No. 13576 ItJ THE SUFRCI'IE CrJUJiT OF THE STATE OF YONTANA 1978

IWTHERINE W. FIUMSAKER, Plaintiff and Appellant,

-vsBOZEJIAN DEACONESS FOUIJDATION

### , Defendant and Respondent.

Appeal from: District Court of the Eighteenth Zudicial District, Honorable LeRoy L. P.lcKinnon, Judge presidinq. Counsel of Record: For Appellant: Acher and anberg, Helena, Pqontana 

# >!- Arthur PJ arqued, Helena, Montana For Respondent: Anderson, Symmes, Forbes, Peete & Brown,

Billings, Plontana Rockwood Brown argued, Billinqs, Nontana Berg, Anqel, Andriolo & Morqan, Bozeman,

Montana Charles F. Angel arcued, Bozeman, Montana Robert Cummins argued, Helena, Montana

Submitted: January 13, 1978 ~ecidedh'l! :'Mr. JusticeDaniel J. Shea delivered the Opinion of the Court.

Plaintiffs appeal from a jury verdict and judgment entered in the District Court,Gallatin County, favoring defendants in an action for personal injuries. This case involves three cases consolidated and tried together. Elzarus L. Hunsaker,one of the plaintiffs (now deceased), filed an action against the Bozeman Deaconess Foundation,operator of the Bozeman Deaconess Hospital, for personal injuries sustained because of alleged negligence in caring for him as a patient. Hunsaker also filed a separate suit against Drs. E. E. Bertagnolli and William S. Prunty, the treatingphysicians. In addition,Katherine W. Hunsaker,plaintiff's wife, filed a separate action against Bozeman Deaconess Hospital for its negligence in caring for her husband. Her claim for damageswas a derivative action for loss of consortium. Each of the actions for negligence

was based on the same incident. Defendant William S. Pruntymoved to consolidate all three actions under Rule 42,M0nt.R.Civ.P. Bozeman Deaconess also agreed to the consolidation. Over plaintiffs' objections, the court ordered consolidation. The essential claim of plaintiff Elzarus Hunsaker is that the defendant physicianswere negligent in diagnosing his condition and caring for him and that the hospital was negligent in caring for him. As a result of this,plaintiff received severe personal injuries when he ran out of a hospital security room,ran down the hall, and jumped through the solariumwindow, falling twenty feet to the ground below.The facts giving rise to these claims follow. On November 8, 1969, Hunsaker, a rancher,was admitted to Bozeman Deaconess Hospitalby his physician, Dr. E. E. Bertagnolli. Hunsaker had a previous history of heart problems. The diagnosis surrounding his admission was for emotional strain apparently stemming from familyproblems, and possible recurring heart problems. After admission, Hunsaker was nervous,hallucinated,and had at least one seizure. On November 9,Hunsaker told an attendanthe might be able to sleep if he didn't jump out the window. On November 10,Dr. Bertagnolli called Dr. Prunty, a psychiatrist, into the case. On November 12,Dr. Prunty had Hunsaker transferred from his first floor room to a security room on the second floor. This roomwas used for temporary observation and control of patients with mental problems, and for drying out alcoholics. All the furniturewas moved out of the room with the exception of the bed. The room had a screenedwindow and a double door entry with locks. The first night Hunsaker was in the room,a male orderly remained with him untilmidnight. Written orders from the physicians were to "lockdoor, if unattended." The orderly testified thatwhile he remained with Hunsaker, the door remained locked and that if he wanted to get out, he had to knock on the window and the night supervisorwould come with her key and unlock the door. The night supervisor directly contradicted this testimony. At midnight, a sitter,Mrs. Bisland, relieved the orderly. Shewas not a nurse but was an experienced aide. Shewas sixtyyears of age and approximately two hundred pounds. Hunsaker was fifty-four years of age,powerfully built, andapproximately two hundred pounds. During the night, Hunsaker remained awake,occasionallyhallucinated and talked and walked around the room. Each time he would do this, the sitter talked him into returning to bed. In the earlymorning hours of November 13,at approximately 5:20 a.m., anotherpatient entered Hunsaker's room.

(Thereis a dispute whether this patient had also wandered into the room a little earlier on the samemorning.) Hunsaker mistakenly believed the patientwas his sister,and insisted on talking to her. The sitterwas able to remove the other patient from the room and she talked Hunsaker into returning to bed. Suddenly,Hunsaker jumped out of bed, forced himself past the sitter,ran out of the room and down the hallway to a solarium at the end of the hall. There he jumped through the solarium windows, falling twenty feet to the ground below, and receiving serious and permanent injuries. Some time thereafter the instant actions were filed against the hospital and physicians. Plaintiff Hunsaker generally alleged he was in a condition of irrationality andmental incapacity at the time he jumped through thewindow and that the hospital had failed to take proper care of him, knowing he was in that condition. He alleged the hospital failed to keep qualified personnel, and failed to keep an adequate staff of nurses, orderlies and hospitalpersonnel. He further alleged the hospital failed to keep Hunsaker in a section of a hospital separated from other patients, and failed toprovide facilities which would prevent an escape while in a condition ofmental derangement and incapacity. He also alleged breaches of hospital standardsand state licensing laws.Plaintiff's allegation of negligence against defendant physicianswas that they had failed toproperly diagnose his condition and consequently failed to properly care forhim. All defendants filed general denials of negligence,but filed no special defenses as to Alzarus Hunsaker. They did allege however, apparently as contributory negligence on the part of Katherine Hunsaker, that she failed to give them correct information as to her husband's prior habits concerning the use of alcohol and prescription drugs. Plaintiffs raise a host of errorswhich they contend entitle them to a new trial. Generally, they fall into the following categories: (1) the court improperly allowed each defendant to have four peremptory challenges while confining the plaintiffs to fourperemptory challenges between them; (2) the court improperly refused opinion testimony from plaintiffs' expert witnesses; (3)other errors were made in admitting evidence; and (4) several errorswere made in instructing the jury,primarily with regard to the doctrine of - res ipsa 1- and on the question of expertmedical testimony. Plaintiffs first contend the District Court improperly granted each of the defendants fourperemptory challenges because they did not in fact have "hostile" interests as required by statute. Section 93-5010,R.C.M. 1947,provides in relevantpart: " 

