                                No. 83-396
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1984



THOMAS HOWARD as Guardian Ad
Litem for Betty K. Howard,
                         Plaintiff and Respondent,


DOONER LABORATORIES, INC.
a Penn. corp. , and LYACIEJ
TOMFISZEWSRI, M.D.,
                         Defendants and Appellants.




APPEAL FROM:      District Court of the Tenth Judicial District,
                  In and for the County of Fergus,
                  The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:
     For Appellants:
                 Anderson, Brown, Gerbase, Cebull   &   Jones; Richard F.
                 Cebull, Billings, Montana

     For Respondent:

                 Torger S. Oaas, Lewistown, Montana



                                 Submitted on Briefs:     March 3 0 , 199;989
                                             Decided:      July 23, 1984


Filed:
         J l!!




                                 Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.


      Defendant, Dr. Maciej Tomaszewski, M. D., appeals from
an order of the Fergus County District Court denying his
motion to change venue from Fergus County to Yellowstone
County.     Plaintiff, Thomas Howard, as guardian ad litem for
Betty K. Howard, is suing the doctor for medical malpractice
and    co-defendant,         Dooner    Laboratories,        for    the   alleged
defective manufacture of the allergy medication that was
prescribed       by    the    doctor       for    Betty    Howard.       Dooner
Laboratories has not appealed the order keeping venue in
Fergus County.         We reverse and remand with instructions to
order venue changed to Yellowstone County.
      The sole issue is whether, in a medical malpractice
action, an        alleged     tort    is   "committed" for purposes of
section 25-2-102, MCA, in the county where the doctor made
his examination and diagnosis and prescribed the medication,
or    in   the    county where        the patient         later   ingested the
medication and allegedly suffered injury.
      The facts are simple and uncontested.                        The patient,
Betty Howard, suffers from asthma and other related health
problems.        On or about October 18, 1978, she traveled from
her home in Fergus County to Yellowstone County to see the
defendant doctor, a specialist in allergy and immunology
practicing in Billings.           Doctor Tomaszewski examined her and
prescribed a medication called Slo-phyllin Gyrocaps.                        The
medication        is    manufactured         by     co-defendant,        Dooner
Laboratories, a Pennsylvania corporation.
      Betty Howard returned to her home in Fergus County and
had   the prescription         filled at a pharmacy               in Lewistown.
After     ingesting    some    of     the    Slo-phyllin    Gyrocaps,      she
allegedly     suffered       seizure    attacks      and   other     serious
injuries.     She sued the doctor and the laboratory in Fergus
County.    The defendant doctor moved to have the venue changed
to Yellowstone County.
     The general statutory rule is that a defendant has a
right to be sued in the county where he resides (section
25-2-108, MCA), although there are exceptions.               One exception
is provided in section 25-2-102, MCA, which provides that
"actions for torts may be tried in the county where the tort
was committed,.       . ."    Plaintiff relied on this exception to
file the action in Ferqus County as opposed to Yell-owstone
County, where the doctor lives and practices.
     The examination, diagnosis, and prescription for the
medication took place in Yellowstone County.                The defendant
doctor    argues that        if he    is guilty of malpractice, the
conduct     giving    rise    to     that    claim   ail   took    place    in
Yellowstone County and therefore that is where plaintiff
should have filed the lawsuit.              Plaintiff, on the other hand,
contends that the tort was incomplete until she actually
sustained injuries, and that those injuries were sustained in
Fergus County.         Plaintiff also argues, as an alternative
argument, that her complaint is sufficient to keep the action
in Fergus County because             she alleged that the defendant
doctor "failed to properly monitor" her use of the medica-tion
in Fergus County, and that this allegation is sufficient on
its face to keep venue in Ferqus County.                   She bases this
argument on the language of her complaint alleging that the
defendant doctor      ". .         failed - monitor - - of (the
                                          to        the use
medication)    by     Betty    K.    Howard     as   recommended    by     the
manufacturer."       (Emphasis added).
     The general rule to determine venue in tort cases is set
forth in Whalen v. Snell                (Mont. 1983), 667 P.2d          436, 40
St.Rep.   1283, where we held that for purposes of venue "a
tort is committed where there is a concurrence of breach of
obligation and the occasion of damages."                   The question is not
an easy one, however, where a concurrence of breach and
damages does not occur in the same county.                         Such is the
situation    here.         The     doctor's      activity      took    place    in
Yellowstone County, but the alleged injuries later suffered
after ingestion of the pills occurred in Fergus County.                         If
the doctor breached his duty to properly examine, diagnose,
and prescribe for the plaintiff, that breach took place in
Yellowstone County, where this activity took place.                     However,
the alleged injury was incurred in Fergus County after the
plaintiff had obtained and ingested the medication from a
pharmacy in Fergus County.
     Cases   cited        by    the     plaintiff    to    support the       trial
court's   decision        to     keep    venue      in    Fergus   County,     are
distinguishable.      In Hopkins v. Scottie Homes, Inc. ( 1 9 7 9 ) ,
180 Mont. 498, 591 P.2d 230, plaintiff sustained injuries in
Musselshell County when he slipped and fell on the roof of a
trailer home he had purchased in Valley County.                        Plaintiff
sued in Musselshell County for personal injuries and for
breach of contract.             We held that the contract was to be
performed in Musselshell County, and that the allegation that
the defendant committed a tort in Musselshell County was
sufficient to keep venue in Musselshell County rather than
returning    it      to        Valley     County,        the   place    of     the
defend.ant-seller's residence.             Here no contract violation is
alleged and plaintiff has not alleged tortious conduct of the
doctor occurring in Fergus County.                  The mere allegation that
the doctor "failed to monitor" the patient's use of the
medication does not on            its face allege that a tort was
"committed" in Fergus County.
    Cases    cited     by   the     plaintiff     to    support the        trial
court's   decision     to    keep      venue     in    Fergus    County,     are
inapplicable.        Hopkins      v.    Scottie       Homes,    Inc.,     supra;
Woolcock v. Beartooth Ranch (Mont. 1981), 637 P.2d 520, 38
St.Rep. 2130; and Bergin v. Temple (1941) 111 Mont. 539, 111
P.2d 286.    We need not discuss the facts and law of these
cases because it is sufficient to say that they do not
support plaintiff's argument that venue is properly in Fergus
County.
    Although venue questions between counties and personal
jurisdiction    questions      as      between    states,       and     personal
jurisdiction questions regarding the federal courts cannot be
totally     synchronized,         the      fact       remains     that      the
considerations    in     deciding       venue    questions      and     personal
jurisdiction questions are basically the same.                        Underlying
the approach to both types of questions is the fundamental
requirement of fairness to the defendant.
    Federal      cases      involving      decisions       on     whether     a
particular federal court should assert personal jurisdiction
are more in point to the problem faced here.                    In Wright v.
Yackley (9th Cir. 1972), 459 F.2d 287, a doctor who lived in
South Dakota, and who prescribed medicine for plaintiff while
she lived in South Dakota, was sued by the plaintiff after
the plaintiff had moved to Idaho and had taken medicine that
had been prescribed by the doctor in South Dakota, but had
been refilled in Idaho.           Plaintiff sued the doctor in Idaho
federal court, alleging she had been injured by the medicine
prescribed by the South Dakota doctor.                   The Idaho Federal
District Court dismissed the action for lack of personal
jurisdiction,    and    the    Ninth   Circuit       Court   of   Appeals
affirmed, stating:
    "If appellee was guilty of malpractice, it was
    through   acts   of   diagnosis and    prescription
    ~erformed in South Dakota.     The mailinq of the
    prescription to Idaho did not constitute new
    prescription.   It was not diagnosis and treatment
    by mail.     ..It did, of course, put the doctor on
    notice 'that consequences of his South Dakota
    services would be felt in Idaho and that it was by
    his very act of mailing that this would be made
    possible. - - -
                In our view however, - -does no more
                                      this - -
    than put the doctor - - positions - - -
                         in the          of one who, in
    South Dakota, treats an Idaho resident with
    knowledge - - imminentreturn - Idaho - -
              of her                  to       and that
    - treatment thus may cause effects there."
    his
    (Emphasis added). (459 F.2d at 288).

