No. 13212 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

ROBIN BAnOR and SARAH J. BAYLOR, 

Husband and Wife, 

Plaintiffs and Appellants, 

DR. DAVID P, JACOBSON, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Hon. E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellants : 

Moore and Lyrnpus, Kalispell, Montana 

James D. Moore argued, Kalispell, Montana 

For Respondent : 

Garlington, Lohn and Robinson, Missoula, Montana 

Larry E, Riley argued, Missoula, Montana 

Submitted: May 27, 1976 

Filed : ,BtjE4 5.3 jptj 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The district court of Missoula County granted summary 

judgment to defendant doctor in a medical malpractice action. 

Plaintiffs appeal. 

Plaintiffs are Robin Baylor and Sarah J. Baylor, husband and wife, of Missoula, Montana. On December 13, 1970 

Sarah Baylor slipped on the driveway at her home while getting 

out of her car and fractured her leg. She was taken by ambulance to St. Patrick's Hospital where her injuries were diagnosed 

as a spiral fracture of the tibia and a comminuted fracture of 

the fibula of her right leg. 

Defendant, Dr. David 0. Jacobson, a medical specialist 

in orthopedic surgery, performed a closed reduction and placed 

the leg in a cast. Sarah Baylor was confined to the hospital 

for four days and was seen daily by Dr. Jacobson. Following 

her release from the hospital, she was seen by Dr. Jacobson at 

his office on five occasions: December 24, 1970, January 21, 

1971, February 18, 1971, March 17, 1971, and May 21, 1971. Her 

cast was completely removed on March 17, 1971. When Dr. Jacobson last saw Sarah Baylor on May 21, he made the following 

notation in his records: 

"Still with pain about the tibia. No gross 

movement with manipulation but new x-rays show 

a remarkable paucity of callus formation considering the five months that have elapsed 

since her fracture. I would have anticipated 

further callus formation or some attempt at 

healing which has not occurred. Will reevaluate 

in one month and get new films and at that time 

perhaps manipulate under fluoroscope to determine any motion." 

According to the deposition of Sarah Baylor, Dr. Jacobson told her at this time that her leg was completely healed; 

that further treatment was unnecessary; to quit babying herself 

and ignore the pain; that she might even jump up and down on 
her leg; and did not advise her that the bone in her leg was 

slow in healing; that there was some question about nonunion; 

or anything along that line. 

Sarah Baylor was scheduled to see Dr. Jacobson again 

in a month but she never returned. According to her deposition 

and that of her husband she did not return because she did not 

feel Dr. Jacobson could do anything further for her and that 

all he would do was send her to physical therapy. Instead she 

exercised the leg by walking back and forth across the floor 

at home with the help of her husband. 

In any event, Sarah Baylor eventually consulted Dr. 

Clinton Craig, an orthopedic surgeon in Missoula, who took X-rays 

and told her that her leg had never healed and advised her to 

have surgery. A month or two later she consulted Dr. Paul 

Melvin, an orthopedic surgeon in Great Falls who X-rayed her 

leg, told her there was a nonunion and that she needed surgery. 

She next went to Dr. William J. McDonald, a Missoula orthopedic 

surgeon to get another opinion. He X-rayed her leg, told her 

she needed surgery, and referred her to Dr. Carlo Z. Biscaro, 

a Missoula orthopedic surgeon. The dates of these consultations are uncertain. 

Dr. Biscaro performed a bone graft in March, 1973 at 

the Community Hospital in Missoula. In the late summer of 1973. 

Dr. Biscaro advised that the fracture had not healed and that 

further surgery was necessary. In November, 1973 Dr. Biscaro 

performed a bone graft, and insected a metal screw and a Rush 

rod. By August, 1974 when Sarah Baylor's deposition was taken, 

the healing of the leg looked good although she was still 

scheduled for periodic visits to Dr. Biscaro and his associate. 

The Baylors filed suit against Dr. Jacobson on April 

2, 1974 alleging medical malpractice and seeking damages of 
$184,000. Defendant filed an answer which was substantially 

a general denial on July 11. This was subsequently amended 

to include the defense of contributory negligence. Interrogatories and answers were filed, depositions were taken, 

supplemental answers were filed, and a pretrial conference 

was held. 

