                                       No. 12102

           I N THE SUPKEME COURT O THE STATE OF MONTANA
                                  F

                                           1972



WILLIAM B. HULL,

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

           -VS   -
NORTH VALLEY HOSPITAL,

                               Defendant and Respondent.



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

Counsel of Record:

         For Appellant :

                 McGarvey, Morrison, White & Hedman, W h i t e f i s h ,
                  Montana.
                 Frank B. Morrison, Jr. argued, Whitefish, Montana.

         For Respondent:

                 Murphy, Robinson, Heckathorn & P h i l l i p s , K a l i s p e l l ,
                  Montana.
                 I. James Heckathorn argued, K a l i s p e l l , Montana.

                 AMICUS CURIAE-Montana H o s p i t a l Assoc.
                   Chadwick Smith argued, Helena, Montana.



                                                 Submitted : February 17, 1972

                                                     Decided :        JUH - 9 1972
Filed:     JUN - 9 1972
M r . J u s t i c e Gene R , Daly d e l i v e r e d t h e Opinion of t h e Court.


        This i s an a p p e a l from e n t r y of a d i r e c t e d v e r d i c t f o r
defendant i n a n e g l i g e n c e a c t i o n brought by p l a i n t i f f William
B. H u l l a g a i n s t defendant North Valley H o s p i t a l of W h i t e f i s h ,
Montana.        The a c t i o n was brought i n t h e d i s t r i c t c o u r t of t h e
e l e v e n t h j u d i c i a l d i s t r i c t , county of F l a t h e a d , t o r e c o v e r
damages f o r p e r s o n a l i n j u r y s u f f e r e d by p l a i n t i f f by r e a s o n of
t h e n e g l i g e n c e of h i s f a m i l y p h y s i c i a n , w h i l e p l a i n t i f f was a
p a t i e n t i n defendant h o s p i t a l ,        A t t h e c o n c l u s i o n of p l a i n t i f f ' s

c a s e , t h e t r i a l judge s u s t a i n e d d e f e n d a n t ' s motion t o d i s m i s s
and from t h a t judgment p l a i n t i f f a p p e a l s .
        The p r i n c i p a l s involved h e r e i n a r e :          North V a l l e y H o s p i t a l ,
defendant and r e s p o n d e n t , h e r e i n a f t e r r e f e r r e d t o a s "Hospital";
William B. H u l l , p l a i n t i f f and a p p e l l a n t ; Doctor David V ,
Kauffman, William B. ~ u l l ' sfamily p h y s i c i a n ; t h e Board of Direc-
t o r s of t h e H o s p i t a l , h e r e i n a f t e r r e f e r r e d t o a s "Board of
D i r e c t o r s ; and t h e p r i v a t e p h y s i c i a n s p r a c t i c i n g i n t h e surround-
i n g a r e a who u t i l i z e t h e H o s p i t a l f o r p a t i e n t c a r e , h e r e i n a f t e r
r e f e r r e d t o a s t h e "medical s t a f f " .
        The H o s p i t a l i s a p r i v a t e , n o n p r o f i t c o r p o r a t i o n o p e r a t e d
5 y a Board of D i r e c t o r s made up of community v o l u n t e e r s w i t h no

paid s t a f f of d o c t o r s o r i n t e r n s .
        The H o s p i t a l on June 1 3 , 1966, adopted bylaws c r e a t i n g a
h o s p i t a l s t r u c t u r e designed t o r e g u l a t e t h e conduct of t h e
medical s t a f f .       It was n e c e s s a r y t o c r e a t e such h o s p i t a l o r g a n i -

