No. 84-84 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ELIZABETH RUDECK, in her own right and 

as Personal Representative of the 

Estate of ALFRED LYNDON RUDECK, 

also known as LYNDON RUDECK, 

deceased, 

Plaintiff and Respondent, 

KERMIT J. WRIGHT, M.D., and HELENA 

MEDICAL CLINIC, P.S.C., 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

James A. Robischon argued, Butte, Montana 

Dunlap & Caughlan, Butte, Montana 

For Respondent: 

Terry N. Trieweiler argued, Whitefish, Montana 

Geoffrey L. Brazier, Helena, Montana 

Submitted: May 22, 1985 

Decided: September 12, 1985 

f' 

Filed: 

Clerk 
Bonorable Joel. G. Roth, Eistrict Judge, delivered the Opinion 

of the Court. 

This is a medical malpractice case which is commonly 

referred to as a "foreign object" case. The case was tried 

to a jury in Lewis and Clark County District Court and resulted in a $75,000 verdict on the wrongful death claim and 

zero on the survival claim. Following trial, plaintiff 

Rudeck moved for a new trial. The District Judge ordered a 

new trial. Defendant Wright appeals from that order and, 

additionally, raises other issues for appellate review. 

Plaintiff appeals the denial of her motion for a directed 

verdict. We affirm the trial court's ruling requiring a new 

trial. 

The issues for review are as follows: 

1. Was there error in granting plaintiff Rudeck's 

motion for a new krial? 

2. Was there error in granting plaintiff Rud.eckls 

pretrial motion for partial summary judgment on the negliqence of defendant Wright? 

3. Was there error in refusing to allow defendant 

Wright to present testimony relating to the conduct of concurrent tort-feasors and a subsequent tort-feasor? 

4. Was there error in the trial court's instruction on 

legal causation rather than on proximate causation? 

5. Was there error in denying plaintiff Rudeck's 

motion for a directed verdict? 

FACTS 

On May 27, 1980, Mr. Rudeck, age seventy-four years and 

a retired state employee residing with his wife in Helena, 

Montana, was operated. on for a hernia by defendant Dr. Wright 
at St. Peter's Community Hospital in Helena. During surgery, 

defendant Wright placed a piece of surgical gauze measuring 

about thirty centimeters by thirty centimeters and referred 

to as a "lap mat" into the exposed abdominal cavity. The lap 

mat was not removed prior to closing the incision. 

Two surgical nurses, both employees of the hospital, 

assisted defendant Wright during the operation. They were 

responsible for the lap mat count, and they neglected to 

inform defendant Wright of an unaccounted lap mat prior to 

his closing. 

Because no one was then aware of the foreign object 

inside the patient, Mr. Rudeck was released from the hospital 

on June 1, 1980, apparently recovering normally. However, 

during the months that followed the wound continued to drain, 

he began to lose his appetite, he lost weight, fluid began to 

build up in his legs, and toward the end of September 1980 

his color was becoming grayish. From the time he was released from the hospital on June 1 until September 29, 1980, 

Mr. Rudeck remained under the care of defendant Wright and 

was seen by defendant Wright on thirty-four occasions. 

Defendant Wright, becoming concerned about the wound 

and believing that X-rays of Mr. Rudeck's abdominal area were 

necessary, referred Mr. Rudeck to Dr. Donald L. Pedersen, a 

Helena radiologist, for X-rays. The X-rays were taken on 

June 20, 1980. The X-rays revealed the presence of the lap 

mat, but Dr. Pedersen did not detect the foreign object and, 

hence, did not report the presence of the foreign object to 

defendant Wright. 

Mr. Rudeck's physical condition deteriorated to the 

point that Mrs. Rudeck, on October 6, 1980, took it upon 
herself to admit her husband to the Veterans Administration 

Hospital at Fort Harrison in Helena. 

