No. 87-295 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

REBECCA HUNTER, a minor child, by 

her Guardian and Grandfather, ALBERT 

HUNTER, 

Plaintiff and Appellant, 

-vsMISSOULA COMMUNITY HOSPITAL, CHARLES 

E. BELL, M.D. and DANIEL A. HARPER, M.D., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Small, Hatch, Doubek & Pyfer; John C. Doubek argued, 

Helena, Montana 

For Respondent: 

Garlington, Lohn & Robinson; Larry E. Riley argued, 

Missoula, Montana 

Submitted: January 51 1988 

Decided: February 10, 1988 

Filed: FE~ 1 0 1988 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

In this medical malpractice case, we hold that there was 

no genuine issue of material fact where plaintiff failed to 

produce a medical expert competent to establish by testimony 

the applicable standard of medical care and a departure from 

that standard. Therefore, the District Court, Fourth 

Judicial District, Missoula County, correctly granted a 

summary judgment in favor of the medical personnel. We also 

determine that the doctrine of - res ipsa loquitur is not 

applicable to this case. 

In so holding, we determine that plaintiff's case does 

not come within the rule that third party expert testimony is 

not necessary if a medical defendant ' s own testimony 

establishes the standard of care and departure from it. 

Rebecca Hunter was one of twins born on June 29, 1979, 

at Missoula Community Hospital. Her twin brother was 

delivered naturally, but Rebecca was delivered by caesarian 

section. Rebecca was premature with a birth weight of 3 

pounds 4 ounces, born at 32 weeks. Her attending physician 

was Dr. Charles Bell, and on the day of her birth, Dr. Bell 

called in Dr. Daniel Harper, a neonatologist, for 

consultation. Thereafter, she was under the care of these 

doctors until her discharge from the hospital. 

On the day of her birth, Rebecca was placed in an oxygen 

hood. Her condition, however, was deteriorating, and it was 

determined that she had hyaline membrane disease, a lung 

deficiency resulting from her prematurity. Approximately 30 

hours after her birth, Dr. Harper inserted in Rebecca's right 

nostril a nasal tracheal tube (NT tube), which extended 

through the external nose to the posterior pharynx past the 
vocal cords into the larynx. Dr. Harper testified that the 

placement of the tube was necessary to "preserve life and 

function." The external end of the tube was attached by 

means of an adaptor to the respirator. The mechanical result 

was that a mixture of air was forced through the NT tube into 

the lungs of the child to expand the lungs. The pressure was 

stopped at intervals during which the air was expelled from 

the child's lungs. The NT tube was 3.0 millimeters in 

diameter, strong enough to take the pressure and at the same 

time flexible enough to be inserted as described. 

The medical notes of the doctors and nurses indicate 

that the NT tube was in the child from June 30, 1979 until 

July 3, 1979, when it was removed. During the period that 

the tube was present in the child, as shown by the nurses' 

notes, one of the nurses attempted to reposition the NT tube 

to relieve pressure on the nasal cartilege. On the day 

following the removal, July 4, 1979, according to the medical 

records, there was a brown mucous discharge from the child's 

right nostril. All the medical evidence agrees that 

stenosis, or narrowing of the orifice, occurred. One of the 

nurses noted a questionable necrotic condition. 

After the removal of the NT tube, the doctors ordered 

the insertion of a feeding tube or tubes. These tubes were 

necessary until the child acquired the sucking reflex. One 

of the tubes was inserted far enough in the internal organs 

of the child to take the food past the stomach. Later a tube 

was utilized to insert food into the stomach itself. The 

medical records do not show whether these tubes were inserted 

through the right nostril, the left nostril, or through the 

mouth, nor do they show the duration of time that the tube or 

tubes were left inserted in the child. The medical testimony 

indicates that the feeding tubes were more flexible than the 

WT tube. 
Dr. Harper's deposition testimony with respect to the 

placement of the NT tube is that the tube exited the right 

nostril in line with the air passage, and then was taped 

across the moustache area to the side of the face. A further 

tape was placed on the tip of the nose, straight up the 

bridge of the nose to the forehead, so as to present a 

triangular pattern. Dr. Harper testified that it would be 

impossible to tape the NT tube in any other way because it 

would not be long enough. The external end of the NT tube 

was cut to fit the respirator adaptor. 

