In its decision filed on June 27, 2014, the Supreme Court of the State of Montana (“Montana Supreme Court”) decided the issue of whether the elements of the medical malpractice Plaintiff’s malpractice complaint were sufficiently presented before the Montana Medical Legal Panel (“MMLP”) that considered the Plaintiff’s claim in order to satisfy the condition precedent to filing in court.
Any person alleging malpractice against a health care provider must submit a claim to the MMLP before filing a complaint in district court. Section 27-6-301, MCA. With few exceptions (none applicable to the case being decided by the Montana Supreme Court), the panel is required to review all malpractice claims against health care providers. Section 27-6-105, MCA. The application to the MMLP must contain “a statement in reasonable detail of the elements of the health care provider’s conduct that are believed to constitute a malpractice claim, the dates on which the conduct occurred, and the names and addresses of all physicians . . . and hospitals having contact with the claimant and all witnesses.” Section 27-6-302(1), MCA.
The Underlying Facts
On January 18, 2007, the medical malpractice Defendant performed an endoscopic retrograde cholangiopancreatography (ERCP) with sphincterotomy on the Plaintiff. During the course of the procedure, the first section of the Plaintiff’s small intestine was perforated. As a result, the Plaintiff developed pancreatitis, which became septic. The Plaintiff underwent extensive medical care and incurred significant expense to address the complications.
The Plaintiff’s MMLP Claim
On January 15, 2010, the Plaintiff filed a claim for review with the MMLP. She asserted claims of medical malpractice against the Defendant regarding the 2007 procedure, and specifically alleged that the Defendant was negligent in three ways: (1) in negligently perforating her intestine; (2) in failing to timely diagnose the perforation; and (3) in failing to disclose all material facts and the nature of significant risks that may be encountered so that necessary consent to treatment could be based on an intelligent exercise of judgment.
The Plaintiff’s Court Claim
After the MMLP issued its confidential decision, the Plaintiff filed her complaint in court, alleging that the Defendant breached his duty of care in numerous ways, including “carelessly, unskillfully, and negligently perforating the Plaintiff’s duodenum; failing to timely diagnose and treat [her] perforation; failing to disclose all material facts and the nature of significant risks that may be encountered so that necessary consent to treatment could be based on an intelligent exercise of judgment; failing to employ appropriate after-care or post-operative management; and failing to otherwise use that degree of care and skill required of physicians practicing in [the Defendant’s] specialty . . . .”
Subsequently, the Plaintiff disclosed in her experts designation that it was her experts’ opinion that the Defendant did not obtain all necessary data before recommending and performing the ERCP or sphincterotomy and that he should have managed her care with more conservative, alternative measures.
The Defendant moved to dismiss the Plaintiff’s claims that the Defendant “performed an unnecessary procedure and failed to disclose that less-invasive alternatives were available,” arguing that these claims were not presented to the MMLP and therefore the court lacked subject matter jurisdiction to consider them. The court denied the Defendant’s motion to dismiss, which the Defendant appealed.
The Montana Supreme Court noted that the Plaintiff did not expressly allege in her MMLP filing that the Defendant should have explored alternative treatment and that he unnecessarily performed the ERCP. However, the Montana Supreme Court stated that filing a claim with the MMLP is simply a condition precedent to filing a medical malpractice action in district court.
The Montana Supreme Court reasoned that a claimant before the MMLP is required to provide only “reasonable detail” of the elements of her claim. Section 27-6-301, MCA. The requirement that a claimant first file a claim with the MMLP exists to avoid litigation where possible. Section 27-6-102, MCA. Filing with the MMLP is just the first step in a medical malpractice case, occurring well before the conduct of any discovery, the substantial involvement of experts or the full development of legal theories. As such, “reasonable detail” of a party’s claim cannot be expected to include each and every theory that may come to fruition after discovery occurs. For these reasons, the Montana Supreme Court declined to impose a heightened pleading standard for “reasonable detail.”
The Montana Supreme Court held that the Plaintiff’s claim that the Defendant failed to consider alternative treatment before performing the ERCP properly may be subsumed into her claims that the Defendant negligently performed the ERCP and failed to get informed consent … the Defendant reasonably was on notice of the Plaintiff’s claims and had the opportunity to conduct additional discovery once the Plaintiff’s expert disclosure was served. Under these facts, the District Court correctly determined that the Plaintiff’s claim to the MMLP was sufficient to encompass her claims before the court. Accordingly, the Montana Supreme Court affirmed the District Court’s denial of the Defendant’s motion to dismiss for lack of subject matter jurisdiction.
Donna Pickett, Plaintiff and Appellee v. Florian M. Cortese, Defendant and Appellant, DA 13-0609, 2014 MT 166. Click here to read the Montana Supreme Court’s decision in this case.
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