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Graft Failure Not Subject to Vascular Surgeon Standard


A board certified surgeon placed a graft in a woman’s arm, also known as a “fistula,” to facilitate kidney dialysis. About seven and half years after the procedure, the graft began to scab over. The scab slowly expanded in size. Just over eight years after the procedure, the scab ruptured and the woman bled to death.

 

The personal representatives of the woman's estate sued the surgeon. The estate sought an instruction that the surgeon should be held to the standard of care of a board certified vascular surgeon, rather than a general surgeon. The District Court refused the instruction on the grounds that no evidence had been presented to justify a heightened standard of care. The estate also objected to the surgeon's proposed instruction that the mere fact of injury, standing alone, is not proof of negligence against the defendant in a malpractice action. The estate's objection was overruled and the instruction was given by the court. The jury found in favor of the surgeon.

 

The Supreme Court of Montana affirmed. The court held that the jury instruction stating that a doctor who performs professional services that should be performed by a specialist has a duty to use the care and skill of a specialist in that field of medicine was unwarranted, and the jury instruction stating that mere fact of injury, standing alone, was not proof of negligence was warranted.

 

First, the court held that the jury instruction stating that a doctor who performs professional services that should be performed by a specialist has a duty to use the care and skill of a specialist in that field of medicine was unwarranted. The court noted that there was no evidence concerning whether the surgery should have been performed by a board certified vascular surgeon. The estate's expert, who was board certified vascular surgeon, never testified that the creation and management of a graft required a vascular surgeon or that the surgeon was acting outside of his specialty when caring for the woman.

 

Second, the court held that the jury instruction stating that mere fact of injury, standing alone, was not proof of negligence was warranted. The estate claimed that the use of the word “mere” was argumentative and unduly prejudicial to their position at trial. However, the court noted that it had previously found this instruction to be proper in professional negligence actions.

 

The Supreme Court of Montana affirmed the entry of judgment for the surgeon.

 

See: Anderson v. Harper, 2013 WL 6451174, 2013 MT 369 (Mont., December 10, 2013) (not designated for publication).

 

 

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