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The Law of Medical Malpractice in Montana: A Survey of Basic Considerations

The Law of Medical Malpractice in Montana:  A Survey of Basic Considerations

Montana medical malpractice law is among the most complex legal practice areas.  The statutes, case law, and regulations governing medical malpractice law in Montana are highly technical.  For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim.  Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Montana exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

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Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Montana by both members of the general public as well as practicing lawyers.  This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Montana medical malpractice law in practice.  It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Montana.  After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case.  Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Montana.

Below is a list of topics covered in this article.  You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts

-What is Medical Malpractice in Montana?

-Required Elements of a Medical Malpractice Claim in Montana

-Introduction

-The Basic Elements

II. Filing Deadlines for Medical Malpractice Claims

-Introduction to Statute of Limitations

-Statute of Limitations for Medical Malpractice Claims in Montana

-The Discovery Rule

-Introduction

-The Discovery Rule in Montana

-Special Provisions

-Minors

-Mental Disorder

-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery

-Introduction

-Statute of Repose in Montana

IV. Immunities and Limitations on Liability

-Sovereign Immunity

-Introduction

-Sovereign Immunity in Montana

-Good Samaritan Law

-Introduction

-Good Samaritan Law in Montana

-Additional Immunities and Limitations on Liability

V. Presuit Requirement—Montana Medical Legal Panel

VI. Required Elements of a Medical Malpractice Complaint

-Basic Elements

-Notice Pleading

VII. Expert Medical Witnesses

-Introduction

-Who Qualifies as An Expert Medical Witness

-Admissibility of Expert Testimony

-Introduction

-Admissibility of Expert Testimony in Montana

VIII. Comparative Negligence

-Modified Comparative Negligence with 51% Bar Rule

-Apportionment of Fault with Multiple Defendants

IX. Limitation on Noneconomic Damages 

X. Limitations on Attorney Fees

-Contingent Fee Arrangement

-Limitations on Attorney Fees in Montana

XI. Apologies and Gestures of Sympathy

XII. Website Disclaimer

 

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Montana?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in Montana

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Montana law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Montana medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Montana Supreme Court made this point clear in the 1976 case Montana Deaconess Hospital v. Gratton, 545 P.2d 670, 673 (Mont. 1976), when it instructed: “A bad result alone does not constitute evidence or raise a presumption or inference of negligence.”

The Basic Elements

According to the Montana Supreme Court, “[i]t is well settled Montana law that the plaintiff in a medical malpractice action must establish the following elements: (1) the applicable standard of care, (2) the defendant departed from that standard of care, and (3) the departure proximately caused plaintiff’s injury.”  Estate of Willson v. Addison, 258 P.3d 410, 415 (Mont. 2011).

Expert medical witness testimony is required to prove the basic elements of a medical malpractice claim.  Id.  The Supreme Court explained that “[w]ithout expert testimony to establish these elements, no genuine issue of material fact exists and the defendant is entitled to judgment as a matter of law.”  Id.  The Court provided the following guidance: “Expert medical testimony must exhibit ‘reasonable medical certainty.’  Put another way, ‘we are striving for … a probability rather than a possibility.’  The ‘evidentiary standards are satisfied if medical testimony is based upon an opinion that it is ‘more likely than not.’” [internal citations omitted] Id. at 415.

In addition, the Montana Supreme Court provided the following overview of the plaintiff’s threshold, two-step evidentiary obligation for a medical malpractice claim:

First, evidence must be presented to establish the applicable standard of medical practice in the particular type of case involved and second, it must also be shown that the doctor negligently departed from this recognized standard in his treatment of the plaintiff. In order to make this threshold breach of duty actionable, it must then be shown that the breach of duty was the legal cause of the plaintiff’s injuries.  The medical standard of care must be established by expert medical testimony unless the conduct complained of is readily ascertainable by a layman.  However, third party expert testimony is not always necessary as this standard can be established by the defendant doctor’s own testimony. [internal citations omitted] Montana Deaconess Hospital v. Gratton, 545 P.2d 670, 672 (Mont. 1976) (quoting Evans v. Bernhard, 533 P.2d 721 (Ariz. Ct. App. 1975)).

