                                  No. 12204

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

                                      1972



RUBY COLLINS,

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

      -VS   -
YOKICHI ITOH,

                          Defendant and Respondent.



Appeal from:      D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
                  Honorable W. W, L e s s l e y , Judge p r e s i d i n g .

Counsel of Record:

    For Appellant :

            Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
             Montana.
            James P. Murphy argued and Arnold Berger appeared,
             B i l l i n g s , Montana.

    For Respondent:

            Berg, ~ ' C o n n e l l , Angel and Andriolo, Bozeman, Montana.
            Charles F. Angel argued, Bozeman, Montana,



                                               Submitted:             September 18, 1972



Filed :     NoV 17 1972
Mr. Justice John C. Harrison delivered the Opinion of the Court.
         This is an appeal by plaintiff in a medical malpractice action
from a directed verdict for the defendant, entered in the district court
of the sixth judicial district, county of Park, Honorable W. W. Lessley
presiding. Trial, with a jury comenced in Livingston on November 15, 1971.
         Plaintiff, Ruby Collins, had been suffering many years from a thyroid
problem and taking medication for the condition. In 1964, her condition
deteriorated to the point that Dr. Allen Goulding of Billings recommended
surgery. Following the recommendation plaintiff consulted defendant, Dr.
Yokichi Itoh in August 1964, in Livingston, in regard to a thyroidectomy.
On September 11, 1964, defendant performed the thyroidectomy. On the second
or third day after the operation, plaintiff exhibited signs of what was
1ater determined to be hypoparathyroidism, characterized by cramping , numb-
ness, and muscle spasms. Defendant believed this to be a transient condi-
tion, requiring treatment with calcium gl uconate and calcium tablets.
         Defendant did not receive a pathologist's report on the thyroidec-
tomy until four or five days after the operation. At that time, Livingston
Memorial Hospital did not have a "true resident" pathologist. The tissue
had been taken to Bozeman for analysis. When the report was received, defend-
ant became aware that he had removed a parathyroid gland during the thyroid-
ectomy. Plaintiff maintained defendant informed her that he had done so by
mistake; defendant denies such a statement. Defendant asserted that he
merely told her he had removed a parathyroid. After plaintiff's discharge
from the hospital, her condition did not improve. Defendant increased the
plaintiff's calcium dosage. In February 1965, plaintiff contacted Dr. Goulding
for his advice. Dr. Goulding conducted several tests and suggested to de-
fendant that plaintiff be given more calcium and vitamin D.   This treatment
continued until September 1967, when plaintiff moved from Livingston to
Billings. The last time defendant saw plaintiff, he told her she must con-
tinue taking the calcium pills the rest of her life. She claimed she did
not know that this was a result of the operation. It is admitted b the de-
                                                                  y
fendant that at no time did he inform plaintiff that any risks were involved
i n a thyroidectomy.
              In June 1968, p l a i n t i f f consulted Dr. Sidney Hayes, J r . , of
Billings, f o r treatment of her condition.                P l a i n t i f f told Dr. Hayes she was
taking 35 calcium p i l l s per day f o r her parathyroid condition.                      Plaintiff
contends t h a t i t was not until t h i s time t h a t she became aware of what caused
her condition, i . e . , the removal of the parathyroid.                    P l a i n t i f f said Dr.
Hayes t o l d her t h e problem was low calcium because of parathyroid removal.
P l a i n t i f f continued under Dr. Hayes' care u n t i l August 1968.               Shortly there-
a f t e r , p l a i n t i f f f i l e d her complaint i n t h i s action.
             P l a i n t i f f contends she has t r i e d t o return t o work but painful
cramps i n her hands and legs, caused by low ca1 c i um 1eve1 s i n her blood, have
prevented her from continuing i n any position.                    P l a i n t i f f claims she is i n -
