September 9, 2019

The Supreme Court of the State of Montana (“Montana Supreme Court”) affirmed a Montana medical malpractice defense verdict in its August 13, 2019 memorandum opinion, stating “each party presented expert testimony regarding the standard of care. [The defendant’s] expert … testified at his deposition that [the defendant] met the standard of care required in performing the tonsillectomy. [The plaintiff’s experts] … testified at their depositions that [the defendant] did not meet the required standard of care. Presented with these differing expert medical opinions regarding the standard of care, the District Court properly found that genuine issues of material fact precluded summary judgment and correctly denied [the plaintiff’s] motion for summary judgment regarding liability.”

The Underlying Facts

On June 7, 2013, the defendant performed a sinus surgery and tonsillectomy on the plaintiff, successfully completing the sinus procedure before beginning the tonsillectomy. During the tonsillectomy, the plaintiff started bleeding uncontrollably. After initially attempting to stop the bleeding using pressure, the defendant ultimately performed a ligation on the plaintiff’s external carotid artery to stop the bleeding. After the surgery, the plaintiff suffered an embolic stroke that resulted in speech problems and other health problems.

The plaintiff’s Montana medical malpractice lawsuit that was filed in December 2015 alleged that the defendant negligently performed the tonsillectomy and failed to obtain his informed consent for the procedure. The jury trial lasted from April 9 through April 13, 2018. At the close of evidence, the defendant moved for a directed verdict regarding the issue of informed consent, which motion was granted by the district court. The jury subsequently returned a unanimous verdict finding that the defendant was not negligent. The plaintiff appealed.

Montana Supreme Court Opinion

With regard to the informed consent issue, the Montana Supreme Court agreed with the district court that the plaintiff’s expert did not testify regarding the standard of care for informed consent at trial, and therefore held that the district court properly entered a directed verdict in favor of the defendant on the informed consent issue.

The Montana Supreme Court also affirmed the district court’s decision to preclude the plaintiff from presenting evidence to the jury regarding the defendant having medical malpractice insurance that would cover the incident. The plaintiff sought to present the jury with such evidence “to combat the sympathy the jury may have towards [the defendant] and their possible reluctance to return a large monetary verdict against a well-respected local doctor.”

M. R. Evid. 411 states: “Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”

The Montana Supreme Court held: “The determination of whether to admit, or not admit, evidence of [the defendant’s] liability insurance was well within the discretion of the District Court, and its determination that the jury should not be informed of [the defendant’s] insurance was not an abuse of that discretion.”

Source DeMoney v. Kaufman, 2019 MT 195N.

If you or a loved one have suffered serious harm as a result of medical negligence in Montana or in another U.S. state, you should promptly find a Montana medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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