During the time that the baby was in the hospital, until 

her discharge in July, 1979, she was frequently visited by 

her grandfather, grandmother and mother. Each of these 

witnesses maintained that the NT tube or a tube like it was 

in the right nostril of the child from June 30 until the date 

of her discharge and that if more than one tube was used, 

that in all cases the tube was inserted in the right nostril 

of the baby. Moreover, they maintained that the NT tube from 

where it exited the right nostril, was taken directly up over 

her nose, past the left eye, and taped to her forehead in 

such manner that the pressure from the tube on the cartilege 

of the baby's nostril was increased. They contend that this 

condition prevailed for the entire time that the baby was in 

the hospital from June 30. 

On July 23, Dr. Bell noted that Rebecca had a "stenotic 

R nares" and brought in one Dr. French, an ear, nose and 

throat specialist for consultation. It was determined that 

further treatment would not be undertaken at that time until 

the child had grown older and stouter, sufficiently able to 

undertake medical repair. At the time of the deposition 

(1985), the medical repair had not been undertaken. It is 

contended that the nose of the child is distorted and that 
the right nares is almost, if not completely blocked. The 

condition may be irreparable. 

The allegations of malpractice against the medical 

personnel, as cited by the appellant in brief are that the 

initial insertion and the way in which the NT tube was 

positioned and affixed to the face of the baby was improper, 

and that it was thereafter improper to insert another tube 

into the same stenotic right nostril of the baby; and that 

this subsequent tube or tubes were similarly and improperly 

affixed and maintained to the face of the baby. 

Dr. Harper testified in his deposition that if the NT 

tube had been affixed to the baby's face as described by the 

grandparents and mother, such placement of the tube would 

have been improper. He contended, however, that his practice 

was to affix the tube in the manner that he described and 

that the NT tube was not long enough to be affixed in the 

manner described by the lay witnesses. There is no medical 

dispute that stenosis of the child's right nostril occurred, 

and this irrespective of the manner in which the tube was 

affixed to the face of the child. Dr. Harper also testified 

that he was aware of two other instances where stenosis had 

developed from the use of an NT tube, but no further 

explanation was sought as to the circumstances of those 

instances. 

During the course of discovery in this case, counsel for 

the medical defendants, by interrogatories, demanded from 

plaintiff the names of any expert witnesses he intended to 

call, the subject matter upon which the experts would 

testify, and a summary of the grounds of each opinion. In 

response, plaintiff's counsel gave two names of doctors who 

would testify as experts, but whose testimony eventually 

failed to materialize. Counsel attempted by various means to 

locate other such experts but those efforts, though 
substantial, have been ineffectual. Counsel for plaintiff 

has located a plastic surgeon who would testify that the 

damage to Rebecca's nose is consistent with the placement of 

tubes described by the lay witnesses, but who would not 

testify as to a standard of care outside of his field of 

plastic surgery. 

