No. 83-479 INTHE SUPREME COURTOF THE STATEOF MONTANA 1985

JOANN KYRISS, inher capacity as Conservator for Frank Templin, Plaintiff and Respondent,

STATE OF MONTANA, Defendantand Respondent, and WGERA. GANFIELD,M.D. and LEONARD fl. BENJAMIN,M.D., Defendants and Appellants.

APPEAL FROM: DistrictCourtof the Third Judicial District, Inand For the County of Powell, TheHonorable Robert Boyd, Judge Presiding.

COUNSELOF RECORD: ForAppellants: JamesA. Robischon argued,Butte, Montana For Respondents: Hoyt & Trieweiler;Terry Trieweilerargued for Kyriss, Whitefish,Montana SharonMorrison, (Kyriss),Helena,Montana Allen B. Chronister argued for State,Agency Legal Services, Helena,Montana

Submitted: June 13, 1985 Decided: October 3, 1985

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

This is amedicalmalpractice case inwhich theDistrict Court, Third Judicial District, Powell County,based on jury verdict, entered judgment against Drs. Roger A. Ganfield and Leonard M. Benjamin. Thedoctorsappeal. The principal issue in the case iswhether the District Court properly instructed the jury on the issue of causation using the "legal cause" or "substantial factor" instruction instead of the historic "proximate cause" instruction. We determine tha.tthe court instructed the juryproperly. The second principal issue is an outgrowth of the first issue, for the doctors contend that there was not sufficient competent evidence of proximate cause to justify a verdict against them. We determine the evidence is sufficient. Other issues raised by the doctors include their contention that they were employees, not independent contractors, of the State of Montana and thus entitled to be immunized from plaintiff's judgment under section 2-9-305, MCA; and a further issue respecting the jury's possession of highlighted copies of the plaintiff's prison medical record and color photographs of his right leg. We resolve these issues against the doctors also.

Frank Templin is characterized on theprison records as marginally mentally retarded and an alcoholic. He was born in 1922 and finished the 8th grade in tenyears. In 1947,he enlisted in the Army from which he received an honorable discharge. He re-enlisted in 1950 and served a tour of duty in the KoreanWar,andwas honorablydischarged in 1953 for

### asecond time. In his Korean duty, he suffered frostbite on both of his feet while working as a heavy equipment operator inbuilding roads. After the service,he worked in saw mills and as a farm laborer. He drank heavily however in the 1970s, was considered an alcoholic and supported himself with welfare. In 1973,Templ-inforged a $30 check drawn on a friend's account to purchase wine. After 141 days in the Lincoln County Jail,he entered aplea of guilty of forgery. He had

no prior juvenile record and noprior felony conviction, and

onMarch 7, 1974,he receiveda three-year deferred sentence. One of the conditions of the deferred sentence was that he completean alcoholic treatment courseat Galen,Montana,and report regularly to aparole officer. Templin completed the treatmentatGalenonMay 1, 1974, and then requested permission to transferhis supervision to Minnesota, where he hoped to find farm work. He was given permission. Twoweeks afterhisdeparture fromMontana,when he had not reported to his Minnesota supervisor, he was declared a probation violator. A warrant was issued for his arrest, he was returned to the District Court in Lincoln County and therehe was sentenced to 10years imprisonmentin theMontana State Prison at Deer Lodge. His incarcerationat the prison was uneventful. He had no conduct problems,was classified asminimum security risk, did his job assignments, did not need supervision, and was dependable. He was eligible for parole on January 11, 1976 but was apparently denied parole for failure to submit an acceptable work program following parole. Therefore he remained a prisoner at the Montana State Prison, where eventually he sought treatment from Leonard Benjamin,M.D.,the prison doctor, for an ingrown toenail on September 7, 1977. We will set out the history of his medical treatment

more in detail when we discuss the sufficiency of the evidence issue. It is enough to say now that following the removal of his toenail, over a course of several weeks, and several visits to the prison nurses, the prison doctors,and stops at the prison infirmary, it was decided that he should be released to the VeteransAdministration Hospital in Helena for treatmentofwhat was obviously a gangrenous condition of his right foot. The Veterans Administration Hospital would not accept him unless he was paroled. His parole was effected, he entered the Veterans Administration Hospital, and there the lower portion ofhis right legwas amputated on December 20, 1977.