There is a recognized exception to the general requirement for expert medical witness testimony.  In those cases where the alleged negligence and resultant injury is within the common knowledge and experience of laypeople, then expert medical testimony is not required to establish the applicable standard of care and breach thereof.  Id. at 672-673.  Classic examples of situations that are considered within the common knowledge of lay jurors is when the wrong limb is amputated (left leg instead of right) and where a foreign object with no remaining therapeutic value is inadvertently left inside a patient following surgery.  In these types of scenarios, laypeople can draw upon their own common knowledge and experience to conclude that the defendant was negligent without the need for an expert to tell them so.

In a medical malpractice claim, “it is a matter of law for the court to determine the proper standard of care applicable to the case,” and it is the role of the jury to decide whether that standard was breached.  Aasheim v. Humberger, 695 P.2d 824, 826 (Mont. 1985).

The Montana Supreme Court announced the applicable standard of care for a general practitioner: “[A] non-board-certified general practitioner is held to the standard of care of a ‘reasonably competent general practitioner acting in the same or similar community in the United States in the same or similar circumstances.”  Chapel v. Allison, 785 P.2d 204, 210 (Mont. 1990).

The Supreme Court explained:

Similar circumstances permits consideration by the trier of fact of legitimate local factors affecting the ordinary standard of care including the knowledge and experience of the general practitioner, commensurate with the skill of other competent physicians of similar training and experience, with respect to the type of illness or injury he confronts and the resources, facilities and options available to him at the time.  Id.

The Montana Supreme Court observed that “[w]e have rejected a national standard to help ensure that the rural communities of this state retain their general practitioners and can continue to provide essential medical services.”  Falcon v. Cheung, 848 P.2d 1050, 1053 (Mont. 1993).  The Court added:

[T]he legal standard of medical care for non-board-certified general practitioners in Montana is currently governed by the locality rule or an expanded version of the locality rule, depending on the circumstances.  We hold that a non-board-certified general practitioner in a rural Montana community is not subject to a national standard of care, merely because the practitioner works at a hospital that has chosen to utilize JCAH standards in its license review process.  Id. at 1053-1054.

Although the Supreme Court declined to eliminate the Locality Rule for general practitioners, it should be noted that the Chapel Court did expand the Rule from “the same or similar community” in Montana to the same or similar community in the United States.  Chapel, 785 P.2d at 210.

Additionally, a “physician’s individual practice, however, is not relevant to the standard of care.”  Norris v. Fritz, 270 P.3d 79, 87 (Mont. 2012).

In contrast to general practitioners, board-certified specialists are held to a national standard of care.  Aasheim v. Humberger, 695 P.2d 824, 826 (Mont. 1985).  In Aasheim, the Supreme Court rejected the Locality Rule, even in its expanded Chapel form, for board-certified specialists.  Id.   The Court reasoned:

Board certified specialists receive comparable training and pass the same national board certification examination.  The locality rule bears no rational relationship to standards relevant for judging specialists so certified.  The locality rule was an outgrowth of disparity in the quality of community medical practice.  To the credit of the medical profession, including its excellent training and certification program, the disparity has largely been eliminated.  When the reason for a rule ceases to exist, courts should not hesitate to develop new legal principles more appropriate for the solution of modern problems.  Id. at 827.

 

II. Filing Deadlines for Medical Malpractice Claims

 Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Montana 

In general, medical malpractice claims in Montana are subject to a two-year statute of limitations contained in the Montana Code Annotated 2017 (“MCA”) § 27-2-205(1).  The limitations period begins to run “within 2 years after the date of injury or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last….”  Id.  The statute specifies exactly which types of healthcare practitioners as defendants are subject to the standard two-year limitations period.

Understanding the Montana Supreme Court’s definition of the term ‘injury’ is critical to any discussion and examination of the medical malpractice statute of limitations.  In the 1966 case Johnson v. St. Patrick’s Hospital, 417 P.2d 469, 472 (Mont. 1966), the Court described the term for purposes of calculating when the statute of limitations is triggered in a tort action.

Under the circumstances shown, no action could have been instituted until injury had been suffered, the general rule being that, when the act or omission constituting negligence causes direct or immediate injury, the action accrues from the time of doing the act, or negligently failing to act; but where injurious only in its consequences, as in the case at bar, the cause of action accrues only at the time of the consequential injury and the statute of limitations begins to run from that time.