X-rays were taken at the VA Hospital, and for the first 

time the presence of the foreign object in Mr. Rudeck's 

abdomen was detected. Mr. Rudeck was too ill and weak for 

immediate surgery to remove the lap mat. He was then placed 

under presurgical care at the VA Hospital. Before he regained sufficient strength to tolerate another surgical 

procedure, on October 24, 1980, Mr. Rudeck's condition rapidly deteriorated, and he died that day. 

An autopsy was performed at the VA Hospital on October 

25, 1980, which confirmed the presence of the lap mat inside 

the deceased's abdomen. The lap mat had wadded up into a 

ball about the size of an adult's fist ard the bowel had 

wrapped around it, cutting off the blood supply to the lower 

bowel and causing perforations in the bowel b~ith resulting 

escape of fecal material-. 

Following her husband's death, Mrs. Rudeck filed a 

complaint against Dr. Wright and Dr. Pedersen. Two medical 

malpractice claims were alleged: one in her own right for 

alleged wrongful death, and one in her capacity as personal 

representative of her deceased husband's estate for his 

survival claim up to the time of his death. 

Defendant Wright filed an answer, a cross-claim against 

Dr. Pedersen seeking indemnity and a third party complaint 

against St. Peter's Community Hospital seeking indemnity. 

Dr. Pedersen answered the plaintiff's complaint and Dr. 

Wright's cross-claim. 

St. Peter's Hospital answered Dr. Wright's third party 

complaint and filed a counter-claim against Dr. Wright seeking indemnity. 
Plaintiff Rudeck, following discovery, filed a motion 

for partial summary judgment against Dr. Wright and Dr. 

Pedersen . Dr. Pedersen admitted liability and settled with 

plaintiff Rudeck. The trial court granted partial sumrna,ry 

judgment against defendant Wright on the negligence issue. 

Prior to trial, St. Peter's Hospital settled with 

plaintiff Rudeck. 

Immediately prior to trial Dr. Wright moved to sever 

his alleged. claims against Dr. Pedersen and the hospital from 

plaintiff Rudeck's claims against him and sought to go to 

trial on plaintiff Rudeck' s wrongful death claim and t.he 

estate's survival claim. The trial court granted severance, 

and the jury trial. on plaintiff Rudeck's claims against 

defendant Wright commenced on November 28, 1983. 

The jury returned a verdict awarding plaintiff Rudeck 

$75,000 on her wrongful death claim and zero on the estate's 

survival claim. 

Thereafter, plaintiff Rudeck moved for a new trial 

which was granted by the trial judge. 

The issues on appeal, noted earlier herein, will now be 

discussed. 

ISSUE #l. PLAINTIFF RUDECK'S MOTION FOR A NEW TRIAL 

There are several grounds upon which a new trial may he 

granted. They are set forth i.n the seven subsections to 

§ 25-11-102, MCA. The ground asserted by plaintiff Rudeck is 

that the jury's verdict is against law. Subsection (6) of 

the cited statute lists a verdict against law as being one 

permissible ground for a new trial. 

We hold that the jury's verdict in awarding damages on 

the wrongful death claim and in awarding no damages on the 
survival claim is totally inconsistent and is contrary to the 

mandates of law. The trial judge was correct in granting 

plaintiff Rudeck's motion for a new trial. 

The question of defendant Wright's negligence had been 

d-etermined by the court as a matter of law before the trial 

started when plaintiff Rudeck's motion for partial summary 

judgment on the negligence issue was granted. The jury only 

had to consider the issue of whether or not defendant 

Wright's negligence was the cause of Mr. Rudeck's death, and 

if so, the amount of damages. In awarding $75,000 on the 

wrongful death claim, the jury found that defendant Wright's 

negligence was a substantial factor in causing the death. 