When plaintiffs failed to provide the name of their 

expert witness and answer defendant's interrogatories concerning this expert by April 11, 1975 as agreed, the district 

court granted defendant's motion and dismissed the entire 

litigation. This was subsequently vacated and the court 

granted plaintiffs until August 1, 1975 to name their expert 

and answer defendant's previous interrogatories concerning him. 

On July 29, 1975 plaintiffs stated they had an expert and 

answered further as follows: 

"Dr. Biscaro's deposition will be taken on 

July 31, 1975. He may be the only expert. 

If his testimony does not relate the negligence to plaintiff's condition, an expert 

will be retained and the background information sought herein immediately furnished." 

The other interrogatories were answered "Not applicable". 

Defendant moved for summary judgment. It was briefed 

by both defendant and plaintiffs, and orally argued. On September 30,1975 the district court granted defendant a summary 

judgment. The order granting summary judgment is set forth in 

full: 

"Larry E. Riley, Esq., counsel for the Defendant 

in this action, Dr. David P. Jacobson, has filed 

a Motion For Summary Judgment and has based his 

motion upon the documents in the court file, including depositions and Answers to Interrogatories. 

"This action is a malpractice action. The facts 

show that the Plaintiff, Sarah J. Baylor, sustained 

a fracture of the right leg. She was treated by 

the Defendant, and after about five and one-half 

months refused to return for an appointment with 

Dr. Jacobson. The condition of Plaintiff's leg 
was such that surgical treatment was required 

about twenty-six months after the accident. 

"The Plaintiffs designated Carlo Z. Biscaro, M.D., 

as the expert medical witness to be called on 

behalf of the Plaintiffs at time of trial. Dr. 

Biscaro's deposition was taken and he repeatedly 

stated that in his opinion there was proper care 

and treatment of Sarah J. Baylor by Dr. Jacobson. 

"The Court finds that Sarah J. Baylor's refusal 

to continue medical treatment is a proximate 

cause of her subsequent problems with her leg. 

"The Court further finds that the Plaintiffs' 

expert medical witness has not testified to any 

conduct on the part of Dr. David P. Jacobson 

which can be termed medical malpractice. Therefore, 

"IT IS HEREBY ORDERED that the Defendant's Motion 

For Summary Judgment be granted without costs to 

any party." 

On October 1 plaintiffs filed amended answers to defendant's interrogatories, identifying a New York doctor, 

Dr. Robert Tuby, as their expert witness and answering the 

other interrogatories. Plaintiffs! answer to interrogatory 

No. 12 sets forth the substance of Dr. Tuby's testimony: 

"Dr. Tuby will testify that it was a deviation 

from acceptable medical practice to remove the 

cast at the time it was removed and to prescribe 

exercise therapy when there was practically no 

callus formation about the fracture site. He 

will further state that it was a deviation from 

acceptable medical practice to tell the patient 

that the injury was healed when it was not healed 

as shown by the X-ray films. Dr. Tuby will state 

that the exercise therapy and removal of the cast 

caused the lack of union, subsequent development 

of a bone necrosis, the subsequent surgical procedures, and the result which has [been] obtained." 

Plaintiffs filed their notice of appeal from the summary 

judgment against them on October 10, 1975. 

The ultimate issue on appeal is whether summary judgment 

for defendant was properly granted. This turns on two underlying issues. 

(1) Is there sufficient expert testimony to raise a 

genuine issue of malpractice? 

(2) Is there a genuine issue of material fact concern- 
ing contributory negligence on the part of Sarah Baylor? 

As background for our analysis of the issues, we note 

several basic rules of law applicable to medical malpractice 

actions. The gist of a malpractice action is negligence on the 

part of defendant. Negaard v. Feda, 152 Mont. 47, 446 P.2d 

436, and cases cited therein. The mere fact of injury or the 

occurrence of a bad result, standing alone, is no proof of 

negligence in the ordinary malpractice action. Loudon v. Scott, 

58 Mont. 645, 194 P. 488, 12 A.L.R. 1487. The law does not require that for every injury there must be a recovery of damages, 

but only imposes liability for a breach of legal duty by a 

doctor proximately causing injury to the patient. Loudon v. 

Scott, supra. 