LEGAL CAUSE During the trial the doctors contended,and they contend

on appeal, that Frank Templin was suffering from a pre-existing condition of arteriosclerosis of the blood vessels of the legs,particularly of the right leg,and that it was the arteriosclerosiswhich brought about the eventual amputationofhis right leg. Templin contended that the doctors were negligent in their medical treatment extended.to him. There was also an issue of whether the State of Montana itself had exercised itsduty to provide reasonableand ordinary care for the life and health of itsprisoner. The jury was given a special verdict form, which required it to find with respect to each defendant whether that particular defendant was negligent, and whether his orits negligence contributed as a legal cause of injury or dama.ge to the plaintiff. Those questions related to defendants Roger Ganfield, Leonard Benjamin, Francis Bertoglio and the State of Montana. The jury returned a verdict that Roger Ganfield and. Leonard Benjamin were negligent, and that their negligence contributed as a legal

cause of iniury or damage to the plaintiff. The jury found in favor of thedefendants Francis Bertoglio and the State of Montana. With respect to causation,the District Court instructed the jury as follows: InstructionNo. 13 There may be more than one legal cause of an injury. When negligent conduct of two or more persons contributesconcurrently as legal causes of an injury, the conduct of each said persons is a legal cause of the injury regardlessof the extent towhich each contributesto the injury. InstructionNo. 14 A legal cause of an injury is a cause which is a substantial factor in bringing about the injury. InstructionNo. 18 If you find that any negligent medical practice on the part of the Defendants substantially reduced the chances for saving Plaintiff's leg,then such a reduction in chance can be a part of the legal causeasdefined in this instruction. The District Court refused the defendant's offer of a "proximate cause" instruction, which would have instructed the jury that proximate cause is one which in a natural and continuous sequence and unbrokenby any new independent cause produces the injury and without which the injury would not have occurred. Thedoctors contend that in refusing theproximate cause instruction, and granting one for legal cause, the District Court is establishing a new standard. The doctors rely onour decision in Sztabav. Great Northern Railway Co. (1966)

## , 147Mont. 185, 411 P.2d 379,wherewe said that the test most generally employed determining causation is the "but for" test. Thedoctors also point toDetertv. LakeCounty (~ont. 1984), 674P.2d 1097,wherewe stated that theplaintiff in a tort casemust prove abreach of duty as aproximate cause of the injury, and to Hendrickson v. Neiman (Mont. 1983), 665 P.2d 219, wherewe stated that to hold a party negligentper se for a violation of the statute, the violation must constitute a. proximate cause of the injury resulting in damage. Thus the doctors place squarely before us an issue of grave importance, namely, is this Court so inseparably wedded to the "butfor" rule that in tort cases the liabilityof the defendant must always be found in terms of proximate cause? We answer no. We reached this issue shortly ago in Rudeck v. Wright, (CauseNo. 84-84, Decided August 27, 1985), 

### -Mont. 

### , P.2d 

# . Therewe said inpart: 

### - -



# . .

# . if two or more causes concur to bring about an event, and any one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred it, or there would be no liability at all. The "substantial factor" rule was developed primarily for cases in which application of the "but for" rulewould allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result

