*1 McCAIN, JOHN KAREN Appellant, v. Plaintiff BATSON, Respondent. M.D., Defendant No. 88-134. on Briefs June 1988.
Submitted Aug. 1988. Decided 725. 760 P.2d Nash, Serenar, Guenther, Serenar, Bozeman, James J. Zimmer & plaintiff for appellant. Cebull, Anderson, Firm,
Richard F. Billings, Brown Law de- respondent. fendant and
MR. Opinion JUSTICE HARRISON delivered the of the Court. summary This appeal is an of judgment granted in of favor defend- Batson, ant Plaintiff/appellant (McCain) John M.D. Karen McCain brought this action in Eighth the Court District of the Dis- Judicial trict, County, Montana, Gallatin Joseph Gary pre- the Honorable B. siding. sought McCain damages to recover negligent treat- injuries ment of her by defendant/respondent, Batson, John (Dr. Batson). M.D. sought summary Dr. judgment invok- ing immunity of the Montana Good Samaritan Statute 27-1- Section MCA. February On 1988 the granted Dr. Bat- son’s motion for appeals. McCain now friends, McCain (Warner) and Sherry two Rosemary Warner and Checketts, (Checketts) spent Yellowstone, a weekend West Mon- tana, arriving morning September 25, 1982, Ogden, from They planned Utah. stay with Warner in her condominium. That evening, preparing after home, eating supper and at the three friends decided to into the town of West Yellowstone. The three decided to walk into battery town as Warner’s truck was dead. The condominium they was not nearby far from town so walked to the Stagecoach Inn, Inn. spending After some time at the the women separated became p.m. and about 11:00 McCain decided to return alone to the condominium.
McCain was unfamiliar with walking the area and while back in eight-foot the dark fell deep pit into an pit. con- excavation tained rebar set in concrete at six inch intervals. As a result of the severely fall impaled she upper her leg piece left a of rebar. After rebar, extracting pit herself off the McCain crawled out lighted doorway crawled nearby to a aof condominium. McCain rapped on the occupied door a Grind- condominium Dr. James ley, a radiologist, Grindley Bozeman and his Mrs. answered the wife. knock on the Grindley door. After her acci- McCain told Mrs. about injury, Grindley Stagecoach dent and Dr. went to the Inn to retrieve time, her two Throughout Grindley friends. mention Dr. did not patio lawn he a on the and McCain remained Grindley radiologist ex- Dr. is a with outside the condominium. initially He surgical experience. room did tensive Grindley deposition Dr. injury, and in a admitted examine McCain’s equipment the condominium. did not have Grindley attempted as- Dr. McCain’s friends returned with Warner, surgical gotten her box medical sist her. assistant bandage scis- supplies pant-leg pair with a removed McCain’s Grindley physi- sors. At Dr. informed them that he that time present that Grindley Dr. examined wound and advised all cian. technically repair had no desire to do while he could being clean it.” so “debride it and without able to Mc- deposition Grindley offered to drive At Dr. testified he then Ashton, They hospital in Idaho. Cain and her friends to the nearest they Grindley believed there refused his offer and informed help staying in and that was a doctor town who could them later, they him. Grindley’s would contact needed services may the wound further testified that at that time panty hose bleeding tiny “been . . that her seemed bit. position was minimiz- holding all so that it tissues any bleeding.” she had little ing testified that at that time McCain *3 “dead, numb, pain leg taking McCain back and the dead.” After was accident, condominium, to three hours after the Warner’s and some defendant/respondent Dr. Batson able Warner was to locate where bed, staying. got up Dr. left the condominium was out condomin- staying agreed he to come to the Warner where was and that McCain ium to see what could be done. Dr. Batson testified see lying examined the wound could on a couch and that when he help of Warner considerable dirt and mud the wound. With suture, instruments, IV solu- surgical her kit which contained tions, Dr. other be used to clean the items that could loosely su- He then Batson debrided the as best he could. wound kit. bandages the medical tured the it with from wound and dressed lamp in the Warner light All of a of this was done under the condominium. all three deposition that he informed testified at at to treated be
women soon after the accident that wound the wound needed hospital general and that and under a anesthesia mir- injury to evaluation surgically. be treated Batson’s but situation Grindley’s rored not an that possible. Dr. Batson go hospital as that McCain should to a as soon Ashton, hospital informed the women that he would call the pain Idaho and order a tetanus shot antibiotic medication and to morning. be available to McCain the next immediately go
It should be noted that the reason McCain did not hospital to a was that the ambulance at West Yellowstone was not Bozeman, Montana, available it had before taken someone to injured morning. she was and would not the next As return until previously noted, parties the truck used to travel to West battery repaired by Yellowstone had a dead but would be the next late, morning. As very spent the hour rest of the the three night planned returning at the Warner condominium and Ogden Ashton, morning/early later that afternoon via Idaho. a.m.,
Dr. Batson morning testified that later that about 11:00 packing returned check on the He three women. found them still preparing Ogden. return to Dr. Batson said he them advised again suturing type procedure that his of the wound was a first-aid necessary they go hospital and was that to a and have the wound properly treated.