z a t i o n t o comply w i t h t h e s t a n d a r d f o r h o s p i t a l a c c r e d i t a t i o n ,
more s p e c i f i c a l l y t h e J o i n t Commission on A c c r e d i t a t i o n of
Hospitals.          I n p a r t , t h o s e bylaws a r e :
                                    MEDICAL STAFF
        TI
          S e c t i o n 1. The Board of D i r e c t o r s s h a l l a p p o i n t
        a medical and d e n t a l s t a f f composed of p h y s i c i a n s
        and d e n t i s t s who a r e g r a d u a t e s of recognized medical
        or dental schools, l e g a l l y licensed t o p r a c t i c e i n
        t h e S t a t e of Montana, a member i n good s t a n d i n g i n
the local medical or dental society, and practicing
in the community or within a reasonable distance
of the hospital, and shall see that they are organized
into a responsible administrative unit, and adopt
such by-laws, rules and regulations for government
of their practice in the hospital as the Board of
Directors deem to be the greatest benefit to the
care of patients within the hospital. In the case
of the individual patient, the physician or dentist
duly appointed to the medical staff shall have full
authority and responsibility for the care of that
patient subject only to such limitations as the
Board of Directors may formally impose and to the by-
laws, rules and regulations for the medical and dental
staff adopted by the staff and the Board of Directors.


"Section 4 In any case where the medical committee
          .
of the Board of Directors or the Credential Committee
of the medical staff does not recommend termination
of appointment, or imposes limitations with respect
to the exercise of privileges requested, or where
reduction of privileges is recommended, or a request
for additional privileges denied, the Credential
Committee of the medical staff should so notify, in
writing, the physician concerned. That within ten
(10) days of receipt of the above notice the physician
may request, in writing, to the administrator of the
hospital, reconsideration and, an opportunity to appear
before the Joint Conference Committee made up of three
(3) members of the medical staff and three (3) members
of the Board of Directors. A decision to grant this
hearing should be made within ten (10) days after the
receipt of the request by the Joint Conference Committee.
The Joint Conference Committee shall then, after said
hearing, make their recommendation to the Board of
Directors and their decision shall be final."
"ARTICLE IV           COMMITTEES OF THE BOARD OF DIRECTORS