# .

# .. In this case, the problem has a slightly different context: the doctors argue that a pre-existing condition ofarteriosclerosis caused the result. On that point the doctors seek to escape liability. In Rudeck,we showed that the "but for" rule is one which states that the defendant's conduct is the proximate cause of the event if the event would nothave occurredbut for that conduct. The inadequacy of the "but for"rule for the purpose of this case should be obvious. Under the "but for" rule, it could be argued, and indeed was argued in the District Court and here on appeal, that the amputation would have occurred in any event,and not only "butfor"thenegligent treatmentby the doctors. If two causes concur tobring aboutan injury and either

cause would have been sufficient for the result, some test for tort liability other than the "but for" rule is needed. In the case of two such concurring causes, the proximate cause instruction fails because a jury so instructed would face an impossible task: It cannot then find the negligence of oneparty a cause "without which the injury would nothave occurred." It was in grappling with this facet of tort causation that courts developed the "substantial factor" test. And-ersonv. Minneapolis, St. Pauland SaultSte. Marie Railway Co. (Minn. 1920), 179 N.W. 45 affld., 185 N.W. 299

(1921). Our adoption of the "substantial factor" test as applicable to cases where two or more actors or factorsmay be substantial causes of a harm is relatively late in coming. The rule appeared in the first Restatement of Torts, § 431, and is repeated in Restatement (Second) of Torts, § 431. Other western states have found the requirement of causation to be satisfied where the negligent act complained of is a substantial factor is causing plaintiffIs injury. Alvey v. Pioneer Oil Field Services (Alaska 1982), 648 P.2d 599;Blackledgev. Harrington !Or. 19811, 624P.2d 119,rev'd. 634 P.2d 243 (1981);Thomsenv. Rexall Drug and Chemical Company

(1965), 235 Cal.App.2d 755, 45 Cal. Rptr. 642; Mitchell v. Branch (Hawaii 1961), 363 P.2d 969; Phelps v. Woodward ConstructionCo. (Wyo. 19491,204 P.2d 179. Our adoption of the "substantial factor" test is in acc~rd with dicta found in Moen v. Peter Kiewit and Sons Co. (Mont. 1982), 655P.2d 482, 490,and Kiamasv. Mon-Kota, Inc. (Mont. 1982), 639 P.2d 1155.

Sufficiency 

### - of Evidence The doctors contend that there was not sufficient competent evidence of proximate cause to justify a verdict against them in favor of the plaintiff. They state that althoughTemplin's expert witness,Dr. Tom E. Norris, offered evidence of improper medical treatment by the defendant doctors, at no time did Dr. Norris testify that any of the allegedly negligentactsor omissions of thedoctorswere the proximate cause of the injury to Templin. The defendant doctors then rely on the argument that proof of proximate

cause is necessary to establish liability. Since the "but for" test is one of exclusion, the doctors contend that their conduct is not the cause of the injury, if the event would nothave occurredwithout it. In support of their contentions, defendant doctors point to the cross-examination of Dr. Manuel White, who testified that the blockage in Templin's artery was caused by arteriosclerosis, and that this is a progressive disease, which may have existed as early as two years prior to the toenail incident. The doctor further stated that itwas theinterruption of the blood suppl-yat the popliteal artery of the right leg that caused the d.evelopmentof gangrene. We have already indicated above that in this case itwas proper to apply the "substantial factor" test and not the "but for" rule to determine the liability. Nonetheless because an issue is raised as to the sufficiency of the evidence, we set out from the viewpoint of Templin the testimony which supports the verdict in favor of Templin. It is first necessary to understand that under a contract with the prison authorities, it was a duty of Dr. Benjamin, or someone fromhis office,toprovide medical care to prison inmates and that this obligation extend-edto Frank Templin during the times involved in this case. Dr. Benjamin firstexamined Templin in 1974 and got from Templin then ahistory that Templinhad frostbiteonhis feet while in the service inKorea. On July 18, 1977, Templin was seen by a nurse at the prison, complaining that his leg was going to sleep when he

