No. 04-411 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

 2006 MT 23 

ALLEN OLEN HOWARD, 

 Plaintiff and Appellant, 

 v. 

ST. JAMES COMMUNITY HOSPITAL; SISTERS OF 

CHARITY OF LEAVENWORTH; RICHARD C. 

THORNE, M.D.; PRUDENCE D. WHITWORTH, R.N.; 

CARMINE McGIVERN, R.N.; ELENA ICENOGGLE, 

R.N.; and NANCY STONE, R.N., 

Defendants, Respondents and Cross-Appellants. 

APPEAL FROM: The District Court of the Second Judicial District, 

In and For the County of Silver Bow, Cause No. DV 2000-189, 

Honorable Kurt D. Krueger, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 Kevin E. Vainio, Attorney at Law, Butte, Montana 

For Respondents: 

 Lee Bruner, Poore, Roth & Robinson, Butte, Montana (Hospital) 

 J. Daniel Hoven and Sara B. Stanton, Browning, Kaleczyc, 

Berry & Hoven, Helena, Montana (Thorne) 

 Submitted on Briefs: November 22, 2005 

 Decided: January 31, 2006 

Filed: 

__________________________________________ 

Clerk 
 2 

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Plaintiff and Appellant, Allen Olen Howard, filed a medical negligence lawsuit in the 

Second Judicial District Court against Defendants, St. James Community Hospital, Sisters of 

Charity of Leavenworth, Richard C. Thorne, M.D., Prudence D. Whitworth, R.N., Carmine 

McGivern, R.N., Elena Icenoggle, R.N. and Nancy Stone, R.N. All parties moved for 

summary judgment, and their motions were denied. The case went to trial, resulting in a 

unanimous jury verdict in favor of the defendants. Howard appeals the District Court’s 

denial of his summary judgment and directed verdict motions, as well as the jury’s verdict. 

St. James Community Hospital cross-appeals on behalf of itself and the four registered 

nurses. We affirm the District Court rulings, as well as the jury verdict. Because we affirm, 

we decline to address St. James’s cross-appeal. 

¶2 We restate the issues as follows: 

¶3 1. Did the District Court err in denying Howard’s motions for partial summary 

judgment and for a directed verdict regarding liability for alleged violations of the AIDS 

Prevention Act? 

¶4 2. Did the District Court abuse its discretion in instructing the jury regarding (A) 

negligence and statutory damages, (B) res ipsa loquitur, and (C) the exception to the AIDS 

Prevention Act’s informed consent provision? 

¶5 3. Did the District Court abuse its discretion by excluding evidence of Howard’s 

compression fractures to the spine? 
 3 

BACKGROUND 

¶6 On August 18, 1997, Howard, in the presence of his roommate, Rita Schultz, suffered 

a seizure in his home in Butte, Montana. At the time, Howard’s then girlfriend and now 

wife, Pam Hunter, with whom he (along with his two sons) also lived, was at Montana 

Development Center where she worked as a Residential Nurse Supervisor. Schultz called 

Hunter to inform her of the seizure and then took Howard to St. James Hospital. 

¶7 According to Dr. Thorne, Howard’s emergency room physician, Howard initially 

appeared confused but behaved cooperatively. While Dr. Thorne recorded Howard’s medical 

history, he met Schultz, whom, according to Dr. Thorne, introduced herself as Howard’s 

roommate and girlfriend. (Dr. Thorne testified that this later confused him when Hunter also 

introduced herself as Howard’s “girlfriend.”) Because Howard did not exhibit typical signs 

of epilepsy, Dr. Thorne considered other possible causes of Howard’s seizure, including 

trauma, infection, low oxygen, neurological conditions, drug and/or alcohol use, and AIDS 

encephalopathy. Dr. Thorne ordered tests to determine the cause of the seizure, including a 

CT scan of Howard’s head, blood testing (a CBC and a 508 panel) and a chest X-ray. Prior 

to the administration of the tests, Hunter arrived, at which time Schultz departed the hospital. 