"Section 4. The Medical Committee shall consist of
three (3) members of the Board of Directors.
 his committee shall:
    11
         ( ) Receive recommendations from the medical
          1
staff and make final recommendations to the Board of
Directors on all appointments to, and assignments of
responsibilities within, the medical staff of the
hospital.
    "2
     ()   Recommend to the Board of Directors the
types of professional work to be permitted to be done
by each member of the medical staff.
    "3
     ()   Recommend to the Board of Directors all
rules and regulations for the government of the medical
staff, or amendments thereto, necessary to assure the
proper care of the patients.
         " 4 Receive and make recommendations to the
          ()
     Board of Directors respecting any communications,
     requests or recommendations presented by the medical
     staff through its duly authorized representatives.
         "5
          ()   Together with an equal number of repre-
     sentatives from the medical staff, constitute the
     Joint Conference Committee a liaison group, which,
     with the administrator, will discuss medical adminis-
     trative matters and be the official point of contact
     among the Board of Directors, administrator, and
     medical staff.
         "6
          ()   Receive and consider all reports on the
     work of the medical staff and make such recommenda-
     tions to the Board of Directors in respect thereto
     as the committee considers to be the best interests
     of the hospital and its patients. I I
     Within the medical staff itself, there are various commit-
tees including:   ( ) the executive committee consisting of the
                   I
president, vice-president, and secretary of the medical staff;
and ( ) the record review committee which regularly reviews the
     2
charts of the various doctors.   Discrepancies in the charts
may either be called to the attention of the doctor responsible
or, in instances requiring further action, the matter may be
referred to the executive committee.    In serious matters, the
entire medical staff is consulted to decide if the situation
warrants disciplinary action or restriction of privileges.     In
such cases, the executive committee or the medical staff would
make formal recommendation to the Board of Directors.
     The ultimate authority for granting     revoking privileges
rests with the Board of Directors.   The administrator of the
Hospital acts as the liaison officer between the medical staff
and the Board of Directors.   Information relative to doctors'
qualifications to have certain privileges canes from an investiga-
tion made by the medical records review committee.   Privileges
extended to doctors practicing in the Hospital, subject to annual
review before renewal, are: (1) surgical, (2) medical, and (3)
obstetrical.
     Doctor David V. Kauffman is a licensed physician practicing
in Whitefish, and during all times pertinent herein was a member
of the medical staff of the Hospital.   Since 1964 or 1965, Dr.
Kauffman has been the family physician for William B. Hull,
plaintiff herein, who in July 1969 injured his left knee when
he tripped over an air hose at his automotive repair shop.      On
July 28, 1969, Hull consulted with Dr. Kauffman who initially
treated the knee with heat treatments, but after consultation
with Dr. W. F. Bennett surgery was recommended to repair the
knee.     On August 12, 1969, plaintiff was hospitalized at the
Hospital, in Whitefish.
        On August 13, 1969, surgery was performed by Dr. Kauffman
and Dr. Bennett.    The operation consisted of removal of cartilage
from inside the left knee joint.    Following surgery, plaintiff
spent four days in the Hospital and was discharged on August 17.
Two days later plaintiff returned to Dr. Kauffman's office to
have surgical stitches removed and pus was then draining from the
knee.    Dr. Kauffman administered penicillin salve to counteract
the draining.     Plaintiff testified at trial that throughout the
last two weeks of August 1969, Dr. Kauffman administered antibiotics
which had no apparent effect in improving plaintiff's condition.
        On September 2, 1969, plaintiff was readmitted to the
Hospital by Dr. Kauffman and X ray on the knee was done by Dr.
Bennett.    Dr. Bennett was listed on the Hospital case records as
an associate with Dr. Kauffman, and it is conceded in the record
that Dr. Bennett is competent and skilled.    On September 3, Dr.
Kauffman, unassisted by Dr. Bennett or other medical staff, per-
formed a second operation on plaintiff's knee.    This operation
was termed a "debridement".
     At trial a description of the second operation was given by
witness Dr. Theodore Sanford as:
     "* ;k Jc the findings: stitch reaction, draining
     infected wound. What was done: the skin wound
     was opened, all of the old stitches removed, de-
     bridement of the wound edges. Debridement means
     removal of dead tissue---debridement of wound edges
     and then repaired with number thirty-two wire,
     stainless steel wire. The skin was closed with four
     oh nylon subcutaneous, that's just underneath the
     skin. 7k * *". (Emphasis supplied)
     Witness Sanford further testified that "stitch reactionr'
as diagnosed by Dr. Kauffman, differed from a general infection
of the joint, subsequently found to be the correct diagnosis.
     It was established that this misdiagnosis, treatment, or
lack of proper treatment, eventually caused plaintiff's injuries.
We find it unnecessary to pursue this matter in detail as plain-
tiff claims that defendant Hospital is liable in allowing Dr.
Zbuffman to practice in the Hospital.    It is not claimed that
any employee of Hospital was negligent in the course of treatment
nor that any relationship exists between Dr. Kauffman and Hospital
that would make Hospital vicariously liable for his acts.
     Dr. Kauffman's negigence is admitted and the record reflects
a settlement of plaintiff's claim against him prior to trial of
the instant case.
     The record discloses that during the 1960's and prior to
plaintiff's hospitalization at Hospital, Dr. Kauffman had privileges
reviewed by the heretofore described authorities of Hospital and
at various times his privileges to do surgery had been revoked and
then reinstated.    On prior occasions Dr. Kauffman had surgical
privileges with restriction, as was testified to by the Hospital
administrator, Olga Torgerson.    She also stated that Dr. Kauffman's
privileges to do surgery were restored in 1967, but prior to that
time he had been limited to minor surgery and Dr. Kauffman had
acquiesced to such supervision.
     Defendant's motion for a directed verdict was granted for
the following reasons:
     "1. That there is no statutory duty or obligation on a
non-profit corporation operating as a hospital to prevent the
practice of any duly licensed physician and surgeon in Montana.
     "2.   That the provisions pertaining to the practice of
medicine under the statutory authorities and any curtailment
thereof appears in Title 66, Chapter 10 of the Revised Codes of
Montana more particularly known as The Medical Practice Act.
     "3.        That the restrictions and limitations of practice of
members of the medical staff of the Defendant, North Valley
Hospital, is provided by the By-laws and as applied to the evi-
dence submitted in this case shows a complete failure on the part
of the Plaintiff to establish any duty owed by the hospital to
the Plaintiff as a patient thereof and any liability resulting
from such a breach of duty by the hospital to the Plaintiff for
the following reasons:
           "A.       That at the times of the alleged acts of Dr.
     Kauffman, he had full privileges as a member of the staff.
           1l
                B, That there was no recommendation as provided
    by the By-Laws for restriction of privileges of Dr. Kauffman
     submitted by the executive committee of the staff to the
    medical committee of the governing body of the hospital.
           11
                C.   That there is no showing of any receipt of such
    notice or request for hearing before the medical committee
     as more particularly provided for in the said By-Laws.
           "D.       That under the By-Laws and duties relating to the
     administrator of the hospital no such duty or obligation
    was imposed upon the administrator or any individual member
     of the Board of Directors,
           "E.       That any failure to submit recommendations by the
     credentials committee of the medical staff or the executive
     committee did not impose a duty upon the Board of Directors
     pertaining to the limitation of practice on the part of Dr.
     Kauffman and any liability that might have resulted there-
    .from.      II



