No 

No. 98-133

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 278

KATHE CAMPBELL and KEN CAMPBELL,

Plaintiffs and Appellants, 

v.

C.R. CANTY, M.D., 

Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable Thomas A. Olson, Judge presiding.

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COUNSEL OF RECORD:

For Appellants:

Michael J. Milodragovich, Milodragovich, Dale, Steinbrenner & Binney, Missoula, Montana

For Respondent:

E. Craig Daue, Garlington, Lohn & Robinson, Missoula, Montana

Submitted on Briefs: August 27, 1998

Decided: November 12, 1998

Filed:

__________________________________________

Clerk

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Justice James C. Nelson delivered the Opinion of the Court.

¶1. Kathe Campbell (Kathe) was initially treated by Dr. Charles R. Canty (Dr. 

Canty) after she was severely bitten by a donkey. Kathe and her husband, Ken, 

(collectively referred to as "the Campbells") filed a complaint against Dr. Canty 

alleging negligence in his care and treatment of Kathe. Trial was held in the District 

Court for the Second Judicial District, Silver Bow County, wherein the jury found 

that although Dr. Canty was negligent in his care of Kathe, Dr. Canty's negligence 

did not cause injury to Kathe. We affirm.

¶2. The Campbells raise the following issues on appeal:

¶3. 1. Whether the evidence at trial established that Dr. Canty's negligence subjected 

Kathe to an increased risk of harm and lessened her chances for a better result 

thereby causing damage to Kathe.

¶4. 2. Whether the District Court erred in denying the Campbells' motion to alter or 

amend the judgment and for a new trial.

Factual and Procedural Background

¶5. The Campbells own and operate a small ranch outside Butte. On May 30, 1993, 

Ken Campbell (Ken) had just returned home from the hospital after major surgery, 

thus Kathe set out on her own to attend to the ranch chores. When she attempted to 

repair a fence where one of their donkeys was corralled, the animal attacked her. 

The donkey knocked Kathe to the ground and pinned her there with the weight of his 

body. Her left arm was trapped beneath her, but her right arm was exposed. The 

donkey savagely and repeatedly bit Kathe on her right forearm before she was able 

to free her left arm and fend him off. Kathe managed to make it to the door of their 

house where Ken found her and called an ambulance.

¶6. Kathe was taken to St. James Community Hospital in Butte. The donkey's bites 

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had crushed the bones in Kathe's forearm and had caused shearing, crushing and 

tearing of the skin, muscles, veins and nerves in her arm. Extensive amounts of 

tissue, muscle and nerves were destroyed by the bites. 

¶7. Dr. Canty was the orthopedic surgeon on call when Kathe was brought to the 

hospital. After treatment by emergency room personnel to stabilize her vital signs, 

Kathe was transferred to Dr. Canty's care. Dr. Canty, after examining the injury, 

informed Kathe and her family that there was a possibility that amputation would be 

necessary. Kathe asked Dr. Canty to save her arm.

¶8. In the initial surgery, Dr. Canty inserted a metal rod into the large bone in 

Kathe's forearm. He cleaned the wound removing dead or dying tissue and muscle 

along with debris deposited in the wound from the donkey's mouth. Dr. Canty noted 

that the ulnar artery in Kathe's arm was injured and bruised, but the radial artery, 

although also bruised, was intact. He traced the radial artery to make sure that blood 

was flowing through the site of the injury and beyond. 

¶9. In a second surgery approximately 68 hours later, Dr. Canty again cleaned the 

wound and removed more dead and dying tissue and muscle. He noted at that time 

that the ulnar artery was still bruised and, while it was pulsing a little, it was not 

acting as a major circulatory link to the hand. He also noted that the radial artery 

was still functioning and that there was a pulse through the site of the injury leading 

him to believe that blood was still flowing through the injured forearm to the hand. 