¶8 After the CT scan, while still in the radiology suite, Howard suffered another grand 

mal seizure. Informed of the seizure, Dr. Thorne reported to radiology and observed Howard 

in a postical state, exhibiting confusion. According to Dr. Thorne and the treating nurses, 

Howard’s behavior altered significantly, turning combative and violent—involving punching 

and kicking—to the point of raising significant safety issues for both Howard and those 
 4 

around him. The treatment Howard received from Dr. Thorne and the medical staff in the 

emergency room from this point forward is the basis of Howard’s complaint. 

¶9 Dr. Thorne testified that because Howard’s behavior turned dangerously violent, he 

ordered a dose of Valium. When Howard’s combative impulses continued, Dr. Thorne 

ordered restraints, which Howard resisted. Howard calmed for a period of time, at which 

point Hunter (a nurse), who was present, discussed with Howard seeking treatment 

elsewhere. During this discussion, Hunter assisted Howard in removing the restraints. When 

the nursing staff realized the restraints had been removed, several personnel, against 

Howard’s will, put him back in the hard leather straps. In light of Howard’s two grand mal 

seizures and the heavy medication administered to him, Dr. Thorne believed Howard was not 

competent to make any medical decisions, and ordered that Howard should not leave the 

hospital. 

¶10 Throughout Howard’s ordeal, Hunter spoke with staff and Dr. Thorne about Howard’s 

condition. She explained to Dr. Thorne that she was Howard’s girlfriend and a nurse; she 

also provided Dr. Thorne information about Howard’s medical history. Dr. Thorne discussed 

with Hunter performing a lumbar puncture on Howard to look for signs of infection or 

subarachnoid hemorrhage; Hunter agreed that Dr. Thorne should do the procedure. To 

ensure stillness during the procedure, Dr. Thorne administered more Valium to Howard. 

¶11 Dr. Thorne also ordered an HIV test, as HIV is an infection that can turn into AIDS 

encephalopathy, a condition that can cause seizures. Neither Dr. Thorne, nor hospital 

personnel, requested Howard or Hunter’s consent for the HIV test. At trial, Dr. Thorne 
 5 

testified that since he had “snowed” Howard with a great deal of medication, Howard lacked 

capacity to consent to the test. Howard also did not receive post-test counseling. The test 

results were subsequently sent to Howard by mail; they were negative. 

¶12 Dr. Thorne arranged for Howard’s transfer to the intensive care unit where he received 

care from a neurologist. After his release from the hospital, Howard, experiencing physical 

pain, spent a couple weeks off work recuperating. He saw a chiropractor who diagnosed him 

with back sprain and strain. 

¶13 Howard subsequently brought this action against St. James to recover for alleged 

personal injuries suffered while in the emergency room. 

STANDARD OF REVIEW

¶14 Our review of a district court’s grant or denial of a motion for summary judgment is 

de novo. Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by the 

district court. Pursuant to Rule 56, M.R.Civ.P., the movant must demonstrate that no genuine 

issues of material fact exist. Once this has been accomplished, the burden then shifts to the 

non-moving party to prove, by more than mere denial and speculation, that a genuine issue 

does not exist. Having determined that genuine issues of fact do not exist, the court must 

then determine whether the moving party is entitled to judgment as a matter of law. We 

review the legal determinations made by a district court as to whether the court erred. 

Associated Press v. Crofts, 2004 MT 120, ¶ 11, 321 Mont. 193, ¶ 11, 89 P.3d 971, ¶ 11. 

¶15 This Court reviews an order denying a motion for a directed verdict in a light most 

favorable to the non-moving part. The courts will exercise the greatest self-restraint in 
 6 

interfering with the constitutionally mandated processes of jury decision. Unless there is a 

complete absence of any credible evidence in support of the verdict, a motion for judgment 

notwithstanding the verdict is not properly granted. Wise v. Ford Motor Co. (1997), 284 

Mont. 336, 343, 943 P.2d 1310, 1314. 

¶16 The standard of review for a district court’s refusal to issue a proposed jury instruction 

is whether the court abused its discretion. In reviewing for abuse of discretion, this Court 

does not determine whether it agrees with the trial court. Rather, we consider whether the 

trial court, in its exercise of discretion, acted arbitrarily without employment of conscientious 

judgment or exceeded the bounds of reasons in view of all circumstances. Byers v. 

Cummings, 2004 MT 69, ¶ 17, 320 Mont. 339, ¶ 17, 87 P.3d 465, ¶ 17. 

