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Zimmerman v. Robertson6/21/1993
, 50 St.Rep. 703
Submitted on Briefs May 20, 1993.
Robert Zimmerman appeals from a judgment on directed verdict entered in favor of G.D. Robertson by the Thirteenth Judicial District Court, Yellowstone County. We affirm.
We restate the issues on appeal as follows:
1. Is expert testimony required in a negligence action against a veterinarian?
2. Did the defendant's testimony constitute sufficient evidence of deviations from the standard of care to enable the plaintiff to withstand a directed verdict?
3. Did the District Court abuse its discretion in refusing to admit testimony regarding whether the defendant obtained the informed consent of the horse's owner prior to surgery?
Robert Zimmerman placed a colt in the care of Sarah Vaessen at the Bridger Canyon Stallion Station (BCSS) in March of 1991. In early May, Vaessen contacted veterinarian G.D. Robertson with regard to castration of a number of colts, including Zimmerman's. Robertson discovered that Zimmerman's colt was cryptorchid (one retracted testicle); the colt was transported to Robertson's clinic where cryptorchid surgery and castration was performed.
The colt was returned to the BCSS in mid-May. On May 24, 1991, Robertson was called to treat the colt for an upper respiratory infection. He treated the colt with antibiotics daily through the end of May; the infection appeared to be responding.
To facilitate the healing process, Robertson applied Dermago 2 to the surgical site on June 7. He was called back to the BCSS on June 19 regarding an infection at the surgical site; the colt was transported back to Robertson's clinic. Robertson treated the colt with antibiotics, other medications and drains. The colt died on October 6, 1991. An autopsy was performed and a large abscess was discovered in the spleen; in addition, streptococcus zooepidemicus bacteria was isolated.
Zimmerman filed a complaint against Robertson claiming negligence in both the surgical procedure and post-surgery treatment. A jury trial began on October 5, 1992. Zimmerman testified and also called Vaessen and Robertson as witnesses. Robertson moved for a directed verdict at the close of Zimmerman's case. The District Court granted the motion on October 6, concluding that Zimmerman had failed to provide necessary expert testimony. Zimmerman appeals.
Is expert testimony required in a negligence action against a veterinarian?
Zimmerman contends that expert testimony should not be required in an action against a veterinarian. We disagree.
We have not previously addressed the specific question of whether expert testimony is required in a negligence action against a veterinarian in Montana. In Carlson v. Morton (1987), 229 Mont. 234, 745 P.2d 1133, however, we discussed the elements a plaintiff must prove in any professional negligence action, stating that in such actions " egligence cannot be inferred from the simple fact that a loss occurred." Carlson, 745 P.2d at 1136 (citations omitted). We went on to observe that, while the field of legal malpractice was relatively new in Montana, it was undisputed that expert testimony supporting a departure from "the prevalent standard of medical care" was required in medical malpractice actions. Carlson, 745 P.2d at 1136. Indeed, by that time, the necessity of expert testimony to establish the standard of care had been extended to professional negligence actions against dentists, orthodontists, manufacturers of pharmaceuticals, and abstractors of title. Carlson, 745 P.2d at 1136-1137 (citations omitted). We extended that requirement to actions against attorneys
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