If Mr. Rudeck's death was caused by the negligence of 

defendant Wright, then the earlier injury to Mr. Rudeck which 

culminated in his death must have been caused by the same 

negligence. If the same negligence (leaving the lap mat 

inside the patient) caused the personal injury to the living 

Mr. Rudeck and that same negligence caused his later death, 

the jury would be compelled to award damages for Mr. Rudeck's 

personal injury (which were sought in the survival claim on 

his behalf by the personal representative of his estate) as 

well as awarding damages on the wrongful death claim. Because the jury did not do so, its verdict is inconsistent and 

is against law. 

A similar situation arose in the case of Abernathy v. 

Eline Oil Field Services (Mont. 1982), 650 P.2d 772, 39 

St.Rep. 1688, where the same negligent act (rear end collision) caused a personal injury to one person and the death of 

another person. In that case the jury found that the same 

act of negligence caused the personal injury to the one 

person but not the death of the other person. A new trial 
was ordered in that case because the verdicts were inconsistent and against law. The jury's conclusion that the tortfeasor had injured the one person mandated the further 

conclusion that the same tort-feasor's same negligent act 

also caused the death of the other person. Although two 

persons were involved in the Abernathy case, whereas only one 

person is involved in the instant case, the same conclusion 

is reached because the same negligence of the same defendant 

is the basis both for the wrongful death action, B 27-1-513, 

MCA, and the survival action, S 27-1-501, BICA. (See Swanson 

v. Champion International Corp. (1982), 1.97 Mont. 509, 646 

P.2d 1166, for a discussion of actions permissible in Montana 

for tortious death.) 

Stated another way, in the instant case there would 

have been no wrongful death without the earlier injury to the 

living Mr. Rudeck. 

ISSUE #2. WAS DR. WRIGHT NEGLIGENT AS A MATTER OF LAW 

Was the trial judge correct when ruling as a matter of 

law that Dr. Wright was negligent in leaving a foreign object 

inside his patient during surgery? 

Other states which have ruled on this issue are divided 

in their holdings. There are three rules applied in the 

different states. 

1. The negligence per se rule. Those courts following 

this rule hold that the failure of a surgeon to remove a 

foreign object (sponge, needle, clamp, scissors) is negligence per se. The theory i.s that the surgeon has not measured up to the standard of care required of a surgeon in 

exercising his professional skills. Consequently, the surgeon who violates the legally mandated standard of care of 
exercising the professional care and skill which other professionals in his specialty would exercise in the same or 

similar circumstances is negligent per se. 

The rule is best stated in the case of McCormick v. 

Jones (Wash. 1929), 278 P. 181, 182, wherein the court said: 

". . . We also think that the court can 

say as a matter of law that when a 

surgeon inadvertently introduces into a 

wound a foreign substance, closes up the 

wound, leaving the foreign substance in 

the body, there being no possibility of 

any good purpose resulting therefrom, 

that act is negligence." 

A general statement of the rule is found in 61 

Arn.Jur.2d Physicians, Surgeons, Etc., 5 258 at 397-398: 

"A surgeon undertaking to perform an 

operation requiring the placing of 

sponges in the incision does not complete his undertaking until the sponges 

are properly removed. Many cases of 

malpractice arising out of surgical 

operations result from the leaving of 

surgical sponges or other foreign substances in the wound after the incision 

has been closed. . . . Thus, there are 

many cases which take the view that the 

failure of a surgeon to remove all 

sponges or foreign substances from a 

surgical wound is neqligence per se I1 ... 

The interrelationship between the surgeon and the 

sponge nurses is also explained in 61 Am.Jur.2df S 258 at 

399, as follows: 

"While the custom or usage of having a 

'sponge nurse' account, both before and 

after a surgical operation, for all 

sponges used during the operation, has 

been approved by some courts, it is 

generally held that surgeons cannot 

relieve themselves from liability for 

injury to a patient caused by leaving a 

sponge in the wound after an operation, 

by the facts that such custom or usage 

prevails in the community, and that they 

followed and relied on such count as 

conclusive that all sponges had been 

accounted for. The reason for this rule 

is that leaving a surgical sponge in the 

abdominal cavity is a sort of case in 
which the type of harm itself raises so 

strong an inference of negligence, and 

the physician's duty to prevent harm is 

so clear, that expert testimony is not. 

required to establish the prevailing 

standard of care, and the inference 

arising from res ispa loquitur is not 

refuted by the assertion that the 

nurse's sponge count was reported as in 

order, because such a report does not 

relieve the operating and supervising 

surgeon of his responsibility. . . ." 