According deposition Checketts, they to the stop did at the Ash- ton, hospital got Idaho pain some medication and antibi- otics which Ogden. served as treatment until McCain returned to They Ogden arriving approximately p.m. then drove on into 7:00 apartment and took her understanding McCain to where it was their go hospital McCain would to the and see a doctor the next However, morning. McCain did not to the see doctor until By about one week later. this time her wound had become in- required surgery fected and considerable and medical treatment. September On years injury, Dr. three to the date of the Batson was sued for ade- McCain the wound without quate debriding, cleansing the contaminated wound and failing anyone to inform procedures that the he followed were procedures. words, not final In to in- McCain claims he failed recleansed, form her opened up, that the wound would have to debrided, alleges mal- resutered. McCain that this is a case of practice which has injury. caused her serious
This depositions case was to the District Court on *4 Sherry Clarey Warner, (plaintiff appellant), Karen McCain and (a Checketts, Rosemary Wesley Harline, Dr. Lee J. Malan G. Utah), surgeon operated Ogden, who later on her Dr. John Batson at (defendant (the respondent), radiol- and S. and James door). ogist injured the who first saw the McCain at his Based on granted depositions, in information contained the the summary said sum- judgment. motion for Attached to Batson’s mary Joseph Gary Judge of concern- judgment was a memorandum summary ing granting of the reasons his questions Several are for our consideration: provisions of the improperly 1. find that the Did the District Court Statute, 27-1-714, MCA, ap- were Montana Section Good Samaritan negligent was re- plicable to an instance the care rendered emergency, or scene of the accident mote time and location to the purpose of the act? and was otherwise without jury improperly usurp 2. the function of Did the District Court by resolving judgment? questions grant its fact Statute, Samaritan The first issue concerns the Montana Good 27-1-714, MCA, Section which reads:
“(1) person surgeon the laws Any under licensed as a any Montana, any firefighter or officer of the state of volunteer any person nonprofit company, fire or who volunteer compensation emergency without ex- faith renders care or assistance (2) emergency or cept provided in the scene of an Subsection damages for acts or omissions liable for civil accident not damages by by or willful or gross other than occasioned person rendering emer- wanton acts such such or omissions gency care assistance.