¶10. Kathe's family became dissatisfied with Dr. Canty's treatment of Kathe as they 

began to realize that the condition of Kathe's hand was slowly deteriorating. Hence, 

they took Kathe to Billings to be cared for by Dr. Curtis Settergren. Dr. Settergren is 

a board certified orthopedic surgeon with an additional qualification in hand 

surgery. He performed a number of surgeries on Kathe including a vein graft to 

bypass the injured artery and to allow blood to flow past the injured portion of the 

arm to the hand. While Kathe's fingers initially responded to the increased blood 

flow from the bypass, the tissue in her fingers and hand began to die resulting in the 

amputation of Kathe's arm below the elbow. 

¶11. On June 12, 1995, the Campbells filed a complaint against Dr. Canty and St. 

James Community Hospital alleging that Dr. Canty was negligent in his care and 

treatment of Kathe. In their complaint, the Campbells alleged that Dr. Canty was 

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negligent in failing to recognize the occlusion of the radial artery; failing to conduct 

or order objective testing of the blood flow to and from Kathe's hand; and failing to 

consult with a vascular surgeon about performing a vein graft to bypass the injured 

portion of Kathe's arm to allow blood to flow to Kathe's hand which still had some 

viability. The Campbells also alleged that St. James Community Hospital was 

negligent in failing to independently monitor the adequacy of the care Kathe 

received. The hospital was subsequently dismissed from the suit with prejudice.

¶12. The case was tried to a jury on October 20 through 24, 1997. The jury was 

instructed to consider whether Dr. Canty was negligent in his care of Kathe and, if 

so, whether Dr. Canty's negligence caused an increased risk of harm to Kathe and/or 

reduced her chance for obtaining a better result. The jury found Dr. Canty negligent 

(without specifying what particular aspect of his care was negligent), however, they 

found that Dr. Canty's negligence did not cause Kathe to suffer injury. 

¶13. On November 13, 1997, the Campbells filed a "Motion to Alter or Amend 

Judgment Regarding Issue of Causation and for Partial New Trial Regarding Issue 

of Damages." In that motion, the Campbells requested that the District Court enter 

an order notwithstanding the verdict that Dr. Canty's negligence had caused the 

Campbells to suffer damages. The Campbells also requested that the District Court 

order a partial new trial limited solely to the issue of damages sustained by the 

Campbells.

¶14. The District Court issued its order denying the Campbells' motion on January 

8, 1998. The court concluded that it was within the province of the jury to find 

negligence but no causation of damages from that negligence. The Campbells 

appealed contending that the uncontroverted evidence at trial established that Dr. 

Canty's negligence caused Kathe damages because his negligence subjected her to an 

increased risk of harm and as a result she lost a chance for a better result.

Issue 1.

¶15. Whether the evidence at trial established that Dr. Canty's negligence subjected 

Kathe to an increased risk of harm and lessened her chances for a better result thereby 

causing damage to Kathe.

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¶16. The jury rendered a verdict that Dr. Canty was negligent in his care of Kathe 

but that this negligence did not cause injury to Kathe. The Campbells argue on 

appeal that the jury impermissibly disregarded uncontroverted, credible evidence 

that Dr. Canty breached his duty of care to Kathe causing compensable injury. The 

Campbells contend that the jury failed to follow the instructed law of the case and 

rendered a verdict that was not in accord with the evidence presented, thereby 

rendering a verdict that was contrary to law.

¶17. In reviewing a jury verdict, we do not decide whether the verdict was correct or 

whether the jury made the right decision. Wise v. Ford Motor Co. (1997), 284 Mont. 

336, 343, 943 P.2d 1310, 1314. We only review whether there is substantial credible 

evidence in the record to support the jury's verdict. Wise, 284 Mont. at 343, 943 P.2d 

at 1314. See also C. Haydon Ltd. v. MT Min. Properties, Inc. (1997), 286 Mont. 138, 

151, 951 P.2d 46, 54; Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 422, 913 

P.2d 641, 646; Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976; 

Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 295, 951 P.2d 1326, 

1334. 

