No. !.3U27 

IN 'CHE iUPKh=ME ZOUKT OF THE STAlE 3F 3ONTANA 

19 75 

MUN'MNA MACONESS HOSPlTAL, a Non-Prof it 

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 Patrick McKittrick, 

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, 1975 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

A patient and his wife appeal from a summary judgment 

against them in their medical malpractice claim against two 

doctors and a hospital. The summary judgment was entered in 

the district court of Cascade County by Hon. Truman G. Bradford, 

district judge. 

Appellants are George B. Gratton, the patient, and 

Gertrude Gratton, his wife. Respondents are two 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 fell and fractured his right 

shoulder. He was hospitalized at the Montana Deaconess Hospital 

in Great Falls from June 14 to June 30 during which time Dr. 

Wolgamot, an orthopedic surgeon, performed an open reduction 

of the fracture. During this hospitalization Dr. Graham also 

treated Gratton for a pre-existing seizure disorder. At the 

time Gratton was discharged from the hospital on June 30 his 

surgical wound appeared to be healed. 

During the next two months, Gratton was seen periodically 

by both Dr. Graham and Dr. Wolgamot. Gratton was rehospitalized 

on September 10 following the breaking and draining of what 

appeared to be a boil in the 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 to time 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 to November 24. Later Gratton was treated 

at the Mayo Clinic in Rochester, Minnesota, but he claims his 
right arm is still disabled. 

In June, 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 

facilities and 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 first hospitalization. 

Gratton also counterclaimed for damages against the hospital and 

doctors based on medical malpractice in an amount exceeding 

$100,000. 

Gertrude Gratton alleges a claim against the doctors and 

the hospital based on medical malpractice in an amount in excess 

of $75,000. 

Extensive discovery was undertaken by all parties 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 district court granted summary judgment to the 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 bill undisturbed. The Grattons 

appeal from this summary judgment. 

The issue on appeal is whether this summary judgment 

is correct. 

Summary judgment is proper: 

" * * * if the pleadings, depositions, answers to 

interrogatories, and admissions on file show 

that there is no genuine issue as to any material 

fact and that the moving party is entitled to 

judgment as a matter of law. * * *" Rule 56(c), 

M.R.Civ.P. 

Here a review of the record before the district court 

discloses no genuine issue of material fact. The Grattons have 

pointed out numerous factual issues principally relating to the 
time of the infection, its source, the diagnosis of Gratton's 

condition, and the treatment given him. If all these questions 

were ultimately resolved in favor of the Grattons, they still 

could not prevail. Hence, they are not material facts in the 

context of the case before us. What is missing here is evidence 

of any standard of care against which the acts or omissions of 

the doctors or the hospital staff can be measured to establish 

negligence on the part of either. 

When the record discloses no genuine issue of material 

fact, the party opposing summary judgment has the burden of presenting evidence of a material and substantial nature raising 

a genuine issue of material fact. Rickard v. Paradis, Mont . 

, 539 P.2d 718, 32 St.Rep. 834; Roope v. The Anaconda Co., 

159 Mont. 28, 494 P.2d 922. The Grattons have failed to carry 

this burden and have not met their initial evidentiary obligations. 

In Evans v. Bernhard, 23 Ariz.App. 413, 533 P.2d 721, 

the court granted summary judgment in favor of a general practitioner on the basis 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 also be shown that the doctor negligently 

departed from this recognized standard in his 

treatment of the plaintiff. In order to make 

this threshhold breach of duty actionable, it 

must then be shown that the breach of duty was 

the legal cause of the plaintiff's injuries. 

Stallcup v. Coscarart, 79 Ariz. 42, 46, 282 

P.2d 791, 793 (1955). The medical standard of 

care must be established by expert medical testimony unless the conduct complained of is readily 

ascertainable by a layman. Kalar v. MacCollum, 

17 Ariz.App. 176, 496 P.2d 602 (1972). However, 

third party expert testimony is not always necessary as this 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 is not readily ascertainable by a layman 
and the Grattons have not presented expert medical proof establishing the required standard of medical care. The testimony elicited from Drs. Wolgamot and Graham as to their treatment of Gratton as well as their past experience with infections 

has not established a standard of medical care or a deviation 

therefrom. A defendant doctor's testimony as to his usual 

personal practice is not sufficient to establish a general medical standard of care. Also, the personal and individual method 

of practice of the defendant doctor is not 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, 160 Mont. 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),322 A.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 to present any evidence that 

would establish the 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 to establish a presumption of negligence 

through application of the doctrine of res ipsa loquitur. This 

doctrine is inapplicable in the ordinary malpractice action. See 

Negaard v. Feda, 152 Mont. 47, 446 P.2d 436; Vonault v. O'Rourke, 

97 Mont. 92, 33 P.2d 535. 

The elements necessary for the application of res ipsa 

loquitur are as follows: (1) The instrumentality which caused 

the injury must be within the exclusive control of the defendant; 

(2) the injury must be one that does not ordinarily occur if the 

party in control uses proper care; (3) the injury must not be 
due to any fault on the part of the injured person. Jackson v. 

William Dingwall Co., 145 Mont. 127, 399 P.2d 236; Krohrner v. 

Dahl, 145 Mont. 491, 402 P.2d 979; Stocking v. Johnson Flying 

Service, 143 Mont. 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 the patient's skin, or as a 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 at the site of injections for the treatment of pneumonia 

were not caused by an agency or instrumentality within the exclusive control of the defendant as the 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 is not applicable in a malpractice action from the 

mere fact that an infection developed in the area of treatment. 

162 A.L.R. 1265, 1284, 82 ALR2d 1262, 1298. 

The presence of an infection following an operation or 

open reduction of a fracture does not establish negligence. ~arma 

v. Rust, 420 S.W.2d 563, (Ky. 1967); Pfeifer v. Konat, 181 Neb. 

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. We do not so construe the pleadings. We have 

examined the counterclaim and answer and find that such a construction of the answer is strained and at odds with their entire defense as appearing in the record. 

Finally the Grattons seek to establish noncompliance by 

the doctors and the hospital with orders of the court covering 

answers to interrogatories and production of records. Suffice 

it to say that this is not a bona fide issue on appeal in the 

instant case. In any event all discovery must come to an end 

sometime and 3-1/2 years seems an adequate allowance of time. 

The district court ordered all discovery completed by December 

1, 1974. The Grattons simply were unable to produce any evidence 

of malpractice in 3-1/2 years and their claim must fail. 

The summary judgment of the district court is affirmed. 

This cause is remanded to the district court for further proceedings on the claim of the hospital against the Grattons for payment of the balance of the hospital bill. 

Justice 

concur : 

Chief Justice