“(2) (1) person properly trained under Subsection includes a operates an from the scene laws of this state who ambulance a vol- emergency treatment on of an or renders received for such long unteer total reimbursement basis so as the gross annual income 25% his volunteer services does exceed $3,000 greater. year, calendar whichever “(3) fight fire nonprofit subscription company If fire refuses constitute property, such refusal does not nonsubscriber negligence or omission.” willful or wanton act or (Good MCA, 27-1-714, history According legislative Section 1963, Statute) passed by Legislature Samaritan 1979, 1, 390, Chapter of Montana amended Section Laws 1, Chap- 1985, 330, Section Chapter of Montana Section Laws legislative is made to ter Laws of Montana 1987. Reference impres- first this is a history because of the Good Samaritan Statute Good Samaritan interpretation sion case state on the Statute. re- initial brief appellant McCain’s
This Court has considered *5 ply argument appears brief and her to be that the Good Samaritan application alleges Statute has no her McCain that Dr. situation. recognizes Good was not a Samaritan and that the Sa- provides immunity malpractice. maritan Statute from his McCain argues physician first that a must he demonstrate that is a member protected of a class. Batson was not a licensed the Montana, although practice Wyoming state of is he licensed to is, argues therefore, any person and Idaho. McCain within the meaning of the agrees statute. While she the fact the with that doc- protected act, immunity only tor here is alleges under the she that malpractice attaches to which is committed the the scene of acci- emergency. dent or argues
She falling pit, that after into the excavation McCain Grindley’s crawled to Dr. condominium she was later carried care, was, Warner’s condominium. Therefore Dr. Batson’s such itas was too remote time and location to the scene of the accident. alleges She with this result Dr. Batson could not demonstrate that “emergency” was an argues situation. McCain further that Dr. negligent performed Batson’s care was when made a “housecall” happen upon and he did not emergency. argues an McCain that be- cause Dr. negligent during Batson’s care was not situ- ation, though serious, injuries her were were not life threaten- ing and therefore the best course of action would have been to postpone hospital. care until she reached a
We, did, as the difficulty argu with this ment. question The central to the District Court and one which subject to our review is whether the Good Samaritan Stat applies. find, did, Thus, ute We as the District Court that does. the gross standard negligence of review is and willful wanton acts — ordinary malpractice. omissions rather negligence than agree We reviewing with finding the District all of Court’s that after deposition the testimony, there no evidence whatsoever that there such a negligence serious level exhibited Dr. Batson to warrant action this case. problem District Court noted were here was not that there
differing ultimately versions the facts but the facts were not that pertinent to Only depositions the decision. two a fact indicate McCain, deposition appellant, variance. One is the which is to Grindley say self-serving; deposition least of Dr. second is the who disagreed testified that he Dr. Batson with decision of Grindley Dr. Bat- the wound. Dr. added that the manner of permanence of treatment. him some suturing indicated to son’s that it was However, it should be noted on cross-examination gross nor neither Grindley’s opinion there was malpractice During this. cross-examination position. his illustrative of questions which are asked a number is the fact that your biggest criticism “Q. get impression I he sutured it. know, was, you if he the need for it
“A. I don’t know what Yes. it, away having right intending for her to to the know, you treated further. part of a gross negligence is on the
“Q. you know what Now do *6 ordinary negligence? ordinary malpractice or opposed to doctor as you good No, really give a real guess I I couldn’t “THE WITNESS: maybe you had some idea imagine I it’s where definition of that. you be that should operating the boundaries you were out of that working physician. operating in or as a attorney]: [respondent’s “BY MR. CEBULL anything Dr. Batson did “Q. you that Well are critical of than the wound? know, told me sure, really he did. You’ve you what
“A. I’m not I because and, no, say I be critical I couldn’t that could what he did depositions I haven’t read those really what else he did. don’t know anything so I don’t know. suturing, right? “Q. you But are critical put why you sutures would Right. really just “A. I don’t know have the emergency room to someone off to and then send further. wound treated you opinion, or it, you at this
“Q. as I understand arrived And then the sutures placing him Dr. Batson for arrived at this criticism of you? today, didn’t you came here the wound before “A. Yes. sutures placement of those opinion,
“Q. Okay. your was the Now gross negligence? by Dr. Batson in the wound putting you just mean placed them. Do “A. I know where he don’t in there? them my That’s wound. sutured the
“Q. just I the fact that he mean Dr. Batson. your criticism of understanding of just it’s but negligence, I it “A. I know that would call don’t — treating indo physician would customary thing that a it’s not — words. in other giving first aid to a Well, “Q. you generally, if an know that violates ac- care, ceptable malpractice, negligence, you standard that’s know that, you? don’t
“A. Uh huh. “Q. Okay. get you I impression saying And are that that Batson’s suturing acceptable this an wound was a violation of stan- dard of care. —
“A. I think so. I thought would think he intended to he had debrided thoroughly it and cleaned it out and had done primary then, care the wound and it I sutured wouldn’t have argument me, much you puts with that. But from what tell just a few sutures in it and then sent her off to the room treated, say why? Why subject patient have further I to stick- ing you just them with a put needle and whatever sutures in do so, have them taken out an hour or so it out? can cleaned “Q. Well, you what tempo- been told about whether this was rary permanent, suturing? final Well, you
“A. ago. alluded to it a while “Q. know, you I but have anything been told before that? “A. I’m not sure that I have.