capable of performing even simple maid work.                     In the interim, between the
date of f i l i n g t h e complaint and the date of t r i a l , p l a i n t i f f has twice been
hospitalized due t o her parathyroid condition.                    Defendant contends t h a t these
incidents were caused by p l a i n t i f f ' s f a i l u r e t o f a i t h f u l l y take her calcium
t a b l e t s , as defendant t o l d her she must do, and w h i c h p l a i n t i f f admitted she
did not always do, alleging t h a t these q u a n t i t i e s of calcium t a b l e t s cause
illness.
             P l a i n t i f f maintained t h a t defendant was negligent i n the following
particulars:         (1) removal of parathyroid t i s s u e during thyroidectomy; ( 2 )
f a i l u r e t o inform p l a i n t i f f of r i s k s i n such surgery; (3) a f t e r removal of
parathyroid t i s s u e , f a i l ure t o inform p l a i n t i f f of the consequences of
removal ; ( 4 ) f a i l u r e t o consult experts and medical t e x t s before o r a f t e r
post-operative treatment; (5) f a i l u r e t o prescribe proper post-operative
treatment; and (6) f a i l u r e t o perform surgery where a p a t h o l o g i s t ' s services
were immediately available.             Defendant denied a l l allegations and raised
the s t a t u t e of limitations as a defense.
             W have made a careful analysis of the f a c t s i n a l i g h t most favor-
              e
able t o the p l a i n t i f f .   However, i n a correct application of t h e law t o the
f a c t s , we can find no support f o r overturning the directed verdict f o r de-
fendant.      There can be l i t t l e question t h a t p l a i n t i f f was indeed injured.
Testimony clearly indicated she must continue to take medication for the
rest of her life. But the mere fact she suffered an injury is not enough.
"The law does not presuppose that for every injury there must be a recovery
in damages." Loudon v. Scott, 58 Mont. 645, 653, 194 P. 488, 12 A.L .R.
1487   : Negaard   v. Estate of Feda, 152 Mont. 47, 52, 446 P.2d 436. For the
plaintiff to recover there must be a breach of a legal duty owed to her by
defendant, which proximately caused her injury. Loudon, supra; Negaard,
supra.
          We will consider plaintiff 's allegations of negligence individually.
The pretrial order lists the removal of the parathyroid as the first item of
negligence, relied upon by plaintiff
          Statistical evidence from medical journals presented at trial indi-
cated that removal of parathyroid tissue occurs in one-half of one percent
to three percent of the cases. The rare incidence of such occurrence alone
does not indicate any negligence on the part of defendant. Salgo v. Leland
Stanford Jr. University Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170,
177; Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756. After recognizing those
percentages, the fol lowing testimony was el ici ted from plaintiff's witness,
Dr. Movius:
          "Q. The fact that this [removal of parathyroid tissue]
          occurs surgically 4n whatever the small percentage is,
          that doesn't necessarily indicate, does it, there was
          any lack of care on the surgeon's part in performing
          that particular surgery, does it? A. No, I don't think
          so. Especially if it's for cancer or re-operation.
          "Q. Idell, what I'm getting at, in any particular case,
          without knowing all the details of the surgery, you
          can't just say that because a parathyroid was removed
          it was due to lack of care, can you? A. Oh, no."
          And again, on redirect and recross examination.
          "Q. Doctor, if we can assume that the statistics
          of from one-half of one percent to three percent
          of thyroidectomies include removal of parathyroid
          tissue, and if we further assume that these statistics
          include the cancerous, the re-operation and the
          unskilled hands, is it reasonably medical ly probable
          that in non-cancerous, non-re-operation situation,
          in skilled hands, that the percentage would be far
          less or nonexistent? A. The literature says in
          skilled hands, for the first operation, the incidence
         of hypoparathyroidism is rare.