¶17 When reviewing a district court’s evidentiary ruling, our standard of review is whether 

the court abused its discretion. The district court has broad discretion in determining the 

admissibility of evidence. We will not reverse the district court unless the error be “of such 

character to have affected the result.” Payne v. Knutson, 2004 MT 271, ¶ 20, 323 Mont. 165, 

¶ 20, 99 P.3d 200, ¶ 20 (citation omitted). 

DISCUSSION 

1. Did the District Court err in denying Howard’s motions for partial summary 

judgment and for a directed verdict regarding St. James’s liability for alleged violations 

of the AIDS Prevention Act? 
 7 

¶18 Howard argues that, as a matter of law, St. James violated the AIDS Prevention Act, 

§ 50-16-1007, MCA, by performing an HIV test when he was unconscious or incompetent, 

without seeking informed consent from Hunter, whom he argues was his “significant other.” 

¶19 The AIDS Prevention Act reads in relevant part: 

 50-16-1007. Testing – counseling – informed consent – penalty. (1) 

An HIV-related test may be ordered only by a health care provider and only 

after receiving the informed consent of: 

(a) the subject of the test; 

(b) the subject’s legal guardian; 

(c) the subject’s next of kin or significant other if: 

(i) the subject is unconscious or otherwise mentally incapacitated 

(ii) there is no legal guardian; 

(iii) there are medical indications of an HIV-related condition; and 

(iv) the test is advisable in order to determine the proper course of 

treatment of the subject; or 

(d) the subject’s next of kin or significant other or the person, if any, 

designated by the subject in hospital records to act on the subject’s behalf if: 

(i) the subject is in a hospital; and 

(ii) the circumstances in subsections (1)(c)(i) through (1)(c)(iv) exist. 

. . . . 

(9) Subsections (1) through (6) do not apply to: 

. . . 

(c) the performance of an HIV-related test when: 

(i) the subject of the test is unconscious or otherwise mentally 

incapacitated; 

(ii) there are medical indications of an HIV-related condition; 

(iii) the test is advisable in order to determine the proper course of 

treatment of the subject; and 

(iv) none of the individuals listed in subsection (1)(b), (1)(c), or (1)(d) 

exists or is available within a reasonable time after the test is determined to be 

advisable . . . . 

Section 50-16-1007, MCA (emphasis added). 
 8 

¶20 Statutory law defines “significant other” as “an individual living in a current spousal 

relationship with another individual but who is not legally a spouse of that individual.” 

Section 50-16-1003(18), MCA. Because Hunter was Howard’s live-in girlfriend in 1997, he 

argues that Hunter qualified as his “significant other.” Consequently, Howard contends that 

since he was “mentally incapacitated”—due to suffering two grand mal seizures and being 

administered large doses of sedative medication—St. James should have sought consent from 

Hunter, his significant other, before ordering an HIV test. 

¶21 St. James does not dispute that Howard was unable to provide consent to the HIV 

testing due to mental incapacity. However, St. James asserts that a genuine issue of material 

fact existed as to whether Hunter qualified as a “significant other” given that her relationship 

with Howard was unclear in the minds of Dr. Thorne and the other medical staff. At trial, 

Dr. Thorne testified that there was much confusion over the nature of Howard’s relationships 

with Schultz and Hunter given that Schultz brought Howard to the emergency room and 

identified herself as his “girlfriend” and “roommate,” and then Hunter arrived, claiming to 

live with Howard as his “girlfriend.” 

It was a very confusing situation. I had a woman that came in with Mr. 

Howard [Schultz], who said that she was his roommate and girlfriend. And 

now I’ve got somebody else that says she’s his girlfriend [Hunter]. I didn’t 

feel like I could get a consent from either one of them at this point. It was 

confusing. 

. . . . 

It was a very abnormal event. I mean, normally you don’t have somebody 

coming in saying they’re their roommate, and then you’ve got somebody else. 

That was an unusual event . . . . 
 9 

When asked why he identified Hunter as a “friend” in his case notes, Dr. Thorne testified: “I 

[was] not trying to cause harm to Mr. Howard. I [didn’t] want to put down things in the chart 

that [could have been] used, you know, against him that [had] no medical basis.” 