# . .

# . Each party is entitled to four peremptory challenges."This court has long recognized the inherent problems in presiding over jury trials where there are multiple parties. Recognizing the potential unfairness of uneven peremptory challenges,this Court held that "eachparty" in terms of the statute,means "each side",unless the position of coplaintiffs or co-defendants is shown to be "hostile" to each other. Mullery v. Great Northern Ry. Co. (1915),50 Mont. 408, 148 P. 323; Leary v. Kelly Pipe Co. (1976), 169Mont. 511, 549 P. 2d 813. As a practical matter plaintiffs rarely have "hostile"interests to each other,and therefore the question isusually one of howmany peremptory challanges co-defendants shallhave. This Court has never set forth any rules as to what co-defendants must present to the trial court to prove they are "hostile" to each other. The closest

we have come is we have indicated in Mullery and Leary that

"hostility" can be shown by the "pleadings, representations,

or evidence." In Mullery, in determining that the co-defendants must prove they are "hostile" to each other,we stated: 

# ".

.

# .Whether such hostility must appear on the face of the pleadings, orwhether itmay be shown in some other way at the time the jury is selected, we need not determine because no such hostility was ever made to appear in any way in the case at bar. 

# ..As between them therewas not, by pleading, representation,or evidence, any conflict of interest disclosed or any issue of any sort. 

# .

# ." 148 P. at 326. Accordingly,we concluded the District Court was correct in allowing multiple defendants to have a total of four peremptory challenges. It is clear however, this Court did examine the case to determine if there was any hostility and determined therewas none.In Leary, the District Court granted multiple defendants eight peremptory challenges, as opposed to the plaintiff's four,and we upheld the District Court on the ground theplaintiff had shownno prejudice. In holding that Learymust showprejudice before he would be entitled to a reversal,we stated: 

# ".

.. In the instant case Leary has advanced no factwhich indicates material injury, nor has he attempted to show that objectionable jurors sat on the case. Thus the first issue must be resolved in favor of defendants." 169Mont. at 516. We did not,however, discuss the facts as to how the District Court reached his decision--that is,whether therewas in facthostility between the co-defendants. Thevery nature of the problemmakes appellate review extremely difficult. Is it sufficient to place the burden

on either party to showhe has been prejudiced by the trial court's ruling on the question of peremptory challenges? Indeed, in most instances,proving prejudice, (normally,that a jurorwho sat on the case was prejudiced against one of the other parties), and if the court had ruled properly the resultwould most probably have been different. In the ordinary case,proving prejudice may be an impossibleburden. As a result, if at the appellate levelwe concentrate on the actual conduct of a juror as opposed to the correctness of the trial court's ruling, the decision of the trial court is virtually unreviewable. The correctness of the trial court's decision is effectively eliminated from our consideration. Rather,our attention is focused on the conduct of the jury, which in most caseswe are in no position to determine. The problems aremagnified by the procedure that usually takes place. Frequently there is no record or only a scanty record of what happened in the trial court. The usual situationis theparties do not notify the court and opposing parties in advance of trial that each co-defendant, for example, will ask for fourperemptory challenges. Perhaps in some situations the parties donot disclose their intentions until the time has come to start exercising the peremptory challenges. Suddenly the court and plaintiff is confrontedwith defense motions asking to have fourperemptory challenges for each defendant. In many situations the trial courtwill be taken by surprise and will not have sufficient time to reflect on whether the co-defendants are in fact "hostile". The opposing party,moreover,may also be caughtby surprise and is not prepared to answer the contentions of the co-defendants. The court is compelled to rule without having the benefit of a thoroughbriefing by the parties to the action. The result is thatwhen a case comes to us on appeal,we have no basis to determine if, at the time the trial courtmade its ruling, it was correct. We are compelled rather, to look at the entire record in hindsight to determine if the parties were in fact "hostile" during the course of the trial. Moreover, even ifwe agreed with an appellant that the District Court rulingwas in error,we would not reverse unless the appellant could also prove actualprejudice. This is hardly a standard of review designed to get at the root of the problem. The focus should be on whether the rulingwas correct at the time itwas made. What happened in this case is illustrativeof the general problem. Before the commencement of the trial therewas no indication that plaintiffs or defendantswould be asking each to have fourperemptory challenges. Just as questioning of the jurorswas about to start,the trial court asked the parties if they had agreed on a challengeprocedure. If the court had



