### No. 13212 INTHE 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 theFourth 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 jptjMr. Justice Frank I. Haswell delivered the Opinion of the Court.

The districtcourt of Missoula County granted summary judgment todefendant 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 ather 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

asa spiral fracture of the tibia and a comminuted fractureof the fibula of her right leg. Defendant, Dr. David 0. Jacobson, a medical specialist inorthopedic 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 officeon fiveoccasions: December 24, 1970, January 21, 1971, February 18, 1971, March 17, 1971, and May 21, 1971. Her castwas completely removed on March 17, 1971. When Dr. Jacobson 

### last 

### saw Sarah Baylor on May 21, he made the following notation inhis records: "Stillwith pain about the tibia. No gross movement withmanipulation but new x-rays show 

### a remarkable paucity of callus formation considering the fivemonths that have elapsed since her fracture. I would have anticipated further callus formation or some attempt at healing which has not occurred. Willreevaluate inone month and getnew films and 

### atthat 

### time perhaps manipulate under fluoroscope todetermine any motion." According to the deposition of Sarah Baylor, Dr. Jacobson told her atthis 

### timethat her leg

### was completely healed; that further treatment 

### was unnecessary; toquitbabying herself and ignore the pain; that she might even jump up and down onher leg; and did not advise her that the bone inher leg

### was slow inhealing; 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 toher 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 allhe would do was send her tophysical therapy. Instead she exercised the legby walking back and forthacross the floor athome with the help of her husband. In any event, Sarah Baylor eventually consulted Dr. Clinton Craig, an orthopedic surgeon inMissoula, 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 inGreat Falls who X-rayed her leg, told her therewas a nonunion and that she needed surgery. She next went toDr. William J. McDonald, a Missoula orthopedic surgeon toget another opinion. HeX-rayed her leg, told her she needed surgery, and referred her toDr. Carlo Z. Biscaro,

a Missoula orthopedic surgeon. The dates of these consultations areuncertain. Dr. Biscaro performed a bone graft inMarch, 1973 at the Community Hospital inMissoula. In the 

### late summer of 1973. Dr. Biscaro advised that the fracture had not healed and that further surgery 

### was necessary. InNovember, 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 forperiodic visits toDr. Biscaro and his associate. The Baylors filed suitagainst 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 toprovide the name of their expert witness and answer defendant's interrogatoriesconcerning thisexpert by April 11, 1975 asagreed, the district court granted defendant's motion and dismissed the entire litigation. This was subsequently vacated and the court granted plaintiffs untilAugust 

### 1, 1975 toname their expert and answer defendant's previous interrogatoriesconcerning him. On July 29, 1975 plaintiffs stated they had an expert and answered further 

### as follows: "Dr. Biscaro's deposition 

### willbe taken on July 31, 1975. Hemay be the only expert. If his testimony does not relate the negligence toplaintiff's condition, an expert 

### willbe 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 setforth 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 fiveand one-half months refused toreturn for an appointment with Dr. Jacobson. The condition of Plaintiff's leg

### was such that surgical treatment 

### wasrequired about twenty-six months after the accident. "The Plaintiffsdesignated Carlo Z. 

### Biscaro, M.D., 

### asthe expertmedical witness tobe called on behalf of the Plaintiffs attime

### of trial. Dr. 

### Biscaro's deposition was taken and he repeatedly stated that inhis opinion there

### was proper care and treatment of Sarah J. 

### Baylor by Dr. 

### Jacobson. "The Court finds that Sarah J. 

### Baylor's refusal tocontinuemedical treatment is

### a proximate cause of her subsequent problems with her leg. "The Court further finds that the Plaintiffs' expertmedical witness has not testified toany conduct on thepart 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 todefendant's interrogatories, identifying a New 

### York doctor, Dr. 

### Robert Tuby, astheir expert witness and answering the other interrogatories. Plaintiffs! answer tointerrogatory No. 

### 12 sets forththe substance of Dr. 

### Tuby's testimony: "Dr. Tuby will

### testify that it 

### was a deviation from acceptable medical practice toremove the castatthe 

### time it 

### was removed and toprescribe exercise therapy when there

### waspractically no callus formation about the fracture site. He 

### willfurther statethat it 

### was a deviation from acceptable medical practice totell 

### the patient that the injurywas 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 theresultwhich has [been] obtained." Plaintiffs filed their notice of appeal from the summary judgment against them on October 10, 1975. The ultimate issueon appeal is

### whether summary judgment for defendant was properly granted. This turns on two underlying issues. (1)Is 

### there sufficient expert testimony toraise a genuine issue of malpractice? (2) Is 

### there a 

### genuine issue of material factconcern-ing contributory negligence on the part of Sarah Baylor? Asbackground for our analysis of the issues, 

### we note several basic rules of 

### lawapplicable tomedical malpractice actions. The gistof a malpractice action 

### isnegligence on the part of defendant. Negaard v. Feda, 152 Mont. 47, 446 P.2d 436, and cases cited therein. The mere factof injury or the

occurrence of a bad result, standing alone, 

### is no proof of negligence inthe ordinarymalpractice action. Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487. The law does not 

### require that for every injury theremust be a recovery of damages, but only imposes liability for 

### a breach of legal duty by a doctor proximately causing injury tothe patient. Loudon v. Scott, supra. The legal duty imposed on a doctor has been described by this Court in the following language: 

### " 

## * * * The 

### lawrequires a physician or surgeon topossess the skilland learningwhich 

### ispossessed by the average member of themedical profession ingood standing, and toapply such skill and learning with ordinary and reasonable care. He 