¶18. We have previously stated that substantial evidence is that evidence that a 

reasonable mind might accept as adequate to support a conclusion. Haydon, 286 

Mont. at 151, 951 P.2d at 54 (citing Baird v. Norwest Bank (1992), 255 Mont. 317, 323, 

843 P.2d 327, 331). Moreover, substantial evidence consists of more than a mere 

scintilla of evidence, but may be less than a preponderance of evidence, and, although 

it may be based on weak and conflicting evidence, in order to rise to the level of 

substantial evidence, it must be greater than trifling or frivolous. Haydon, 286 Mont. 

at 151, 951 P.2d at 54.

¶19. An attack upon a jury verdict as not supported by the evidence is proper only 

when there is a complete absence of any credible evidence in support of the verdict. 

All evidence and all inferences drawn therefrom must be considered in a light most 

favorable to the adverse party. Haydon, 286 Mont. at 151, 951 P.2d at 54 (citing 

Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051, 1053). Furthermore, if 

conflicting evidence exists, the credibility and weight given to the evidence is in the 

jury's province and we will not disturb the jury's findings unless they are inherently 

impossible to believe. Wise, 284 Mont. at 339, 943 P.2d at 1312 (citing Okland v. Wolf

(1993), 258 Mont. 35, 39, 850 P.2d 302, 305; Silvis through Silvis v. Hobbs (1992), 251 

Mont. 407, 411-12, 824 P.2d 1013, 1015-16).

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¶20. The Campbells argue that the evidence on causation was uncontroverted. They 

assert that their expert witness, Dr. Kenneth Wilson, a board-certified orthopedic 

surgeon with an added qualification in hand surgery, firmly established that Dr. 

Canty's negligence in failing to perform a bypass, or in failing to contact a vascular 

surgeon to perform a bypass, lessened Kathe's chances of obtaining a better result 

and caused Kathe to endure numerous surgeries which increased her risk of harm. 

¶21. Contrary to the Campbells' assertions, Dr. Wilson's testimony on causation was 

contradicted by Dr. Canty's expert witness, Dr. Stephen Sears, who is board certified 

in orthopedic surgery, by Dr. Settergren and by Dr. Canty. Dr. Sears, Dr. Settergren 

and Dr. Canty testified that the damage to Kathe's forearm from the bites was so 

extensive, Kathe's chances of keeping her arm were minimal. They also testified that 

Kathe was forced to endure numerous surgeries, not because of Dr. Canty's 

negligence, but because of the continuing need to treat the extensive trauma to 

Kathe's forearm.

¶22. Dr. Settergren whose testimony was preserved through a videotape which was 

shown to the jury during trial, testified that the purpose of the bypass was to carry 

blood and oxygen to the wrist and hand and that it would not have had any 

significant affect on the massive trauma to the forearm. He also testified that 

multiple surgeries were necessary because he continually had to remove tissue and 

muscle from the bite area and, even if the bypass had been successful in saving 

Kathe's hand, she still would have lost a substantial amount of tissue and muscle in 

the area of the massive trauma on her forearm. 

¶23. Although Dr. Settergren stated that there was a "chance" that the tissues of the 

fingers could have been preserved had the bypass been done sooner, he testified as 

follows at the close of his deposition:

Q. Doctor, as a general rule, when you are considering the need for amputation on an arm, 

do you try to amputate as far out on the arm as possible?

A. As a general rule.

Q. And in Mrs. Campbell's case, if the only, if the loss of tissue in her hand was the only 

reason for amputation, would you have amputated say, down at the wrist?

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A. As far distal as I could.

Q. Yes. And is it fair to say that the reason in this case that she has an amputation below 

the elbow is because of the massive tissue loss in the upper forearm from the bite?

A. Well, I chose my level by what I could cover it with. The longer level, the more tissue 

you need to cover it-- and I didn't have, you know-- I left it as long as I could and still 

cover the wound.

