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. Justice Daniel 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 treating physicians. 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 damages was a derivative action 

for loss of consortium. Each of the actions for negligence 

was based on the same incident. 

Defendant William S. Prunty moved 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 physicians were 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 

solarium window, 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 Hospital by 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 family problems, 

and possible recurring heart problems. After admission, 

Hunsaker was nervous, hallucinated, and had at least one 

seizure. 

On November 9, Hunsaker told an attendant he 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 room was used for temporary 

observation and control of patients with mental problems, 

and for drying out alcoholics. All the furniture was moved 

out of the room with the exception of the bed. The room 

had a screened window and a double door entry with locks. 

The first night Hunsaker was in the room, a male orderly 

remained with him until midnight. Written orders from the 

physicians were to "lock door, if unattended." The orderly 

testified that while 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 supervisor would come 

with her key and unlock the door. The night supervisor 

directly contradicted this testimony. 

At midnight, a sitter, Mrs. Bisland, relieved the 

orderly. She was not a nurse but was an experienced aide. 

She was sixty years of age and approximately two hundred pounds. 

Hunsaker was fifty-four years of age, powerfully built, and 
approximately two hundred pounds. During the night, 

Hunsaker remained awake, occasionally hallucinated and 

talked and walked around the room. Each time he would do 

this, the sitter talked him into returning to bed. 

In the early morning hours of November 13, at approximately 5:20 a.m., another patient entered Hunsaker's room. 

(There is a dispute whether this patient had also wandered 

into the room a little earlier on the same morning.) 

Hunsaker mistakenly believed the patient was his sister, and 

insisted on talking to her. The sitter was 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 and mental incapacity at the time 

he jumped through the window 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 hospital personnel. He further alleged the 

hospital failed to keep Hunsaker in a section of a hospital 

separated from other patients, and failed to provide facilities 

which would prevent an escape while in a condition of mental 

derangement and incapacity. He also alleged breaches of 

hospital standards and state licensing laws. 
Plaintiff's allegation of negligence against defendant 

physicians was that they had failed to properly diagnose his 

condition and consequently failed to properly care for him. 

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 errors which 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 four peremptory 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 errors were made in 

instructing the jury, primarily with regard to the doctrine 

of - res ipsa 1- and on the question of expert medical 

testimony. 

Plaintiffs first contend the District Court improperly 

granted each of the defendants four peremptory challenges 

because they did not in fact have "hostile" interests as 

required by statute. Section 93-5010, R.C.M. 1947, provides 

in relevant part: " . . . 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 "each party" 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), 169 Mont. 

511, 549 P. 2d 813. As a practical matter plaintiffs rarely 

have "hostile" interests to each other, and therefore the 

question is usually one of how many peremptory challanges 

co-defendants shall have. 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, or whether it may 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 there was 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 there was 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 the plaintiff had shown no prejudice. In holding 

that Leary must show prejudice before he would be entitled 

to a reversal, we stated: 

". . . In the instant case Leary has advanced 

no fact which 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." 

169 Mont. at 516. 

We did not, however, discuss the facts as to how the District 

Court reached his decision--that is, whether there was in 

fact hostility between the co-defendants. 

The very nature of the problem makes appellate review 

extremely difficult. Is it sufficient to place the burden 

on either party to show he has been prejudiced by the trial 

court's ruling on the question of peremptory challenges? 

Indeed, in most instances, proving prejudice, (normally, that 

a juror who sat on the case was prejudiced against one of 

the other parties), and if the court had ruled properly the 

result would most probably have been different. In the 

ordinary case, proving prejudice may be an impossible burden. 

As a result, if at the appellate level we 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 cases we are in no position to determine. 

The problems are magnified 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 situation 
is the parties do not notify the court and opposing parties 

in advance of trial that each co-defendant, for example, 

will ask for four peremptory challenges. Perhaps in some 

situations the parties do not disclose their intentions until 

the time has come to start exercising the peremptory challenges. 

Suddenly the court and plaintiff is confronted with defense 

motions asking to have four peremptory challenges for each 

defendant. In many situations the trial court will 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 caught by 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 thorough briefing by the parties to the action. The result 

is that when a case comes to us on appeal, we have no basis 

to determine if, at the time the trial court made 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 if we agreed with an appellant that the District Court 

ruling was in error, we would not reverse unless the appellant 

could also prove actual prejudice. This is hardly a standard 

of review designed to get at the root of the problem. The 

focus should be on whether the ruling was correct at the time 

it was made. 

What happened in this case is illustrative of the general 

problem. Before the commencement of the trial there was no 

indication that plaintiffs or defendants would be asking each 

to have four peremptory challenges. Just as questioning of 

the jurors was about to start, the trial court asked the parties 

if they had agreed on a challenge procedure. If the court had 

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not done this it does not appear the parties would have 

brought the matter 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 

law was provided to the court and the pleadings or other 

factors which may show "hostility" were not discussed. 