That is, while most injuries are generally apparent at the time of the negligent act or omission, the Supreme Court recognizes that some injuries are not immediately apparent, and in those situations, the plaintiff is not considered aware or constructively aware of the injury until after the date of the negligence, which then triggers the running of the limitations period.  The Montana Supreme Court advised “that this court has not heretofore followed the rigid rule that a cause must and can only accrue when the negligent act was done.”  Id.

The statute of limitations is “tolled for any period during which there has been a failure to disclose any act, error, or omission upon which an action is based and that is known to the defendant or through the use of reasonable diligence subsequent to the act, error, or omission would have been known to the defendant.”  MCA § 27-2-205(1).  That is, the limitations period is tolled if the potential defendant fraudulently conceals relevant information from the injured party.

It must be noted that the limitations period contained in the 2013 edition of the Montana Code Annotated provided for a three-year statute of limitations for medical malpractice claims under § 27-2-205.  The current two-year statute of limitations first appeared in the 2015 edition of the Montana Code.  To complicate matters further, the 2017 edition advises that effective July 1, 2019 medical malpractice claims will once again be subject to a three-year statute of limitations.  Accordingly, extreme caution must be exercised in calculating the applicable limitations period for the foreseeable future, paying close attention to the precise date of the injury and which limitations period is applicable.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired.  Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery.  As such, it is critical to understand how time is computed under Montana law in calculating the exact date the applicable limitations period ends.  Rule 6 of the Montana Rules of Civil Procedure sets forth how time is calculated.  Thus, to determine how holidays, weekends, the first and last day of the period, etc. are handled for purposes of computing time, carefully review Rule 6.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Montana

Montana recognizes the Discovery Rule for medical malpractice claims.  In fact, it is integrated into the standard statute of limitations itself.  MCA § 27-2-205(1) states that medical malpractice claims must be brought “within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury….”  The principle embodied in the statute’s language is that of the Discovery Rule, i.e., knowledge of the injury as the triggering event for the starting of the limitations period.

Special Provisions

Minors

Minors are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims.  MCA § 27-2-205(2) provides:

in an action for death or injury of a minor who was under the age of 4 on the date of the minor’s injury, the period of limitations in subsection (1) begins to run when the minor reaches the minor’s eighth birthday or dies, whichever occurs first, and the time for commencement of the action is tolled during any period during which the minor does not reside with a parent or guardian.

Mental Disorder

Individuals who are deemed to be suffering from a mental disorder and committed pursuant to MCA § 53-21-127 are also subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims.  MCA § 27-2-401(1) states that “the time of the disability is not a part of the time limit for commencing the action.”  Under MCA § 27-2-401(3), a “person may not claim a disability unless it existed when the right of action or entry accrued.”  Also, “the time limit cannot be extended more than 5 years by the disability of commitment.”  MCA § 27-2-401(1).

Final Thoughts

The application of Montana medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Montana medical malpractice attorney.  This is especially true when the statute of repose is also implicated (see next Section of this article) as well as the statutory changes to the applicable limitations period from 2013 to 2019.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Montana attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Montana

Montana has a statute of repose applicable to medical malpractice claims that is contained in the standard statute of limitations itself.  MCA § 27-2-205(1) provides that “in no case may an action be commenced after 5 years from the date of injury.”

By statute, there is one expect to Montana’s medical malpractice statute of repose, and that is for fraudulent concealment as provided for in MCA § 27-2-205(1), which reads: “However, this time limitation is tolled for any period during which there has been a failure to disclose any act, error, or omission upon which an action is based and that is known to the defendant or through the use of reasonable diligence subsequent to the act, error, or omission would have been known to the defendant.”

The Montana Supreme Court explained that “[i]n the absence of specific statutory language to the contrary, a statute of repose such as the one codified in § 27-2-205(1), MCA, is not subject to tolling.”  Blackburn v. Blue Mountain Women’s Clinic, 951 P.2d 1, 9 (Mont. 1997).  However, the Court concluded that “Montana’s medical malpractice statute contains just such a statutory tolling provision.”  Id.  Since the passage quoted in the preceding paragraph of this article “directly follows the language which establishes the five-year statute of repose,” the phrase “this time limitation” refers to and modifies the statute of repose.  Id.  Therefore, the statute of repose is tolled only by a defendant’s fraudulent concealment.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Montana

Article II, Section 18 of the 1972 Montana Constitution abolished sovereign immunity.  Nelson v. State, 195 P.3d 293, 296 (Mont. 2008).  In addition, MCA § 2-9-102 provides:

Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function except as specifically provided by the legislature under Article II, section 18, of The Constitution of the State of Montana.