was lying in bed, sitting, or walking too much. The doctor testified that these symptoms are signs of circulatory deficiency similar to claudication, which is pain in the muscle or part of thebodywhich lacks circulation. On September 7, 1977,Nurse Kathleen Scalise sawTemplin at the old prison medical station. She found him in a great deal of pain with a reddened and swollen foot. His right great toe was red and inflamed and tender to touch. She advised him to place his name on the next day's sick call when Dr. Benjaminwas scheduled tobe there. On September 8, 1977, Dr. Benjamin examined Templin's right foot. Templin was complaining of a very sore toe. Benjamin determined that Templin had a circulatoryinsufficiency in his right lower leg. The doctor was una-ble to find a pedal pulse. There were atrophic changes in the right big toenail and venous swelling of the foot. Dr. Benjamin prescribed removal of the toenail on the following day. On September 9,1977,Dr. Ganfield,who is the associate of Dr. Benjamin,removed the toenailand sentTemplinback to prison. The doctor admitted that the prison environmentwas not sanitary and that he could at that time have admitted Templin either to the prison infirmary or to a hospital, or he could have referred Templin to avascular surgeon. On September 10, 1977, a licensed practical nurse, Jackie Beatty, saw Templin several times during the day. He

was sufferingpain for which she gave him a pain pill. She cleansed his toe, and applied an ointment. She observed a small amount of bleeding on the surface of his right great toe, but no signs of infection. She saw him again on September 11, 17, and 18 for observation and treatment. During that timehe was stillbeing housed at the old prison. On September 20, 1977, Dr. Benjamin prescribed an antibiotic for Templin because he observed an indication of infection in the area of the right great toe. On September 25, 1977,Nurse Beatty observed Templin again. At this time his right large toe was black, and there was drainage. She soaked his foot, recorded the condition of the foot, and reported the condition to thedoctor. Nurse Scalisealso saw him at themedical station,and observed that he waswalking with difficulty, thathis toe was black and that therewas a reddened area over his right foot. He seemed unable to place anyweight onhis foot.On September 26, 1977, he was again seen by Dr. Benja.min,at the old prison medical station, and he decided that Templin should be admitted to the prison infirmary. After three days, Templin was discharged from the infirmary by Dr. Benjamin and went back to theprison on September 29. On September 30, 1977, Templin was again seen by Nurse Beatty. Again his right toe was reddened, swollen and dark black in color. However, red streakswere starting up the right foot above the great toe. The nurse understood.that the redness indicated infection. There was also a purulent drainage, which also indicatesinfection. Dr. Ga.nfieldsaw Templin in his office on September 30, 1977. Dr. Ganfield described his foot as having "mild swelling, with several cutsnoted on theball ofhis footand heel.

### " Dr. Ganfield did not require Templin to be hospitalized, nor send him to the infirmary, nor did he consult with any surgeons or vascular specialists respecting the condition of the foot,nor order a culture to determine the type of infection present. Again, Templin returned to the old prison. On October 1, 1977, Nurse Beatty again saw Templin at the old prison medical station. He still had purulent drainagearound the upper part of his right great toe,and it

was reddened a.nd inflamed. She saw him again on the next day, October 2, 1977, made the same observations, a.nd indicated he was having difficulty trying to walk. She personally notified Dr. Ganfield of t.hesignsof infection on the right great toe. Dr. Ganfield changed the antibiotic, but did nothing further. Dr. Benjamin saw Templin October 4, 1.977, and at that time knew that Templin had an infection in his right greattoe. He did not however change his courseof treatment. Dr. Benjamin also saw Templin on October 11,1977. After a lapse of three weeks, Dr. Benjamin again saw Templin on November 4, 1977. At that time he admitted Templin to the infirmary. Nurse Beatty observed that his right foot was reddened, his toe black with purulent drainage, and also now noticed a foul odor coming from his right great toe. Dr. Benjamin testified that on this date, Templin showed definite evidence of gangrenous changes inhis toe and heel. Dr. Benjamin then d.ecidedthat Templin should he released to the Veterans Administration Hospital in Helena,but that hospitalwould not accept Templin becausehe