In Guilbeau v. St. Paul Fire and Marine Insurance Co. 

(La.App. 1975) , 325 So.2d 395, an operating surgeon was held 

to be negligent per se when he had placed a laparotomy pad in 

the patient's body during colectomy surgery and it was left 

there following surgery. Two surgical nurses on the hospital 

surgical team had miscounted the pads and mistakenly reported 

to the surgeon that all pads were accounted for. 

In Harrison v. Wilkerson (Tenn. 1966), 405 S.W.2d 649, 

the operating surgeon left a sponge inside the patient during 

a Cesarean delivery when the two nurses assisting during the 

surgery miscounted the sponges. The operating surgeon was 

held to be negligent as a matter of law. 

In Burke v. Washington Hospital Center (D.C. Cir. 

1.973), 475 F.2d 364, an operating surgeon attempted to shift 

responsibility for leaving a sponge in the patient's abdomen 

during surgery by asserting that the attending nurse's sponge 

count was in error. The court said at page 365, "[wlhile 

this may be enough to support shared liability on the part of 

the nurse's employer, Washington Hospital Center, it does not 

relieve the operating and supervising surgeon of his responsibility." Also see, 10 ALR3d 9; 12 ALR3d 1-017. 

2. The res ipsa loquitur rule. This rule provides 

that the failure of a surgeon to remove a foreign object 

gives rise to an inference of negligence. The reasoning is 
that when an instrumentality which causes injury, without any 

fault of the injured person, is under the exclusive control 

of the defendant at the time of the injury, and the injury 

d.oes not occur if the one having such control uses proper 

care, then the law infers negligence on the part of the one 

in control as the cause of the injury. Negaard v. Feda 

(1968), 152 Mont. 47, 446 P.22 436. Other medical malpractice cases which discuss the res ipsa loquitur doctrine and 

its applicability in a medical malpractice setting are Parks 

v. Perry (N.C.App. 1984), 314 S.E.2d 287; Morgan v. 

Willis-Knighton Medical Center (La.App. 1984), 456 So.2d 650; 

Gallegor by Gal-legor v. Felder (Pa.Sup. 1984), 478 A.2d 34; 

and Sammons v. Smith (Iowa 1984), 353 N.W.2d 380. Once the 

presumption of negligence arises under the res ipsa rule, the 

burden of rebutting the presumption shifts to the defendant. 

3. The ordinary negligence rule. Here the failure of 

the surgeon to remove the foreign object is simply evidence 

of the surgeon's negligence. The plaintiff would have the 

burden of proving by a preponderance of the evidence what the 

standard of care is (through expert medical testimony! and 

that the surgeon violated that standard of care. One element 

in establishing a violation of the standard of care would be 

proof of the surgeon's failure to remove the foreign object. 

After considering the above three rules we conclude 

that the best rule and the rule to be adopted in Montana is 

the "negligence per set' rule. When a patient is on the 

operating table, he has put his body and life into the hands 

of the surgeon. If a foreign object is mistakenly left in 

the patient's body, it seems to us that it takes no expert 

medical testimony to establish that the surgeon was negli- 
gent. The court can find negligence as a matter of law for 

an obvious violation of the standard of care required. 

Under either the ordinary negligence rule or the res 

ipsa rule the surgeon would be attempting to totally avoid 

his own liability by pointing his finger at the surgical 

nurses who were also negligent in failing to correctly count 

the sponges and at the radiologist who later took X-rays and 

failed to detect the sponge and failed to inform the surgeon 

of the presence of the sponge in the patient's abdomen so 

that corrective surgery could immediately be performed. 