### -8-not done this itdoes not appear theparties would have brought thematter to the court's attention until the time

came to actually start exercising the peremptory challenges. There is a two-page discussion on the record where the parties seek to make their positions known to the court. No lawwas provided to the court and the pleadings or other factors whichmay show "hostility"were not discussed. Defendants generally took theposition that because each could be subject to a separate judgment that eachwas entitled to fourperemptory challenges. Without discussing the pleadings or proposed evidence that might show "hostility" the trial court set forth no reasons for its ruling and simply concluded: "four peremptories to the plaintiff and four to each defendant." We thus have a situation under Leary, where the plaintiffs have a burden to prove not that the District Courtwas right,but that theplaintiffs wereprejudiced by the ruling. As previously indicated, it isvirtually impossible to prove prejudice in such a situation. Certainly an adverse result should not be the governing standard. The result is that there is an uncontrolled discretion in the District Court to rule any way it desires with the losing party having the laboring oar to show that Et was actually prejudiced. In this context, the correctness of the District Court's ruling evaporates and the issue on appealbecomes one of proving that the jury was somehowprejudiced against one of the parties and thereby precluded a fair trial. We believe the correctness of the District Court's decision should be a factor in our review. In thepresent case,because the record at the time the court entered its ruling, 

### is devoid of evidence showing the parties were "hostile",we are necessarily compelled to take a hindsight approach to the question and make our determination from the trial record. -9-The defense theories of the hospital and defendant physicians meshed like the finest gearshiftmechanism. The hospital asserted it followed and had theduty to follow the physicians' orders in the absence of an emergency. The defendant physicians assert that they gave proper orders. The physicians also testified that no emergency existed and therefore the hospitalproperly followed their orders and was not required to take independentaction to protect Hunsaker fromhimself. The physicians testified the hospital provided the best possible care under the circumstances,and there is

no indication that hospital witnesses found the slightest degree of fault with the physicians' care of the patient. Jury instructionswere synchronized between the hospital and defendantphysicians. Neither the hospital nor the physicians objected to any instructionoffered by the other. Defendants did not try to pass the blame off to each other. It is true each defendant had his own interest to protect in that each could have suffered an adverse jury verdict--but there is no showing that their interests were hostile to each other. In considering the number of peremptory challenges allowed to each side, the trial courtmust, of necessity,make its best judgmentbased on the facts that arepresented to it before its ruling. It is necessary ithave certain leeway, for even in the days of discovery, the twists and turns of a trial areunpredictable. If there is a sound basis for its ruling in the record and the reasons for the ruling are set forth in the record, the ruling should not be reversed on appeal even though itmay have developed during the course of the trial that the court should have made a different ruling. A hindsight approach to review in this circumstance is not appropriate. On the other hand, if there is not a sound basis in the record -10-at the time of the ruling,and if the reasons for the ruling

are not set forth,we cannot say the parties have had the benefit of the trial court's best judgment. The discretion exercised under these circumstances is no discretion at all. While we cannot evaluate the effect of error in granting additionalperemptory challenges to one side or refusing to grant additionalperemptory challenges to one side,we cannot blind ourselves to the advantages conferred on one side by having additionalperemptory challenges. Where is the trial lawyerwhowould not like to have twelveperemptory challenges to his opponent's four? It isprecisely for this reason that the correctness of the trial court's decision must be part of the reviewprocess on appeal. We are in an era wheremulti-party litigation is proliferating. The issue involving the number of peremptory challenges allowed each side is likely to be a continuing one-- because each casemust, of necessity,be resolved on an individualbasis. It is imperative in reviewing the proceedings of the trial court that this Court have a complete record with relation to the motions made and the rulings on the number of peremptory challenges to be allowed each side. It is incumbent, therefore, upon trial counsel and the District Court tomake a proper record. The existing civilprocedure rules,particularly the pretrial conference as provided for in Rule 16,Mont.R.Civ.P.,

are ideally suited for the resolutionof issues relating to the number of peremptory challenges to be allowed each side. Rule 16 provides in part: "In any action, the courtmay in its discretion direct the attorneys for the parties to appear before it for a conference to consider:



### " (6)Such other matters as may aid in the disposition of the action."The District Courts should seriously consider the

use of the pretrial conference as thebest procedure to be used in resolving questions such as the number of peremptory challenges to be allowed each side. If for some rare reason the District Court holds no pretrial.conference, the question of peremptory challenges should be raised by appropriate written motion filed before the commencementof jury selection, and it should set forth all facts and references tending to supporthis claim of hostility. In any case, the opposing party or parties should be given adequate time to respond to the claims of hostility. The trial court should,as a bare minimum, rule on the peremptory challenge issue before the questioning of jurors begins. To afford a basis for review, it should expressly set forth in the record the reasons for its ruling and the facts onwhich it relies in making its decision. In a related peremptory challenge issue,Mrs. Hunsaker asserts she should have been given fourperemptory challenges because of her own action against the hospital. We find no

