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Estates of Milliron6/1/1990
Submitted on Briefs April 19, 1990.
This is an appeal by the estates of the decedent plaintiff and his now deceased wife arising out of a medical malpractice claim. The plaintiff estates appeal the order of the Montana Fourteenth Judicial District Court, Musselshell County, granting summary judgment to the defendant Roundup Memorial Hospital on the grounds that it cannot be held vicariously liable for the alleged negligence of an independent contractor radiologist under the facts of this case. We affirm.
Appellants raise the following issues on appeal:
(1) Did the District Court err in concluding that there were no genuine issues of material fact regarding ostensible agency as a theory for imposing vicarious liability upon the hospital for the negligence of a radiologist?
(2) Did the District Court err in concluding that the hospital cannot be held liable for alleged negligent radiology services supplied by an independent contractor under the theory of non-delegable duty?
Alfred Milliron was an out-patient at the Roundup Memorial Hospital on December 6, 1984. He was referred to the hospital and the radiologist who practiced there, Dr. Francke, by his family physician, Dr. Moshman, for evaluation of prostatitis and obstructive uropathy. The method used by the radiologist is called an I.V.P. (intravenous pyelogram.) This is a special X-ray procedure involving the injection of a dye which has certain hazards that were allegedly explained to the patient by Dr. Francke.
After injection of this dye, Alfred Milliron suffered a reaction and eventually lost consciousness and experienced cardiopulmonary difficulties. He was successfully resuscitated but sustained serious neurological deficit. After filing of this lawsuit, Mr. Milliron died and subsequently his wife, who was added as plaintiff in an amended complaint also died. A further amendment substituted the estates of the Millirons as plaintiffs in this case.
Plaintiffs' amended complaint alleged several different theories to support imposition of liability on the hospital. The only remaining theories of concern to this appeal are vicarious liability based on apparent or ostensible agency or the existence of a non-delegable duty.
I.
As the District Court noted, summary judgment is never to be used as a substitute for trial if a genuine issue of material fact exists. Rule 56, M.R.Civ.P., Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. On the other hand, " hen the record discloses no genuine issue of material fact, the party opposing summary judgment has the burden of presenting evidence of a material and substantial nature raising a genuine issue of material fact." Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 189, 545 P.2d 670, 672.
The plaintiffs rely heavily on Kober & Kryss v. Billings Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476, in maintaining that material fact issues exist concerning an agency relationship between the radiologist and the hospital. In Kober, we held that summary judgment was inappropriate because
" hether Dr. Stewart was an independent contractor or an agent of the hospital as to Mr. Kryss will, in all likelihood, be determined by the trier of fact as the issue is developed."
417 P.2d at 480. However, Kober can be distinguished from the present case. Kober involved interpretation of a contract between the hospital and a radiology clinic that failed to specify if the head radiologist provided by the clinic was an independent contractor or agent of the hospital:
". . . this Court cannot determine from the c
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