“Q. Well, if Dr. Batson repair job had intended to be a final it, and he had debrided it and judgment cleansed at least his as could, would the fact infection occurred later on you indicate to malpractice? that he committed wounds, “A. said, No. Because percentage a certain I like would get regardless infected thorough job you cleaning of how do of them.
“Q. they Even if general are done in in a an OR suite with anesthesia everything, right? Right.
“A. “Q. Well, your opinion, job by in temporary suturing if a this was Batson, that, your opinion, gross negligence, did in constitute gross malpractice? Well, you you really
“A. gross malpractice see haven’t told me what yet negligence. “Q. Well, ordinary malpractice. it’s a a heck of lot worse than — “A. I guess my opinion say in I say I it’s what still would would people, most physicians they expected most if would not do that patient, so, they within facility ah hour to at would a have why it done and so do it?
“Q. Okay. dressing thing. “A. When a will do the same “Q. you testify Dr. Batson going to in this case that committed Are in if it gross malpractice, gross negligence, that wound was temporary repair? a probably your description gross negligence,
“A. I would From say see, change my might I mind. You’ve made a lot of this no. You hypothetical you equipment that if he had all of the availa- said ble, everything things he if was in that box and had some other but, available, know, you yes you I he done it. And said could have know, up my opinion I not kind of it was that was about to sew that know, you equipment I see the box there a with the could patient.” doing and feel like I was a service to the Grindley deposition: later testified Well, opinion “Q. today you apparently had formulated an before ordinary malpractice, that Dr. had ordi- committed least nary right? negligence, try I say just “A. I I than to to wouldn’t that. think he’s braver was
— know, you going try primary if he was to to care of that wound do staying, you there in some or in his wherever he was condominium know, kind I of situation braver than was attack that know, it, available, you I to do without what would like have really just thing, if then I doing he was it kind of as a first aid have why patient’s leg.” put no he would sutures idea deposition testimony questioned regarding When from Mc- later Utah, physicians being plastic surgeon treating Cain’s one a general practitioner, Dr. being the other answered follows: “Q. Utah, depositions physicians Now these down their — really plastic surgeon one I’m
been taken another was, they have said specialty you sure what his don’t what but know about this? No,
“A. I don’t. “Q. that, commit opinion, If in their Dr. Batson didn’t said then, guess. I malpractice any way, you disagree with them would — know, really you “A. it back to same just I comes couldn’t do, know, actually I see thing, you didn’t I don’t know what he did with, doing with primary closure what he did work whether he appropri- it it. if I used and I felt was And could see what ate, know, treat- say, probably appropriate you I then would like But, know, wound you put ment her. stitches into a
297 repaired, and send someone off to the it further just customary I don’t think practice.” that’s When asked if he offered to treat McCain’s stated: earlier,
“No. Just like I I I just technically said told her that could repair the wound with kit], what she had there [Warner’s but that I I felt that would not having want to do without better circumstance to debride the wound thoroughly thor- oughly irrigate up. cleanse it and it before it sewn
“Well, basically saying what I was I that wouldn’t do it and I they felt ought like hospital, to the nearest which was in Ash- ton, Idaho, and their car starting wasn’t and I told them I would glad be to take them over they there to Ashton if wanted me to.” interesting
It is to note that from the time the first Good Samari- tan passed 1959, Statute up only until fourteen re- ported jurisdictions cases in other jurisdictions’ dealt with those statutes, only five cases where the applicable. statute was found — See, Good Samaritan Laws Who Needs Them.?: The Current State Good States, Samaritan Protection in the 21 United (1981). S.Tex.L.J. 341 at 350
A review Good Samaritan statutes other states indicates that the medical situation emergency must anbe situation before immu nity invoked, can yet few states have defined the term “emer gency” statutes, in their Colby 21 S.Tex.L.J. at 346. In v. Schwartz (1978), Cal.App.3d 885, 78 Cal.Rptr. 144 the California Court of Appeals competing addressed the interest numerous other states’ Colby statutes. In that court set forth the reason for the enactment of the Good Samaritan statutes. That court noted:
