No. 83-396 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

THOMAS HOWARD as Guardian Ad 

Litem for Betty K. Howard, 

Plaintiff and Respondent, 

DOONER LABORATORIES, INC. 

a Penn. corp. , and LYACIEJ 

TOMFISZEWSRI, M.D., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Anderson, Brown, Gerbase, Cebull & Jones; Richard F. 

Cebull, Billings, Montana 

For Respondent: 

Torger S. Oaas, Lewistown, Montana 

Submitted on Briefs: March 30, 199;989 

Decided: July 23, 1984 

Filed: 

J l!! 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant, Dr. Maciej Tomaszewski, M. D., appeals from 

an order of the Fergus County District Court denying his 

motion to change venue from Fergus County to Yellowstone 

County. Plaintiff, Thomas Howard, as guardian ad litem for 

Betty K. Howard, is suing the doctor for medical malpractice 

and co-defendant, Dooner Laboratories, for the alleged 

defective manufacture of the allergy medication that was 

prescribed by the doctor for Betty Howard. Dooner 

Laboratories has not appealed the order keeping venue in 

Fergus County. We reverse and remand with instructions to 

order venue changed to Yellowstone County. 

The sole issue is whether, in a medical malpractice 

action, an alleged tort is "committed" for purposes of 

section 25-2-102, MCA, in the county where the doctor made 

his examination and diagnosis and prescribed the medication, 

or in the county where the patient later ingested the 

medication and allegedly suffered injury. 

The facts are simple and uncontested. The patient, 

Betty Howard, suffers from asthma and other related health 

problems. On or about October 18, 1978, she traveled from 

her home in Fergus County to Yellowstone County to see the 

defendant doctor, a specialist in allergy and immunology 

practicing in Billings. Doctor Tomaszewski examined her and 

prescribed a medication called Slo-phyllin Gyrocaps. The 

medication is manufactured by co-defendant, Dooner 

Laboratories, a Pennsylvania corporation. 

Betty Howard returned to her home in Fergus County and 

had the prescription filled at a pharmacy in Lewistown. 
After ingesting some of the Slo-phyllin Gyrocaps, she 

allegedly suffered seizure attacks and other serious 

injuries. She sued the doctor and the laboratory in Fergus 

County. The defendant doctor moved to have the venue changed 

to Yellowstone County. 

The general statutory rule is that a defendant has a 

right to be sued in the county where he resides (section 

25-2-108, MCA), although there are exceptions. One exception 

is provided in section 25-2-102, MCA, which provides that 

"actions for torts may be tried in the county where the tort 

was committed,. . ." Plaintiff relied on this exception to 

file the action in Ferqus County as opposed to Yell-owstone 

County, where the doctor lives and practices. 

The examination, diagnosis, and prescription for the 

medication took place in Yellowstone County. The defendant 

doctor argues that if he is guilty of malpractice, the 

conduct giving rise to that claim ail took place in 

Yellowstone County and therefore that is where plaintiff 

should have filed the lawsuit. Plaintiff, on the other hand, 

contends that the tort was incomplete until she actually 

sustained injuries, and that those injuries were sustained in 

Fergus County. Plaintiff also argues, as an alternative 

argument, that her complaint is sufficient to keep the action 

in Fergus County because she alleged that the defendant 

doctor "failed to properly monitor" her use of the medica-tion 

in Fergus County, and that this allegation is sufficient on 

its face to keep venue in Ferqus County. She bases this 

argument on the language of her complaint alleging that the 

defendant doctor ". . failed - to monitor -- the use of (the 

medication) by Betty K. Howard as recommended by the 

manufacturer." (Emphasis added). 
The general rule to determine venue in tort cases is set 

forth in Whalen v. Snell (Mont. 1983), 667 P.2d 436, 40 

St.Rep. 1283, where we held that for purposes of venue "a 

tort is committed where there is a concurrence of breach of 

obligation and the occasion of damages." The question is not 

an easy one, however, where a concurrence of breach and 

damages does not occur in the same county. Such is the 

situation here. The doctor's activity took place in 

Yellowstone County, but the alleged injuries later suffered 

after ingestion of the pills occurred in Fergus County. If 

the doctor breached his duty to properly examine, diagnose, 

and prescribe for the plaintiff, that breach took place in 

Yellowstone County, where this activity took place. However, 

the alleged injury was incurred in Fergus County after the 

plaintiff had obtained and ingested the medication from a 

pharmacy in Fergus County. 