    The Wright decision also recognized that defendant's
relationship to the forum state must be such that conferring
personal    jurisdiction      over   the   defendant     would    not   be
"unreasonable"   --    that is, it must be fair.              The court
focused on this element in the context of personal medical
services:
    "In the case of personal services focus must be on
    the place where -the services are rendered, since
         -
    this is the place of the receiver's (here the
    patient's) need.      ..
                          (The services) are directed to
    no place but to the needy person herself. It - -
                                                   is in
    the very nature of such services t h a t their
    consequences will b- felt wherever - person may
                 -- e                     the
    choose to go.     However, -idea that tortious
                                 the - -
    renditiof;-ofsuch services - -a portable tort which
    ---                         is
    can- - - - - have been committed wherever the
    -   be deemed to
    consequences foreseeably were-felt is wholly
                                 -       -
    inconsistent - - public interest in having
                  with the
    services - - - sort generally availabTe.
              of this                                 ."      .
    (Emphasis add.ed)    .
                        (459 F.2d at 289)        .
    Although the burdens, inconvenience, and expense in an
intrasta-te venue      dispute may     not be    a.s great as       those
involved in an interstate dispute over whether a treating
physician should be compelled to travel from state to state
defending medical malpractice lawsuits, it is nonetheless
unfair to      require a treating physician to respond to a
lawsuit filed in a distant county simply because that is
where the patient happened to be when he or she first noticed
the    ill   effects       of   the     alleged   negligent    examination,
diagnosis, and prescription.              The venue statutes should not
be interpreted to give a plaintiff the right to choose a
forum based on the fortuitous fact that the patient happened
to be in a particular county when he or she first noticed the
ill effects of the conduct on which the claim of malpractice
is based.
       Our holding here is not meant to establish an inflexible
rule that absolutely forbids a treating physician from being
sued    in   any       county   other    than   where   he   maintains   his
business.     The factual circumstances of a particular case may
justify a different result.              An analogous example exists in
the personal jurisdiction issue presented in McGee v. Riekhof
(D.Mont. 1 9 7 8 ) ,    442 F. Supp. 1276, where a Montana resident
traveled to Utah to have a detached retina reattached, and
then returned to Montana.                Later, the physician advised
plaintiff's wife by telephone that plaintiff could return to
work as a pipefitter.             Plaintiff returned to work and his
retina detached again on the first day of work.                  Plaintiff
sued the Utah physician in Montana federal court and personal
jurisdiction       was    established     over    defendant because      the
allegation was that he "committed" a tort in Montana when he
telephonically rendered professional medical advice to the
plaintiff in Montana.           We can see similar issues arising in a
venue case where a physician may render out of county advice
to a patient, which advice is later relied on as the basis
for a tort action filed against the physician.
     Based on the facts in this record, however, we hold that
if defendant was guilty of malpractice, it was through his
 .
acts of diagnosis and prescription in Yellowstone County, and
venue   is      proper   there.    In   reaching   this   holding, we
recognize but do not adopt the minority view--i.e., that a
tort is "portable" and arises wherever the damages arise.
States such as Florida who have adopted this approach have
venue statutes that provide that an action may be brought
wherever the tort "accrues," not where it was "committed."
See, section 47.011, FSA          (1969).   We may have reached a
different conclusion had. our venue statute provided that an
action may be brought where the tort "accrued," as opposed to
where it was "committed."
    We therefore reverse the order of the trial court and.
order that the venue be changed to Yellowstone County.