Q. You did what the injury would allow and what you had left over to work with?

A. Yeah, what viable tissue I had to cover the bone with.

¶24. Furthermore, while Dr. Wilson testified that there was a 90 to 95% chance that 

Kathe "would have had a very functional extremity," Dr. Settergren testified that he 

told Kathe from the beginning that with the extensive damage to the muscles and 

nerves in her forearm caused by the bite, the tissue could be preserved but "function 

could be little more than a paperweight." 

¶25. In like manner, Dr. Sears testified that, although he did not disagree with Dr. 

Wilson's statement that Kathe lost her hand because of the failure of the radial 

artery to perfuse and nourish the hand, amputations are generally performed as far 

out on the arm as possible and if Kathe's only problem had been a lack of circulation 

through the radial and/or ulnar arteries into the hand, the amputation would have 

been at the wrist, not below the elbow. Additionally, Dr. Sears stated that in an 

injury such as Kathe's, there is every reason to expect that there would be continuing 

tissue loss after the time of the first surgery. He explained that because of the 

shearing action in the bite, the skin was pulled loose in places from the nerves and 

veins causing the surrounding tissue to die off. He noted that even after Kathe 

transferred to Billings, there continued to be tissue death in the forearm making it 

necessary for Dr. Settergren to perform multiple surgeries on Kathe's arm to remove 

this dead and dying tissue.

¶26. Dr. Sears further testified that the bypass eventually performed by Dr. 

Settergren was not designed to help the tissue in the forearm as the artery that feeds 

that tissue branches off above the elbow into smaller arteries and those arteries 

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weren't damaged. He stated that the damage at the wound was not coming from a 

lack of blood, but from the bite trauma itself. 

¶27. Dr. Canty testified that he was dubious about Kathe's chances with bypass 

surgery as there has to be tissue that is capable of accepting the blood brought in by 

the bypass as well as a means available for the blood to flow back out. He stated that 

he did not believe that was the situation in Kathe's case because of the massive 

trauma to her forearm. 

¶28. By the same token, contrary to Dr. Wilson's opinion that waiting almost 72 

hours to perform the second surgery increased the risk of infection and lessened 

Kathe's chances for a better result, Dr. Sears testified that the delay in this case was 

appropriate. He stated that the standard time for a second debridement and closure 

of the wound is three to five days depending on the magnitude of the wound. Dr. 

Sears explained that the reason a doctor waits to close a wound of this type is that 

when a wound is contaminated as in a bite, the bacteria grows faster if the wound is 

covered. If the wound is left open, it stays cleaner and there is less tissue to debride 

the second time. He stated that the "ideal thing is, when you go back in three days, if 

it looks good, you can close it safely; whereas if I close it on the date of the injury, 

your infection rate goes up dramatically." Indeed, Dr. Settergren testified that the 

two debridements performed by Dr. Canty were adequate as there were no signs of 

infection when Dr. Settergren first examined Kathe's injury.

¶29. In summary, much of the testimony on causation of the Campbells' expert 

witness, Dr. Wilson, was contradicted by Dr. Sears, Dr. Settergren and by Dr. Canty. 

Indeed, while Dr. Wilson testified that the amputation of Campbell's hand was a 

direct result of not having the artery bypassed earlier, both Dr. Sears and Dr. 

Settergren testified that if Campbell's only problem had been a lack of circulation 

through the arteries into the hand, the amputation would have been closer to the 

wrist and not below the elbow. The evidence supports the finding that Kathe's wound 

was so devastating that, even if the bypass had been done earlier, it would not have 

prevented amputation, thus, the jury could legitimately conclude that Dr. Canty's 

negligence did not lessen Kathe's chance for obtaining a better result. 

