No. 12464 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

MARJORIE OPIE, 

Plaintiff and Respondent, and 

Cross Appellant, 

MONTANA PHYSICIANS' SERVICE, 

a corporation, 

Defendant and Appellant, and 

Cross Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant : 

Hughes, Bennett and Cain, Helena, Montana 

Alan F. Cain argued, Helena, Montana 

For Respondent : 

Michael J. Whalen argued, Billings, Montana 

Submitted: November 29, 1973 

Decided: . ~ljN4 7Q7n 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an action by a member's wife against a group 

health organization seeking to recover medical and dental benefits. The district court of Yellowstone County, the Hon. Charles 

Luedke, district judge, sitting without a jury, awarded judgment 

to plaintiff for medical services in the amount of $805.65 and 

denied recovery for the dental services. Defendant health organization appeals from the award to plaintiff for the medical services, and plaintiff cross-appeals from the denial of her claim 

in full for medical services and her entire claim for dental 

services. 

Plaintiff and cross-appellant is Marjorie Opie, the wife 

of a State Highway Department employee covered under a Blue Shield 

group health agreement. Defendant and appellant is Montana 

Physicians' Service, a licensed health organization issuing Blue 

Shield agreements providing reimbursement for designated medical 

services. 

Plaintiff's complaint contained two counts. Count 1 

sought recovery of medical-hospital benefits in the amount of 

$825.65 relating to a hysterectomy performed on plaintiff by Dr. 

H. C. Kayser I11 at St. Vincent's Hospital in Billings, Montana. 

Count 2 sought recovery of $825.50 relating to expenses incurred 

by plaintiff in the removal of all her teeth and their replacement with dentures. 

Following trial before the court without a jury, Judge 

Luedke awarded judgment to plaintiff in the amount of $805.65 on 

the first count and denied plaintiff any recovery on the second 

count. The judge attached a six page memorandum explaining the 

basis of the judgment in lieu of formal findings of fact and 

conclusions of law. The gist of the memorandum was: Count 1 - 

the evidence supported the conclusion that the hysterectomy was 
not primarily performed as a sterilization procedure, accordingly did not fall within this exclusion in the agreement, and 

the medical and hospital expenses therefor were collectible by 

plaintiff; Count 2 - plaintiff failed to prove by a preponderance 

of the evidence that the extraction of her teeth and replacement 

with dentures occurred as the result of a cyst caused by a fall 

thereby removing such services from an exclusion in the agreement for "services customarily performed by dentists or oral 

surgeons or services incident thereto." 

The underlying issue in this case is the sufficiency of 

the evidence to support the judgment when considered in the 

framework of the provisions of the Blue Shield agreement. 

Initially we direct our attention to Count 1. The Blue 

Shield agreement provides for the payment of specified medical, 

surgical and hospital services furnished a group member or his 

family. The exclusion pertinent to Count 1 is contained in 

Article 8(c), reading in pertinent part: 

"Services in connection with * * * sterilization 

operations and services connected therewith and 

surgery of any nature not necessary for diagnosis 

or for treatment of active illness or injury * * *." 

The memorandum of the district court reviewed the evidence in considerable detail. A recital of all this evidence is 

unnecessary. We will summarize it by saying that the district 

court found that plaintiff's difficulties with female problems 

for a three year period following the birth of her third child-- 

vaginal bleeding and discharges, the use of birth control pills 

and their side effects, irregularities in her menstrual periods 

and menstrual bleeding, pains in her groin area, sore breasts, 

psychiatric problems, the possibility of a developing tumor, the 

possibility of future difficulties in later life, and related 

problems--amounted to an active illness which the hysterectomy 
sought to alleviate. The district court's finding can be 

pinpointed in the following paragraph from its memorandum: 

"It is apparent that the combination of postpartum complications and the deformity of that 

child upon birth prompted a ready fear of further 

pregnancy until her physical condition returned 

to normal. To serve this fear, she used birth 

control pills. They reacted upon her in such a 

way as to cause symptoms which, in her mind, 

amounted to a continuation of postpartum problems. 

Thus, a vicious circle resulted. Her fears compelled the taking of pills, the pills in turn 

caused symptoms which further fed her fears and 

in time she ended up in the psychiatric ward. 

It was the doctor's judgment that removal of the 

uterus was indicated under the circumstances 

because it would not only solve the present problems but would alleviate the possibility of there 

being an organic cause for her symptoms and also 

avoid possible complications later in plaintiff's 

life. Sterilization would be a necessary consequence, but not its purpose - which under the circumstances was to treat an active illness of 

plaintiff." 

The district court concluded: 

" * * * that the operation performed was not such 

as to properly fall within the meaning of the 

exclusion asserted by defendant and plaintiff is 

entitled to judgment on her claim under Count 1." 

We agree. There is substantial credible evidence supporting the district court's finding that the hysterectomy was not 

performed as a sterilization operation but on the contrary to 

treat an active illness, eliminate a possible organic cause for 

plaintiff's symptoms, and avoid possible later complications. 

Dr. Kayser testified by deposition as follows: 

"Q. And although this operation necessarily 

resulted in this woman becoming sterile, it 

was not carried out for the purpose of sterilization, is that correct, that was not the 

primary-- A. I did not do it primarily for 

sterilization." 