Cases cited by the plaintiff to support the trial 

court's decision to keep venue in Fergus County, are 

distinguishable. In Hopkins v. Scottie Homes, Inc. (1979), 

180 Mont. 498, 591 P.2d 230, plaintiff sustained injuries in 

Musselshell County when he slipped and fell on the roof of a 

trailer home he had purchased in Valley County. Plaintiff 

sued in Musselshell County for personal injuries and for 

breach of contract. We held that the contract was to be 

performed in Musselshell County, and that the allegation that 

the defendant committed a tort in Musselshell County was 

sufficient to keep venue in Musselshell County rather than 

returning it to Valley County, the place of the 

defend.ant-seller's residence. Here no contract violation is 

alleged and plaintiff has not alleged tortious conduct of the 

doctor occurring in Fergus County. The mere allegation that 
the doctor "failed to monitor" the patient's use of the 

medication does not on its face allege that a tort was 

"committed" in Fergus County. 

Cases cited by the plaintiff to support the trial 

court's decision to keep venue in Fergus County, are 

inapplicable. Hopkins v. Scottie Homes, Inc., supra; 

Woolcock v. Beartooth Ranch (Mont. 1981), 637 P.2d 520, 38 

St.Rep. 2130; and Bergin v. Temple (1941) 111 Mont. 539, 111 

P.2d 286. We need not discuss the facts and law of these 

cases because it is sufficient to say that they do not 

support plaintiff's argument that venue is properly in Fergus 

County. 

Although venue questions between counties and personal 

jurisdiction questions as between states, and personal 

jurisdiction questions regarding the federal courts cannot be 

totally synchronized, the fact remains that the 

considerations in deciding venue questions and personal 

jurisdiction questions are basically the same. Underlying 

the approach to both types of questions is the fundamental 

requirement of fairness to the defendant. 

Federal cases involving decisions on whether a 

particular federal court should assert personal jurisdiction 

are more in point to the problem faced here. In Wright v. 

Yackley (9th Cir. 1972), 459 F.2d 287, a doctor who lived in 

South Dakota, and who prescribed medicine for plaintiff while 

she lived in South Dakota, was sued by the plaintiff after 

the plaintiff had moved to Idaho and had taken medicine that 

had been prescribed by the doctor in South Dakota, but had 

been refilled in Idaho. Plaintiff sued the doctor in Idaho 

federal court, alleging she had been injured by the medicine 

prescribed by the South Dakota doctor. The Idaho Federal 
District Court dismissed the action for lack of personal 

jurisdiction, and the Ninth Circuit Court of Appeals 

affirmed, stating: 

"If appellee was guilty of malpractice, it was 

through acts of diagnosis and prescription 

~erformed in South Dakota. The mailinq of the 

prescription to Idaho did not constitute new 

prescription. It was not diagnosis and treatment 

by mail. . . It did, of course, put the doctor on 

notice 'that consequences of his South Dakota 

services would be felt in Idaho and that it was by 

his very act of mailing that this would be made 

possible. --- In our view however, this does no more ---- 

than put the doctor -- in the positions --- of one who, in 

South Dakota, treats an Idaho resident with 

knowledge -- of her imminentreturn - to Idaho -- and that 

- his treatment thus may cause effects there." 

(Emphasis added). (459 F.2d at 288). 

The Wright decision also recognized that defendant's 

relationship to the forum state must be such that conferring 

personal jurisdiction over the defendant would not be 

"unreasonable" -- that is, it must be fair. The court 

focused on this element in the context of personal medical 

services: 

"In the case of personal services focus must be on 

the place - where -the services are rendered, since 

this is the place of the receiver's (here the 

patient's) need. . . (The services) are directed to 

no place but to the needy person herself. It -- is in 

the very nature of such services that their 

consequences will --- be felt wherever the person - may 

choose to go. However, --- the idea that tortious 

--- renditiof;-ofsuch services -- is a portable tort which 

------ can be deemed to have been committed wherever the 

consequences foreseeably were --- felt is wholly 

inconsistent -- with the public interest in having 

services --- of this sort generally availabTe. . ." 

(Emphasis add.ed) . (459 F.2d at 289) . 

Although the burdens, inconvenience, and expense in an 

intrasta-te venue dispute may not be a.s great as those 

involved in an interstate dispute over whether a treating 

physician should be compelled to travel from state to state 

defending medical malpractice lawsuits, it is nonetheless 
unfair to require a treating physician to respond to a 

lawsuit filed in a distant county simply because that is 

where the patient happened to be when he or she first noticed 

the ill effects of the alleged negligent examination, 

diagnosis, and prescription. The venue statutes should not 

be interpreted to give a plaintiff the right to choose a 

forum based on the fortuitous fact that the patient happened 

to be in a particular county when he or she first noticed the 

ill effects of the conduct on which the claim of malpractice 

is based. 