“The enactment legislation represents of Good Samaritan the reso- lution competing hand, interests. On the one there is an interest in the rights malpractice vindication of the victim. On hand, there is encourage physicians the need to render ap- medical care when might otherwise not. Where plicable, legislation favors the latter over the former.” Colby, Cal.App.3d 893-894, 78 Cal.Rptr. find at 628-629. We that that is the legislation central reason for here in Montana and that the standard of willful review is one omissions, or wanton ordinary acts or negligence/medi- rather than malpractice. cal temporary limited medical first-aid with
Here Batson rendered *9 early morning for equipment in the to do this having been awakened companions having warned her and her two McCain and thereafter Ashton, necessary immediate care both that was obtain previously noted Ogden, Utah. As got Idaho and when she home to Grindley, except that what was parties agree, all McCain and by Dr. Bat- circumstances was a first-aid treatment done under the immediately got home help when she and son with directions to seek seeking week further the fact that she waited over a before necessary surgery that fol- resulted in infection and the treatment treating physician treating surgeon both testi- lowed. McCain’s was neither fied the circumstances what Dr. Batson did that under negligent malpractice. nor testimony Grindley, he of Dr. previously
As we have noted the testify guilty gross of Dr. Batson was did not and could not that any proof negligence or willful wanton acts or omissions. Absent Batson, part Dr. claims that gross negligence on the of McCain of case, this apply to the facts of the Good Samaritan Statute did had to proof ordinary negligence of is all that she and that therefore by arguing that prove against Dr. She does this in her claim Batson. surrounding improper. general summary judgment The rule granted not be summary judgment and whether it should or should respondent As has of this Court. been well set forth the decisions Indiana, Circuit, Eighth the states of noted we need not the regarding appropriateness of Louisiana for the and Hawaii decisions summary judgment. In 56(c), type. this provides M.R.Civ.P. for a case of
Rule 1308, (1984), Shimsky Valley v. Credit 208 Mont. 676 P.2d for disposed a motion Court held when a of below on case jury and no tes summary judgment judge sitting without before uncontested, scope timony relatively taken the as the facts are Supreme appeals and the review is much broader than other of the entire case Court is free to make its own examination Shimsky, findings. with its reach conclusion accordance Furthermore, uphold below P.2d at Court will the result 1310. the See, correct, regardless given for the result. it is reasons below the v. Conservation Department Montana Natural Resources and Co., (1982), 1207. Logging 646 P.2d Clark Fork Inc. 198 Mont. con- carefully elements very Here noted the the District Court 27-1-714, MCA, Samaritan Good tained in Montana’s Section Statute:
“Any person surgeon licensed as a under the laws of Montana, any person the State of ... or who in faith emergency compensation renders care or assistance without ... emergency an scene of is not liable accident civil dam- ages by damages gross for acts or omissions other than occasioned person or willful or wanton acts or omissions such rendering emergency such care or assistance.” carefully contention, plaintiff’s noted the that Dr. gratuitously Batson compensation, plain- offered care and for no tiff’s protected concession that in a immune class, plaintiff’s denial there an at the scene plaintiff’s conclusion, therefore, accident and the that the act apply does not in this case. carefully analyzed testimony court given that was “emergency”
finds that there was situation negli- and no gence or willful or wanton acts were committed. The court further found that all elements of the Good Samaritan Statute were *10 met and that its gross negligence applied standard of to the facts in this generally case. While this prefers Court a trial the merits on of a case by summary to dismissal judgment, we affirm the District findings. Court in its willing We presented are to look at the facts and not force a go through prolonged, defendant to expensive a emotionally debilitating trial for medically such well intended and accepted Yellowstone, deeds as Dr. performed at West Mon- tana. Tne point relevant and material facts to this conclusion and question the ultimate is a matter of agree law. We further with the District Samaritan, Court in this case that Dr. good Batson was a that he emergency, acted in an showing and since there no has been gross negligence, of grant the decision of the District Court to sum- mary judgment is affirmed.
