Thomas v. Merriam

THE HONORABLE JAMES T. SHEA, District Judge:

I concur in the foregoing dissenting opinion of MR. JUSTICE CASTLES. With, all due respect to the majority opinion I feel this case comes within the rule announced in Schumacher v. Murray Hospital, 58 Mont. 447 at page 464, 193 Pac. 397, at page 402, wherein this court said: “There can be no question that recovery could not be had without expert testimony supporting the charge of malpractice.” A careful study of the entire evidence of Dr. Harper, a witness called on behalf of the plaintiff, discloses it was the belief of the witness that the liver was not and could not have been irrigated. It was apparent the witness, Dr. Harper, did not testify as anticipated by counsel for plaintiff, whereupon the plaintiff’s counsel requested the right to and was granted the privilege of asking leading questions. He was the only expert witness in the ease. However, taken by all 4’s, his testimony was of such character that in the opinion of the writer of this concurring dissenting opinion the lower court was correct in refusing to allow the case to go to a jury. The daughter of the plaintiff testified that Dr. Merriam had irrigated the liver through the “T” tube with pressure using a solution of ether and alcohol. She testified that Dr. Merriam, in a conversation with him, had so stated. While no objection was made to this testimony, still it would appear that without a proper foundation for such testimony, it would be incompetent under the provisions of subdivision 3 of Section 93-701-3, R.C.M. 1947, commonly known as the “dead man’s statute.” If this case were submitted to the jury under the medical testimony submitted, a jury could do nothing but indulge in conjecture and surmise. This, of course, should never be allowed.