¶22 Howard dismisses St. James’s defense, arguing that “it is irrelevant whether [St. 

James] had actual knowledge of [Hunter]’s status” because the AIDS Prevention Act 

“requires only that there be a ‘significant other’ who ‘exists’ and that he or she be ‘available 

within a reasonable time after the test is deemed advisable.’” We disagree. If St. James 

lacked the requisite information that Hunter qualified as Howard’s significant other, it cannot 

be held responsible for failing to seek her consent to the HIV test. Here, Hunter’s 

explanation of her relationship to Howard proved unclear in light of the fact that earlier in the 

day Schultz presented herself as having the same relationship to Howard as Hunter claimed. 

Consequently, whether or not St. James understood Hunter to be Howard’s statutorily 

defined “significant other” provided a genuine issue of material fact for the jury to decide. 

Additionally, there was enough credible evidence to support a finding that Hunter did not 

legally qualify as such. 

¶23 The District Court properly denied Howard’s motions for partial summary judgment 

and a directed verdict. 

2. Did the District Court abuse its discretion in instructing the jury regarding (A) 

negligence and statutory damages, (B) res ipsa loquitur, and (C) the exception to the 

AIDS Prevention Act’s informed consent provision? 
 10 

¶24 (A) The District Court provided the jury several instructions on negligence and 

damage awards. Howard argues that these instructions were insufficient because they did not 

allow the jury to determine whether St. James acted “recklessly” and they failed to inform the 

jury that the AIDS Prevention Act requires a defendant to pay per se damages if it finds the 

defendant violated the Act by acting negligently or recklessly. 

¶25 Section 50-16-1013, MCA, allows a person aggrieved by a violation of the AIDS 

Prevention Act to recover “against a person who negligently violates a provision of this part, 

damages of $5,000 or actual damages, whichever is greater” and “against a person who 

intentionally or recklessly violates a provision of this part, damages of $20,000 or actual 

damages, whichever is greater.” Section 50-16-1013(1)(a) and (1)(b), MCA. Howard 

maintains that the jury should have been instructed on the above language so that the jury 

could not only decide whether St. James acted “recklessly,” but also understand “that the law 

presumes a monetary injury” from a violation of the Act; Howard insists that “[i]f the jury 

could see no [actual] damages they might presume there was no injury and, hence, no 

liability.” 

¶26 A district court does not need to instruct on a theory unless there is evidence to 

support the theory. Edie v. Gray, 2005 MT 224, ¶ 21, 328 Mont. 354, ¶ 21, 121 P.3d 516, 

¶ 21. Howard fails to cite any evidence in the record which would support a jury instruction 

on his claim that St. James acted “recklessly.” Moreover, the court provided the jury with a 

special verdict form that asked whether St. James “breach[ed] the standard of care in the 

medical treatment provided to Allen Howard.” The jury answered in the negative. Although 
 11 

the court did not specifically instruct on recklessness, the jury’s finding of no breach of the 

standard of care eliminated any possibility of recklessness. We conclude that the court did 

not abuse its discretion in only instructing on negligence. 

¶27 Additionally, Howard argues that the jury was uninformed that a finding of negligence 

would require an award of damages to Howard because the court did not instruct the jury on 

statutory damages. Given the jury’s finding that St. James did not breach the standard of 

care, the issue of damages was moot. Christofferson v. City of Great Falls, 2003 MT 189, 

¶ 51, 316 Mont. 469, ¶ 51, 74 P.3d 1021, ¶ 51. 

¶28 (B) Howard also insists that the court should have instructed the jury on res ipsa 

loquitur, the doctrine that permits proof by circumstantial evidence. 

The doctrine of res ipsa loquitur permits an inference of negligence on the part 

of one in control of an instrumentality which causes injury when (1) the injury 

occurs without any fault of the injured person; (2) the instrumentality is under 

the exclusive control of the defendant at the time of the injury; and (3) the 

injury is such as in the ordinary course of things does not occur if the one 

having such control uses proper care. 

Romans v. Lusin, 2000 MT 84, ¶ 32, 299 Mont. 182, ¶ 32, 997 P.2d 114, ¶ 32. 