         "Q. Doctor, the fact that the incidence is rare
         does not mean that--it does occur, though. A. Yes.
         "Q. Yes, and that doesn't necessarily mean that when
         it does occur it's a lack of due care, does it?
         A. No, it could be an anomalous condition. Although
         the incidence--We11 , I can only speak for myself . It's
         never happened to me in a thousand operations."
         In his final analysis, Dr. Movius testified that even though the
occurrence of the removal of parathyroid in a thyroidectomy is rare, it is
no indication in itself that it is the result of negligence. There was no
evidence upon which a jury could predicate a finding that the removal was
due to negligence.
         PlaJntiff's second allegation of negligence was defendant's fail-
ure to inform plaintiff, in advance, of the risks of such surgery. It is,
of course, the prevailing rule that where a patient is in such physical
health as to be able to consult about his condition, his consent is a pre-
requisite to surgical operation. 70 C.J.S. Physicians and Surgeons 5 48.
Such consent is not a mere rubberstamp of the physician's recommendation.
Each man is considered master of his own body and may request or prohibit
even 1 ifesaving surgery. The law will not a1 low a physician to substitute
his own judgment, no matter how well founded, for that of his patient.
Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093.
         This Court has considered the "informed consent" doctrine recently
in two decisions: Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d 436,
and Doerr v. Movius, 154 Mont. 346, 349-350, 463 P.2d 477. In both cases
we recognized the same rule. In Doerr, the court stated:
        "The general rule on informed consent was set forth by
        this Court in Negaard v. Estate of Feda, 152 Mont. 47,
        446 P.2d 436, 25 St.Rep. 632. The duty to disclose to
        assure that an informed consent is obtained was recog-
        nized and described as a matter of medical judgment.
        This duty to disclose was limited to those disclosures
        which a reasonable practitioner would make under similar
        circumstances. If the doctor obtained an informed consent
        and proceeded as a competent medical man would in a
        similar situation, his course of action should not be
        questioned.
            " 'The g i s t of the "informed consent" theory of 1i a b i l i t y
            i s t h a t a physician is under a duty under some circum-
            stances t o warn his patient of known r i s k s of proposed
            treatment so t h a t the patient will be i n a position t o
            make an i n t e l l i g e n t decision as t o whether he will submit
            t o such treatment. It' (Emphasis added. )
            The question here then becomes whether a one-half of one percent t o
three percent incidence of hypoparathyroidism i n a thyroidectomy is a "known
r i s k " , and whether a "reasonable1' practitioner would have disclosed those
statistics.       W think not.
                   e                   Whether the physician is under a duty t o disclose
depends upon the f a c t s of each case; no hard and f a s t r u l e can be s t a t e d as
t o what should be disclosed and what can be withheld.                D Filippo v. Preston,
                                                                       i
53 Del. 539, 173 A.2d 333; Nishi v. Hartwell, 52 Hawaii 188, 473 P.2d 116;
Watson v. C l u t t s , 262 N . C . 153, 136 S.E.2d 617.      The s t a t i s t i c a l evidence
presented, even when viewed in the l i g h t most favorable t o p l a i n t i f f , does
not demonstrate an urgent need t o disclose such information t o the p a t i e n t .
The evidence presented was not s u f f i c i e n t t o present a question of f a c t f o r
the jury.
            Furthermore, testimony used t o indicate the custom and practice of
a reasonable p r a c t i t i o n e r was inconclusive.   Dr. Hayes, witness f o r plain-
t i f f , t e s t i f i e d by deposition:
            "Q. * * * do you generally i n a routine always inform
            patients t h a t you're going t o do a thyroidectomy on
            of possible damage t o the parathyroid function? A.
            If -- yes. That and a recurrent laryngeal nerve.
            "Q. You do i t i n every case? A.            In every case,
            yes.
            "Q. D you know what the other doctors i n Billings do?