Accordingly, government-owned hospitals, medical facilities, and their employees are subject to medical malpractice claims.  Under MCA § 2-9-105, the “state and other governmental entities are immune from exemplary and punitive damages.”

Title 2, Chapter 9, Part 3 of the Montana Code Annotated 2017 sets forth the procedures and requirements for suing governmental defendants.

Claims against the state must be presented to the department of administration.  MCA § 2-9-301(1).  Claims against a political subdivision “shall be presented to and filed with the clerk or secretary of the political subdivision.”  MCA § 2-9-301(3).

A complaint may not be filed in district court “unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim.”  MCA § 2-9-301(2).  In addition:

The department must grant or deny the claim in writing within 120 days after the claim is presented to the department.  The failure of the department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection.  Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled for 120 days.

Under MCA § 2-9-302, a “claim against the state or a political subdivision is subject to the limitations of actions provided by law.”  That is, there is not a special statute of limitations for bringing suit against a government defendant.  The statute of limitations that generally applies to the cause of action also applies when suing the government.

MCA 2-9-305 sets forth detailed procedures and requirements for suing governmental employees.

MCA § 2-9-314 is of particular interest to medical malpractice plaintiffs.  It governs attorney fees in connection with bringing suit against the government.  It provides:

  1. When an attorney represents or acts on behalf of a claimant or any other party on a tort claim against the state or a political subdivision of the state, the attorney shall file with the claim a copy of the contract of employment showing specifically the terms of the fee arrangement between the attorney and the claimant.

 

  1. The district court may regulate the amount of the attorney fees in any tort claim against the state or a political subdivision of the state. In regulating the amount of the fees, the court shall consider the time the attorney was required to spend on the case, the complexity of the case, and any other relevant matter the court may consider appropriate.

 

  1. Attorney fees regulated under this section must be made a part of the court record and are open to the public.

 

  1. If an attorney violates a provision of this section, a rule of court adopted under this section, or an order fixing attorney fees under this section, the attorney forfeits the right to any fees that the attorney may have collected or been entitled to collect.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Montana

Montana has enacted a general Good Samaritan law that is codified in MCA § 27-1-714(1).  The statute provides immunity for individuals who, in good faith, render emergency care or assistance.  The statute reads:

Any person licensed as a physician and surgeon under the laws of the state of Montana, any volunteer firefighter or officer of any nonprofit volunteer fire company, any search and rescue volunteer, or any other person who in good faith renders emergency care or assistance without compensation except as provided in subsection (2) at the scene of an emergency or accident is not liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by the person in rendering the emergency care or assistance.

The immunity granted by Montana’s Good Samaritan law does not apply if the damages caused by the Good Samaritan were the result of “gross negligence or by willful or wanton acts or omissions….”  Id.  Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence or willful or wanton conduct.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Montana Code Annotated 2017.  Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 27—Civil Liability, Remedies, and Obligations—of the Montana Code Annotated 2017

V.  Presuit Requirement—Montana Medical Legal Panel

Medical malpractice plaintiffs are required to submit their claim to the Montana Medical Legal Panel prior to filing suit in court.  MCA § 27-6-301.  The statute states: “Claimants shall submit a case for the consideration of the panel prior to filing a complaint in any district court or other court sitting in Montana by addressing an application, in writing, signed by the claimant or the claimant’s attorney, to the director of the panel.”  Id.  Furthermore, MCA § 27-6-701 expressly instructs: “No malpractice claim may be filed in any court against a health care provider before an application is made to the panel and its decision is rendered.”

The application to the Panel must contain the following:

  1. 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, dentists, podiatrists, and hospitals having contact with the claimant and all witnesses;
  2. a statement authorizing the panel to obtain access to all medical, dental, podiatric, and hospital records and information pertaining to the claim and, for the purposes of its consideration of this matter only, waiving any privilege as to the contents of those records. The statement may not in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court. MCA § 27-6-302.