The legal duty imposed on a doctor has been described 

by this Court in the following language: 

" * * * The law requires a physician or surgeon 

to possess the skill and learning which is possessed by the average member of the medical profession in good standing, and to apply such skill 

and learning with ordinary and reasonable care. 

He is not an insurer, nor is a good result impliedly 

guaranteed. His obligation is merely to exercise 

such reasonable care and skill in the treatment of 

the patient as is usually exercised by physicians 

or surgeons of good standing, of the same school 

of practice in the community in which he resides, 

with due regard to the condition to the patient 

and the progress of medical or surgical science at 

the time. * * *" Dunn v. Beck, 80 Mont. 414, 421; 

260 P. 1047. 

The legal duty or standard of care imposed upon a medical 

specialist, such as the orthopedic surgeon in this case, is set 

forth in the following passage in 21 ALR3d 953: 

" * * * the general proposition that a physician 

or surgeon who holds himself out as having special 

knowledge and skill in the treatment of some particular organ or disease must exercise, in his 

treatment of one who employs him as a specialist, 

that degree of skill and care ordinarily possessed 

and used by similar specialists, and that his duty 

to his patient is accordingly measured by a higher 

standard of skill than that of a general practitioner." 
Ordinarily the standard of care to which a medical 

practitioner is held and the breach thereof must be established 

by expert medical testimony. Collins v. Itoh, 160 Mont. 461, 

503 P.2d 36, 81 ALR2d 597, and cases cited therein. 

With these principles in mind, we proceed to consideration of whether summary judgment for defendant was properly 

granted. Rule 56(c), M.R.Civ.P., authorizes a summary judgment when: 

" * * * the pleadings, depositions, answers to 

interrogatories, and admissions on file * * * 

show that there is no genuine issue as to any 

material fact and that the moving party is 

entitled to a judgment as a matter of law." 

It is not a substitute for a trial of disputed issues of fact. 

Dunjo Land Co. v. Hested Stores, 163 Mont. 87, 515 P.2d 961; 

Dean v. First National Bank, 152 Mont. 474, 452 P.2d 402. A 

party seeking a summary judgment has the burden of establishing the absence of any genuine issue of material fact. Meech 

v. Cure, 165 Mont. 49, 525 P.2d 546; Beierle v. Taylor, 164 

Mont. 436, 524 P.2d 783, and cases cited therein. 

Is there a genuine issue of material fact concerning 

malpractice in the instant case? Or stated another way, is 

there expert medical testimony that establishes a genuine issue 

of material fact concerning the required standard of care and 

Dr. Jacobson's deviation therefrom? 

The district court held there was not. The district 

court stated in its order granting summary judgment that Dr. 

Biscaro, plaintiffs! designated expert medical witness, repeatedly stated that in his opinion " * * * there was proper care 

and treatment of Sarah J. Baylor by Dr. Jacobson", and that 

Dr. Biscaro " * * * has not testified to any conduct on the 

part of Dr. David P. Jacobson which can be termed medical malpractice. " 
At the outset we observe that plaintiffs' intended 

to call Dr. Biscaro to establish proximate cause, not malpractice. Plaintiffs' answers to defendant's interrogatories, 

filed July 29, 1975,provide in pertinent part: 

"INTERROGATORY NO. 1 

"Have you retained, or do you intend to call, 

an expert witness, or expert witnesses, to 

testify on behalf of the Plaintiffs at the 

time of the trial in the above-captioned case? 

"ANSWER: Yes. 

"INTERROGATORY NO. 2: 

"If so, as to that expert, please state: 

" (a) His name; 

"(b) His age; 

"(c) His residential address; 

" (d) His business address. 

"ANSWER: 

"Dr. Biscaro's deposition will be taken on July 

31, 1975. He may be the only expert. If his 

testimony does not relate the negligence to 

plaintiff's condition, an expert will be retained 

and the background information sought herein 

immediately furnished. " (~m~hasis- added. ) 

Prior to the time Dr. Biscaro's deposition had been 

taken, specifically on October 4, 1974, the deposition of the 

defendant Dr. Jacobson had been taken. In our view his testimony and the medical records attached as deposition exhibits 

were sufficient to raise the issue of medical malpractice. 