The surgeon is the "captain of the ship" and he bears 

the responsibility of the surgical procedure. McCullough v. 

Bethany Medical. Center (Kan. 1984), 683 P.2d 1258. Other 

persons, such as the surgical nurses who maintain the sponge 

count, and such as the radiologist who later takes X-rays, 

may also be negligent and liable as concurrent tort-feasors 

or as a subsequent tort-feasor, but the surgeon who initially 

was negligent in the first instance and whose original negligence set in motion the concurrent and following negligent 

acts or omissions should not be allowed to avoid his 1-iability. The "negligence per sew rule would not allow the surgeon 

to avoid his own negligence. 

ISSUE #3. EXCLUSION OF EVIDENCE OF CONDUCT 

OF CONCURRENT AND SUBSEQUENT TORT-FRASORS 

Prior to trial, defendant Wright successfully moved to 

sever his cross-claim against Dr. Pedersen and his third 

party claim against St. Peter's Community Hospital. Also 

prior to trial plaintiff Rudeck successfully moved to exclude 

evidence of the acts and omissions of the surgical nurses and 

of Dr. Pedersen. Consequently, the trial commenced on 
plaintiff Rudeck's wrongful death claim and on the estate's 

survival claim against only one defendant, and that defendant 

was Dr. Wright. 

Defendant Wright contends he should have been allowed 

to present evidence of the separate negligence of the nurses 

and the separate negligence of Dr. Pedersen in an attempt to 

immunize himself from liability for his own negligence. 

Because we view the negligence of the nurses as separate but concurrent negligence and the negligence of Dr. 

Pedersen as separate but subsequent negligence, we will 

discuss the status of the concurrent tort-feasors and the 

subsequent tort-feasor separately. 

As to the nurses' negligence, it is clear that the 

sponge count and the surgical procedure are occurring simultaneously. We hold that if the effect of defendant Wright's 

negligence in leaving a foreign object inside his patient's 

wound actively and continuously acts to cause harm to his 

patient, the fact that the active and substantially simultaneous negligent act of the nurses is also a substantial 

factor in bringing about the harm to the patient does not 

protect Dr. Wright from liability. Moreover, the nurses (and 

the hospital) are not relieved of liability for their own 

negligent acts or omissions. See, 2 Restatement of Torts 2d, 

Section 439. 

As to Dr. Pedersen's negligence, it is clear that his 

negligent conduct occurred about three weeks after Dr. 

Wright's negligent act and, hence, not concurrently therewith. It is noted that Dr. Wright referred Mr. Rudeck to Dr. 

Pedersen for the X-rays. The question is whether or not the 

subsequent and independent negligent act of Dr. Pedersen in 

misreading the X-rays can relieve Dr. Wright from his own 
liability. We hold that if Mr. Rudeck's injury and death 

resulted from the original negligence of defendant Wright in 

failing to remove the 1-ap mat and also his injury and death 

in part resulted from a risk (misreading the X-rays) inherent 

in the later medical procedure of taking X-rays which were 

required to discover the reason for Mr. Rudeck's post-surgery 

problems, the original tort-feasor (d-efendant Wright) remains 

liable regardless of whether the later medical procedure was 

done in a negligent manner. The reason is that the chain of 

causation remains unbroken. However, it should be remembered 

that, although the original tort-feasor is liable for the 

additional harm created by the intervening tort-feasor (Dr. 

Pedersen) , the intervening tort-fea.sor is not relieved of 

liability for his own negligent act. Dooley, - 1 Modern Tort 

- Law, S 10.04. 