¶30. Furthermore, the evidence also supports a finding that the numerous surgeries 

Kathe endured were not intended to salvage Dr. Canty's negligence, but instead, 

were a last-ditch attempt to accomplish a result that was doomed from the beginning 

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to fail because of the devastation of the original injury. Thus, the jury could 

legitimately conclude that Dr. Canty's negligence did not cause Kathe to suffer an 

increased risk of harm.

¶31. While conflicting evidence does exist in this case regarding whether Dr. Canty's 

negligence caused injury to Kathe, as we stated elsewhere in this opinion, the 

credibility and weight given to that evidence is in the jury's province. Wise, 284 

Mont. at 339, 943 P.2d at 1312. Thus, since we conclude that the jury's findings are 

not "inherently impossible to believe," we will not disturb those findings. Wise, 284 

Mont. at 339, 943 P.2d at 1312. Moreover, considering all of the evidence and all 

inferences that may be drawn therefrom in a light most favorable to Dr. Canty, as we 

are constrained to do, we hold that there is substantial credible evidence in the 

record to support the jury's verdict.

¶32. Accordingly, we uphold the jury verdict in this case and we affirm the judgment 

of the District Court. 

Issue 2.

¶33. Whether the District Court erred in denying the Campbells' motion to alter or 

amend the judgment and for a new trial.

¶34. After the jury rendered its verdict in this case and the District Court had 

entered its judgment on that verdict, the Campbells filed a motion to alter or amend 

the judgment, pursuant to Rule 59(g), M.R.Civ.P., regarding the issue of causation 

and a motion for a new trial, pursuant to Rule 59(a), M.R.Civ.P., regarding the issue 

of damages. The Campbells contended that the jury impermissibly disregarded the 

substantial and uncontested evidence presented at trial and that they failed to follow 

the law of the case. The District Court denied the Campbells' motion stating that it 

was within the province of the jury to listen to and evaluate the demeanor and 

credibility of the witnesses and that the court would not second guess the 

deliberations and decision of the jury.

¶35. The amendment of a judgment is within the discretion of a district court, thus 

we review a court's grant or denial of a motion to amend for an abuse of discretion. 

Bevacqua v. Union Pacific R. Co., 1998 MT 120, ¶ 36, 960 P.2d 273, ¶ 36, 55 St.Rep. 

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469, ¶ 36 (citing Estate of Nielsen v. Pardis (1994), 265 Mont. 470, 478, 878 P.2d 234, 

238). An abuse of discretion occurs when a district court acts arbitrarily without 

conscientious judgment or exceeds the bounds of reason resulting in substantial 

injustice. Tanner, 275 Mont. at 430, 913 P.2d at 651 (citing Investigative Records of 

City of Columbus Pol. Dept. (1995), 272 Mont. 486, 488, 901 P.2d 565, 567).

¶36. In addition, the decision to grant or deny a new trial is within the sound 

discretion of the trial judge and we will not disturb that decision absent a showing of 

manifest abuse of that discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 30, 

955 P.2d 160, ¶ 30, 55 St.Rep. 198, ¶ 30 (citing Jim's Excavating Service v. HKM 

Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259). 

¶37. The Campbells contend on appeal that, in view of the "uncontested" evidence, 

the jury's verdict in this case clearly mandated the District Court to grant their 

request to amend the judgment finding that Dr. Canty's negligence caused the 

Campbells to suffer damages and to order a new trial to determine the amount of 

those damages. Contrary to the Campbells' contentions, the evidence on causation 

was not "uncontested" as our discussion in the previous issue demonstrated. 

Moreover, the District Court was correct in concluding that it is within the province 

of the jury to listen to and evaluate the demeanor and credibility of the witnesses. 

Wise, 284 Mont. at 339, 943 P.2d at 1312.

¶38. There being no indication that the District Court "acted arbitrarily without 

conscientious judgment" or that the court exceeded "the bounds of reason resulting 

in substantial injustice," Tanner, 275 Mont. at 430, 913 P.2d at 651, we conclude that 

the District Court did not abuse its discretion in denying the Campbells' motion to 

alter or amend the judgment or for a new trial.

