Following the surgery, Selensky experienced immediate swelling, bruising, and discomfort. He was supposed to have a post-surgery ultrasound before discharge, but was informed an ultrasound was unavailable. Dr. Mercer prescribed pain medication for Selensky and released him without an ultrasound. The next day Selensky returned for a follow-up appointment and complained to Dr. Mercer of significant pain, swelling, and bruising. Dr. Mercer prescribed him stronger pain medication. When Selensky’s discomfort continued, Dr. Mercer advised him to report to the emergency department at St. James Hospital in Butte, Montana (“St. James”).
Selensky went to St. James on January 27, 2017, and an ultrasound taken there revealed a lack of blood flow to his left testicle due to testicle torsion, a twisting of the stem supplying blood to the testicle. Selensky underwent emergency surgery at St. James during which his left testicle was determined to be necrotic and was removed.
On January 16, 2020, Selensky filed an Application for Review with the Montana Medical Legal Panel (MMLP), stating claims against both Dr. Mercer and CHA. MMLP issued its decision by May 29, 2020. Selensky filed a complaint alleging medical negligence in the District Court on June 26, 2020, naming only Dr. Mercer as defendant. Selensky amended the complaint on April 30, 2021, adding CHA as a co-defendant with Dr. Mercer on Selensky’s originally-stated medical negligence claim, and adding a separate negligence claim alleging CHA “breached the duty of care owed to Plaintiff by creating polices preventing Defendant Dr. Mercer from using necessary hospital equipment to treat Plaintiff,” in reference to the unavailability of the ultrasound machine for use following Selensky’s surgery.
CHA filed a motion to dismiss under M. R. Civ. P. 12(b)(6), arguing Selensky had stated claims for medical malpractice that were time-barred by the two-year statute of limitations for such claims under § 27-2-205(1), MCA. The District Court granted the motion, and Selensky appealed, arguing his separate claim against CHA was for general negligence that was not subject to the two-year statute of limitations for medical malpractice or, alternatively, that the two-year period for a medical malpractice claim was tolled due to misrepresentations made by CHA during the MMLP proceedings.
The Supreme Court of the State of Montana (“Montana Supreme Court”) stated in its opinion filed on May 24, 2022: “Selensky’s argument distinguishes between CHA’s duty as a hospital to provide health care services according to a professional standard of care, and CHA’s duty of ordinary care in making general business decisions … [Selensky argues] breach of ordinary care by its “negligent business decision” to adopt a policy allowing only CHA employees to operate its ultrasound machine (“ultrasound policy”), while permitting surgical operations to be conducted without an available qualified employee to provide the necessary post-surgical ultrasound.”
The Montana Supreme Court stated: “Here, the gravamen of Selensky’s claim is medical in nature, premised upon the care he received or failed to receive as a result of CHA’s policies regarding medical equipment and medical staff, and therefore the claim comes within § 27-2-205(1), MCA, the two-year limitation period … We conclude the District Court did not err by concluding that Selensky’s Amended Complaint “on its face establishes that the claim is barred by the statute of limitations.””
Source Selensky v. Mercer, 2022 MT 97.
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