was notparoled. Glen McElderry, a licensed practical nurse, worked at the prison and saw Templin in the month of November. Two days after Templin's admission to the infirmary, McElderry noticed a red streak going up Templin's right leg which seemed to come from the infection in his toe. The doctors

were keptadvised of Templin's condition. On November 4, 1977, however, Templin had been sent to the Powell County Hospital in Deer Lodge so that a culture could be taken from his big toe. This wa.s done at Dr. Bertoglio's instruction. Dr. Bertoglio diagnosed his condition as an infected toe with a vascular insufficiency and the culture showed a staph aureus infection. That informationwas communicated toDr. Benjamin. By November 17, 1977,McElderry determined by measuring that the length of the red streak on Templin's foot and leg

was 8 inches. He felt that Templin's infectionwas getting

worse. McElderry testified that Templin showed more deterioration than improvement whilehewas in the infirmary.Templin was hospitalized at the Veterans Administration Hospital in Helena on November 23, 1977. There he was examined by Dr. Manuel White, a specialist in vascular and thoracic surgery. In his examination of Templin, he found good pulses in both groins, but no pulses in his feet or behind his knees. He also observed a dark discoloration of the great toe of Templin's right foot. There was moderate swelling ofboth feet whichwasworse on the right, amissing toenail on the right toe,and a foulodor. Dr. White ordered

an arteriogram. This type of X-ray film revealed that the blood circulation in Templin's right leg was blocked at the popliteal and the lower portion of the superficial femoral arteries, that is,behind the knee and the lowerpart of the thigh. He determined that Templin was suffering from arteriosclerosis, which is a narrowing of the arteries by thickening of thewalls. Theprocess of arteriosclerosishad been going on at least two years. He found,however, that the actual blockage in this case had resulted from blood clots which had developed relatively recently. Dr. White determined that surgerywas necessary in order to relieve the clogged vessels and to re-establish circulation. He operated on Templin on December 12, 1977,and removed theblood clots. He felt he had restored good circulation to the area where the clots had been removed. The gangrenous condition which he observed,however, was not reversed. Itbecame necessary on December 20, 1977, for Dr. White to amputate below the knee of Templin's right leg. The amputation was necessary because of gangreneand pain. Dr. Tom Norris, plaintiff's medical expert, reviewed Templin'smedical records. He expressed an opinion that for

a patient who had Templin's symptoms on September 7, 1977,andwho had.also indications ofpoor circulation inhis right leg,the vascular problem shouldbe dealt with firstand then the toenail problem. The reason is that surgery to an extremity where there is a significant vascular lessening presents a greater risk and the tissue is more prone to complications due to the possibility of infection. An infection in an area where blood supply is lessened will produce complications more grave than if there are no vascular problems. Dr. Norris testified after a toenail is removed from a patient in Templin's condition that the following care must be more cautious than usual. The patient should not be returned to an unsanitary environment. A determination should be made of what bacteria is causing the infection so

as to treat the infection with appropriate antibiotics. Aggressive treatment of the infection is necessary. If the infection continues to worsen and the circulatory problems are contributing to the worsening, it would be prudent to have vascular surgical consultation. Because of the nurse's observations on September 25, the patient should have been hospitalized, careful evaluation of the infectionby culture shouldhavebeenmade, and intensive therapywith antibiotics and consultation of a vascular surgeon should have occurred. The time loss of two months almost certainly lessened the chance of preventing amputation, and may have led to the necessity of taking a larger part of the leg than earlier treatment would have allowed. By November 4, under the condition of Templin's leg a.t that time, the foot probably could nothave been saved, but itmight have been possible to complete the amputation at the ankle level. No standard of medical carewould make it reasonableto leave Templin in theinfirmary without vascular consultation for 19 days after November 