error. Her cause of action is one for loss of consortium, and is a derivative in nature. The success of her claim depended on the success of her husband's claim for personal injuries against thehospital. The nature of the lawsuits precludes any claim of hostility existing between Mr. and Mrs. Hunsaker. Plaintiffs raise several issues concerning the trial court's refusal to allow plaintiffs' expert witnesses to testify to the standards of care required of Rozeman Deaconess Hospital and the diagnosis and care given to Hunsaker by the defendantphysicians. We firstwill set forth the facts giving rise to these issues. -12-One of themain themes of Hunsaker's casewas that he was suffering from toxic psychosis and defendants failed to properly diagnose this condition and take adequate steps to protect Hunsaker fromhimself. Dr. Townsend, one of plaintiffs' experts, testified that toxic psychosis could be caused by medications, or substances administered to the patient which causemetabolic deran~rnentofthe brain which thus influences behavioral changes. The samepsychosis could be caused by withdrawal of certaindrugs or substances from the patient. Plaintiffs contended thatwhen Hunsaker exhibited the symptoms of toxic psychosis the defendant physician did not take the required steps to assure Hunsaker would not jump out the window. Defendant physicians, on the other hand, deny he was suffering from toxic psychosis, and contend he

was admitted to the hospital for emotionalproblems relating to family difficulties and for possible recurring heart problems. Dr. Bayles, one of plaintiffs' experts, testified that he had treated Hunsaker in times past, and his examination of the hospital and medical records after Hunsaker's admission to the hospital revealed Hunsaker was sufferinq from toxic psychosis and should have been treated and cared for as suffering from such. Also introduced in evidence were standards forhospital accreditation of the joint commissionon accreditation of hospitals, the Montanq licensing law and standards, and the rules and regulations of the medical staff of Bozeman Deaconess Hospital. One of the issueswas whether the hospital failed to follow the standards in caring for Hunsaker. Plaintiffs set forth a hypothetical set of facts to Dr. Bayles, but the District Court sustained a general objectionwhen plaintiffs asked the questionbased on those facts. The questionwas rephrased, and the witness was asked:"Q. Having inmind the record that I just mentioned, would you tell us in what respects, in your opinion,the standards of good hospital practice in effect in Bozeman in November in 1969were not adhered to?" In sustaining an objection the court stated: 

# ".



# ..Well, Iam going to sustain the objection on this one

# . .

# . I think the Jury can determine whether the rules are applied aswell as any other person can. As long as they have the rules and the facts." Plaintiffs also questioned Dr. Bayles on the issue of whether the door to Hunsaker's hospital security room should have been locked at all times, even though a sitter was in the room with him. Plaintiffs contended a locked door would have prevented other patients from wandering into the security

room and disturbing Hunsaker, and ultimately,that a locked door would have prevented Hunsaker from leaving his room and jumping out the window. The physicians' orders to the

nurses stated: "Lockdoor if patient unattended." Dr. Bayleswas asked if itwas sound medical practice to "recommend that the door be opened or closed even though a sitter is in attendance?" The court sustained an objection that the answerwould invade the province of the jury. Two

nurses testified their interpretationof the order meant the door would be locked if Hunsaker was by himself,but if someone

was attending him, the door would be open. On the other hand, the courtpermitted the defendants to put in evidence that the order was a proper one, and that itwas sound medical practice under the circumstances of this case, to leave the door open if someonewas attending Hunsaker at the time. While testifying as an expert witness for the hospital, a psychiatrist concluded the orderwas a proper one and that itwas soundmedical practice to leave the door open as long as Hunsaker was being attended. The end result is the jury heard only the defense side of this issue. The prejudice is clear.Another issue during the course of Dr. Bayles' testimony was whether Hunsaker's symptoms of the evening before he jumped out the window were such that the nurses or other hospital personnel should have called the attending physicians and alerted them to Hunsaker's changed condition. Dr. Bayles

was asked if the symptomswere a clear warning to the hospital staff to call the treating physicians. The court sustained an objection that itwould invade the province of the jury. In the defendants' case-in-chief, however, the court permitted, over plaintiffs' objections,both defendant physicians to testify that Hunsaker's symptoms were not sufficient to require the nurses or hospital personnel to notify the treating physicians. Again, the prejudice is clear. A recurring theme of defendant Prunty's objectionswas that Dr. Bayles could not testify as to Dr. Prunty's diagnosis and treatment of Hunsaker because Dr. Prunty was a specialist

(psychiatrist)and Dr. Bayles was not. In Baerman v. Reisinger (D.C. Cir. 1966), 363 F.2d 309, the trial judge refused to allow a generalpractitioner testify on behalf of a plaintiff in an action filed against a cardiologist. In reversing, the court concluded: "It is settled law that '[a] physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks.'" The court reasoned the training and specializationof the witness goes to the weight of the evidence rather than to the admissibility. Other courts have also adopted the rule allowing a general practitioner to testify in a negligence suit against

a specialist. The objection that one is not a specialist, goes to the weight of the testimony rather than to one's -15-competency to testify. Harold v. Radman (Maryland 1976), 31 Md.App. 184, 355A.2d 477; Wolfinger v. Frey (~aryland 1960), 223 Md. 184, 162A.2d 745; Frostv. Mayo Clinic (1969),304 F.Supp. 285;Barnesv. St. Francis Hospital & School of Nursing, Inc. (1976),211 Kan. 315, 507 P.2d 288; Benzmiller v. Swanson (N.D. 1962), 117N.W. 2d 281. Accordingly,

we conclude that Dr. Bayleswas qualified to testify even though he was not a psychiatrist. We turn next to plaintiffs' contention that Dr. Bayles should have been permitted to explain how the hospital rules operated and whether the hospitalviolated the rules. It is rare in a case involving amedical question that experts

are not called by both plaintiffs and defendants to explain the techniques,practices and intricacies involved in the