A letter from Dr. Kayser to defendant which is attached to and 

forms a part of his deposition states in pertinent part: 

"It was felt that because of the oligomenorrhea 

and hypomenorrhea that difficulties in the future 

could develop and a hysterectomy was suggested 

to the patient. This was the primary reason for 
doing the hysterectomy with, certainly, sterility 

being a factor in consideration of removing the 

uterus, but not a primary reason for the surgery 

itself. " 

Dr. Kayser further testified that if plaintiff had been interested 

in sterilization as such and had no other problems, he would 

simply have carried out a procedure known as a tuba1 ligation. 

The reduction of recovery on the first count to $805.65 

was not argued nor does the reason therefor appear in the district 

court file. The correct amount based on the materials before us 

is $805.65 and such amount is affirmed. 

Passing to the second count, plaintiff alleged that she 

was required to expend $825.50 as a result of surgery not a 

customary service ordinarily performed by dentists or oral surgeons, but instead surgery required to remove a cyst. The district court denied plaintiff's claim for failure of proof. 

The district court's memorandum sets forth its rationale: 

"It appears that as a result of a fall, plaintiff's front teeth were damaged resulting in an 

infection or growth in her front upper gum above 

the teeth. In time a cyst was formed which 

ultimately began draining causing a tonsilitis 

condition in her throat and, in her view, also 

causing the gums to recede from the teeth. A 

medical doctor treated her with penicillin for 

a time and there being no correction of the condition insisted that she consult with a dentist. 

She went to an oral surgeon who hospitalized 

her, removed all teeth, removed the cyst and she 

was fitted with healing dentures and finally 

permanent dentures. 

"The policy exclusion reads: 

"'Services customarily performed by dentists or 

oral surgeons or services incident thereto.' 

"It is plaintiff's view that the cyst which 

developed in the gum above her front teeth as a 

result of her fall was the sole and only cause 

of the services performed by the oral surgeon, i.e., 

that the necessity for extraction of all her teeth 

stemmed from the discharge from the cyst and that 

the cyst removal was also necessary to cure a 

persistent tonsilitis condition. On this basis, 

she asserts that this service was not one customarily performed by dentists or oral surgeons even 

though teeth extraction occurred as an incident 
thereto. 

"There is no medical testimony of any moment on 

either side of this cause. 

"The evidence on this count does not preponderate 

in favor of plaintiff and the defendant is entitled to judgment of dismissal thereof." 

Plaintiff's position on appeal under Count 2 can be 

summarized in this manner: (1) that the benefits are payable 

under Article 8(d) of the Basic Agreement, under Section B(d) 

of the Supplementary Benefits Endorsement, or under Section 

C(3) of the Major Medical Expense Endorsement, and (2) that 

plaintiff's own testimony was sufficient to meet her burden of 

proof and entitle her to benefits under any of the three provisions of the agreement. 

Plaintiff's claim of benefits under Count 2 is based 

on the following provisions: 

(1) BASIC AGREEMENT. 

"Article 8 - ExcLusions From Any Benefits 

Under This Aareement. 

"The following conditions, services, 

treatments and procedures are wholly 

EXCLUDED * * *: 

"(D). Services customarily performed by 

dentists or oral surgeons or services 

incident thereto." 

(2) Supplementary Benefits Endorsement. 

"Section B - Benefits: MPS hereby agrees to 

reimburse the Beneficiary Member * * * for 

usual, customary, and reasonable charges 

incurred for services herein specified when 

the same are necessary and rendered in 

connection with treatment of a member for 

bodily injuries effected through accidental 

means * * * and such treatment is rendered * * * at the direction of a licensed doctor 

of medicine: 

"(D). Oral surgery and dental examinations 

performed by doctors of dental surgery and 

ordered by a licensed doctor of medicine." 

(3) Major Medical Expense Endorsement. 

"Section C - Exclusions and Limitations. 

benefits shall be provided under this 
endorsement for: 

"3. Dental care and treatments, dental 

surgery and dental appliances unless such 

charges are made necessary by accidental 

bodily injury occurring while the member 

is covered hereunder; except that the 

following shall not be excluded-- 

"Excision of tumors and cysts of the jaws, 

cheeks, lips, tongue, roof and floor of the 

mouth, when such conditions require a 

pathological examination." 

It is apparent that plaintiff's claim to benefits under 

any of the above provisions is dependent on establishing a causal 

connection between the cyst and the dental services performed. 

In short whether removal of the cyst necessitated extraction of 

all of plaintiff's teeth and the other services performed by the 

oral surgeon. Plaintiff's proof falls short of the required burden in this particular. 

This is peculiarly a subject of expert medical or dental 

judgment. Here it would have been a simple matter to have called 

the oral surgeon as a witness at the trial or by deposition and 

to have established that the total extraction of plaintiff's 

teeth was required in connection with the cyst removal if such 

were the fact. Instead plaintiff relied on her own testimony on 

a subject in which she was not versed. If weaker and less satisfactory evidence is offered, when it appears that stronger and 

more satisfactory evidence was within the power of a party to 

produce, the evidence offered should be viewed with distrust. 

Section 93-2001-1(7), R.C.M. 1947. As the district court in a 

nonjury case is trier of the facts and determines the credibility 

s of the witneszand the weight to be given their testimony, it 

was within the district court's power to discount or reject 

entirely plaintiff's testimony on causal connection between the 

cyst removal, removal of all her teeth and related services of 
the oral surgeon, and the necessity therefor. Such being the 

case, plaintiff failed to meet her burden of proof by a preponderance of the evidence on count 2. 

The judgment of the district court is affirmed. Plaintiff's motion for assessment of damages against defendant for a 

frivolous appeal is denied for the reason that the appeal here 

is not so devoid of merit as to render it frivolous. 

Justice