The crux of his testimony is contained in his answer 

to a hypothetical question. The assumed facts in the hypothetical question represented the facts of the case from plaintiffs' viewpoint and Dr. Jacobson was asked whether it would 

be acceptable medical practice to advise the patient to quit 

babying the leg and jump up and down on it. The doctor, after 

considerable repartee with defense counsel over whether he was 

talking about Sarah Baylor or not, indicated that under the 
assumed facts it would not have been advisable to have the 

patient walk on the leg. This, in our view, is sufficient 

to establish an issue on medical malpractice precluding 

summary judgment. It is not the function of summary judgment to decide that issue but simply to establish whether an 

issue exists that requires determination and resolution at 

trial. Dean v. First National Bank, supra; Matteucci's Super 

Save v. Hustad Corp., 158 Mont. 311, 491 P.2d 705. 

We note in passing that subsequent to summary judgment 

plaintiffs filed amended answers to interrogatories indicating 

that they intended to call Dr. Tuby to establish malpractice 

and proximate cause. This was not before the district court 

at the time it ruled on summary judgment, nor was any attempt 

made to bring this matter before the court for consideration or 

adjudication. The district court cannot be held in error on 

the basis of documents not before it at the time it made its 

ruling. 

The district court granted summary judgment on the additional ground that it found that " * * * Sarah J. Baylor's 

refusal to continue medical treatment is a proximate cause of 

her subsequent problems with her leg." Here again the district 

court has made a factual determination of the cause of her 

injuries in granting summary judgment. It ignores her deposition testimony and that of her husband that she continued to 

put weight upon her leg and practiced walking on it as advised 

by the doctor. It eliminates her testimony that she did not 

know there was a nonunion at the site of the fracture and that 

Dr. Jacobson did not tell her there was a nonunion. It rejects 

the reasons and justification that Sarah Baylor and her husband 

gave for discontinuing consultations with Dr. Jacobson. These 

considerations establish an issue on proximate cause that precludes 
summary judgment. 

We pass no judgment on the merits of this case. 

The ultimate determination of the issues here must be decided at trial. We simply hold that there are genuine issues 

of material fact that preclude summary judgment in advance 

of trial. 

The summary judgment of the district court is reversed. 

The cause is remanded to the district court of Missoula County 

for further proceedings. 

Justice 

---;-----LL-;-J---------------- 

Hon. Bernard Thomas, District 

Judge, sitting in place of Mr. 

Chief Justice James T. Harrison. 
Mr. Justice Wesley Castles dissenting: 

I respectfully dissent. 

In my view the determinative question is whether 

plaintiffs presented sufficient expert testimony to establish 

an issue of malpractice. 

In Collins v. Itoh, 160 Mont. 461, 470, 503 P.2d 36, 

this Court said: 

" * * * The well-recognized rule, subject to 

certain exceptions, is that there must be 

expert testimony to establish negligence in 

a malpractice action." 

Here, plaintiffs rely on defendant's deposition to supply the 

required expert testimony. They constructed a hypothetical 

question which they maintain is representative of their viewpoint of the facts of this case. Plaintiffs then asked defendant if it would be acceptable medical practice to advise the 

patient in the hypothetical question to jump up and down on her 

leg. Defendant said no. Plaintiffs find a contradiction between this response and the defendant's alleged treatment of 

plaintiff Sarah Baylor. Upon this premise they contend the 

issue of malpractice is raised and summary judgment is precluded. 

I disagree. The deposition shows the defendant emphatically and persistently refused to accept the hypothetical 

as an accurate statement of this case. It is clear defendant 

perceived significant differences between the facts of this 

case and the assumed facts in the hypothetical. He did not 

intend his response to apply to the medical history of plaintiff 

Sarah Baylor and he explicitly said so. There is no other 

expert testimony as to the required standard of care or its 

breach by defendant. 

There comes a time when the district court must be 

allowed to enter summary judgment. The complaint in this action 

was filed April 2, 1974. The summary judgment which is the 
subject of this appeal was entered September 30, 1975. At 

that time plaintiffs had still not presented an expert witness 

to the district court who would testify that defendant was 

negligent in his treatment of plaintiff Sarah Baylor. 

In the absence of such expert testimony I would affirm 

the judgment of the district court. 

Justice 

Mr. Justice John Conway Harrison dissenting: 

I concur in the foregoing dissent.of Mr. Justice 

Wesley Castles. V