case. Except perhaps in the most blatant case, the jury would become helplesslymired without the aid of expertmedical testimony. A physicianwould normally be in the best position to explain how the rules operate and whether they were properly followed in a particular case. Undoubtedly, this would be of great benefit to the jury. In the early case of Statev. Cassill et al. (1924), 70 Mont. 433, 227 P. 49,this Court held thatwitnesses who

were qualified as experts in accounting and bookkeeping could explain themeaning of various entries because the information would be helpful to the jury. Explaining the application of the hospital rules to the factsof this casewould be equally

as helpful to the jury. Since Cassill, this Court has upheld the use of expert testimony inmany factual situations. Indeed, this Court has createdmany exceptions to the ruleprohibiting opinion testimony because we have recognized the inherent need for expert opinions if the -factfindingprocess is goingto be realistic and meaningful. Note, 37 Mont.L.Rev. 267 (1976). The new Mont.R.Evid., which will apply to this case upon retrial,are explicit in allowing opinion evidence. Rules 701 through 705,Mont.R.Evid. We have long held moreover, that where there is a need for expert testimony, and where the expert is qualified, the opinion, in the form of a conclusion

# ".

. .may be stated by a qualified expert,even though the conclusion is a statementof an ultimate fact to be found by the jury." Kelley v. John R. Daily Co. (1919), 56 Mont. 63, 181 P. 326; Copenhaver et al. v. Northern Pac. Ry. Co. (1911), 42 Mont. 453, 113 P. 467. Under the new rules the only limitation on the expert is that he be qualified by reason of "knowledge,skill, experience, training or education 

# . . ." (Rule702.) The range of possible testimony is all "scientific,technical,

or other specialized knowledge"which would aid the trier of fact. (Rule702.) Even the time honored hypothetical question is no longer required as a condition to giving expert testimony. (Rule705.) And, an expert can give his opinion

on the ultimate issue in the case. (Rule704.) Themeans by which any weakness in the basis of the opinion should be revealed is through cross-examination. (Rule705.) The trial court should have permitted Dr. Bayles to explain his interpretationand application of the rules to the factsof the case. If Dr. Bayleswas in error, any weaknesses in his opinionwould have been exposed by crossexamination. Moreover, the defendant physicians, in their

own testimony,would have been quick to revealhis errors. We conclude also the court improperly restricted Dr. Bayles' opinions as towhether the security room should havebeen locked while someone was attending Hunsaker and whether Hunsaker's physical symptoms on the evening before, demanded that the nurses contact the attending physicians to inform them of Hunsaker's changed condition. These errors

were compounded because the defendantswere permitted to introduce evidence on both of these questions. The jury

was entitled to know what plaintiffs' witnesses had to say

on the same subjects. Plaintiffs also contend Dr. Townsend should have been permitted to testify to the standards of care in Bozeman, Montana, for the care of a patient who ismentally disturbed by reason of toxic psychosis or some related disease. Plaintiffs called Dr. Townsend who was to testify as an expert as to the standard of care for diagnosing and treating toxic psychosis in Bozeman, Montana. As an internistand hematologist the area of organic and toxicpsychosis was within Dr. Townsend's specialty. He had extensive experience in hospitals of varying sizes throughout the United States. The defendants do not dispute his generalqualificationsbut simply contend he had notpracticed in a hospital similar in size to that of Bozeman Deaconess and thereforewas not qualified to testify as to the standardsof care at Bozeman Deaconess. Inpast years Dr. Townsend had practiced in hospitals similar in size to Bozeman Deaconess. It appearsmoreover, plaintiffs were asking him what the standard of carewas in Bozeman Deaconess,not what the standard of care was in other hospitals similar in size to Bozeman Deaconess. Dr. Townsend had gone over Hunsaker's medical and hospital records and had acquainted himself with the standard of practice in Bozeman by talkingwith a Bozeman doctor who practiced in the hospital. He was prepared to testify as to what Bozeman -18-Deaconess and defendantphysicians should have done to properly handle a case of toxic psychosis. The record while Dr. Townsend was on the witness stand, is punctuated with successful defense objections on numerous grounds,but mainly directed to foundation--that is,his familiarity with practice in a hospital the size of Bozeman Deaconess. Finally,however,plaintiffs asked the following question: "Q: Based uponwhat you learned by reviewing the chart thatwe made reference to and the various other documents, the by-laws, the licensing laws, are you able to form a reasonable judgment of what the standards of care are in Bozeman, Montana, for the care of a patient who ismentally disturbed by reason of toxic psychosis or some related disease?" Because of defense objections, the court refused to let Dr. Townsend go beyond a "yes"answer. In explaining his ruling the court stated: "You [defense counsel] have pretty well established that any knowledgehe has here is hearsay. I have tried to go as far as I can. It seems to me we are just wasting time. " It is difficult to imagine any expert testimony that does not to a degree, rely on information that from a strict legal standpoint is hearsay. If this Courtwere to prohibit all expert opinions which rely on hearsay evidence,the courthouse doors would be virtually closed to the giving of expert opinion on any subject. In this technical world in which we live, the need for expertmedical opinion to help resolve factual disputes has never been greater. The special problems involvingmedical testimony and hearsay evidence have been succinctly summarized inVol. 53 Texas Law Review (No. 2,January, 1975),where the author states: "Adoctor's methods for gathering the facts on which to base his opinion,unfortunately,do not always mesh well with evidence law. The hearsay rule,which generally excludes statements made out of court and offered to establish the truth of thematters asserted, would prevent a doctor from testifying to virtually anything that he has learned from others. Moreover, since the rules regarding opinion testimony commonly prevent experts frombasing their opinions on hearsay, the rulewould seem to prevent a doctor from rendering an opinion in court. The rule, however, is not so rigid. Expertsmay in factbase their opinions on their general education and training and their continued medical readings even though these sources are technically hearsay. Hearsay restrictions still apply, however, when the expert turns from his generalbackground to the facts of theparticular case. "The hearsay rule restricts the free flow of medical testimony in two interrelated ways. First, it limits the circumstances in which the doctormay repeat in court,or base an opinion on, the statements that others have made about a patient's condition. Second, it restricts the circumstances in which a party may introduce a doctor's written opinion about a patient's condition. Sinceboth restrictions conflict with themanner in which doctors commonly perform their nonjudicial functions, each at least creates an inconvenience for both litigants and the medical profession and may deprive the factfinders of valuable evidence." Vol. 53 at p. 297. In the present case, the jury was deprived of valuable evidence which it could have weighed alongside that of the defendants and their experts. Itwould have been helpful if the jury had thewitness's opinion as to the proper methods for diagnosing, treating and handling a patient with toxic

