No. 83-396 IN THE SUPREMECOURTOF THE STATEOF MONTANA 1984

THOMAS HOWARD as GuardianAd Litem for Betty K. Howard, Plaintiff and Respondent,

DOONER LABORATORIES, INC. a Penn. corp.

## ,and LYACIEJ TOMFISZEWSRI,M.D., Defendants and Appellants.

APPEAL FROM: DistrictCourt of the Tenth Judicial District, In and for the County of Fergus, TheHonorable PeterL. Rapkoch, Judgepresiding.

COUNSEL OF RECORD: ForAppellants: 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!!

ClerkMr. 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 formedical 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 ordervenue changed toYellowstoneCounty. 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 themedication,

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. DoctorTomaszewski examined her and prescribed a medication called Slo-phyllin Gyrocaps. The medication is manufactured by co-defendant, Dooner Laboratories,a Pennsylvaniacorporation. 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. Thedefendant doctormoved tohave thevenue changed to YellowstoneCounty. 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 tortsmay 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 livesand 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, thather complaint is sufficientto keep the action in Fergus County because she alleged that the defendant doctor "failed to properly monitor" her use of themedica-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." (Emphasisadded).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 obligationand the occasionof 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 YellowstoneCounty,where this activity tookplace. 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 inMusselshellCounty,and that the allegationthat 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'sresidence. Here no contractviolation is alleged and plaintiff has not alleged tortious conduct of the doctor occurring in Fergus County. The mere allegation thatthe 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 supportplaintiff's argument thatvenue is properly in Fergus County. Although venue questions between counties and personal jurisdiction questions as between states, and personal jurisdiction questions regarding the federalcourts cannotbe 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 requirementof fairness to thedefendant. 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 (9thCir. 1972), 459 F.2d 287, a doctor who lived in SouthDakota,andwho prescribedmedicine forplaintiffwhile 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 shehad been injured by themedicine prescribed by the South Dakota doctor. The Idaho FederalDistrict 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 ~erformedin South Dakota. The mailinq of the prescription to Idaho did not constitute new prescription. It was not diagnosis and treatment by mail. 

# .. Itdid, of course,put the doctor on notice 'that consequences of his South Dakota serviceswould be felt in Idaho and that itwas 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 onewho, in 

### --- South Dakota, treats an Idaho resident with knowledge 

### -- of her imminentreturn

## - to Idaho 

### -- and that his treatment thus may cause effects there." 

### - (Emphasisadded). (459F.2d at 288).

The Wright decision also recognized that defendant's relationship to the forum statemust 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 focusmust 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 noplace but to the needy person herself. It 

### -- is in the very nature of such services thattheir consequenceswill be felt wherever the person may 

### --- 

## - choose to go. However, 

### --- the idea that tortious renditiof;-ofsuch services is aportable 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. 

# . ." --- (Emphasisadd.ed)

# . (459F.2d at 289)

# . Although the burdens, inconvenience, and expense in an intrasta-tevenue 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 nonethelessunfair to require a treating physician to respond to a lawsuit filed in a distant county simply because that is where the patient happened to bewhen he or she firstnoticed 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 aparticular county when he or she first noticed the ill effects of the conduct on which the claim of malpractice is based. Our holding here isnotmeant to establishan inflexible rule that absolutely forbids a treating physician frombeing sued in any county other than where he maintains his business. The factual circumstances of aparticular casemay justify a different result. An analogous example exists in the personal jurisdiction issue presented inMcGee 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 thatplaintiff could return to work as a pipefitter. Plaintiff returned to work and his retina detached again on the first day of work. Plaintiff sued theUtah physician inMontana federal courtand personal jurisdiction was established over defendant because the allegationwas 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 thephysician.Based on the facts in this record,however,we hold that i.f defendant was guilty of malpractice, it was through his acts of diagnosisand prescription inYellowstoneCounty,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 broughtwhere the tort "accrued,"as opposed to where itwas "committed." We therefore reverse the order of the trial court and. order that thevenue be changed toYellowstoneCounty.

We Concur: n

I - Justices JusticeFrank I. Baswell and Mr. Justice Frank B. Jr., dissentand

### will file awritten 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, 1984Mr. Chief Justice Frank I. Haswell,dissenting: Idissent. Inmy view the Fergus CountyDistrictCourt properly denied the appellants' motion to change venue from Fergus County toYellowstoneCounty. The venue statute at issue, section 25-2-102, MCA, provides that an alleged tort may be tried in the county where the tortwas committed. A tort consists of a breach of duty and damagesproximately causedby thebreach. Josephv. 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 FergusCounty. 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 thepatienthappened 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 statuteswill 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 thepatient'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 appearson the face of the plaintiff's complaint,was sufficient in itself to keep venue in Fergus County. See Hopkins v. Scottie Homes, Inc. (1979), 180Mont. 498, 591 P.2d 230. The occasion of damages in this casewas clearly in Fergus County. Themajority has neatly sidestepped our recent decision of Whalen 

### v. Snell (Mont. 1983), 667 P.2d 436, 40 St.Rep. 1283. InWhalenwe held that a tort is committedwhere 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,venuewas proper there. 

# S&.$,9wtJJQ4$) Chief Justice

Mr. Justice Frank B. 3Iorrison,Jr

# .: Iconcur in the foregoingdissentof Mr. Chief Justice Haswell.