Defendants generally took the position that because each 

could be subject to a separate judgment that each was entitled 

to four peremptory 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 Court was 

right, but that the plaintiffs were prejudiced by the ruling. 

As previously indicated, it is virtually 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 appeal becomes one of proving 

that the jury was somehow prejudiced 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 the present 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. 

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The defense theories of the hospital and defendant 

physicians meshed like the finest gearshift mechanism. 

The hospital asserted it followed and had the duty 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 hospital properly followed their orders and was 

not required to take independent action to protect Hunsaker 

from himself. 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 instructions were synchronized between the hospital 

and defendant physicians. Neither the hospital nor the physicians 

objected to any instruction offered 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 court must, of necessity, make its 

best judgment based on the facts that are presented to it 

before its ruling. It is necessary it have certain leeway, 

for even in the days of discovery, the twists and turns of a 

trial are unpredictable. 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 it may 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 

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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 

additional peremptory challenges to one side or refusing to 

grant additional peremptory challenges to one side, we cannot 

blind ourselves to the advantages conferred on one side by 

having additional peremptory challenges. Where is the trial 

lawyer who would not like to have twelve peremptory challenges 

to his opponent's four? It is precisely for this reason that 

the correctness of the trial court's decision must be part of 

the review process on appeal. 

We are in an era where multi-party litigation is proliferating. The issue involving the number of peremptory 

challenges allowed each side is likely to be a continuing one-- 

because each case must, of necessity, be resolved on an 

individual basis. 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 

to make a proper record. 

The existing civil procedure rules, particularly the 

pretrial conference as provided for in Rule 16, Mont.R.Civ.P., 

are ideally suited for the resolution of issues relating to 

the number of peremptory challenges to be allowed each side. 

Rule 16 provides in part: 

"In any action, the court may 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 the best 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 commencement of jury selection, 

and it should set forth all facts and references tending to 

support his 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 on which it relies in making its decision. 

In a related peremptory challenge issue, Mrs. Hunsaker 

asserts she should have been given four peremptory 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 the hospital. 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 

defendant physicians. We first will set forth the facts 

giving rise to these issues. 

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One of the main themes of Hunsaker's case was that 

he was suffering from toxic psychosis and defendants failed 

to properly diagnose this condition and take adequate steps 

to protect Hunsaker from himself. Dr. Townsend, one of 

plaintiffs' experts, testified that toxic psychosis could 

be caused by medications, or substances administered to the 

patient which cause metabolic deran~rnentof the brain which 

thus influences behavioral changes. The same psychosis could 

be caused by withdrawal of certain drugs or substances from 

the patient. Plaintiffs contended that when 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 emotional problems 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 

for hospital accreditation of the joint commission on 

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 issues was 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 

objection when plaintiffs asked the question based on those 

facts. The question was rephrased, and the witness was asked: 
"Q. Having in mind 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 1969 were not 

adhered to?" 

In sustaining an objection the court stated: 

". . . Well, I am going to sustain the 

objection on this one . . . I think the 

Jury can determine whether the rules are 

applied as well 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: "Lock door if patient unattended." 

Dr. Bayles was asked if it was 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 answer would invade the province of the jury. Two 

nurses testified their interpretation of 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 court permitted the defendants to put in evidence that 

the order was a proper one, and that it was sound medical 

practice under the circumstances of this case, to leave the 

door open if someone was attending Hunsaker at the time. 

While testifying as an expert witness for the hospital, a 

psychiatrist concluded the order was a proper one and that 

it was sound medical 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 symptoms were a clear warning to the 

hospital staff to call the treating physicians. The court 

sustained an objection that it would 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 objections was 

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 general practitioner 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 specialization of 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 

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competency to testify. Harold v. Radman (Maryland 1976), 31 

Md.App. 184, 355 A.2d 477; Wolfinger v. Frey (~aryland 

1960), 223 Md. 184, 162 A.2d 745; Frost v. Mayo Clinic 

(1969), 304 F.Supp. 285; Barnes v. St. Francis Hospital & 

School of Nursing, Inc. (1976), 211 Kan. 315, 507 P.2d 288; 

Benzmiller v. Swanson (N.D. 1962), 117 N.W. 2d 281. Accordingly, 

we conclude that Dr. Bayles was 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 hospital violated the rules. It 

is rare in a case involving a medical 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 helplessly mired without the aid of expert medical 

testimony. A physician would 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 State v. Cassill et al. (1924), 70 