Complaint in this cause in the District Court was filed 

on December 11, 1984. On December 4, 1986, the district 

judge entered an order regulating pretrial proceedings, 

providing that discovery would be closed on January 2, 1987, 

and that witnesses not identified at that time could not be 

called at trial. On January 5, 1987, the defendants moved 

under Rule 56, M.R.Civ.P., for summary judgment in their 

favor. The motion for summary judgment was amended, and 

thereafter briefed and on February 17, 1987, the District 

Court granted an additional three months to plaintiff's 

counsel in which to secure necessary expert witnesses, and 

ordered that if counsel failed to secure such witnesses and 

to inform the court and opposing counsel as to their 

identities by May 1, 1987, the court would dismiss the 

complaint. In entering that order, the District Court noted 

that there were questions of fact, (1) as to how many tubes 

were involved with respect to the right nares of the 

plaintiff; (2) for what period of time did the tube or tubes 

remain in the right nares of the plaintiff; and, (3) whether 

the NT tube was properly stationed or affixed following its 

insertion. Nevertheless, the District Court noted that there 

remained other questions of fact relating to whether proper 

medical protocol was maintained, whether defendants departed 

from the recognized standard in their treatment and care of 

the child, and what precisely constituted the applicable 

standard of care. 
The plaintiff failed to produce the names of his experts 

by May 1, 1987. On May 5, 1987, the motion for summary 

judgment was renewed by the medical defendants, and on May 

25, 1987, the District Court entered summary judgment 

dismissing the action of the plaintiff. 

On appeal, counsel for the plaintiff maintains that the 

deposition testimony of Dr. Harper established the proper 

standard of care with respect to the placement of the NT tube 

and that the testimony of the lay witnesses is sufficient to 

create a material issue of fact with respect to whether the 

proper standard of care had been followed. Moreover, he 

contends that this case, on its face, governed by the 

doctrine of - res ipsa loquitur. 

In Hill v. Squibb and Sons, E.R. (1979), 181 Mont. 199, 

592 P.2d 1383, we noted: 

It is true that in several recent cases we have 

cited with approval Evans v. Burnhard (19751, 23 

Ariz.App. 413, 533 P.2d 721, for the proposition 

that third party expert testimony is not necessary 

if a defendant doctor's own testimony establishes 

the standard of care and departure from it. 

(Citing cases. ) Further, in Thomas v. Merriam 

(1959) , 135 Mont. 121, 337 P. 2d 604, we indicated 

that negligence of a doctor may be shown by his own 

admissions.. . . 

Resort to the foregoing rule, however, is not feasible 

here. What is missing from Rebecca's case before the 

District Court is testimony that under the circumstances 

prevailing, the damage to her nostril would have not occurred 

if the applicable standard of medical care had been followed 

by the medical personnel. All of the facts argued for by 

Rebecca's counsel can be assumed to be true, and yet the 

biggest question remains: Was the stenosis avoidable by 

adherence to a proper standard of medical care in this case? 

The answer to that question is beyond the knowledge of lay 
persons. Thus it may be that the position of, the number of, 

and the duration of the tubes, as observed by Rebecca's lay 

witnesses, were the causes of the stenosis, and eventual 

damage. On the other hand, it may be that the position of, 

number of, and duration of the tubes, as testified to by the 

medical personnel would in the circumstances here also 

produce the same conditions. It may further be that the 

possibility of stenosis is a risk that must be accepted under 

the applicable standard of medical care if the child's life 

was to be saved. Lay persons do not know the answers to 

these questions. It requires experts in the field to tell us 

and here we have no experts. 

Thus, we have before us a case in which, though there 

are genuine issues of fact between the observations of the 

lay witnesses as to the method of treatment accorded Rebecca 

and the treatment reflected by the medical notes and the 

testimony of the medical personnel, these issues are not yet 

material issues of fact. They will not become material 

until, by the testimony of competent medical experts, a 

standard of proper medical care is established and a 

departure therefrom, without which the stenosis would not 

have occurred. In other words, even assuming the testimony 

of the lay witnesses to be accurate, the test of proximate or 

legal cause has not been met. In the absence of material 

facts, the summary judgment was proper. See Montana 

Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 

670. 

In the same manner, the doctrine of - res ipsa loquitur is 

not available here. The doctrine does not apply when there 

is no evidence to show that the result ordinarily would not 

have occurred had the defendant exercised due care, or that 

the result was not to be anticipated. Negaard v. Estate of 

Feda (1968), 152 Mont. 47, 52, 446 P.2d 436, 439. For the 
same reasons that we affirm summary judgment in this case, we 

must deny the applicability of - res ipsa loquitur. See Clark 

v. Norris (Mont. 1987), 734 P.2d 182, 44 St.Rep. 444. 

Affirmed. 

@&-&A Justices