or organic psychosis. The focal point of the offered testimony was not that of hospitals similar to Bozeman Deaconess,but that of Bozeman Deaconess itself. That Dr. Townsend may have relied on hearsay information to acquire this knowledge is something that could have been explored on cross-examination. The offered opinionwent to the weiqht of the testimony and not to the competency of Dr. Townsend to render the opinion.Plaintiffs also complain that the defendant hospital

was permitted to ask improper questions of the hospital supervisorwho was on duty at the time that Hunsaker jumped out the window. The questionswere asked her after plaintiffs had concluded their examination of her under the adverse witness rule. She gave her opinions on the adequacy and competency of the personnel at the hospital while Hunsaker

was a patient. Plaintiffs claim that no foundationwas laid for this testimony,but her background and qualifications

were established in detail during defendant hospital's examination of thewitness. Plaintiffs did not object to this testimony. It is true that the opinion testimony elicited went beyond the scope of the examination-in-chief and no reason appears why the supervisor could not have been called to testify while the defendant hospital was putting on its

case. We do not however, consider this error to be prejudicial. On the other hand, itwas prejudicial error to permit the nurse supervisor to testify that another nurse-supervisor

(whose testimonywas read into the record by deposition)was "honestand trustworthy." That testimony took on added weightwhen it is considered that the nurse-supervisor testified directly contrary to one of plaintiff's witnesses

on the question of whether the security roomwas locked. An orderly testified that he attended Hunsaker on the 4:00 p.m. to 12:OO p.m. shift and that the nurse-supervisor kepthim locked in the security room while attending Hunsaker. If the orderlywanted to leave the room for any reason he had to knock on the heavy glass window and the nurse-supervisor came with the key and opened the door. The nurse-supervisor testified (bydeposition) that the orderlywas never locked in the roomwith thepatient. The testimony that this supervisor was "honestand trustworthy1'clearly took on the form -21-of character testimony for which there was no foundation. Indeed, character was never put in issue. The next series of claimed errors relates to the doctrine of res ipsa loquitur and the court's instructions -- on the doctrine. Over defendants' objections the court instructed the jury on the doctrine of res ipsa loquitur. -- Under the instructions the jury was entitled to find that the doctrine applied not only to the hospital hut also to the defendantphysicians. The instructiongiven was the standard jury instruction on res ipsa loquitur as found in -- the Montana Jury InstructionGuide (No. 22.00.). Itwas given without modification. In addition to this instruction, the plaintiffs offered supplemental instructions on res ipsa loquitur but the trial court refused each of them. Plaintiffs assign this as error. We note at the outset that the doctrine, in the context of this case,did not apply to the defendant physicians. In Maki v. Murray Hospital (1932), 91Mont. 251, 7 P.2d 228, this Court held that res -- ipsa loquitur applied in an analogous situation to the defendant hospital. The plaintiffs here offered no theory at trial nor to this Court as to why the doctrine should apply to the defendantphysicians. The defendant physicians were not attending Hunsaker at the time he jumped out the hospitalwindow. Indeed, they were not even in the hospital. Whether the defendant physicians had made the proper diagnosis of Hunsaker's condition or had given the proper orders to the hospital personnel,was covered by specific allegations of negligence. It stretches the doctrine of - res ipsa loquitur beyond the breaking point to apply the doctrine to the physicians under these facts. In its application to the hospital, the -- res ipsa loquitur instruction,although setting forth the elements, should have -22-been modified to fit in the context of this case. Plaintiffs did offer another instruction in simpler terms,but the instructionwas refused. We notemoreover, that the District Court refused an instruction offered by plaintiffs distinguishing circumstantial evidence from direct evidence. Res ipsa loquitur, is, of course,a form of circumstantia.1 -- evidence,and the instructiondefining circumstantial evidence should have been given. The trial court instructed the jury that. "themere fact of an injury or the occurrence of a bad result, standing alone, is no proof whatsoever of negligence in an action such this.I' Plaintiffs contend thiswas error,particularly in a situationwhere the plaintiffs r@ly-upon res ipsa 

### - loquitur. In the ordinary negligence casewe would agree, but in a professional negligence action, it is not error to give an instruction that an unsuccessful effort, amistake,

or an error in judgment is not necessarilynegligent. In Graham v. Rolandson (1967),150Mont. 270, 435 P.2d 263,an ordinary negligence action, we condemned an "unavoidable accident" instruction. Therewe concluded that it injected

a straw issue into the case and is confusing to the jury. This is somewhat akin to "themere fact of an injury" instruction

aswas given in this case. In Gagosianv. Burdick's Television & Appliances (1967), 254 Cal.App.2d 316, 62 Cal. Rptr. 70,California eliminated "the mere fact of an injury" instruction from ordinary negligence actions, stating: 

# ".

.

