                                                                                       December 10 2013


                                           DA 13-0250

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 369



STEVE ANDERSON AND PAMELA MURPHY
AS PERSONAL REPRESENTATIVES OF THE
ESTATE OF DARLEEN ANDERSON,

              Plaintiffs and Appellants,

         v.

WILLIAM J. HARPER, M.D.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDV 2010-652
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Neel Hammond, M.D., J.D., Hammond Law, PLLC; Missoula, Montana

                        Spencer T. MacDonald, MacDonald Law Office, PLLC; Missoula, Montana

                For Appellee:

                        J. Daniel Hoven, Oliver H. Goe, Evan M. T. Thompson, Browning,
                        Kaleczyc, Berry & Hoven, P.C.; Helena, Montana


                                                   Submitted on Briefs: November 13, 2013
                                                              Decided: December 10, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Issue One: Did the District Court err by refusing to give the Andersons’ proposed

jury instruction?

¶2     Issue Two: Did the District Court err by giving the Defendant’s proposed instruction

over the Andersons’ objection?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶3     Dr. William Harper (Dr. Harper) is a board certified surgeon. On December 21, 2001,

Dr. Harper treated Mrs. Darleen Anderson (Darleen) by placing a graft in her arm, also

known as a “fistula,” to facilitate kidney dialysis. Darleen’s graft began to scab over in July,

2008, and the scab slowly expanded in size. On January 11, 2009, the scab ruptured and

Darleen bled to death. Steve Anderson and Pamela Murphy, as personal representatives of

Darleen’s estate (the Andersons), filed this action against Dr. Harper.

¶4     At trial, the Andersons presented testimony from an expert witness and board certified

vascular surgeon, Dr. Willis Wagner (Dr. Wagner). Dr. Wagner testified that he would have

revised the graft upon seeing the scab. Dr. Harper presented testimony from Dr. Charles

Swannack (Dr. Swannack), a board certified general surgeon who had performed dialysis

grafts and graft revisions in the past. When settling jury instructions, the Andersons sought

an instruction that Dr. Harper should be held to the standard of care of a board certified

vascular surgeon, rather than a general surgeon. The District Court refused the Andersons’

instruction on the grounds that no evidence had been presented to justify a heightened

standard of care. The Andersons also objected to Dr. Harper’s proposed instruction that “the

mere fact of injury, standing alone, is not proof of negligence against the defendant in a

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malpractice action.” The Andersons’ objection was overruled and the instruction was given

by the court. The Andersons now seek a new trial on the grounds that the District Court

abused its discretion in refusing their instruction on the standard of care, and in giving the

“mere fact of injury” instruction.

                               STANDARDS OF REVIEW

¶5     We review jury instructions for an abuse of discretion. Williams v. United Fidelity

Life Ins. Co., 2005 MT 273, ¶ 46, 329 Mont. 158, 123 P.3d 213; Christofferson v. City of

Great Falls, 2003 MT 189, ¶ 9, 316 Mont. 469, 74 P.3d 1021. In reviewing whether a

particular jury instruction was properly given or refused, we consider the instruction in its

entirety, as well as in connection with the other instructions given and with the evidence

introduced at trial. Williams, ¶ 46; Christofferson, ¶ 9.

                                       DISCUSSION

¶6     The Andersons argue that the District Court erred by refusing to give their proposed

jury instruction regarding the standard of care applicable to Dr. Harper. Although the

Andersons never specifically objected to Dr. Harper’s contrary instruction, they argue that

they preserved the issue under M. R. Civ. P. 51(d)(1)(B) when they requested their contrary

instruction and it was rejected by the District Court. Dr. Harper counters that the Andersons

stipulated to the very instruction they now contest and that this made the instruction “the law

of the case.”

¶7     Dr. Harper’s “law of the case” theory is inapposite to the present issues. Montana

cases invoking the “law of the case” doctrine all pertain to instructions actually given by the

court. See Selzer v. Morton, 2007 MT 62, ¶¶ 144-45, 336 Mont. 225, 154 P.3d 561; State v.

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Crawford, 2002 MT 117, ¶¶ 25-27, 310 Mont. 18, 48 P.3d 706; DeBruycker v. Guaranty

Natl. Ins. Co., 266 Mont. 294, 301, 880 P.2d 819, 823 (1994). We find no authority holding

that stipulated instructions are automatically precluded from future objection during the

actual settling of instructions.

¶8     We now examine whether the District Court abused its discretion in refusing the

Andersons’ instruction. It is a matter of law for the court to determine the proper standard of

care applicable to the case and instruct the jury on that standard. Aasheim v. Humberger,

215 Mont. 127, 129, 695 P.2d 824, 826-27 (1985). A doctor’s standard of care towards a

patient is judged against “the skill and learning possessed by other doctors in good standing

practicing in the same specialty and who hold the same national board certification.”

Aasheim, 215 Mont. at 130, 695 P.2d at 826-27. It is the plaintiff’s burden to establish the

standard of professional care in a medical malpractice case. Gilkey v. Schweitzer, 1999 MT

188, ¶ 17, 295 Mont. 345, 983 P.2d 869.

¶9     The Andersons’ proposed instruction No. 3 provides: “A doctor who performs

professional services which should be performed by a specialist has a duty to use the care

and skill of a specialist in that field of medicine.” In refusing the instruction, the District

Court noted that it “didn’t hear any dispute or evidence” concerning whether the surgery

should have been performed by a specialist board certified vascular surgeon. Our review of

the record confirms this absence. Even the Andersons’ expert, a board certified vascular

surgeon, never testified that the creation and management of a fistula required a vascular

surgeon nor did he testify that Dr. Harper was acting outside of his specialty when caring for

Darleen. The court also found that Dr. Harper was “performing the very same kind of

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surgery” described in the testimony of Dr. Swannack, “who is not a board certified vascular

surgeon; he is a board certified surgeon. . . .” We conclude that the District Court acted well

within its discretion in refusing the Andersons’ proposed instruction on these grounds.

¶10    The Andersons also objected to Defendant’s Proposed Instruction No. 3. That

instruction reads, in relevant part: “The mere fact of injury, standing alone, is not proof of

negligence against the defendant in a malpractice action.” The Andersons claim that the use

of the word “mere” was argumentative and unduly prejudicial to their position at trial. We

have previously found this instruction to be proper in professional negligence actions.

Juedeman v. Montana Deaconess Medical Ctr., 223 Mont. 311, 321, 726 P.2d 301, 307

(1986); Hunsaker v. Bozeman Deaconess Foundation, 179 Mont. 305, 329, 588 P.2d 493,

507 (1978). The Andersons address neither of these cases in their brief to this Court.

¶11    Instead, the Andersons rely on a case wherein the South Dakota Supreme Court found

prejudice in an instruction defining medical negligence as an “error in judgment.” Papke v.

Harbert, 738 N.W.2d 510 (S.D. 2007). But that decision singled out only “error in

judgment” as prejudicial, and further noted that “courts are still permitted to instruct a jury

that the fact that an unfortunate or bad condition resulted to the patient does not alone prove

that the defendant was negligent.” Papke, 738 N.W.2d at 527, n. 15. (internal quotations

omitted). Thus, we conclude that the District Court did not abuse its discretion in approving

Dr. Harper’s proposed instruction No. 3.

                                      CONCLUSION

¶12    For the foregoing reasons, we affirm.



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                          /S/ MICHAEL E WHEAT


We Concur:

/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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