The Panel must issue a decision that is “signed for the panel by the presiding officer, must contain only the conclusions reached by a majority of its members, and must list the number of members, if any, dissenting from the opinion.”  MCA § 27-6-604.  The Panel’s decision must be communicated in writing to the parties and attorneys.  MCA § 27-6-605.  It is important to note that the “decision is without administrative or judicial authority and is not binding upon any party.”  MCA § 27-6-606.  Panel members “may not be called to testify in a proceeding concerning the deliberations, discussions, decisions, and internal proceedings of the panel.”  MCA § 27-6-704(1).  Similarly, the “decision and the reasoning and basis for the decision of the panel are not admissible as evidence in an action subsequently brought in a court of law….”  MCA § 27-6-704(2).

The applicable statute of limitations for medical malpractice claims is tolled during the Panel review process.  MCA § 27-6-702.  The tolling statute reads as follows:

The running of the applicable limitation period related to a malpractice claim is tolled upon receipt by the director of the application for review as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action that might subsequently arise out of the same factual circumstances set forth in the application. The running of the applicable limitation period does not begin again until 30 days after either an order of dismissal, with or without prejudice against refiling, is issued from the panel presiding officer, or from the director upon the consent of the parties to the claim, or after the panel’s final decision, whichever occurs first, is entered in the permanent files of the panel and a copy is served upon the complainant or the complainant’s attorney if represented by counsel, by certified mail.  Id.

The Montana Supreme Court described the Montana Medical Legal Panel as follows:

The panel was created by the 1977 legislature and is composed of three lawyers and three health care providers.  The articulated purposes of the panel are to screen malpractice claims in order to prevent the filing in court of actions which do not “permit at least a reasonable inference of malpractice” and to promote settlement of meritorious claims.  Section 27-6-102, MCA.  A claimant must submit his claim to the panel prior to filing in court, section 27-6-301, MCA, but the claimant is not bound by the decision of the panel, section 27-6-606, MCA, nor is the decision admissible in a subsequent judicial action, section 27-6-704, MCA.  Linder v. Smith, 629 P.2d 1187, 1188-1189 (Mont. 1981).

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 here, 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.  Pickett v. Cortese, 328 P.3d 660, 662 (Mont. 2014).

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Montana, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2 of the Montana Rules of Civil Procedure.   A medical malpractice action is commenced by filing a complaint with the appropriate court.  Rule 3.  Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.  A complaint is one of the seven authorized types of pleadings provided for in Rule 7(a).

Rule 8(a) requires that a complaint that states a claim for relief must contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Under Rule 8(d)(1), “[e]ach allegation must be simple, concise, and direct.  No technical form is required.”  The complaint may “set out 2 or more statements of a claim … alternatively or hypothetically, either in a single count … or in separate ones.”  Rule 8(d)(2).  If the plaintiff “makes alternative statements, the pleading is sufficient if any one of them is sufficient.”  Id.    In addition, the complaint may contain as many separate claims as the plaintiff has “regardless of consistency.”  Rule 8(d)(3).  All complaints “must be construed so as to do justice.”  Rule 8(e).

The complaint must contain a caption “with the court’s name, a title, a file number,” and designation as a compliant.  Rule 10(a).  In addition, the “title of the complaint must name all the parties….”  Id.

The complaint must state its claims “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”  Rule 10(b).  “If doing so would promote clarity, each claim founded on a separate transaction or occurrence … must be stated in a separate count….”  Id.

The complaint “must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented.”  Rule 11(a).

Notice Pleading

Montana is a notice pleading state.  Kunst v. Pass, 957 P.2d 1, 8 (Mont. 1998).  The Montana Supreme Court explained as follows:

[I]t is well settled that Montana’s rules of civil procedure, including Rule 8(a), M.R.Civ.P., are notice pleading statutes.  Pursuant to Rule 8(a), M.R.Civ.P., a complaint must put a defendant on notice of the facts the plaintiff intends to prove; the facts must disclose the elements necessary to make the claim; and the complaint must demand judgment for the relief the plaintiff seeks. [internal citations omitted] Id.