### 4, 1977. Wewillnot repeat all of the admissionswith respect to the caremade by Dr. Benjamin and Dr. Ganfield. They readily admitted that persons with vascular problems are more prone to infections after surgery, that careful management of persons with vascular complications is necessary and that persons with gangrenous conditions appearing need careful management. When the sufficiency of evidence to support a jury verdict is attacked, the function of this Court is to determine if there is substantial credible evidence in the record to supporttheverdict. We review the evidence in the light most favorable to the party that prevailed in the District Court, the presumption on appeal being that the determinationof the trial court is correct. Gunnelsv. Hoyt

(Mont. 1981), 633 P.2d 1187; Groundwater v. Wright (1979), 180 Mont. 27, 588 P.2d 1003;Koger v. Halverson (1952), 125 Mont. 560, 242 P.2d 273. There is substantial credible evidence in this record to support the verdict of liability against the doctors in this

case. IV Highlighted Copies The doctors contend that the trial court abused its discretion in allowing highlighted copies of Frank Templin's medical records to go to the jury in itsdeliberation. During the deposition of McElderry, as he was referring to medical records of Templin, he was instructed by the examining counsel tohighlightportions of the record forhistestimony. These highlighted instrumentswere admitted into evidence. There were other copies of medical records not highlighted in evidence which were alsoprovided to the jury duringdeliberation. Thedoctors objected to thehighlighted records going to the jury and contend that if the court had kept the highlighted copies out, the jury would have been deprived only of the highlighting and not of any of the informationcontained in themedical records. The supervision of the trial process is a matter in the hands of the district judge. We find no manifest abuse of discretion under this issue on the doctors' contention. It is plain that under section 25-7-404, MCA, upon retiring to deliberation, the jurors may takewith them allpapers which have been received as evidence in the cause, except depositions or papers which ought not to be taken from the person having them inpossession. The statutory direction is clear. Doctors also claim patent error because the District Court allowed photographs of Templin'sright leg to go to the jury rather than have Templin exhibit the leg to the jury. No objection was made at trial, so we do not find error on thispoint. 

### v Independent Contractors (We treat this issue although the State contends that a proper notice of appeal was not timely filed as to the judgment in favorof the State. In any event,the issuemust be resolved for the State.) The doctors contend that they were not independent contractors,but were employees of the State of Montana, andas such were entitled to the protection of Fnununity provided by employees of the State under section 2-9-101(2), MCA. Theparticular statutory provision follows: "Employee" means an officer

## , employee, or servant of a governmental entity, including elected or appointed officials, and persons acting on behalf of the governmentalentity in any official capacity temporarily or permanently in the service of the governmental entity whether with or without compensation, but the term employee shall not mean a person or other legal entitywhile acting in the capacity of an independent contractor under contract to the governmental entity towhich parts 1 through 3 apply in the event of a claim. It is the contention of the doctors that they were employees in this case because they were hired by the State ofMontana and.theyperformed servicesor functions under the direction and controlof the employer. The facts relied. upon by the doctors are that Dr. Renja.minwas the only doctor employed by the State of Montana for a number of years and.that he was employed as a prison physician. The State of Montana provided Dr. Benjamin with the facilities and a place for examining and treating the Montana State Prison inmates. Nursing and other medical supportive services were provided by the State to assist Dr. Benjamin in his treatment and examination of the inmates. Medications prescribed by Dr. Benjamin were filled and administered through thepharmacy at theprison. The doctors contend that although the prison did not control the actual treatment that Dr. Benjamin gave to various inmates, the prison did control and direct the manner, the time and the availability of themedical services provided to the inmates. The prison establishes days of the week when prisoners are able to obtain medical services and the time of day that the services are to be provided. Any arrangements concerning the release of inmates for treatmentoutside of the prison had to be made through the prison administration. Dr. Benjamin was paid for his medical services on a salary basis and not by fee for each particular service rendered, and was classified as a Physician IV for the Montana State Prison and the Department of Administration Personnel on October 31, 1974. The prison could terminate Dr. Benjamin's services if it desired, and Dr. Benjamin participated in the Montana Public Employees Retirement System. Dr. Ganfield, who had no contract with the State, contendshe was involved in the treatment of the plaintiff on various dates when he acted in the role of a loaned servant to the medical personnel at the Montana State Prison. See Kish v. Montana State Prison (1973),161Mont. 297, 505 P.2d 891. On the other hand, Templin points out that no other person than Dr. Benjamin's firm, the Deer Lodge Clinic, provided regular medical care to prison inmates during 1977. If specialists were required, they had to be recommended through Dr. Benjamin's office. He retained the right to refer inmates at his discretion for additional specialized

