*1 ZIMMERMAN, ROBERT Appellant, Plaintiff ROBERTSON, D.V.M., G.D. VETERINARY BOZEMAN
d/b/a
HOSPITAL,
Respondent.
Defendant
No. 92-562.
May 20, 1993.
on Briefs
Submitted
Decided June
1993.
St.Rep.
For Plaintiff and L. Appellant: Nye; Nye Meyer, Jerrold & Bill- ings. Respondent: Keller; Matovich,
For Defendant Geoffrey R. Keller, Addy & Billings.
JUSTICE GRAY the Opinion delivered of the Court.
Robert Zimmerman appeals judgment from a on directed verdict entered in favor of G.D. Robertson the Thirteenth Judicial District Court, County. Yellowstone We affirm. appeal restate issues on as follows:
1. Is expert testimony required action veterinarian?
2. Did the defendant’s constitute sufficient evidence of deviations from standard of care to enable the plaintiff with- stand a directed verdict?
3. Did the District Court abuse its discretion testimony regarding the defendant whether obtained informed consent surgery? of the horse’s owner
Robert Zimmerman a colt in care of at placed Sarah Vaessen (BCSS) Bridger Canyon Stallion of 1991. In Station March early May, with Vaessen contacted veterinarian G.D. Robertson re- colts, gard including to castration of a number of Zimmerman’s. (one cryptorchid Robertson discovered that Zimmerman’s colt was clinic testicle); transported to Robertson’s the colt was retracted performed. and castration was cryptorchid surgery where mid-May. May 24, On to the BOSS The colt returned an upper respiratory the colt for called to treat Robertson was through the end daily treated the colt with antibiotics infection. He responding. May; appeared the infection to be Dermago 2 to healing process, applied Robertson Tofacilitate the on June He called back to BOSS site June 7. was surgical site; transported coltwas back at the regarding an infection antibiotics, with other treated the colt to Robertson’sclinic. Robertson autopsy An on October 1991. drains. The colt died medications and large spleen; and a abscess was discovered performed bacteria was isolated. zooepidemicus streptococcus claiming filed complaint A surgical procedure post-surgery both also testified and jury began trial on October for a Robertson moved called Vaessen Robertson witnesses. of Zimmerman’s case. The District Court directed verdict the close granted 6, concluding Zimmerman had motion on October necessary expert testimony. Zimmerman provide appeals. failed to *3 a expert testimony required negligence against Is in a action veterinarian? be expert testimony should not
Zimmerman contends that
disagree.
in
We
required
against
an action
a veterinarian.
question
of whether
previously
We have not
addressed
negligence
against a veteri-
testimony
required
action
expert
Mont.
745
narian in
In Carlson v. Morton
229
Montana.
1133, however,
prove
a
must
P.2d
discussed the elements
we
action,
in
actions
stating that
such
any professional negligence
a loss
simple
from the
fact that
“[njegligence cannot be inferred
(citations omitted).
Carlson,
We went
occurred.”
745 P.2d at
relatively new
legal malpractice was
to
while the field of
observe
a
testimony supporting
Montana,
undisputed
expert
it was
required
medical care” was
prevalent
“the
standard of
departure from
Indeed,
Carlson,
by
malpractice
in medical
actions.
time,
the standard
necessity
expert testimony to establish
of
against
of
had
to
extended
been
and ab-
dentists, orthodontists,
pharmaceuticals,
manufacturers of
omitted).
(citations
Carlson,
As we did in Carlson in a professional negligence action an attorney, we here expert testimony conclude is necessary to establish the standard care in an action a veterinarian which arises from the professional capac- veterinarian’s ity. concerning Matters standard of care owed veterinarian during and after are experience outside common jurors; knowledge lay necessary expert to assist them in resolving such cases.
