### No. 

### !.3U27 

### IN 'CHE 

### iUPKh=ME ZOUKT 

### OF THE STAlE 

### 3F 3ONTANA 

### 19

### 75

MUN'MNA MACONESS HOSPlTAL, 

### a Non-Profit 

### Corporation, Plaintiff and Respondent,

GEORGE 3, 

### SKATTON, 

### Defendant and Counterclaimant and Appellant, GEK'IRUDE 

### GRATTON

## , Plaintiff and Counterclaimant and Appellant, JUDITH GRAHAM, 

### M.D., 

### and J.C. 

### WOLGAMOT, M.D., Additonal Defendants on Counterclaim

and Respondent.

AppeaL 

### from; 

### District Court of the Eighth Judicial District, Honorable Truman G. 

### Bradford, Judge presiding. Counsel of Record: For Appellants

### : McKittrick and Duffy, Great Falls, Montana Joseph

### W. Duffy argued and PatrickMcKittrick,

appeared, Great Falls, Montana For Respondents

### : Jardine, Stephenson, Blewett and Weaver, Great

Falls, Montana John D. 

### Stephenson, 

### Jr. argued, Great Falls,

Montana Smith, Emmons and Baillie, Great Falls, Montana William L. 

### Baillie argued, Great Falls, Montana Church, Harris, Johnson and Willian~s, 

### Great Falls,

Montana

Submitted: December 10, 1975Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

A patient and his wife appeal from a summary judgment against them intheirmedical malpractice claim against two doctors and a hospital. The summary judgment was entered in the districtcourt of Cascade County by Hon. Truman G. Bradford, districtjudge. Appellants areGeorge B. Gratton, the patient, and Gertrude Gratton, his wife. Respondents aretwo Great Falls doctors, Judith Graham, M.D. and J. C. Wolgamot, M.D., and the Montana Deaconess Hospital, a nonprofit corporation. On June 14, 1970, Gratton felland fractured hisright shoulder. Hewas hospitalized attheMontana Deaconess Hospital inGreat Falls from June 14toJune 30 during which 

### timeDr. Wolgamot, an orthopedic surgeon, performed an open reduction of the fracture. During thishospitalization Dr. Graham also treated Gratton for a pre-existing seizuredisorder. Atthe 

### timeGratton was discharged from the hospital on June 30 his surgical wound appeared tobe healed. During the next two months, Gratton was seen periodically by both Dr. Graham and Dr. Wolgamot. Grattonwas rehospitalized on September 10following the breaking and draining of what appeared tobe 

### a boil inthe area of the surgical incision. Cultures taken from the drainage revealed a staph infection and later showed the presence of a pseudomonas organism. Gratton remained hospitalized until October 16 during which time he was treated by Dr. Wolgamot and was also seen from time totime by Dr. Graham. Following his discharge from the hospital the second time, Gratton's infection persisted. Gratton was hospitalized a third time from November 18 toNovember 24. Later Gratton was treated atthe Mayo Clinic inRochester, Minnesota, but he claims hisright arm 

### is still disabled. InJune, 1971, the hospital sued Gratton for the balance of $546.40 allegedly owing from Gratton's third hospitalization. Gratton answered claiming the hospital overcharged for 

### its facilitiesand services and that the sole reason for his second and third periods of hospitalization was the infection caused by the hospital's negligence during his firsthospitalization. Gratton also counterclaimed fordamages against the hospital and doctors based on medical malpractice inan amount exceeding $100,000. Gertrude Gratton alleges 

### a claim against the doctors and the hospital based on medical malpractice inan amount inexcess of $75,000. Extensive discovery was undertaken by allparties consisting of depositions, interrogatories and answers, requests for admissions, and production of medical records for inspection and copying for a period of approximately 3-1/2 years. On March 5, 1975, the districtcourt granted summary judgment tothe two doctors and the hospital on appellant's claim of medical 

### malpractice, leaving the hospital's original action for collection of the balance of the hospital billundisturbed. The Grattons appeal from this summary judgment. The issueon appeal 

### iswhether this summary judgment iscorrect. Summary judgment 

### isproper: 

### " 

## * * 

## * if the pleadings, depositions, answers to interrogatories, and admissions on fileshow that there is no genuine issue astoany material factand that the moving party 

### is entitled to judgment asa matter of 

### law. 

## * 

## * *" Rule 56(c), M.R.Civ.P. Here a review of the record before the districtcourt disclosesno genuine issue of material fact. The Grattons have pointed out numerous factual issues principally relating tothe

### timeof the infection, 

### its source, the diagnosis of Gratton's condition, and the treatment given him. If allthese questions

were ultimately resolved infavor of the Grattons, they 

### still could not prevail. Hence, they arenot material facts inthe context of the 

### case before us. What 

### ismissing here is evidence of any standard of careagainst which the 

### acts or omissions of the doctors or the hospital staff can be measured toestablish negligence on the part of either. When the record discloses no genuine issue of material fact, theparty opposing summary judgment has the burden of presenting evidence of a material and substantial nature raising a genuine issueof 

### material fact. Rickard v. Paradis, Mont

# .

, 539 P.2d 718, 32 St.Rep. 834; Roope v. The Anaconda Co., 159Mont. 28, 494 P.2d 922. The Grattons have failed tocarry thisburden and have not met their initial evidentiary obligations. InEvans v. Bernhard, 23 Ariz.App. 413, 533 P.2d 721, the court granted summary judgment infavor of a general practitioner on thebasis of absence of any proof of a standard of medical 

### care, observing that in

### a malpractice case the plaintiff's threshhold obligation involves two evidentiary steps: "First, evidence must be presented to establish the applicable standard of medical practice in the particular type of case involved and second, 

