevail forhe had no qualified expert testimony five days before trialdate to show that defendant Wisner departed from the recognized standard of care inhis treatment of plaintiff. The doctors he alleged

ashis expertswere not "deposed" and several indicated no intent to travel toBillings totestify on May 

### 17, 1976. Plaintiff statedhe intended to call, as experts, Drs. Baldwin and Roberts of Great Falls, however he previously admitted that Dr. Baldwin would not testify attrialorby deposition. Sa atthe time of the summary judgment ruling, he

was down to one possible witness Dr. W. 

### J. Roberts, a physicianwhose 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 setby this Court in Collins, could not qualify as an expert against Dr. Wisner as to the standard of care that 

### isusually exercisedby an oral surgeon. This 

### is true too as tohis 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 inGrattonnoted: "The presence of an infection following an operation or open reduction of a fracture does not establish negligence. [Citingcases].I1 According tohis deposition, Dr. Roberts knew nothing about

a partial glossectomy until afterhe examined plaintiff before removing his tonsils and the only knowledge he had was gained thereafter afterdiscussing the procedure with oral surgeons inGreat Falls. Plaintiff claims "lack of informed consent1'. There was nothing before the trialcourt inway 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 tothe performance of a partial glossectomy. In so far as could be determined, thismay have been the first such operation inthis area. Plaintiff recognizes that under Negaard expert testimony 

### is required to establish the "informed consent" doctrine, but argues he has carried thatburden of proof inthe depositions of Jourdonnais, Wisner, Schultz, Roberts and Allison. Aspreviouslynoted, these depositions do not present the necessary testimony from any qualified expert that establishes such standard. We next consider theblood loss issue. We find no testimony showing the loss of blood during the operation could result inplaintiff's alleged residual complications. Dr. Morgan Allison, defendant's expert, testified inhis deposition that thiswas unusual bleeding for the partial glossectomy on but wentlto statethat plaintiff did not suffer any complications from this loss because of the transfusions he received. We findno testimony of any of those deposed allegingplaintiff 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 choicewas one of medical or dentaljudgment. Plaintiff argues this Court's holding inBaylor v. <-.- ',... -,>.b..AJacobson, Mont

# . ,W2P.2d 

### 55, 33 St.Rep. 

### 662, is authority to allow-himto go tothejury. He alleges therewas expert testimony or 

### its equivalent inthe record indicating the operation should be performed only after "everything else fails" and that the operation should not have been performed at allin this case. We do not agree. InBaylor 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 toestablish any general issue of material fact concerning the required standard of care

### Dr. Wisner allegedly deviated from. Inplaintiff's complaint, as a third cause of action, he allegedhe agreed topay defendant 

### Dr. Wisner $283.20, as consideration forhispromise, warranty and performance of the operation. He alleges defendant breached thiswarranty, 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 toperform a surgical operation, then the law requires that the defendant possess the skilland learning possessed by the average member of his profession inthe community and to use those skillsand 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 todefendant Wisner. Plaintiff raises for the first timeon appeal the failure togive 

### at least ten days notice of time fixed forhearing the motions on summaryjudgments asrequired by Rule 56(c), M.R. Civ.P. However, plaintiff fails torecognize thathe must timely object tothe rule requirement. Failure todo sowaives the defect. 10 Wright & Miller, Federal Practice and Procedure: Civil 

### 3 2719, p. 451; 6Moore's Federal Practice V56,14[1], p. 56-357. Also, plaintiff failed to raisehis objection before the trialcourt. An objection raised for the first time on appeal 

### isnot timely and willnot be considered by this Court.Berdine 

### v. Sanders County, 164Mont. 206, 520 P.2d 650; Carpenter v. Free, 138Mont. 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. JackL. Green, DistrictJudge, Y sitting for~ustice Wesley Castles.