care and he was permitted to perform services that were necessary in the infirmary or at the Powell County Hospital, depending upon his discretion. The criteria for referring prisoners to other specialists were no different than for referring any other patient in the community. The standard of care that he was expected to provide was the same as the standard of care forany othermember of the community.The District Court determined that the doctors were "independent contractors" and did notmeet the definition of employee. First,Dr. Ganfield doesnot meet the test for a "loaned servant" established in Kish v. Montana State Prison, 161 Mont. at 297, 505 P.2d at 891. In whose business was he engaged? Although the prison has a direct and compelling interest in the health of theprison inmates, it is apparent from the record that Dr. Ganfield was conducting an independent business as a physician and surgeon in Deer Lad-get and that incidental to his independent medical practice, he had occasion to treat Templin. Under whose control, domination or direction was Dr. Ganfield? Again, the record is clear that in administeringmedical services to Templin, Dr. Ganfield relied on his own expertise in the medical field and on the opinion of Dr. Benjamin, another practitioner in the medical field. It is certain that the State of Montana could not control, dominate or direct what kinds of medical services, what diagnoses, and what treatmentshe should accord Templin. Almost for the same reasons that the loaned servant doctrine does not apply toDr. Ganfield,Dr. Benjaminmust be considered an "independentcontractor." In Standard Chemical J!lanufacturing Company v. Employment Security Division, Departmentof Labor (1980),185Mont. 241, 605 P.2d 610, 612, we set forth tests for determining whether persons were independent contractors or employees for the purpose of unemployment compensation tax. The conditions which must exist to determine thatpersonal services are not part of an employment are that the individual is free from control. or direction over the performance 

### of his services, in fact andunder his contract; that the services are outside the usual

course of the business forwhich the services are performed; and that the person performing the services is customarily engaged in an independently established trade, occupation, profession orbusiness. Themedical servicesrendered to Templinby Dr. Benjamin

were completely within his medical discretion, without direction or control from the prison authorities; the prison authorities are not, nor could they be, engaged in the practice of medicine. Dr. Eenjamin was customarily engaged in an independently established profession as a practicing member of amedical clinic inDeerLodge. We hold that Dr. Benjaminwas an independent contractor in the case at bar, and that Dr. Ganfield was not a "loaned servant." Each isdirectly responsible,and the State isnot responsible on their behalf for the medical services the doctors provided toTemplin.VI Cross-Appeal Templin cross-appeals on two grounds, that the District Court should have directed a change of venue in this cause, and that the Court improperly refused to tax the costs of depositionsused in the trial. The cross-appellant Templin has asked us to affirm the judgment obtained by him in the District Court, sitting in Deer Lodge County, as against the contentions of the appellant doctors. We have determined that affirmation is proper. The issue, therefore,of venue in the DistrictCourt is no longer before us, since we do not order a retrial. After theverd,ictTemplin attempted to tax, inhis costs bill against the doctors, his expenses incurred for thedepositions of Drs. Tom Norris, Leonard Benjamin and Roger Ganfield. On a motion by the doctors to tax costs, the costs of depositions of the doctors were refused by the District Court. Templin contends that the depositions were used in the trial of the case and accordingly the costs of taking depositions are properly awarded to the prevailing party. Morrison-Maierle, Inc. v. Selsco (1980), 186 Mont. 180, 606 P.2d 1085; Pfizer v. Madison County (1973), 161 Mont. 261, 505 P.2d 399. The doctors respond that the depositions were all discovery depositions, and that the videotaped deposition of Dr. Norris was stipulated to by the doctors as a matter of convenience for the reason that Dr. Norris could not otherwise be present at the trial. The doctors contend that the depositions were not "used" in the trial-,and that the District Court so found, although Templin contends that the depositions were used for purposes of impeachment. Our problem j.n resolving this issue is that we do not have before us a transcript of the proceedings in the District Court and accordingly have no record on which to make a decision. We have no basis, therefore, on which to disturb the determination of costs by the District Court. VII The judgment of the District Court is affirmed in all respects. Costs on appeal to respondent.We Concur: ,.,,-7