# . Since itbut elucidates the obvious to the jury, and need not be given to meet any rule of appellate procedure, we join heartily in the recommendation of its authors for its 'decentburial.' The trial judgewho strikes the 'merehappening' instruction from his instruction book and completely erases it from his memory will save time in instruction and much in retrial after reversal."We also conclude that in an ordinary negligence action that such instruction should be given a "decentburial" in this State. In professional malpractice actions however, California retains amodified form of "themere fact of an injury" instruction. For example, California Jury Instructions, Civil (BAJI,6th Edition, 1977), InstructionNo. 6.02 states: "Aphysician and surgeon is not negligent merely because [hisefforts are unsuccessful]

[hemakes a mistake][he errs in judgment] in thematter forwhich he was engaged. "However,if the physician and surgeonwas negligent as defined in these instructions, it is not a defense that he did the best he could.

### " We believe this is a proper instruction. Also see instruction

no. 6.37.2 which has similar application to actions against other professionals, such as lawyers. Plaintiffs next contend that the court erred in giving

an instruction onmedical negligencewhich concluded with the following sentence: 

# ".



# . .A doctor is not liable for a mere error in judgment,provided he does what he thinks is best after a careful examination." Plaintiffs contend that the test of negligence is not for

a doctor to dowhat he thinks is best, but whether he used the required knowledgeand training inmaking the judgment to dowhat he thinks is best. The languageused was modified to an extend by the words "aftera careful examination", but a different instruction should be given. The instruction set forth in the preceding issue is sufficient. The court refused plaintiffs' instruction that Hunsaker would not lose the benefit of the application of the doctrine of 

### - res ipsa loquitur by introducing evidence tending to show specific acts of negligence. InWhitney v. Northwest Greyhound (1952),125Mont. 528, 535, 242 P.2d 257, this Court stated: "Whereres ipsa loquitur is otherwise applicable, a plaintiff does not lose the benefit of thatpresumption by alleging specific acts of negligence of the carrierwhich he fails to prove 

# . .

# ."We note however, that under the other instructions, given in the case at hand, there was no basis for the jury to conclude that the plaintiff was precluded from relying on res ipsa -- loquitur because he alleged specific acts of negligence. 

## - Accordingly,we find no error. Plaintiffs further contend that the trial court should have instructed the jury that exclusive control of the instrumentdid notmean physical control at the time plaintiff sustainedhis injuries. But the facts of this case did not require such an instruction. In Baumgartner v. National Cash Register (1965),146Mont. 346, 406 P.2d 686, we held that actual physical control at the time of the accident is not required. The facts of that case differmaterially from the factsof the instant case. In Baumgartner,plaintiff suffered an electrical shock from a cash registermanufactured and distributed by the defendant. Undoubtedly, for res ipsa loquitur to apply in 

### -- that factual context,plaintiff was not required to prove that National Cash Register Company had actual physical control over the cash register at the time plaintiff was shocked. In the instant case the defendant hospital did not dispute that it had physical control over the operations of the hospital and the security room of the hospital. Under these facts the courtproperly refused the instruction. At the request of defendant hospital, the court gave the following instructionrelating to expert testimony and the application of res -- ipsa loquitur: "In determining whether the accident was of such a nature that itdoes not ordinarily occur if the party in control exercises reasonable care,youmust examine whether that determination involves the resort to medical opinion and judgment beyond the common knowledge of a layman. If you findthat the cause of the accident was so inextricablybound up in a course of medical judgmentbeyond the common knowledge of laymen, then thepreviously described inference of negligence does not apply in this case." The instruction is not one that should be given to

a jury as a barrier to overcomebefore it can apply the doctrine of res ipsa loquitur. At the conclusion of the 

### - case the evidence was such that the trial must have concluded that the elements of res ipsa loquitur were satisfied and 

# -- that the injuries received by Hunsakerwere not so inextricably bound up in an antecedent course of treatment involving the exercise ofmedical judgment beyond the common knowledge of laymen. The instruction served only to confuse the jury. As its last contention of error in instructing the jury plaintiffs contend that the District Court improperly instructed the jury that in the absence of an emergency the nurses and other hospital personnel are bound to follow the orders of the treatingphysician. The instructionwas proper. Neither

case cited by plaintiffs is applicable to the facts of this

case. In Livingston Hospital v. White (Ky. 1952), 245 S.W.2d 927,the attending staff physicianmade a note on a hospital form recommending that the patient be kept under "special observation for suicide or escape." The hospital staff left the patient unattended and the patient jumped through a window severly injuring himself. This is a clear case of the hospital personnel not following the physician's order. In Rural EducationAss'n. 