¶39. Affirmed. 

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

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/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

Justice Terry N. Trieweiler dissenting.

¶40. I dissent from the majority's conclusion that there was substantial evidence to 

support the jury's verdict that the defendant's negligence did not cause damage to 

the plaintiffs.

¶41. The District Court correctly instructed the jury that "[a] doctor's negligence is a 

cause of damage to the plaintiff if it causes increased risk of harm to the plaintiff or 

reduces his chance for obtaining a better result." Montana Pattern Jury Instruction 

(Civil) 3.11; Aasheim v. Humberger (1985), 215 Mont. 127, 132, 695 P.2d 824, 827-28.

¶42. Plaintiffs contended that the defendant, C.R. Canty, M.D., was negligent by 

failing to adequately diagnose impairment to the blood flow through Kathe 

Campbell's radial artery, and by failing to consult a specialist so that the necessary 

circulation of blood to her injured hand could be restored.

¶43. The evidence was that her medical records disclosed impairment to that blood 

flow by mid-day, June 2, 1993, but that other than arranging for her transfer to 

Billings, nothing was done by Dr. Canty to treat that impairment, and that it was 

first treated by Curtis R. Settergren, M.D., more than thirty hours later. It was 

uncontroverted that human tissue which is denied blood for as little as four to six 

hours cannot survive.

¶44. Furthermore, Dr. Kenneth Wilson gave the following testimony:

Q. [APPELLANTS' COUNSEL] Is it adequate orthopedic surgical care to simply allow 

the hand to remain there untreated when there's suboptimal blood flow to the hand?

A. That's just not acceptable.

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Q. Would you explain why?

A. Well, if there's suboptimal flow and you don't monitor it, there's a high likelihood that 

the hand's going to die.

Q. Does that high likelihood increase the opportunity for increased risk to the patient; in 

other words, a more severe outcome could happen to the patient?

A. No question about it.

Q. Does it -- does that same problem yield a greater likelihood of having a poorer result of 

the hospitalization and treatment?

A. Yes.

. . . .

Q. And what effect did that have on Kathe Campbell's ability to obtain a good result 

during her care under Dr. Canty at St. James Community Hospital?

A. That was the major reason she ended up with a bad result.

Q. Did that failure to call in other doctors or to do the graft result in an increased chance of 

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risk to Kathe Campbell, in your opinion?

A. Definitely.

Q. And did it also heighten the probability that she would get a worse result?

A. Yes.

. . . .

Q. Now, with respect to those percentages, whether it was a 75 percent chance of a likely 

outcome or a 90 percent chance of a likely outcome, is it still your testimony that the 

likelihood of a successful outcome was reduced or eliminated by the failure to deal with 

the circulatory emergency that Kathe had?

A. That's correct.

Q. And was it similarly reduced or eliminated by the failure to recognize that circulation 

emergency?

A. Yes.

Q. And similarly, was the likelihood of a successful outcome reduced or eliminated by the 

failure to monitor and to test objectively, to have orders given that would have someone 

do that?

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A. Yes.

Q. Were those percentages similarly reduced by the failure to have some kind of handy 

access through the fixed fiberglass cast so that testing could, in fact, be done?

A. Yes.

Q. Did that reduction in the percentage of successful outcome indicate a higher probability 

of harm to Kathe Campbell as a result of those inactions that I've just listed off?

A. Most definitely.

¶45. Only three other physicians testified, Dr. Canty and Dr. Settergren, and Dr. 

Canty's retained expert, Stephen R. Sears, M.D.

¶46. Dr. Canty did not testify directly on the issue of causation, as characterized by 

the District Court's instruction. Neither did Dr. Sears. Nor is direct testimony from 

either witness on that issue cited in the majority opinion.