The Supreme Court further explained:

While Montana adheres to the notice pleading requirements of ‘a short and plain statement of the claim showing that the pleader is entitled to relief,” the claim must give notice to the other party of the facts which the pleader expects to prove, and the facts must disclose the presence of all the elements necessary to make out a claim.  Mysse v. Martens, 926 P.2d 765, 774 (Mont. 1996).

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

By statute, Montana sets forth the requirements for determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case.  MCA § 26-2-601 states:

  1. A person may not testify as an expert witness on issues relating to negligence and standards of care and practice in an action on a malpractice claim, as defined in 27-6-103, for or against a health care provider, as defined in 27-6-103, unless the person:

 

  • is licensed as a health care provider in at least one state and routinely treats or has routinely treated within the previous 5 years the diagnosis or condition or provides the type of treatment that is the subject matter of the malpractice claim or is or was within the previous 5 years an instructor of students in an accredited health professional school or accredited residency or clinical research program relating to the diagnosis or condition or the type of treatment that is the subject matter of the malpractice claim; and

 

  • shows by competent evidence that, as a result of education, training, knowledge, and experience in the evaluation, diagnosis, or treatment of the disease or injury that is the subject matter of the malpractice claim against the health care provider, the person is thoroughly familiar with the standards of care and practice as they related to the act or omission that is the subject matter of the malpractice claim on the date of the incident upon which the malpractice claim is based.

 

  1. If the malpractice claim involves treatment that is recommended or provided by a physician as defined in 37-3-102, a person may not testify as an expert witness with respect to issues of negligence or standards of care and practice concerning the treatment unless the person is also a physician.

 

  1. A person qualified as an expert in one medical specialty or subspecialty is not qualified to testify with respect to a malpractice claim against a health care provider in another medical specialty or subspecialty unless there is a showing that the standards of care and practice in the two specialty or subspecialty fields are substantially similar. This subsection (3) does not apply if the subject matter of the malpractice claim against the health care provider is unrelated to the relevant specialty or subspecialty.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Montana

In 1994, the Montana Supreme Court adopted the Daubert standard in State v. Moore, 885 P.2d 457, 471 (Mont. 1994).  The Moore Court announced:

We conclude that the guidelines set forth in Daubert are consistent with our previous holding in Barmeyer[2] concerning the admission of expert testimony of novel scientific evidence, and we, therefore adopt the Daubert standard for the admission of scientific expert testimony.  Accordingly, we conclude that before a trial court admits scientific expert testimony, there must be a preliminary showing that the expert’s opinion is premised on a reliable methodology.  We note, however, that the court must be flexible in its inquiry.  Id.

The Montana Supreme Court has instructed trial courts when determining whether to allow expert testimony concerning novel scientific evidence “it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation.”  Barmeyer v. Montana Power Co., 657 P.2d 594, 598 (Mont. 1983).  Matters of witness credibility and weight to be accorded the testimony of witnesses are issues of fact for the trier of fact to resolve, not courts in the admissibility determination.  Moore, 885 P.2d at 471.

It is important to understand that the Montana Supreme Court has held “that the district court’s gatekeeper role established by Daubert applies only to the admission of novel scientific evidence in Montana.” [emphasis in original] State v. Damon, 2005 MT 218, ¶18 (2005).  The Daubert analysis is inapplicable when making an admissibility determination for expert witness testimony that does not involve novel scientific evidence.  Accordingly, the Daubert standard is not applicable for ordinary admissibility determinations regarding expert witness testimony regarding the applicable standard of care, breach, or causation in most medical malpractice cases since they typically do not involve novel scientific evidence.  Gilkey v. Schweitzer, 983 P.2d 869, 872 (Mont. 1999).

When novel scientific evidence is not involved, the trial court “must employ a conventional analysis under Rule 702, M.R.Evid., when a party presents an issue concerning the admissibility of scientific evidence in general.  The preference of liberal admissibility subject to stringent cross-examination set forth in Barmeyer applies.”  Damon, 2005 MT at ¶ 19.  Rule 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

The Montana Supreme Court described the admissibility determination under Rule 702 as follows:

In Montana, an expert’s reliability is tested in three ways under Rule 702, M.R. Evid.: (1) whether the expert field is reliable, (2) whether the expert is qualified, and (3) whether the qualified expert reliably applied the reliable field to the facts. First, the district court determines whether the expert field is reliable.  The district court then determines whether the witness is qualified as an expert in that reliable field.  If the court deems the expert qualified, the testimony based on the results of his examination of the facts is admissible — shaky as that evidence may be.   The question whether a qualified expert reliably applied the principles of that reliable field to the facts of the case is for the finder of fact allowing vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.  Harris v. Hanson, 201 P.3d 151, 158 (Mont. 2009).