    Appellant presents a number of issues on appeal which can be
reduced to two controlling issues for our discussion:
     1.    Was Hospital negligent in permitting Dr. Kauffman to use
its facilities in ministering to his patients in light of his
previous record?
      2.   Is the medical staff of North Valley Hospital an arm
of the hospital organization and are the acts or omissions of
the medical staff acts or omissions of the hospital?
     Appellant states the question of duty as:      "* *   * whether
the hospital has a duty to see that surgical privileges are ex-
tended to only those doctors who have shown an acceptable degree
of competency to perform surgery   * * . Further, in view of
                                       *I1


the circumstances of this case,      * * whether Dr, Kauffman
should have been permitted to do this surgery without supervision
or assistance. 1 I
     By statute, Montana has provided for licensing and super-
vision of the medical profession under the Medical Practice Act,
sections 66-1010 through 66-1049, R.C.M.     1947, and responsibility
for supervision is delegated to the Board of Medical Examiners.
      Section 66-1011, R,C.M. 1947, provides:
     "Purpose of Medical Practice Act. It is hereby
     declared, as a matter of legislative policy in
     the state of Montana, that the practice of medicine
     within the state of Montana is a privilege granted
     by the legislative authority and is not a natural
     right of individuals and that it is deemed necessary,
     as a matter of such policy and in the interests
     of the health, happiness, safety and welfare of the
     people of Montana, to provide laws and provisions
     covering the granting of that privilege and its subse-
     quent use, control and regulation to the end that the
     public shall be properly protected against unprofessional,
     improper, unauthorized and unqualified practice of medi-
     cine and to license competent physicians to practice
     medicine and thereby provide for the health needs of the
     people of Montana. 1 I
      Section 66-1013, R,C,M. 1947, creates the Montana State Board
of Medical Examiners.
      Section 66-1016. R.C,M.   1947, states the policy of super-
             b   I