Mont. 433, 227 P. 49, this Court held that witnesses who 

were qualified as experts in accounting and bookkeeping could 

explain the meaning of various entries because the information 

would be helpful to the jury. Explaining the application of 

the hospital rules to the facts of this case would be equally 

as helpful to the jury. Since Cassill, this Court has upheld 

the use of expert testimony in many factual situations. Indeed, 

this Court has created many exceptions to the rule prohibiting 

opinion testimony because we have recognized the inherent 

need for expert opinions if the -factfinding process is going 
to 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 

statement of 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 . . . " (Rule 702. ) The 

range of possible testimony is all "scientific, technical, 

or other specialized knowledge" which would aid the trier of 

fact. (Rule 702.) Even the time honored hypothetical 

question is no longer required as a condition to giving expert 

testimony. (Rule 705.) And, an expert can give his opinion 

on the ultimate issue in the case. (Rule 704.) The means by 

which any weakness in the basis of the opinion should be 

revealed is through cross-examination. (Rule 705.) 

The trial court should have permitted Dr. Bayles to 

explain his interpretation and application of the rules to 

the facts of the case. If Dr. Bayles was in error, any 

weaknesses in his opinion would have been exposed by crossexamination. Moreover, the defendant physicians, in their 

own testimony, would have been quick to reveal his errors. 

We conclude also the court improperly restricted Dr. 

Bayles' opinions as to whether the security room should have 
been 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 defendants were 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 is mentally 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 internist and hematologist the 

area of organic and toxic psychosis 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 general qualifications but simply contend 

he had not practiced in a hospital similar in size to that of 

Bozeman Deaconess and therefore was not qualified to testify 

as to the standards of care at Bozeman Deaconess. 

In past years Dr. Townsend had practiced in hospitals 

similar in size to Bozeman Deaconess. It appears moreover, 

plaintiffs were asking him what the standard of care was 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 talking with a Bozeman doctor who practiced in 

the hospital. He was prepared to testify as to what Bozeman 

-18- 
Deaconess and defendant physicians 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 upon what you learned by reviewing 

the chart that we 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 is mentally 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 knowledge he 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 Court were 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 expert medical opinion to help 

resolve factual disputes has never been greater. The special 

problems involving medical testimony and hearsay evidence have 

been succinctly summarized in Vol. 53 Texas Law Review (No. 

2, January, 1975), where the author states: 

"A doctor'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 the matters 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 

from basing their opinions on hearsay, the 

rule would seem to prevent a doctor from 

rendering an opinion in court. The rule, 

however, is not so rigid. Experts may in 

fact base 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 general background to the facts of 

the particular case. 

"The hearsay rule restricts the free flow of 

medical testimony in two interrelated ways. 

First, it limits the circumstances in which 

the doctor may 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. Since both 

restrictions conflict with the manner 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. It would have been helpful 

if the jury had the witness'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 opinion went 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 

supervisor who was on duty at the time that Hunsaker jumped 

out the window. The questions were 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 foundation was laid 

for this testimony, but her background and qualifications 

were established in detail during defendant hospital's examination of the witness. 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, it was prejudicial error to permit 

the nurse supervisor to testify that another nurse-supervisor 

(whose testimony was read into the record by deposition) was 

"honest and trustworthy." That testimony took on added 

weight when it is considered that the nurse-supervisor 

testified directly contrary to one of plaintiff's witnesses 

on the question of whether the security room was 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 kept him 

locked in the security room while attending Hunsaker. If 

the orderly wanted 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 (by deposition) that the orderly was never locked 

in the room with the patient. The testimony that this supervisor was "honest and trustworthy1' clearly took on the form 

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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 defendant physicians. The instruction given was the 

standard jury instruction on res ipsa -- loquitur as found in 

the Montana Jury Instruction Guide (No. 22.00.). It was 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), 91 Mont. 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 defendant physicians. The defendant 

physicians were not attending Hunsaker at the time he jumped 

out the hospital window. 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 instruction was refused. We note moreover, 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 instruction defining circumstantial evidence 

should have been given. 

The trial court instructed the jury that. "the mere 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 this was error, particularly 

in a situation where the plaintiffs r@ly- upon res ipsa - 

loquitur. In the ordinary negligence case we would agree, 

but in a professional negligence action, it is not error to 

give an instruction that an unsuccessful effort, a mistake, 

or an error in judgment is not necessarily negligent. 

In Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d 

263, an ordinary negligence action, we condemned an "unavoidable 

accident" instruction. There we concluded that it injected 

a straw issue into the case and is confusing to the jury. 

This is somewhat akin to "the mere fact of an injury" instruction 

as was given in this case. In Gagosian v. 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 it but 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 'decent burial.' The trial judge who 

strikes the 'mere happening' 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 "decent burial" 

in this State. 