¶47. Dr. Settergren's testimony is, at best, inconsistent regarding the issue of 

causation. At one point, when asked if an earlier bypass would have increased the 

likelihood of full revascularization to Kathe's extremity, he testified that he could not 

say the outcome would have been different. However, that testimony did not, in 

substance, directly contradict the testimony on causation given by Dr. Wilson. He did 

testify that had Kathe's arm been saved, it would have been substantially impaired. 

However, that is not the equivalent of testifying that she suffered no damage by the 

defendant's failure to timely diagnose and treat her obstructed radial artery. Few 

would disagree that a substantially impaired extremity is better than no extremity.

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¶48. At another point in his testimony, however, Dr. Settergren testified that it was 

possible, although he could not testify that it was probable, that an amputation could 

have been avoided by more timely vascular treatment, and at a later point in his 

testimony he stated more specifically that had the bypass been done closer in time to 

the circulatory failure to assure better flow of blood to Kathe's fingers, there was a 

chance that the tissues of the fingers could have been preserved.

¶49. Furthermore, everything about the course of Dr. Settergren's treatment suggests 

that Kathe had a chance of successful treatment, had that treatment been timely. By 

the time she arrived in Billings, he stated that her hand had become ischemic, which 

meant that there was inadequate blood flow to maintain the tissue at that location. 

Nevertheless, even at that point, with partial necrosis of the hand apparent, he felt it 

was worth a try to revascularize the hand by using a bypass from the proximal radial 

artery (toward the elbow) to the distal artery (in the direction of her hand). He felt 

that some circulation could be reestablished to the hand by bypassing the area of the 

artery that had been injured. Dr. Settergren testified that he would not have done a 

bypass procedure of that type unless there was a possibility of retaining the 

appendage. However, everyone agreed that the longer circulation is cut off to a part 

of the body, the less likely it is that the life of the tissue at that location can be 

salvaged.

¶50. The jury found that the defendant was negligent and, therefore, necessarily 

found that he should have diagnosed the impairment to Kathe's circulation sooner 

and referred her for treatment. Based on the uncontroverted evidence regarding 

causation, the jury could not have found that a delay in that treatment did not at 

least reduce Kathe's chance for obtaining a better result. She was required to prove 

nothing more.

¶51. Contrary to the implication from the majority opinion, the issue in this case was 

not why Dr. Settergren amputated at the level where he did, nor the degree of 

function that Kathe would have had in her hand, had it been saved by timely 

restoration of circulation. Nor was it Kathe's contention, as suggested in the majority 

opinion, that lack of circulation through the radial and ulnar arteries was her only 

problem. Although damage to the forearm may have contributed to the level of 

amputation, it was Kathe's contention that her hand was salvageable and that the 

amputation would not have been necessary, had her hand received timely restoration 

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No 

of circulation. 

¶52. Finally, Dr. Canty's testimony that he was dubious about Kathe's chances of 

successful bypass surgery did not directly address the issue of causation. He was 

discussing his state of mind before impairment to circulation through the radial 

artery had even been diagnosed, and his opinion did not even directly relate to 

Kathe's hand, but instead related to the condition of her forearm. Furthermore, 

however Dr. Canty's observation is characterized, it was not an opinion expressed in 

terms of medical probability, nor did it in any other way discuss the issue of 

causation, as it was defined by the court. Nothing cited in the majority opinion 

contradicts Dr. Wilson's testimony regarding causation. 

¶53. For these reasons, I dissent from the majority opinion. After thoroughly 

reviewing the testimony of all medical witnesses, I conclude that there was no 

evidence to contradict the testimony of Dr. Wilson that the negligence of the 

defendant reduced Kathe Campbell's chance for obtaining a better result. 

Furthermore, all of the medical principles agreed upon by the expert witnesses lead 

to the inevitable conclusion that the failure to treat Kathe's loss of circulation to the 

then viable tissue in her hand in a timely manner led to its necrosis and the ultimate 

need for the amputation of her arm.

/S/ TERRY N. TRIEWEILER

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