Our holding here is not meant to establish an inflexible 

rule that absolutely forbids a treating physician from being 

sued in any county other than where he maintains his 

business. The factual circumstances of a particular case may 

justify a different result. An analogous example exists in 

the personal jurisdiction issue presented in McGee v. Riekhof 

(D.Mont. 1978), 442 F. Supp. 1276, where a Montana resident 

traveled to Utah to have a detached retina reattached, and 

then returned to Montana. Later, the physician advised 

plaintiff's wife by telephone that plaintiff could return to 

work as a pipefitter. Plaintiff returned to work and his 

retina detached again on the first day of work. Plaintiff 

sued the Utah physician in Montana federal court and personal 

jurisdiction was established over defendant because the 

allegation was that he "committed" a tort in Montana when he 

telephonically rendered professional medical advice to the 

plaintiff in Montana. We can see similar issues arising in a 

venue case where a physician may render out of county advice 

to a patient, which advice is later relied on as the basis 

for a tort action filed against the physician. 
Based on the facts in this record, however, we hold that 

i.f defendant was guilty of malpractice, it was through his 

acts of diagnosis and prescription in Yellowstone County, and 

venue is proper there. In reaching this holding, we 

recognize but do not adopt the minority view--i.e., that a 

tort is "portable" and arises wherever the damages arise. 

States such as Florida who have adopted this approach have 

venue statutes that provide that an action may be brought 

wherever the tort "accrues," not where it was "committed." 

See, section 47.011, FSA (1969). We may have reached a 

different conclusion had. our venue statute provided that an 

action may be brought where the tort "accrued," as opposed to 

where it was "committed." 

We therefore reverse the order of the trial court and. 

order that the venue be changed to Yellowstone County. 

We Concur: 

n 

I - 

Justices 

Justice Frank I. Baswell and Mr. Justice Frank B. 

Jr., dissent and will file a written dissent later. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 83-396 

THOMAS HOWARD, As Guardian ad 

litem for BETTY K. HOWARD, 

Plaintiff and Respondent, 

DOONER LABORATORIES, INC., a 

Pennsylvania corporation, and 

and MACIEJ TOMASZEWSKI, M.D., 

Defendants and Appellants. 

DISSENT 

Majority Opinion Decided: July 23, 1984 

Eissent Filed: August 8, 1984 
Mr. Chief Justice Frank I. Haswell, dissenting: 

I dissent. In my view the Fergus County District Court 

properly denied the appellants' motion to change venue from 

Fergus County to Yellowstone County. 

The venue statute at issue, section 25-2-102, MCA, 

provides that an alleged tort may be tried in the county 

where the tort was committed. A tort consists of a breach of 

duty and damages proximately caused by the breach. Joseph v. 

Hustad Corporation (1969), 153 Mont. 121, 454 P.2d 916. In 

other words, before a tort can be committed there must be 

damage. 

The tort in the present case was not committed until 

the damage occurred in Fergus County. Therefore, the alleged 

tort of malpractice was committed in Fergus County and venue 

was proper in that jurisdiction. 

The majority rejects the reasoning set forth above and 

asserts that choice of forum should not be based "on the 

fortuitous fact that the patient happened to be in a particular county when he or she first noticed the ill effects" of 

the alleged malpractice. 

I suggest that suffering the ill effects of negligent 

health care is never a fortuitous event. There is little 

chance that the policies of our venue statutes will be disserved by allowing such actions to proceed where the patient 

or victim suffered damage or injury as the result of the 

alleged negligent conduct. 

The physician in the present case allegedly owed the 

patient a duty of care that extended to the patient's home in 

Fergus County. This duty or obligation was breached by an 

alleged failure to monitor the patient's condition in Fergus 

County. This allegation of tortious conduct, which appears 
on the face of the plaintiff's complaint, was sufficient in 

itself to keep venue in Fergus County. See Hopkins v. 

Scottie Homes, Inc. (1979), 180 Mont. 498, 591 P.2d 230. The 

occasion of damages in this case was clearly in Fergus County. The majority has neatly sidestepped our recent decision 

of Whalen v. Snell (Mont. 1983), 667 P.2d 436, 40 St.Rep. 

1283. In Whalen we held that a tort is committed where there 

is a concurrence of breach of obligation and the occasion of 

damages. Since the plaintiff's complaint alleges both an 

obligation breached and damages suffered within Fergus County, venue was proper there. 

S&.$,9wtJJQ4$) Chief Justice 

Mr. Justice Frank B. 3Iorrison, Jr . : 

I concur in the foregoing dissent of Mr. Chief Justice 

Haswell.