                 o
            A.    I be1 ieve they do the same thing.
            "Q. Well, do you know? You say you believe. B u t
            have you talked t o them? A. Well, how would I know?
            "Q. Well, t h a t ' s the answer. That's a l l you have t o
            say. A. I d o n ' t know what they do.
            "Q. And, likewise, i n Bozeman o r B i l l i n g s , do you
            know what the doctors down there do? A. I d o n ' t
            know what they do down there .I'
            A similar s i t u a t i o n arose i n Schumacher v. Murray Hospital, 58
Mont. 447, 460, 193 P. 397.              There, this Court said:
             "   *** Dr. Matthews merely says t h a t he uses i t i n
             his own practice i n a l l cases, but does not know the
             practice of others i n t h a t regard. Such testimony
             does not prove negligence nor want of care or s k i l l . "
             The custom and practice of one p a r t i c u l a r doctor, without knowledge
of the general custom and practice among t h e profession, cannot e s t a b l i s h a
reasonable basis t o i n f e r t h a t defendant departed from t h a t practice.                    Nor does
i t i n f e r t h a t a doctor who does not follow t h a t p a r t i c u l a r practice was neg-
ligent.      See D i Filippo v. Preston, 53 Del. 539, 173 A.2d 333; McPhee v.
Bay City Samaritan Hospital             , 10 Mich .App.     567, 159 N.W. 2d 880.
             In view of the testimony of Dr. Movius and Dr. Hayes, we have had
raised once again f o r our consideration the question of "standard of care and
treatment".          The long standing r u l e i n t h i s j u r i s d i c t i o n was s t a t e d i n Negaard
t o be:
             "A d e n t i s t [doctor] who undertakes t o t r e a t a
             patient assumes a duty t o t h a t patient t o exer-
             c i s e such reasonable care and ski1 1 as i s usually
             exercised by a d e n t i s t [doctor] in good standing
             in the community i n which he resides. Donathan
             v . McConnell, 121 Mont. 230, 193 P.2d 819." See
             a1 so Hansen v. POCK, 57 Mont. 51 , 187 P. 282.
             In oral argument counsel f o r both p a r t i e s argued t h a t as t o "medical
special i s t s " the "1 ocal i t y rul el' be considered and abandoned.                 However, the
evidence introduced does not give r i s e t o , nor i s the issue raised by e i t h e r
party, except on oral argument, our consideration of the r u l e above s e t f o r t h
i n Negaard.
             P l a i n t i f f ' s t h i r d contention of negl igence was t h a t a f t e r the removal
of the parathyroid, defendant f a i l e d t o inform t h e p l a i n t i f f of the consequences
of removal       .   In order t o establ ish t h i s contention as a breach of defendant's
duty t o the p l a i n t i f f , i t must be shown t h a t such was the standard of care
owed t o the p l a i n t i f f .    However, no testimony tending t o show t h i s t o be the
standard of care i n the medical profession was presented.                         Neither Dr. Hayes
nor Dr. Movius indicated they would a c t i n the manner p l a i n t i f f d e s i r e s ,
under the same or similar circumstances.                    The we1 1-recognized r u l e , subject t o
c e r t a i n exceptions, is t h a t there must be expert testimony t o e s t a b l i s h
negligence i n a malpractice action.                 Loudon, supra; Schumacher, supra; 81
A.L.R.2d 597.        P l a i n t i f f presented no expert testimony i n support of t h i s
allegation.       In Loudon, this Court said:
            "The g i s t of t h i s action [malpractice] i s negligence,
            and actionable negligence a r i s e s only from a breach of
            legal duty."       See also: Jonosky v. Northern Pac. Ry.
            Co., 57 Mont. 63, 187 P. 1014.
Here, no breach of legal duty was demonstrated.
            W find no merit i n p l a i n t i f f ' s contention number four--fail ure by
             e
defendant t o consult expert i n t e r n i s t s and medical t e x t s before o r a f t e r
post-operative treatment.           Some courts have held t h a t i t i s t h e physician's
duty t o consult o r r e f e r his patient t o a s p e c i a l i s t , i f he knows he does
not possess the r e q u i s i t e degree of knowledge o r ski1 1 f o r t r e a t i n g h i s