¶29 Howard maintains that res ipsa loquitur applies because the hospital restraints (the socalled “instrumentality”) were “under the exclusive control” of St. James. While it is 

possible that Howard’s back injury resulted from the use of restraints, evidence also supports 

a finding that the seizures alone could have caused the injury. If the restraints were not 

necessarily the cause of Howard’s injury, res ipsa loquitur does not apply. Accordingly, the 

court properly refused to instruct the jury on this doctrine. 
 12 

¶30 (C) Finally, Howard argues that “there was no emergency” requiring HIV testing, 

therefore the court erred by instructing the jury that “[t]here is an exception to the informed 

consent doctrine for emergencies.” (Emphasis added.) When analyzing instructions, we look 

at them as a whole. Edie, ¶ 21. An earlier instruction stated the AIDS Prevention Act’s 

guidelines regarding when an HIV test may be ordered without informed consent: 

(i) the subject of the test is unconscious or otherwise mentally 

incapacitated; 

(ii) there are medical indications of an HIV-related condition; 

(iii) the test is advisable in order to determine the proper course of 

treatment of the subject; and 

(iv) none of the individuals listed [including a “significant other”] in 

subsection (1)(b), (1)(c), or (1)(d) exists or is available within a reasonable 

time after the test is determined to be advisable . . . . 

Section 50-16-1007(9)(c), MCA (emphasis added). Reviewing the instructions together, we 

hold that the District Court properly instructed the jury. 

¶31 Additionally, we disagree with Howard’s assertion that the court misled the jury by 

instructing: “The fact that [Howard] and Pam Hunter are presently married does not establish 

Pam Hunter Howard was a ‘significant other’ as prescribed by Montana Law in August of 

1997.” Howard contends that “the fact that [he and Hunter] are currently married is evidence 

of their close relationship in August of 1997.” For purposes of informed consent, the Act 

required Howard and Hunter to have been living in a spousal relationship in 1997. The fact 

that Howard and Hunter married a few years after the incident at St. James Community 

Hospital does not conclusively bear on their status in 1997. The jury was appropriately 

instructed. 
 13 

¶32 Finally, Howard also contends that “even conceding all the other requirements for 

[the] exception,” subsection (9)(c)(iv) was not met because Hunter qualified as Howard’s 

“significant other” and, since she was “available,” St. James should have sought her consent. 

 As we have already noted, however, it was the jury’s duty to determine whether or not 

Hunter qualified as a “significant other.” We determine there was substantial credible 

evidence to support the jury’s verdict. See Onstad v. Payless Shoesource, 2000 MT 230, 

¶ 56, 301 Mont. 259, ¶ 56, 9 P.3d 38, ¶ 56. 

3. Did the District Court abuse its discretion by excluding evidence of Howard’s 

compression fractures to the spine?

¶33 Prior to trial, St. James filed a motion in limine requesting exclusion of a report by Dr. 

V. Patrick Hughes interpreting X-rays of Howard’s spine as showing “some slight 

compression.” St. James argued to the District Court that Dr. Hughes’s expert report should 

be disallowed because Howard disclosed the report eight months after the expert disclosure 

deadline, thereby precluding St. James from properly researching and preparing a rebuttal. 

The court granted the defense motion. 

¶34 In light of this ruling, Howard argues that the court erred when it allowed St. James to 

elicit trial testimony from Howard concerning previous compression fractures he sustained in 

2000 and/or 2001 to show that seizures alone can cause compression fractures. Howard’s 

argument misses the point. The court did not grant the motion in limine due to a lack of 

relevancy—the court disallowed Dr. Hughes’s report because Howard failed to meet the 

expert witness disclosure deadline. 
 14 

¶35 A district court has broad discretion in determining the admissibility of evidence, 

Payne, ¶ 20. Howard has failed to demonstrate the prejudice created by this ruling—

particularly since the jury did not reach the issue of damages. We conclude that the court did 

not abuse its discretion; therefore, we affirm its ruling. 

¶36 We affirm on all three issues. 

/S/ W. WILLIAM LEAPHART 

We concur: 

/S/ JAMES C. NELSON 

/S/ PATRICIA COTTER 

/S/ JIM RICE 

/S/ BRIAN MORRIS