### it must alsobe shown that the doctor negligently departed from thisrecognized standard inhis treatment of theplaintiff. Inorder tomake thisthreshhold breach of duty actionable, 

### it must then be shown that the breach of duty

### was the legal cause of the plaintiff's injuries. Stallcupv. Coscarart, 79 Ariz. 42, 46, 282 P.2d 791, 793 (1955). The medical standard of caremust be established by expert medical testimony unless the conduct complained of 

### isreadily ascertainable by a layman. Kalar v. MacCollum, 17 Ariz.App. 176, 496 P.2d 602 (1972). However, third party expert testimony 

### isnot always necessary asthis standard can be established by the defendant doctor's own testimony. Virgil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967)." The cause of an infection 

### isnot readily ascertainableby a laymanand the Grattons have not presented expert medical proof 

### establishing the required standard of medical care. The 

### testimony elicited from Drs. Wolgamot and Graham astotheir 

### treatment of Gratton 

### as 

### wellastheir past experience with infections has not established a standard of medical 

### care or 

### a deviation therefrom. A defendant doctor's testimony astohisusual personal practice 

### isnot sufficient toestablish

### a general medical standard of care. Also, thepersonal and individualmethod of practice of the defendant doctor 

### isnot sufficient to establish

### a basis for an inference that he has negligently departed from the general medical custom and practice of his community. Bernhard, supra. Also, see Collins v. Itoh, 160Mont. 461, 469, 503 P.2d 36; Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 50, 510 P.2d 190; Downer v. Veilleux, (Me. 1974),322A.2d 82, 88; Davis v. Virginian R. Co., 361 U.S. 354, 80 S.Ct. 387, 

### 4 L ed 2d 366. As the Grattons have failed topresent any evidence that would establishthe applicable standard of medical 

### care; that such 

### a standard was departed from; and that a breach of duty

### was the proximate cause of Gratton's injury; the hospital and doctors

are entitled to summary judgment 

### as 

### a 

### matter of law. The Grattons seek toestablisha presumption of negligence through application of the doctrine of 

### res ipsa loquitur. This doctrine 

### is inapplicable inthe ordinary malpractice action. See Negaard v. Feda, 152Mont. 

### 47, 446 P.2d 436; Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535. The elements necessary for the applicationof res ipsa loquitur areasfollows: (1)The instrumentality which caused the injurymust be within the exclusive control of the defendant; (2) the injurymust be one thatdoes not ordinarily occur if the party incontrol uses proper care; (3) the injurymust not bedue toany faulton the part of the injured person. Jackson v. WilliamDingwall Co., 145Mont. 127, 399 P.2d 236; Krohrner v. Dahl, 145Mont. 491, 402 P.2d 979; Stocking v. Johnson Flying Service, 143Mont. 61, 387 P.2d 312; Prosser, Law of Torts, 4th ed., p. 214. In the instant case there is no evidence to establish that the instrumentality causing the infection was within the exclusive control of the defendants. Drs. Wolgamot and Graham testified that the infection could have originated from any number of different sources, e.g. blood borne infection, direct contamination from thepatient's skin, or asa result of a traumatic injury. Therefore, the instrumentality causing the infection was not necessarily within the exclusive control of the hospital and doctors. In Chase v. Haber, 221 C.A.2d 569, 34 Cal.Rptr. 605, it 

### was held that severely infected abscesses appearing atthe 

### siteof injections for the treatment of pneumonia

were not caused by an agency or instrumentality within the exclusive control of the defendant asthe abscesses could easily have originated from another source. A bad result alone does not constitute evidence or raise

a presumption or inference of negligence. The doctrine of res ipsa loquitur 

### isnot applicable ina malpractice action from the



### mere fact that an infection developed inthe area of treatment. 162A.L.R. 1265, 1284, 82 ALR2d 1262, 1298. The presence of an infection following an operation or open reduction of a fracturedoes not establishnegligence. ~arma


### v. Rust, 420 S.W.2d 563, (Ky. 1967); Pfeifer v. Konat, 181Neb. 30,146 N.W.2d 743; Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339; Smith v. Curran, 28 Colo.App. 358, 472 P.2d 769; Steinmetz

v. Humphrey, 289 Ky. 709, 160 S.W.2d 6; Haliburton v. General Hosp. Soc. of Connecticut, 133 Conn. 61, 48 A.2d 261, 20 N.C.C.A., 

### N.S. 505; Lorenz v. Booth, 84 Wash. 550, 147 P. 31.Gertrude Gratton additionally asserts that she 

### is entitled to summary judgment against Drs. Wolgamot and Graham

as a matter of law based on an admission of negligence contained in their answer. Wedo not so construe the pleadings. Wehave examined the counterclaim and answer and find that such a construction of the answer is strained and atodds with their en

### tire defense 

### as appearing intherecord. Finally the Grattons seek to establishnoncompliance by the doctors and thehospital with orders of the court covering

answers to interrogatories and production of records. Suffice it to say that this 

### isnot a bona fide issue on appeal in the instant case. In any event alldiscoverymust come toan end sometime and 3-1/2 years 

### seems an adequate allowance of time. The districtcourt ordered alldiscovery completed by December 1, 1974. The Grattons simply 

### wereunable toproduce any evidence of malpractice in 3-1/2 years and their claim must fail. The summary judgment of the district court 

### isaffirmed. This cause 

### isremanded tothe districtcourt for further proceedings on the claim of the hospital against the Grattons forpayment of the balance of the hospital bill.

Justice

concur:

Chief Justice