Our on this clearly conclusion issue was foreshadowed in Carlson. note, well, that other jurisdictions adopted expert have testimony requirement veterinary Utah, negligence actions. example, expert testimony is show that veterinarian did diligence ordinarily exercise the care and exercised skilled doing community, veterinarians the same ofwork in and that (Utah injury. failure caused the v.Rogers Posnien 121-122. also Veterinary Malpractice, See 71 A.L.R.4th 823-825. argument training,
Zimmerman’s that differences in conditions of *4 practice expected and veterinary standards between doctors and physicians testimony in weigh requiring expert not persuasive. Requiring expert veterinarians is the testimony equivalent applying is not of the standards to same applied Indeed, expert testimony are physicians. veterinarians as to regarding may the standard of care owed a veterinarian reflect
109 signifi- of care for veterinarians the standard appropriate do determine the physicians. of We cantly than that less testimony by requiring expert merely of care appropriate standard subject. of testimony sufficient evidence defendant’s constitute Did the to the with standard of care to enable deviations from the a stand directed verdict? testimony established that Robertson’s own of care and on that from the standard
deviations basis, directing a verdict for Robertson. the District Court erred disagree. his Robertson that treat-
Zimmerman advances “admissions” regards. ment of the colt fell below the standard care several First, regard the ofinformed certain with to issue quotes of our discussion and conclusion on Issue consent. On basis below, testimony. do not review this we addition, Zimmerman
In contends that Robertson admitted sub- regard care to the use of certain medications standard with his to a culture or other determination drains and failure obtain in the abscess. Zimmerman asserts these of bacteria a were sufficient to withstand directed verdict. “admissions” recognized exception the “defendant’s admissions” We have testimony requirement in several expert acknowledged, apply, exception but refused to Dalton cases. We (Mont. 54; 960, Kalispell Regional Hosp. St.Rep. 846 P.2d v. (1988), P.2d Community Hosp. Hunter v.Missoula 230 Mont. Sons, (1979), 106; and & E.R. 181 Mont. Squibb Hill 121, 127, 337 1383. Thomas v.Merriam exception physician’s admissions to applied we where plaintiff’s family procedures member he followed were the standard of care. sufficient to establish deviation from Here, from Robert- distinguishable The case before us is Thomas. improper; that his use certain medications was not son testified a culture similarly, improper that it was not obtain he testified Finally, testified that suction present. on the bacteria — which he draining actually inserting drains abscess — September appropriate constituted August did and care testimony was that he believed his treatment Robertson’s post-surgical treat- colt, including both the ment, applicable standard veterinarians fell within the admissions” We conclude that the “defendant’s the Bozeman area. *5 exception the expert testimony requirement in professional negli- is having here. Zimmerman elicited no other expert testimony regarding deviations from the standard of care, we hold that the District not err directing Court did a verdict based Robertson on the absence of expert testimony.
Did the District Court abuse its discretion in testimony regarding whether the defendant obtained the informed consent of prior surgery? the horse’s owner trial,
During attempted question Robertson subject of whether Robertson had obtained his informed consent to risky the allegedly cryptorchid surgical procedure. On basis ofthe pleadings alleging negligence during the post-surgi- and treatment, cal the District Court sustained defense counsel’s rele- vancy objections. pursue that was entitled to subject and that the District refusal Court’s to admit the testi- mony warrants reversal.
Rulings admissibility of evidence are within sound discretion of the trial and appeal court will not be overturned on 178, absent an abuse discretion. Bache v. Gilden 819. Relevant evidence is “having any evidence tendency to make the consequence existence fact is of the determination probable of the action more probable less than without the be evidence.” Rule M.R.Evid. Relevant “[ejvidence admissible; generally evidence which is not relevant is Rule admissible.” M.R.Evid. Zimmerman’s complaint alleged negligence by 1) stages two treatment of the colt: as a result of his 2) negligent in; procedure, and careless castration infection set and that he failed to and promptly properly treat the infection. The alleged to the cause the colt’s and was be death Zimmer- monetary man’s It damages. undisputed complaint that the was state sufficient to claims for relief for under 8(a), Rule M.R.Civ.P. parties
The and the District Court entered into a Pretrial Order (PTO) 24,1992, days September some ten to trial. “Plaintiff’s allegations Contentions” PTO centered on Zimmerman’s procedure unsanitary done surgical improper under and conditions, recovery area improper that conditions also were infection unsanitary, at the site as a developed surgical conditions, as a proximate result ofthose colt died result properly failure to care for it. Robertson’s ofFact” forth his “Plaintiff’s Issues Zimmerman set follows the PTO: fact, others, litigated remain to be following and no issues trial.