vision of physicians for the                 of the general public of
the state of Montana:
     "Policy, The board shall maintain reasonable and
     continuing supervision and surveillance over all
     licensees under this act to ensure that such licensees
     maintain standards of conduct and exercise the privileges
     granted hereunder in the greatest public interest and to
     carry out the purposes and provisions of this act,I I
     Section 66-1022, R.C.M.   1947, provides for licensing the
extent of practice permitted and specifically states how the
practice of a physician may be limited:
     II
      Statement as to practice permitted. The certi-
     ficates issued shall state the extent and character
     of the practice that is permitted, and shall be in
     the form prescribed by the board. Neither the privileges
     nor the obligations granted to or imposed upon licensees
     may be altered except by legislative enactment or by
     action of the board duly authorized hereunder."
     Respondent Hospital argues that the matter for all practical
purposes is controlled by statute and the authority to police is
exclusive with the state.   Further, the so-called "Thompson Act",
sections 94-3557 and 94-3558, R.C.M.    1947, provides a criminal
penalty if respondent were to attempt to regulate or limit a
medical doctor.   Section 94-3557 provides:
     "Discrimination by hospitals forbidden. Every person,
     persons, corporation or association conducting a hos-
     pital or hospitals not held for private or corporate
     profit or a hospital or hospitals that are institutions
     of purely public charity, that exempt themselves or are
     exempted from any state, county or municipal tax by
     reason thereof, shall not in any manner discriminate
     between the patients of any regularly licensed physician
     by reason of the fact that said physician is not a member
     of the medical staff of said hospital, or for any other
     reason, and such hospitals are hereby compelled to admit
     and care for the patients of any regularly licensed
     physician or physicians under the same terms and condi-
     tions as may be promulgated by the management oi said
     hospital for the patients of any other regularly licensed
     physician." (Emphasis supplied)
     At the onset, we decline to associate the intent of the
"Thompson Act" with the problem here.     Respondent and Amicus
Curiae, Montana Hospital Association, rely on the words "for any
other reason" to support their view, but overlook the language
that follows to the end of the section.    This language clearly
demonstrates that one set of rules shall apply to all doctors to
prevent discrimination, whatever the rule.
     In support of his contentions, appellant relies almost en-
tirely on a 1965 decision of the Illinois Supreme Court, Darling
v. Charleston Comrn. Memorial Hosp., 33 I11.2d 326, 211 N.E.2d 253.
Appellant argues this is the leading case that establishes the
t h e duty owed t h e p a t i e n t by t h e h o s p i t a l t o r e g u l a t e i t s s t a f f
members and t h a t t h e h o s p i t a l ' s bylaws, standards, and regula-
t i o n s d e f i n e t h e duty o r standard of c a r e owed t h e p a t i e n t .
        A c l o s e examination of a p p e l l a n t ' s a u t h o r i t y r e v e a l s some
d i s t i n g u i s h i n g d i f f e r e n c e s from t h e f a c t u a l s i t u a t i o n i n t h e
i n s t a n t case.      I n Darling an 18 year o l d boy with a broken l e g
was taken t o t h e h o s p i t a l emergency room and t r e a t e d by a doctor
on duty.        This doctor was n o t employed by t h e p l a i n t i f f , b u t r a t h e r
by t h e h o s p i t a l and furnished by t h e h o s p i t a l .                I n o t h e r words,
t h e doctor i n Darling was an employee of t h e h o s p i t a l and t h e
                                                                                                                '
c o u r t ' s holding c ~ l o a n i n gt h e h o s p i t a l ' s duty t o supervise " s t a f f "
doctors i s based on respondeat superior and s t a f f doctors t h e r e
should be d i s t i n g u i s h e d from unpaid " s t a f f " doctors i n ,Montana,
        This i s n o t t o o c l e a r from t h e language of t h e c o u r t i n
Darling,        but i n a l a t e r case i n t h e same j u r i s d i c t i o n , Lundahl v.
Rockford Memorial Hosp,Assn.,                      93 Ill.App.2d          461, 235 N.E.2d                671,
674, wherein t h e a l l e g e d negligence was f a i l u r e of t h e h o s p i t a l
i n i t s duty t o a c t i n r e q u i r i n g c o n s u l t a t i o n and supervision,
t h e same c o u r t c i t e d Darling and s a i d :
        "The p l a i n t i f f s c i t e t h e Darling case ( i b i d ) i n
        support of t h e i r contention t h a t t h e h o s p i t a l was
        negligent i n i t s f a i l u r e t o require consultation
        between D r , Paynter and t h e members of i t s s t a f f .
        I n t h e Darling c a s e , however, t h e t r e a t i n g physician
        was an employee placed by t h e h o s p i t a l on emergency
        duty and s u b j e c t t o i t s supervision. D r . Paynter was
        n o t employed by t h e h o s p i t a l , was n o t an agent of i t
        and not s u b j e c t t o i t s supervision." (Emphasis supplie
        D a r l i n ~ l s o involved h o s p i t a l c a r e o r a shocking l a c k of
                    a
i t by s t a f f and nurses r e s u l t i n g i n an 18 year old boy l o s i n g h i s