In professional malpractice actions however, California 

retains a modified form of "the mere fact of an injury" 

instruction. For example, California Jury Instructions, 

Civil (BAJI, 6th Edition, 1977), Instruction No. 6.02 states: 

"A physician and surgeon is not negligent 

merely because [his efforts are unsuccessful] 

[he makes a mistake] [he errs in judgment] in 

the matter for which he was engaged. 

"However, if the physician and surgeon was 

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 on medical negligence which 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 do what he thinks is best, but whether he used 

the required knowledge and training in making the judgment to 

do what he thinks is best. The language used was modified 

to an extend by the words "after a 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. In Whitney v. Northwest Greyhound 

(1952), 125 Mont. 528, 535, 242 P.2d 257, this Court stated: 

"Where res ipsa loquitur is otherwise 

applicable, a plaintiff does not lose 

the benefit of that presumption by 

alleging specific acts of negligence 

of the carrier which 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 

instrument did not mean physical control at the time plaintiff 

sustained his injuries. But the facts of this case did not 

require such an instruction. In Baumgartner v. National 

Cash Register (1965), 146 Mont. 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 differ materially from 

the facts of the instant case. 

In Baumgartner, plaintiff suffered an electrical shock 

from a cash register manufactured 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 court properly refused the instruction. 

At the request of defendant hospital, the court gave 

the following instruction relating to expert testimony and 

the application of -- res ipsa loquitur: 

"In determining whether the accident was of 

such a nature that it does not ordinarily 

occur if the party in control exercises 

reasonable care, you must examine whether 

that determination involves the resort to 

medical opinion and judgment beyond the 

common knowledge of a layman. If you find 
that the cause of the accident was so 

inextricably bound up in a course of 

medical judgment beyond the common knowledge 

of laymen, then the previously 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 overcome before 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 Hunsaker were not so inextricably 

bound up in an antecedent course of treatment involving the 

exercise of medical 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 treating physician. The instruction was 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 physician made 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 Education Ass'n. v. Anderson (Tenn. 1953), 261 S.W.2d 

151, the patient's family physician 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 situation where the hospital 

failed to increase surveillance when it was needed and 

actually ordered by staff physician. 

We agree with the statement contained in Mesedahl 

v. St. Luke's Hospital Ass'n. of Duluth (1935), 194 Minn. 

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 necessity must be the 

rule. When a patient enters a hospital upon 

the advice of a physician chosen by him, he 

naturallly desires and expects, and has the 

right to expect, that the instructions of 

his physician will 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, incumbent upon 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 Instruction Guide, Instruction No. 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 several years now, the California instructions on 

- 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 because 
of this, specific instructions on the application of res - 

ipsa loquitur to this area of the law, have been drafted 

by the bench and bar. (California Jury Instructions, Civil, 

6th ed., Instructions NG. 6.35, 6.36.) Comparatively speaking, 

this State has had little litigation in this area. Consequently, decisional law in this state is sparse. The 

trial bench 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 for drafting one that complies with the 

law of this State. The committees drafting these instructions 

have labored long and hard to create fair and meaningful 

instructions. Not only will 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 frequently draft instructions 

at the last moment with little thought given as to whether 

they are fair and accurate statements of the law. They are 

frequently drafted 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 to make 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 statement 
in an opinion may 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, it would 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 instructions be submitted to the court, with 

appropriate supporting authority, before commencement of the 

trial. 

There are several more 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 is vacated and the cause is remanded for 

a new trial. 

We Concur: 

4 Chief Justice 

Justices 
Mr. Justice John Conway Harrison concurring in part and dissenting in part: 

I concur in the result reached by the majority but not 

in all that is said therein. Specifically, in regard to two 

holdings of the opinion: 

First, as to the charge that the hospital failed to use 

the standard of care required, and the denial of the testimony 

of Dr. Bayles' testimony on that standard, I would sustain 

the trial judge's denial of this testimony on the ground that 

the transcript failed to show that Dr. Bayles was familiar 

with those standards . 

Second, I would sustain the trial judge's refusal to 

allow Dr. Townsend's testimony on the standard of care required by both the hospital and the doctors attending Mr. 

Hunsaker. Dr. Townsend practiced in the federally established 

hospitals and, in my opinion, had no expertise as to the 

standards in local Montana medical institutions. For the 

same reasons, I did not concur in this Court's opinion in the 

case of Tallbull v. Whitney (1977), Mon t . , 564 P. 2d 

162, 34 St.Rep. 356. 
Mr. Chief Justice Frank I. Haswell specially concurring: 

I concur with the result in the majority opinion but 

not in all that is said therein. 

I would 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-supervisor Augney that another nurse-supervisor was "honest 

and trustworthy". 

Chief Justice \