MR. CHIEF JUSTICE TURNAGE MR. HUNT JUSTICES and GULBRANDSON concur.
MR. SHEEHY, JUSTICE dissenting: penchant judgments The recent approve summary of this Court to from the genuine exist issues of material fact is again shown in this genuine case. There are two of material issues (1) fact requiring, here: whether an existed good Samaritan, Batson; (2) a if assistance of Dr. the answer guiltv query affirmative, to the first of is whether Batson was query, he was negligence; if is no to the first whether and the answer guilty ordinary negligence. of (Mont. 1984), 208,] Kronen v. Richter Mont.
We said in [211 P.2d 1315: if for
“Summary judgment is to be used as a substitute trial never case). Summary is controversy (citing judgment a factual exists interrogatories only depositions, answers to proper pleadings, genuine is issue mate- admissions on file show that there no case) . . .” (citing rial fact
In for the discretion of a motion Court, is limited. reviewing this documents District and of Court parts: “A divides into two Discretion discussion of discretion summary As we granting denying and in a motion power see, upon discretionary shall the Court cannot draw may its grant summary judgment; however exercise sound the Court although on judgment in denying discretion a motion of case therefor.” the record the movant has made out a (Part II), 56-601, paragraph page 6 Moore’s Federal Practice (1987). 56.15[6] appeal- plaintiff appeal facts are not
The has this because the lost problem: ing. expressed Court District problems keeping impartial “The some court would admit to done, case, satisfied, all perspective in when is said this but research, thorough sufficient that this is fair decision based Nonetheless, facts, help but the court cannot and clear rules of law. society bringing like this taking cases wonder where our itself may way making an endan- be well on our the courtroom. We species stifle their gered who are forced to out Samaritans trend, If is the good impulses being to court. out fear of taken it is indeed unfortunate.” has sustained
The other is that if Karen McCain side that coin *11 Batson, in- permanent damages leg serious and to her because effect, moment, “over- rendering for the stead aid sufficient court, her, even her heard treated” she entitled to have case impulses. though acted from the best time at the The an existed first issue here was whether issues those of Dr. The Court balanced Batson’s treatment. District so, doing it deter- In emergency existed. of fact and decided that an summary fact, procedure question improper mined a an judgment is concerned.
First, the District Court off the which ticked facts contended for no loss; emergency: major There no life not in was blood her was dan- die; ger going limb; leg and she was she would not lose pain immediately had a numb sensation and there was an absence of following injury; neurologically Opposing and she intact. that, court, agreed said the that the ex- witnesses the cut was tremely serious, possibly deep; hospital town; bone there was no facilities; Ashton no anesthesia there was no availa- ambulance; police provide ble no transpor- officer or other friends to hospital; tation to a and reason to believe the “limb was at risk.” by Not mentioned testimony the District Court was the of Dr. simple dressing that a would suffice under the circum- stances, suturing and that the wound a case of final repair. genuine fact,
Since there existed a issue material one that fact, should by have been jury, decided a trier of such as a the issue should not have been decided on
The second issue of fact was whether the attendance the doctor in this case ordinary constituted either gross negligence. The ma- jority, defining gross negligence instance, without in this has deter- mined that gross negligence there was no part on the defend- ant doctor. None of the witnesses defined gross what was meant negligence. only definition on which this Court relies is the following: Well,
“Q. your opinion, if temporary job by Batson, that, your opinion, did gross negligence, constitute gross malpractice? Well, you you
“A. really see gross malpractice haven’t me told what yet gross negligence. Well, “Q. it’s a ordinary malpractice.” heck of a lot worse than If District given Court in jury Montana had instruction so defined negligence, high dudgeon reject we would inadequate. Here, majority, defining gross without otherwise applies as it statute, under the Good under- Samaritan takes no other definition to gross negligence. resolve the fact issue of might
We entertain in plaintiff ourselves a serious doubt that the prevail would permitted she jury had been to take her case to a resolve the fact personal feelings propriety issues. Our about the of a place case have questions no in deciding summary judgment. If exist, notes, issues of supra, fact as Professor is no Moore there dis- *12 Court, grant District cretion, in the Court or in our proceedings. further remand for I would reverse