Chief Justice

District $.tCdge; 'sitting forMr. Justice Frank B. Morrison, Jr.Mr. Justice L. C. Gulbrandson, dissenting. I respectfully dissent. In my view, the defendant's proposed instruction on "proximate cause" should have been given tothejury. The "substantial factor'' testwas clearlydeveloped for the situation where two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient tocause the identicalresult. That special situation obviously does not occur often and is not present in thiscase. The majority appear to have adopted the rule as set forth in the Restatement (Second) of Torts, (5 431, but have ignored the requirements of 

### 55 430, 433, 433A and 434. Restatement (Second) of Torts, 1965Edition. Section 433, with comment (a)reads asfollows: Considerations Important in Determining Whether Negligent Conduct is Substantial Factor inProducing Harm. The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor inbringing about harm toanother: (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor's conduct has created a forceorseries of forceswhich areincontinuous and activeoperation up tothetimeof theharm, orhas created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time. See Reporter's Notes. Comment:

a. The considerations stated in this Section are important in threeparticulars. First, they are important as considerations which the jury should take into account when the substantial factorquestion islefttothem. Second, they are important tothe trialjudge in so framing his instructions as to call the jury's attention to such of these considerations as are pertinent to the facts which the jury might reasonably infer from theevidence. Third, theyare important to a court in determining whether upon the evidence there is room fora reasonable differenceof opinion as towhether the defendant's negligence is a substantial factor in bringing about the other's harm. Court's instructionno. 14, "A legal cause of an in-jury is a cause which is a substantial factor in bringing about the injury" was the only definitional instruction given the jury, and, inmy opinion, isincomplete and inadequate. The case of Alvey v. Pioneer Oilfield Services (Alaska 1982), 648 P.2d 599, has been cited inthe majority opinion

as supporting authority for the "substantial factor" rule. That case citesSharpv. Fairbanks North StarBorough (Alaska 1977), 569 P.2d 178, where the following is set forthon page

Among the elements adopted by this court as necessary to make out a claim for relief based on negligence is "[a] reasonable close causal connection between the conduct and the resulting injury.

# .. [proximate cause]. " More specifically, negligent conduct may properly be found tobe a "legal cause" of a plaintiff's injury if the negligent act "was more likely than not a substantial factor in bringing about [the] injury." This test was further clarified in State v. Abbott, where we said: "Normally, in order to satisfy the substantial factor test it must be shown both that the accident would not have happened 'but for' the defendant's negligence and thatthenegligent actwas soimportant inbringing aboutthe injury that reasonable men would regard it asa cause and attach responsibility to it.I'The citationstoearlierAlaska cases indicatethatthe Supreme Court of Alaska has adopted theRestatement (Second)

asset forthin5s 430, 431, 432, 435 and others, I would agree if this Court were to adopt SS 430 through 435, Restatement (Second) of Torts, 1965Edition, and would reverse and remand for a new trial with appropriate jury instructions. '/,9