The law requires that at times a tort-feasor must 

answer for the subsequent negligence of a doctor. The classic situation is where a person is injured in an auto accident due to the negligence of a tort-feasor and is required 

to submit to medical treatment. If the treating doctor is 

negligent in his treatment of the injured person, the original tort-feasor must answer to the injured person for the 

malpractice of the doctor. That principle of tort liability 

is based on the theory that the original negligent act is a 

proximate cause of the subsequent injury caused by the malpractice. See, 61 Am.Jur.2d Physicians, Surgeons, Etc., 

§ 301 at 448. In the present case, the original tort-feasor 

is a surgeon and the subsequent negligence is that of a 

radiologist. We hold the same principle of tort liability 

applies when two negligent doctors are the tort-feasors as 
when the two tort-feasors are a negligent driver and a 

malpracticing doctor. 

In Graham v. Whitaker (S.C. 1984), 321 S.E.2d 40, an 

ophthalmologist was negligent in putting eye drops into a 

patient's eyes and not warning of blurred vision and. of not 

providing a safe place for the patient. The patient fell and 

broke her hip. A surgeon operated on her hip and due to his 

negligence the patient developed an infection and needed a 

hip replacement. The court in that case held the original 

tort-feasor was liable for the intervening negligence of the 

operating surgeon. 

In summary on this issue of excluding evidence of the 

nurses' concurrent negligence and of Dr. Pedersen's subsequent separate negligence, we hold that such evidence was 

irrelevant during the trial on the issue of whether Dr. 

Wright's negligence caused the injury and death of Mr. 

R.udeck . 

ISSUE #4. LEGAL CAUSE OR PROXIMATE CAUSE 

The trial judge instructed the jury that the plaintiff 

was entitled to damages "legally caused" by Dr. Wright's 

negligence. In defining "legal cause" the judge instructed 

as follows: 

"A legal cause of a death is a cause 

which is a substantial factor in bringing about the death." 

Defendant Wright, on the other hand, offered the standard. instruction on "proximate cause" as follows: 

"The proximate cause of an injury or 

damage is that cause which in a natural 

and continuous sequence, unbroken by any 

new or independent cause, produces the 

injury or damage, and without which it 

would not have occurred." 
Rear in mind that the present case involves an original 

tort-feasor (Dr. Wright) , concurrent tort-feasors (nurses) , 

and a subsequent tort-feasor (Dr. Pedersen) each of whom 

committed negligent acts and each of whom may be separately 

liable. 

The proximate cause rule (commonly known as the "but 

for" rule) may be stated as follows: The defendant's conduct 

is a cause of the event if the event would not have occurred 

but for that conduct; or conversely, the defendant's conduct 

is not a cause of the event, if the event would have occurred 

without it. 

The "but for" rule serves to explain the vast majority 

of cases wherein a causation instruction is required. However, there is one type of situation in which it fails. If two 

or more causes concur to bring about an event, and any one of 

them, operating alone, would have been sufficient to cause 

the identical result, some other test is needed. In such 

cases it is quite clear that each cause has in fact played so 

important a part in producing the result that responsibility 

should be imposed upon it; and it is equally clear that 

neither can be absolved from that responsibility upon the 

ground that the identical harm would have occurred without 

it, or there would be no liability at all. 

The "substantial factor" rule was developed primarily 

for cases in which application of the "but for" rule v~ould 

allow each defendant to escape responsibil-ity because the 

conduct of one or more others would have been sufficient to 

produce the same result. It is possible, and more helpful, 

to apply an alternative formulation that addresses directly 

the need for declining to fol-low the "but for" rule in this 

context. The alternative formulation is this: When the 
conduct of two or more actors is so related to an event that 

their combined conduct, viewed as a whole, is a "but for" 

cause of event, and application of the "but for" rule to them 

individually would absolve all of them, the conduct of each 

is a cause in fact of the event. 

The fact situation in which this kind of grouping of 

defendants is permissible occurs relatively infrequently. 

The case where this does occur is the case in which each 

defendant bears a like relationship to the event. Each seeks 

to escape liability for a reason that, if recognized, would 

likewise protect each other defendant in the group. Prosser 

and Keeton, The --- Law of Torts, 5th ed. at 266-278. 