leg,      Quite obviously Darling has a d i f f e r e n t f a c t s i t u a t i o n than
t h e case before us.
        Appellant a l s o c i t e s a Montana c a s e , Maki v, Murray H o s p i t a l ,
9 1 Mont, 251, 7 P.2d 228, where a d e l i r i o u s and v i o l e n t p a t i e n t
l e f t h i s bed and f e l l from a t h i r d f l o o r window s u s t a i n i n g i n j u r i e s .
In -3
   Maki     this Court very clearly stated the duty of Dr. Worden,
the nurses, and the hospital to exercise reasonable skill and
care in discovering the patient's condition and taking whatever
action necessary to protect their patient.    Yet, here again, we
have a situation where the hospital employed Dr. Worden and the
staff full-time, and liability is based on an employer-employee
relationship as all principals involved were employees of the
hospital.
     The same problem is present in Foley v. Bishop Clarkson
Memorial Hospital, 185 Neb, 89, 173 N.W.2d 881 (1970), where
hospital employees were in violation of the hospital regulations
and liability was found vicariously through its employees.    -
                                                              Maki
was cited in Foley as a minority rule, but cannot be said to
apply beyond respondeat superior cases.    It is of further interest
to note that the Nebraska Supreme Court in Foley quarrels with
the Darling decision with regard to the standard of care even in
this class of cases.    There the court noted that the duty owed
is the exercise of that degree of care, skill and diligence used
by hospitals generally in the community where the hospital is
located, or in similar communities.    This is the majority rule
and while one may recognize the Darling rule as applying to
exceptional situations, it is not conclusive of negligence, but
simply evidence of negligence. There is no question that the
Nebraska court on the basis of gross failure of "employeesrf
                                                           to
observe regulations which cost a patient's life, followed the
minority rule and ordered a trial.
     The cases cited by appellant from Washington, Florida and
California are distinguishable on other grounds and we need not
make further case by case examination.    It is only necessary to
note that in our review of all of the case authority we find
a good demonstration of the analysis of the various text editors.
In the Annotation, 69 ALR2d 305, 321, they point out a basic
fact of definition which is not always made clear as we noted in
Darling and Lundahl, both authored by the same court.   They advise:
     "* 9 *
        :    the expression 1 a hospital's staff' is somewhat
     ambiguous, since it may conceivably refer to either ( )1
     the group of salaried medical men---interns. residents.
          -
     etc. ---which the hospital employs on a fullLtime basis;
     or (2) those practicing physicians who have been granted
     the right to use the hospital's facilities for their own
     patients * * ".
                   :
                   y    (Emphasis supplied)
     In the same citation is an involved discussion on the
application of the doctrine of respondeat superior and its appli-
cation in finding a hospital negligent for a doctor's malpractice
occurring in the hospital.   It concludes with this general state-
ment at p. 309:
     "Sometimes this determination rests primarily on
     the peculiar facts of individual cases, but there
     are certain general principles in this area that
     should be referred to. In the normal situation where
     a sick or injured person consults his own doctor for
     diagnosis and treatment, and the latter recommends
     hospital care, the hospital to which the patient is
     admitted is not liable for the doctor's misconduct
     resulting in injury to the patient, even though such
     misconduct takes place at the hospital, and even
     though certain other links between the hospital and
     the doctor, such as the circumstance that the latter
     is on the former's 'staff,' may exist.
    "On the other hand, when a person is taken directly
    to a hospital, as where he is rendered unconscious
    in an accident, and a physician hired by the hospital,
    such as an intern or resident, is guilty of malpractice
    in diagnosing or treating such person's condition, a
    different situation arises, Such a physician usually
    stands in a position with respect to the hospital
    which, under the normal tests of the existence of the
    master-sewant relationship, would call for a ruling
    that he was the hospital's servant. In other words,
    such a doctor is normally paid a salary by the hospital,
    he spends all his working hours under the direction
    of the hospital's staff, he does not maintain a practice
    of his own, etc., and the result would normally be, and
    not infrequently is, that the physician must be regarded
    as a servant or agent of the hospital."
     The same princi-ple is stated another way in 41 C.J.S.
Hospitals, 5 8, p. 346:
    "Liability of a private hospital for the negligent
    acts of the members of its professional staff must
    be predicated on the doctrine of respondeat superior,
    Accordingly, a private hospital is not responsible
    for any default on the part of a physician or surgeon
    who practices his profession as an independent agent,
    and, where a patient employs a physician or surgeon
    not in the employ of the hospital, the hospital is not
    liable for his negligence. I I See also 40 Am Jur 2d,
    Hospitals & Asylums, 5 28.
     The authorities offered all concern the duty to supervise