### v. Anderson (Tenn. 1953), 261 S.W.2d 151, the patient's familyphysician before he went on an extended vacation instructed the hospital staff to keep a loose surveillance on the patient. While the physician was on vacation, the patient became critical and increased observation was required. Later a staff physician order increased surveillance,but the hospital staff left the patient unguarded on the third floor of the hospital. The patient jumped through the window and received extensive injuries. This was a clear case of an emergency situationwhere the hospital failed to increase surveillance when itwas needed and actually ordered by staff physician. We agree with the statement contained in Mesedahl

v. St. Luke's HospitalAss'n. of Duluth (1935),194Minn. 198, 259 N.W. 819: 

# ".



# . . The nurses and internes at a general hospital are charged with the duty of carrying out the instructions of the attending physician, except in cases of emergency. Such of necessitymust be the rule. When a patient enters a hospital upon the advice of a physician chosenby him,he naturallly desires and expects, and has the right to expect, that the instructionsof his physicianwill be complied with. He relies upon the skill of his own doctor;he knows nothing of the ability of the internes and nurses. Where an emergency arises, it is, of course, incumbentupon the nurses or internes to exercise their own judgment until report can be made to and instructions received from the attending physician. 

# . ." The problem of jury instructions with which we were faced in this case and with which we have been increasingly confronted with, impels us to discuss the subject of jury instructions. The -- res ipsa loquitur instruction given in this case,without any modification,was taken from the Montana Jury InstructionGuide, InstructionNo. 22.00. This instruction was adopted verbatim from an earlier edition of California Jury Instructions. The instruction is cumbersome and extremely difficult to understand. We note, however, that for severalyears now, the California instructionson
res ipsa loquitur have been substantially revised. Presently, 

### - there are several instructions relating to 

### -- res ipsa loquitur. California has had extensive litigation in the field of hospital and medical malpractice and undoubtedly becauseof this, specific instructions on the application of res - ipsa loquitur to this area of the law, have been drafted by the bench and bar. (CaliforniaJury Instructions, Civil, 6th ed., InstructionsNG. 6.35, 6.36.) Comparatively speaking, this State has had little litigation in this area. Consequently,decisional law in this state is sparse. The trialbench and trial bar areencouraged to seriously consider the use of pattern jury instructions from other states as long as they are not inconsistent with the law of this state. Even if inconsistent, the form of the instruction can be used as a model fordrafting one that complieswith the law of this State. The committees drafting these instructions have labored long and hard to create fair and meaningful instructions. Not onlywill considerable time and effort be saved by using these pattern instructions,but more importantly, the chances of the jury receiving proper instructions are considerably enhanced. We note also that counsel frequentlydraft instructions at the lastmoment with little thought given as to whether they are fair and accurate statements of the law. They are frequentlydrafted from an adversary position and as a result they tend to unfairly benefit one of the adversaries. That is not the purpose of jury instructions. Jury instructions

are no place tomake final arguments. In addition to being easily understood, instructions should be a fair statement of the law and not slanted to the side of one adversary or the other. Another problem that this Court frequently confronts is that counsel or the trial bench too often draft instructions in the literal language of the opinions of this court or the courts of other jurisdictions. While occasionally a statementin an opinionmay also be a good jury instruction, we emphasize that opinions are not designed to be jury instructions. We are confident that the trial bench, together with counsel, if they take sufficient time and effort, can draft instructions that are better jury guides to the law than the literal language taken from court opinions. We encourage the bench and bar to take the time to do so. Finally, itwould greatly aid in the submission of proper instructions to the jury, if the District Courts would adopt and compel enforcement of a local court rule ,reqairing that jury instructionsbe submitted to the court,with appropriate supporting authority, before commencement of the trial. There are severalmore claims of error asserted by plaintiffs but our decision on them would not be helpful to the retrial of this cause. If the issues do arise at the next trial, they will not be in the same context as presented to us in this appeal. The judgment isvacated and the cause is remanded for

a new trial.

We Concur:



## 4 Chief Justice

JusticesMr. Justice John Conway Harrison concurring inpart and dissenting inpart: I concur intheresultreached by themajoritybut not inallthat is said therein. Specifically, inregard totwo holdings of theopinion: First, astothe charge thatthehospital failed touse the standard of carerequired, and thedenial of the testimony of Dr. Bayles' testimony on that standard, I would sustain thetrialjudge's denialof this testimony on the ground that the transcript failed to show that Dr. Bayles was familiar with those standards

# . Second, I would sustain the trialjudge's refusal to allowDr. Townsend's testimony on the standard of carerequiredby both thehospital and thedoctors attendingMr. Hunsaker. Dr. Townsend practiced inthe federally established hospitals and, inmy opinion, had no expertise astothe standards inlocalMontana medical institutions. For the

same reasons, I didnot concur inthisCourt's opinion inthe

caseof Tallbullv. Whitney (1977), Mont

# . , 564 P.2d 162, 34 St.Rep. 356.Mr. Chief Justice Frank I. Haswell specially concurring: I concur with the result in themajority opinion but not in all that is said therein. Iwould grant a new trial on the following grounds for the reasons set forth in the majority opinion: (1)Reversible error in excluding the expert opinion evidence of Dr. Dayles and Dr. Townsend; (2)Reversible error in admitting the testimony of nurse-supervisorAugney that another nurse-supervisorwas "honest and trustworthy".

Chief Justice \