In Snead v. United States (D. D.C. 1.9841, 595 F.Supp. 

658, a medical malpractice action was brought under the 

Federal Tort Claims Act alleging negligence in medical. services performed by government gynecologists. The female 

patient and her husband alleged that in performi-ng medical 

services the gynecologists failed to practice medicine in 

accordance with the required standard of care in examining 

the patient and that their departure from the required standard of care resulted in their failure to detect that patient's existent hut preinvasive cervical cancer and was a 

substantial factor bringing about the progression and metastasis of that malignancy. At 665 the court held: 

"In cases involving alleged medical 

mismanagement of a patient's existing 

and potentially fatal condition, the 

appropriate test for causation is the 

'substantial factor' test. Under this 

test, plaintiffs must show that the 

defendant's deviation from the standard 

of care was a 'substantial factor' 

bringing about Mrs. Snead's present 

condition. . . ." 
In Capone v. Donovan (Pa.Sup. 1984), 480 A.2d 1249, a 

college football. player broke his arm during a scrimmage. He 

was treated by two doctors immediately. When his arm failed 

to heal properly, he went to a third doctor. Several months 

later when the arm still had not healed properly, he went to 

a fourth doctor who performed surgery to correct the injury. 

After the patient sued the third doctor for malpractice and 

settled with him, the patient then sued the first two doctors 

for malpractice. On the causation issue the court said at 

1251: 

"If two or more causes combine to produce a single harm which is incapable of 

being divided on a logical, reasonable, 

or practical basis, and each cause is a 

substantial factor in bringing about the 

harm, an arbitrary apportionment should 

not be made. . . ." 

We conclude that the instant case is just such an 

infrequent case where the "but for" rule is inapplicable and 

the "legal cause" ("substantial factor") rule is the correct 

instruction to give to the jury. 

We do not intend by this decision to abolish the traditional "proximat-e cause" rule and replace it with the "legal 

cause" rule. It is the holding of this decision that in view 

of the particular facts involved in the present case the 

"legal cause" rule is applicable herein. 

ISSUE #5. THE DENIAL OF PLAINTIFF 

RUDECK'S MOTION FOR A DIRECTED VERDICT 

At the conclusion of defendant Wright's evidence, 

plaintiff Rudeck moved for a directed verdict to the effect 

that defendant Wright's negligence was the legal cause of Mr. 

Rudeck's death. The trial court denied the motion, and we 

affirm that ruling. 
There was evidence presented during the trial by defendant Wright's witnesses that the cause of death was acute 

broncho-pneumonia or heart disease and lung disease. Because 

there was conflicting evidence on the issue of the cause of 

Mr. Rudeck's death, the trial court was correct in denying 

the plaintiff's motion for a directed verdict. 

We affirm all of the District Court's rulings and 

remand the case for a new trial. 

Judge, sitting in place of Mr. 

Justice Frank B. Morrison, Jr. 

We concur: 
Mr. Justice Fred J. Weber concurs and dissents as follows: 

I concur in the majority opinion as to issue 1 and its 

conclusion that there was no error in granting plaintif f ' s 

motion for a new trial. I also concur with the majority 

opinion as to issue 5 in holding that there was no error in 

denying the plaintiff's motion for a directed verdict. I 

respectfully dissent from the majority opinion as to issues 

2, 3 and 4. 

The majority opinion indicates that the two surgical 

nurses who assisted the defendant in the operation neglected 

to inform Dr. Wright of an uncounted lap mat. The deposition 

of the nurse making the count discloses that she told 

Dr. Wright, "Your sponge count is correct." In addition, the 

evidence disclosed that the 'lap mat had a tag that made it 

visible on x-rays, but the radiologist failed to identify the 

tag. 