### is not an insurer, nor 

### is a good result impliedly guaranteed. Hisobligation 

### ismerely to exercise such reasonable care and skill inthe treatment of the patient 

### as isusually exercised by physicians or surgeons of good standing, of the same school of practice inthe community inwhich he resides, with due regard tothe condition tothe 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 asthe orthopedic surgeon in this

### case, 

### is 

### set forth in the following passage in 21ALR3d 953: 

### " 

## * * * the general proposition that a physician or surgeon who holds himself out ashaving 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 skilland 

### care ordinarilypossessed and used by similar specialists, and that his duty tohis patient 

### is accordingly measured by a higher standard of skill than that of 

### a general practitioner."Ordinarily the standard of care towhich a medical practitioner 

### isheld and the breach thereof must be established by expert medical testimony. Collins 

### v. Itoh, 160Mont. 461, 503 P.2d 36, 81ALR2d 597, and cases cited therein. With these principles inmind, 

### we proceed toconsideration 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 toany 

### material fact and that the moving party 

### is entitled to

### a judgment as a matter of law." It 

### isnot a substitute for a trialof disputed issues of fact. Dunjo Land Co. v. Hested Stores, 163Mont. 87, 515 P.2d 961; Dean 

### v. FirstNational 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, 165Mont. 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 factconcerning 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 districtcourt 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 inhis opinion 

### " 

## * * * there was proper care and treatment of Sarah J. Baylor by Dr. Jacobson", and that Dr. Biscaro 

### " 

## * 

# * * has not testified toany conduct on the part of Dr. David P. Jacobson which can be termed medical malpractice.

### "Atthe outset we observe that plaintiffs' intended tocallDr. Biscaro toestablish proximate cause, not

### malpractice. Plaintiffs' answers todefendant's interrogatories, filed July 29, 1975,provide inpertinent part: "INTERROGATORY NO. 

### 1 "Have you retained, or do you intend to

### call, an expertwitness, or expert witnesses, to testify on behalf of the Plaintiffs atthe 

### timeof the trial in the above-captioned case? "ANSWER: Yes. "INTERROGATORY NO. 2: "If so, as tothat expert, please state: 

### "(a)Hisname; "(b)Hisage; "(c)Hisresidential address; 

### "(d) Hisbusiness address. "ANSWER: "Dr. Biscaro's deposition 

### willbe taken on July 31, 1975. Hemay be the only expert. If his testimony does not relate the negligence to plaintiff's condition, an expert

### willbe retained and the background information sought herein immediately furnished.

### " (~m~hasis- added.) Prior tothe 

### timeDr. 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 themedical records attached as deposition exhibits

were sufficient toraise the issue of medical malpractice. The crux of his testimony 

### iscontained in his answer toa hypothetical question. The assumed facts inthe hypothetical question represented the facts of the case from plaintiffs' viewpoint and Dr. Jacobson 

### was asked whether it would be acceptable medical practice toadvise the patient toquit 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 theassumed facts 

### it would not have been advisable tohave the patient walk on the leg. This, inour view, 

### is sufficient toestablish an issue on medical malpractice precluding summary judgment. It 

### is not the function of summary judgment todecide that issuebut simply toestablishwhether an issue exists that requires determination and resolution at trial. Dean 

### v. FirstNational Bank, supra; Matteucci's Super Save 

### v. Hustad Corp., 158 Mont. 311, 491 P.2d 705. We note inpassing that subsequent to summary judgment plaintiffs filed amended answers tointerrogatories indicating that they intended to

### call Dr. Tuby toestablishmalpractice and proximate cause. This

### was not before the districtcourt atthe 

### time it ruled on summary judgment, nor 

### was any attempt made tobring thismatter before the court forconsideration or adjudication. The districtcourt cannot be held inerror on the basis of documents not before 

### it atthe 

### timeit made 

### its ruling. The districtcourt granted summary judgment on the additional ground that 

### it found that 

### " 

## * * 

# * Sarah J. Baylor's refusal tocontinuemedical 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 ingranting 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 asadvised by the doctor. It eliminates her testimony that she did not know therewas a nonunion atthe 

### siteof 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 establishan issue on proximate cause that precludes

### summary judgment. We pass no judgment on themerits of thiscase. The ultimate determination of the issues here must be decided attrial. We 

### simply hold that there aregenuine issues of 

### material fact that preclude summary judgment inadvance of trial. 

### The summary judgment of the districtcourt is 

### reversed. The cause 

### isremanded tothedistrictcourt of Missoula County for further proceedings.

Justice

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

### Hon. Bernard Thomas, District Judge, sittinginplace of Mr. 

### Chief JusticeJames T. 

### Harrison.Mr. 

### JusticeWesley Castles dissenting: I respectfully dissent. Inmy view the determinative question is whether plaintiffs presented sufficient expert testimony to establish

an issue of malpractice. In Collins v. Itoh, 160Mont. 461, 470, 503 

### P.2d 36, 

### this Court said: 

### " 

## * 

# * * The well-recognized rule, subject to certain exceptions, is that theremust be expert testimony to establish negligence in a malpractice action." Here,plaintiffs rely ondefendant's deposition to supply the required expert testimony. They constructed a hypothetical question which they maintain is representativeof their viewpoint of the facts of this case. Plaintiffs then asked defendant if itwould 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 judgmentwhich is thesubject of this appeal 

### was entered September 30, 1975. At that 

### timeplaintiffs had 

### still not presented an expert witness to the districtcourt who would testify that defendant was negligent inhis 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