patient.     Manion v. Tweedy, 257 Minn. 59, 100 N.W.2d 124; Anno. 35 ALR.3d
349.    Testimony indicated the defendant was a qualified medical p r a c t i t i o n e r
and t h a t he had performed many troubl e-free thyroidectomies.                 Certainly no
duty t o c a l l i n another doctor a r i s e s when every indication i s t h a t the
doctor is f u l l y capable of performing the operation and t r e a t i n g his p a t i e n t
i n the post-operative phase.          Defendant, t e s t i f y i n g as an adverse witness,
indicated c l e a r l y t h a t he had consulted medical books o r journals concerning
treatment of the p l a i n t i f f ' s condition.    Additionally, he consulted Dr.
Goulding on the recommendation of surgery i t s e l f and on the treatment f o r
the condition existing a f t e r the operation.           Although p l a i n t i f f ' s counsel
attempted t o impeach defendant w i t h what was intended t o be a p r i o r incon-
s i s t e n t statement, the only inconsjstency was one of degree.               The evidence
r e f u t e s t h i s contention.
            P l a i n t i f f Is f i f t h contention, alleging f a i l u r e t o prescribe proper
post-operative treatment, was a l s o not supported by the evidence.                    The only
evidence of treatment d i f f e r e n t from the treatment administered by defend-
ant was the treatment given by Dr. Hayes.               However, Dr. Hayes began t r e a t i n g
p l a i n t i f f i n June 1968, almost ten months a f t e r defendant had l a s t treated
plaintiff,      P l a i n t i f f saw no physician i n the ten month interim.         There was
no showing t h a t Dr. Hayes' treatment was any more "proper" than the treatment
 administered by defendant.                In Schumacher t h i s Court said:
               "Nor does the f a c t t h a t other physicians might have
               adopted other methods necessarily render the attend-
               ing physician l i a b l e , nor show negligence or want
               of s k i l l or care. I f the method i s one which has
               substantial medical support, i t i s s u f f i c i e n t . "
               See a l s o Dunn v. Beck, 80 Mont. 414, 260 P. 1047.
               Dr. Goulding concurred i n defendant's treatment of p l a i n t i f f ,
advising only t o increase the calcium dosage and add vitamin D.                       Plaintiff's
witness, Dr. Movius, admitted t h a t calcium plus vitamin D f o r treatment of
p l a i n t i f f ' s condition was not improper.
               Finally, p l a i n t i f f Is l a s t contention--negl igence i n f a i l ing t o
perform the surgery where t h e services of a path01 ogi s t were immediately
available, has no merit.              To uphold such a contention would place an i n t o l e r -
able burden upon small hospitals and doctors 1iving i n smaller comrnuni t i e s .
The h i n t of t h e p o s s i b i l i t y , e l i c i t e d from defendant, of replacing an inad-
vertently removed parathyroid i n t o the sternocleidomastoid muscle i s not
enough t o e s t a b l i s h such experimental technique as a legal duty.
              T h i s Court, on a number of occasions, has s t a t e d t h a t cases and
issues should not be withdrawn from a jury unless reasonable and fair-minded
men could reach only one conclusion from the f a c t s .               Pickett v. Kyger, 151
Mont. 87, 439 P.2d 57; Bridges v. Moritz, 149 Mont. 273, 425 P.2d 721; Holland
v. Konda, 142 Mont. 536, 385 P.2d 272.                  Genuine issues of f a c t should be
submitted t o the jury.            However, whether evidence on behalf of a p l a i n t i f f i s
s u f f i c i e n t t o take a case t o the jury i s a question of law f o r the t r i a l judge.
Lovas v . General Motors Corp., (6 Cir.) 212 F.2d 805.                   A bare s c i n t i l l a of

evidence is not s u f f i c i e n t t o require submission t o the jury.            Volume 2B,
Barron and Holtzoff, $1075, and Johnson v. Chicago, Milwaukee and S t . Paul
Ry. Co., 71 Mont. 390, 230 P. 52.
              Since we have decided t h a t the t r i a l court acted c o r r e c t l y , we
need not discuss the issues of res ipsa loquitur o r the s t a t u t e of l i m i t a t i o n s .
The decision of the t r i a l court directing a verdict f o r defendant a t the close
of the p l a i n t i f f ' s case was c o r r e c t .
              The judgment i s affirmed,
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