upon the where the castra- nature and condition of area 1. The and its level of sanitation. tion/surgery performed the horse was condition of the area in which 2. The nature and castration/surgery. recover from the placed to of the 3. Whether the lack of sanitation and/or nature recovery probable cause of infection to areas were the *6 respiratory infection. surgical/castration area and/or the infection respiratory 4. The effect of the infection surgical/castration area. after it was and extent of treatment of infection
5. The nature given by after the infection discovered Defendant discovered. by loss suffered Plaintiff as
6. The nature and extent the result of the loss of the horse.
Here, his and factual Zimmerman set forth factual contentions Those factual remaining particularity. for trial with some issues negligence requiring litigation corresponded to the two areas issues namely, post-surgical care and alleged complaint, the Rule course of the action. pretrial subsequent A order controls the Indeed, provided 16(e), specifically PTO in this case M.R.Civ.P. orders govern purpose pretrial the course oftrial. that would permit counsel to the issues and prevent surprise, simplify is to Workman pretrial case for trial on the basis of order. prepare their P.2d 1281. McIntyre Const. Co. v. to be Here, as a factual issue nothing pretrial order raised alleged to obtain Zimmerman’s matter of an failure litigated the surgery. these circum- prior Under informed consent stances, testimony alleged failure was irrelevant regarding PTO; it did himself in the factual issues identified to the consequence fact of tend to make the existence not or during either determination Robertson’s Permitting the intro- period probable. more or less post-surgery trial, matter, first raised of this new factual duction to serve. pretrial orders are intended purposes undermine the Citing cases, numerous the failure of a proper doctor to obtain prior consent to medical malprac- treatment above, however, tice. As set forth testimony relating to informed consent simply was specified not related to his allegations negligence.
Furthermore, Zimmerman relies primarily
Canterbury
(D.C.Cir.
(Okla.
Spence
1972),
772;
464 F.2d
and Scott v. Bradford
the necessary
lack
elements of a
of informed
consent
action.
need
address here the
questions
substantive
relating
an
only
to such
action in Montana. We note
that the cases
generally support
proposition
that a
malpractice
medical
claim
premised
theory
on a
lack
of informed consent
a separate
cause
of action rather than an
“element”
an otherwise specifically alleged
of professional negligence,
claim
as Zimmerman asserts. In Canter
bury, the plaintiff sought personal
based,
injury damages
alterna
tively,
alleged surgical
alleged
negligence,
negligence in post-op
care,
an alleged
erative
negligent
failure
the doctor to disclose
the risks inherent
in the operation. Canterbury, 464
F.2d
Scott,
Similarly, in
Supreme
Oklahoma
Court
had before it claim
in,
defendant failed to advise of
risks
involved
avail
to, surgery;
able alternatives
it set forth the elements that a
malpractice
a medical
theory
action based on a
of lack of informed
Scott,
allege
prove.”
consent “must
(emphasis
These cases our conclusion did that Zimmerman sufficiently raise the informed consent issue to trial in either pleadings or the pretrial order. We hold that the District Court *7 did not abuse its discretion in testimony regarding whether the defendant obtained the informed consent of the horse’s owner surgery.
AFFIRMED. TURNAGE, HARRISON,
CHIEF NELSON, JUSTICE JUSTICES and WEBER concur. concurring. specially
JUSTICE TRIEWEILER case, unique Based on the facts and the available record in this I although I majority opinion, agree concur with the result of the do not that said in opinion. with all is that
I especially caution Montana not to draw practitioners unwarranted this any conclusions case establishes rules for pleading or procedure. plead- only notice require Procedure Rules Civil
The Montana pretrial in a alleged that the facts requirement is no ing; and there complaint. alleged any than those specific order be more claim, it sufficient typical professional In the up It is to the negligent. allege that the defendant was plaintiff for discovery to define the bases through the use of defendant no this case, In we have record before allegation. this general what, discovery party. conducted either any, if Court of so, to chose, although was not to do basis for his claim of very articulate each factual specifically about the extent knowing order. Without more pretrial Court, limited discovery, simply on record before this and based conclude, plaintiff’s allega- affirmative reasonable based on informed tions, surprised when the issue of that defendant Under these limited consent was raised for the first time trial. circumstances, I conclude the District Court did not abuse its by excluding evidence on the issue of informed consent. discretion However, concurring any this I do intend to opinion, way pleading proving claims present requirements add to the of, I professional, negligence. or other Neither do intend pretrial plaintiffs to lessen burden on either defendants use discovery fully party’s the factual bases for the other explore general claims. joins foregoing HUNT concurrence.
JUSTICE