or require consultation on a specific case that constituted mal-
practice by a doctor or hospital personnel with liability being
established under the doctrine of respondeat superior.    No
authority has been cited that extends this duty to the case of
an independent contractor.   Further, there is no authority cited
that even discusses the real point in issue here   ---- Is the
Hospital negligent under the ordinary rules of negligence for
not limiting or expelling the doctor before the fact of the case
of malpractice, and excluding any reference to the malpractice
itself except in damages? A11 the citations might reasonably be
construed to establish a standard of care, and are certainly not
in point with this case on negligence or duty.   However, can the
standards discussed heretofore in the case of a doctor employed
by the hospital in a specific malpractice case be imposed on a
hospital in the long term of before the fact regulation of inde-
pendent staff doctors?
     At the risk of belabored definition, the integration of a
modem hospital becomes readily apparent as the various boards,
reviewing committees, and designation of privileges are found
to rest on a structure designed to control, supervise, and review
the work within the hospital.   The standards of hospital accredi-
tation, the state licensing regulations, and the respondent's
bylaws demonstrate that the medical profession and other responsible
authorities regard it as both desirable and feasible that a
hospital assume certain responsibilities for the care of the
patient.
     Therefore, being presented with a direct negligence issue
which preexists the damage complained of here, and if we were to
recognize the standard of care suggested by appellant which de-
parts from the majority rule and considers a violation of the
hospital bylaws as evidence of negligence, then we could not
circumvent the bylaw procedures and find negligence on a vicarious
basis as suggested in issue No. 2, nor could we find negligence
based on the majority rule of "community standard".
     Assuming that the Board of Directors of the hospital entity
has a duty to "act" when put on notice or advised by the medical
section that a doctor is incompetent to continue to practice
medicine, the law recognizes that this determination must be
made by medical personnel skilled in medical sciences and competent
to make this determination.   In this case that was not done by
the medical section or communicated to the proper Hospital authority.
Kauffman's prior limitation and reinstatement in 1967, cannot be
considered as negligence on this record, which fails to reveal
facts at that hearing that would constitute improper procedures
by the Board of Directors or that it acted contrary to medical
advice.
     Extensive testimony was given at trial by Dr. Buchanan and
Dr. Sanford who were, or had been at the time of the origin of
this action, members of the medical staff of Hospital.   In that
testimony a record of violations of Hospital rules, regulations,
and procedures was recited regarding Dr. Kauffman's record
keeping which at various times was the subject of numerous discus-
sions in medical staff meetings.   Dr. Kauffman had been given
several admonitions concerning the deficiencies in his record
         and
kesping/after adamant promises by Dr. Kauffman to keep up his
records and observe the rules of Hospital, he was given the
privilege of continuing, and held full privileges at the times
pertinent here.
     The record insofar as the Hospital is concerned, demonstrates
an effort to supervise the quality of medical practice within
the Hospital.   Additionally, Hospital's records did indicate that
Dr. Bennett was on the case with Dr. Kauffman and even though not
present at the second surgical procedure did participate during
the post-operative care.
     The question of whether or not a hospital can limit a
medical license under the statute is not particularly relevant.
This power has been reserved by statute to the Board of Medical
Examiners and is remedial only.      If a duty to "act" were found
and a doctor would not voluntarily comply, a formal complaint
to the Board of Medical Examiners would satisfy that duty.
     Concurrent with the testimony of Drs. Buchanan and Sanford,
objections were sustained regarding their professional opinions
of Dr. Kauffman's competence to practice, along with several
denials of offers of proof made by appellant, similar in nature.
The court sustained the objections and denied the offers on the
basis of relevancy. Although the testimony was relevant to
liabilities of Dr. Kauffman, it was not deemed relevant to the
liabilities of Hospital.    We agree for the same reasons.    Knowledge
within these doctors' minds, uncomrnunicated to the Board, is not
a demonstration of knowledge of the Board as a matter of law,
only a matter of conscience of the individual doctors.
     While not necessary to sustain this Opinion, the matter of
proximate cause was argued. We will note that in a direct
negligence suit of this type not based on respondeat superior,
the additional burden of the negligence being the proximate
cause of the injury is presented and judged by the standards
approved by this Court,     the   evidence produced in this record
fails in that regard.     Sztaba v. Great Northern Railway, 147 Mont.


     The judgment of the trial court is aAfirmed.




                                         Associate Justice
/   /chief   Justice




/    \~ssociate
              Justices



         Jack Shanstrom, District Judge,
            for Justice Wesley Castles.