As to issue 2, I disagree with the majority conclusion 

that Dr. Wright was negligent as a matter of law because the 

lap mat was left inside the patient. Such a rule may have 

been appropriate a number of years ago when it was difficult, 

if not impossible, to obtain adequate medical testimony 

regarding the conduct of a surgeon, or prior to Montana's 

adoption of the modern theory of comparative negligence. 

I find no need for such a per se rule for the protection 

of plaintiffs. I would prefer the ordinary negligence rule 

under which the plaintiff would have the burden of proving 

that the surgeon had violated the applicable standard of 

care. Following that proof, the surgeon would have the 

opportunity to present his own evidence on the standard of 

care. More important in a case such as the present, the 

surgeon would also have the opportunity to present evidence 

as to negligence on the part of the nurses and the 

radiologist. That evidence is excluded under the negligence 

per se rule of the present opinion. I believe a jury is 
capable of determining whether a medical doctor has met the 

requisite standard of care and comparing any negligence on 

the part of the surgeon, the hospital through its nurses, and 

the radiologist. 

I would also accept the res ipsa loquitur rule as 

described in the majority opinion. While this does place a 

burden on the surgeon, it at least gives the opportunity for 

the surgeon to present the evidence that supports his view of 

the case. 

I do not believe that the negligence per se rule is 

appropriate in modern medical practice, where different 

people are responsible for various activities during a surgery e For example, it may be the sole duty of an 

anesthesiologist to monitor a patient's blood pressure and 

coloring in order to alert the operating physician to any 

sign of heart failure or oxygen deprivation. In complex 

procedures such as open heart surgery, two or more teams of 

doctors may be required to worlc on different parts of a 

patient's body at the same time. Under modern surgica 1. 

procedures, it is impractical to assume that a "chief" 

surgeon can perform surgery and simultaneous7y supervise and 

monitor every activity of each of the parties involved in the 

opera tion. It is also impractical to suggest that the 

"chief" surgeon is strictly liable for the conduct of 

everyone who assisted in the surgical procedure. 

Likewise, I see no reason why a surgeon should be held 

negligent per se for relying on the expertise of a specialist 

whose advice is sought for diagnostic purposes. I would 

trust the jury to determine whether, under a11 the circumstances of the case, the surgeon's reliance on the expert's 

advice was reasonable. I would also trust the jury to compare any negligent conduct on the part of the surgeon with a 

radiologist's negligent reading of post-operative x-rays. 
Under issue 3, the majority opinion excludes the 

evidence of the conduct of the concurrent tortfeasor, the 

nurses making the sponge count, and the subsequent 

tortfeasor, the radiologist. As indicated under issue 2, I 

believe that evidence should properly be admissible as a part 

of the defense of the defendant doctor. 

On issue 4, the majority opinion approved the giving of 

the following "legal cause" instruction: 

A legal cause of a death is a cause which 

is a substantial factor in bringing about 

the death. 

It appears the instruction was based upon BAJI 3.76, California Jury Instructions Civil (rev. 6th ed. Supp. 1983) , which 

states that a legal cause of injury is a cause which is a 

substantial factor in bringing about the injury. BAJI 3.75 

is a proximate cause instruction similar to the proximate 

cause instruction proposed by the defendant. The Use Note 

following BAJI 3.76 advises that where injury may have resulted from either of two causes operating alone, the legal 

cause instruction should be given, not the instruction on 

proximate cause. 

In substance, the same rationale was used by the majority opinion for concluding that the legal cause instruction 

was correctly given. Unfortunately, that reasoning does not 

a.pply in the present case. While it is true that there were 

nurses who can be classed as concurrent tortfeasors and a 

radiologist who can be classed as a subsequent tortfeasor, 

all of those other parties are no longer parties to the 

present action. Dr. Wright is the only defendant. Since the 

reasons given for use of the legal cause instruction are not 

present in this case, I would conclude that a proximate cause 

instruction properly should have been given. 
Mr. Justice L. C. Gulbrandson and 

Harrison concur in the foregoi 

L-hdaC, dhstices bm