                                 No. 12464

      I N T E SUPREME C U T O T E STATE O M N A A
           H           OR    F H         F OTN

                                      1973



MARJORIE OPIE,

                         P l a i n t i f f and Respondent, and
                          Cross A p p e l l a n t ,



M N A A PHYSICIANS' SERVICE,
 OTN
a corporation,

                         Defendant and A p p e l l a n t , and
                          Cross Respondent.


Appeal from:     D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                 Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record:

    For Appellant :

         Hughes, Bennett and Cain, Helena, Montana
         Alan F. Cain argued, Helena, Montana

    F o r Respondent :

         Michael J. Whalen argued, B i l l i n g s , Montana



                                                Submitted:            November 29, 1973

                                                   Decided:       .
                                                                  ~ l j N 4 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 bene-
fits.     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 $ 8 0 5 . 6 5 and
denied recovery for the dental services.      Defendant health organ-
ization appeals from the award to plaintiff for the medical ser-
vices, 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 $ 8 2 5 . 5 0 relating to expenses incurred
by plaintiff in the removal of all her teeth and their replace-
ment with dentures.
          Following trial before the court without a jury, Judge
Luedke awarded judgment to plaintiff in the amount of $ 8 0 5 . 6 5 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, accord-
 ingly 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 agree-
 ment 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 evi-
dence 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 post-
        partum 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 com-
        pelled 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 prob-
        lems 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 conse-
        quence, but not its purpose - which under the cir-
        cumstances 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 support-
ing 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 steril-
        ization, 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 $ 8 0 5 . 6 5
was not argued nor does the reason therefor appear in the district
court file.   The correct amount based on the materials before us
is $ 8 0 5 . 6 5 and such amount is affirmed.
         Passing to the second count, plaintiff alleged that she
was required to expend $ 8 2 5 . 5 0 as a result of surgery not a
customary service ordinarily performed by dentists or oral sur-
geons, but instead surgery required to remove a cyst.        The dis-
trict 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, plain-
        tiff'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 con-
        dition 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 customar-
        ily 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 en-
        titled 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 pro-
visions 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 bur-
den 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 satis-
factory 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
t h e o r a l s u r g e o n , and t h e n e c e s s i t y t h e r e f o r .   Such b e i n g t h e

c a s e , p l a i n t i f f f a i l e d t o meet h e r burden of proof by a p r e -

ponderance of t h e e v i d e n c e on c o u n t 2 .
               The judgment of t h e d i s t r i c t c o u r t i s a f f i r m e d .         Plain-

t i f f ' s motion f o r a s s e s s m e n t of damages a g a i n s t d e f e n d a n t f o r a
f r i v o l o u s appeal i s denied f o r t h e reason t h a t t h e appeal here

i s n o t s o d e v o i d of m e r i t a s t o r e n d e r it f r i v o l o u s .




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