We Concur:
    n




        I   -
            Justices
                Justice Frank I. Baswell and Mr. Justice Frank B.
                Jr., dissent and will file a written dissent later.
        IN THE SUPREME COURT OF THE STATE OF MONTANA

                              No. 83-396



THOMAS HOWARD, As Guardian ad
litem for BETTY K. HOWARD,

           Plaintiff and Respondent,



DOONER LABORATORIES, INC., a
Pennsylvania corporation, and
and MACIEJ TOMASZEWSKI, M.D.,

           Defendants and Appellants.




                                DISSENT




Majority Opinion Decided:       July 23, 1984

Eissent Filed:   August 8 ,    1984
Mr. Chief Justice Frank I. Haswell, dissenting:
      I dissent.    In my view the Fergus County District Court
properly denied the appellants' motion to change venue from
Fergus County to Yellowstone County.
      The venue    statute at issue, section 25-2-102, MCA,
provides that an alleged tort may be tried in the county
where the tort was committed.   A tort consists of a breach of
duty and damages proximately caused by the breach.   Joseph v.
Hustad Corporation (1969), 153 Mont. 121, 454 P.2d 916.     In
other words, before a tort can be committed there must be
damage.
      The tort in the present case was not committed until
the damage occurred in Fergus County.   Therefore, the alleged
tort of malpractice was committed in Fergus County and venue
was proper in that jurisdiction.
     The majority rejects the reasoning set forth above and
asserts that choice of forum should not be based "on the
fortuitous fact that the patient happened to be in a particu-
lar county when he or she first noticed the ill effects" of
the alleged malpractice.
      I suggest that suffering the ill effects of negligent
health care is never a fortuitous event.       There is little
chance that the policies of our venue statutes will be dis-
served by allowing such actions to proceed where the patient
or victim suffered damage or injury as the result of the
alleged negligent conduct.
     The physician in the present case allegedly owed the
patient a duty of care that extended to the patient's home in
Fergus County.     This duty or obligation was breached by an
alleged failure to monitor the patient's condition in Fergus
County.   This allegation of tortious conduct, which appears
on the face of the plaintiff's complaint, was sufficient in
itself to keep venue      in Fergus County.        See Hopkins v.
Scottie Homes, Inc. (1979), 180 Mont. 498, 591 P.2d 230. The
occasion of damages in this case was clearly in Fergus Coun-
ty.     The majority has neatly sidestepped our recent decision
of Whalen v. Snell (Mont. 1983), 667 P.2d          436, 40 St.Rep.
1283.    In Whalen we held that a tort is committed where there
is a concurrence of breach of obligation and the occasion of
damages.     Since the plaintiff's complaint alleges both an
obligation breached and damages suffered within Fergus Coun-
ty, venue was proper there.




                                  S&.$,9wtJJQ4$)
                                         Chief Justice




Mr. Justice Frank B. 3Iorrison, Jr . :
     I concur in the foregoing dissent of Mr. Chief Justice
Haswell.