The admissibility of evidence is left to the sound discretion of the trial judge.  State v. Stewart, 833 P.2d 1085, 1087 (Mont. 1992).  The standard upon appellate review is whether the court abused its discretion.  State v. Gollehon, 864 P.2d 1257, 1263 (Mont. 1993).  The appellate court does not determine whether it would have come to the same conclusion; rather, the court must determine “whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason and prejudiced a substantial right of the appellant.” [internal quotation marks omiited] Beehler v. Eastern Radiological Associates, 289 P.3d 131, 136 (Mont. 2012) (quoting Weber v. BNSF Ry. Co., 261 P.3d 984 (Mont. 2011)).

VIII. Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

By statute, Montana uses modified comparative negligence with a 51% bar rule.  MCA § 27-1-702.  The statute provides that a plaintiff’s contributory negligence does not bar recovery, stating:

Contributory negligence does not bar recovery in an action by a person or the person’s legal representative to recover damages for negligence resulting in death or injury to the person or property if the contributory negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought….  Id.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant or defendants being sued by the plaintiff—the 51% bar rule.  If the plaintiff’s percentage share of determined fault is greater than the total of the defendant or defendants, then the plaintiff is not entitled to any recovery.

In Giambra v. Kelsey, 162 P.3d 134, 143-144 (Mont. 2007), the Montana Supreme Court explained the state’s comparative negligence statute as follows:

Contributory negligence is “conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.”  The traditional rule is that contributory negligence was a complete bar to the plaintiff’s claim.  However, “[c]omparative negligence compares the conduct of the parties ‘based on evidence and contributory negligence, as established by reasonable and prudent person standards.’”  Under a pure comparative negligence scheme, “no plaintiff is completely barred from recovery because of her contributory negligence.”

The Montana Legislature first adopted the comparative negligence rule in 1975.  As now codified in § 27-1-702, MCA, in Montana, a plaintiff’s contributory negligence is a defense to a charge of negligence, but “[c]ontributory negligence does not bar recovery in an action by a person” unless that person’s contributory negligence was “greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought.”  Therefore, Montana’s comparative negligence scheme employs the “greater-than” version of comparative negligence.  Under § 27-1-702, MCA, a plaintiff may not recover if the plaintiff is found to be greater than fifty percent negligent. [internal citations omitted]

The Montana Supreme Court observed that “one of the purposes of our legislature in adopting the comparative negligence statute was to abate the harshness of the common law rule on contributory negligence as preventing any recovery for a plaintiff, and apportioning responsibility in accordance with fault.”  North v. Bunday, 735 P.2d 270, 275 (Mont. 1987).

Under contributory negligence (the doctrine that Montana followed prior to implementing the current doctrine of modified comparative negligence, Reed v. Little, 680 P.2d 937, 940 (Mont. 1984)), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for under Montana’s current doctrine of modified comparative negligence.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system.  Under Montana’s version, fault is determined and apportioned among the plaintiff and all defendants, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury.  MCA § 27-1-702.  The statute states that “any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering.”  Id.

For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Montana imposes the 51% bar rule.

The Montana Supreme Court explained that “the issue of contributory negligence on the part of the plaintiff and the degree of comparative negligence, if any, is normally an issue for the jury or fact-finder to resolve.”  Peterson v. Eichhorn, 189 P.3d 615, 623 (Mont. 2008).  The Court added that “[w]hether a plaintiff was contributorily negligent is a question for the fact-finder, unless reasonable minds could not draw different conclusions from the evidence.”  Id.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied.  Each approach can lead to vastly different results.  The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s.  For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery.  Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought.  In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants.  Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, the Montana Supreme Court announced that the “combined comparison” approach is the law in Montana.  North v. Bunday, 735 P.2d 270, 276 (Mont. 1987).  In Bunday, the Court instructed “we conclude that Montana should join the majority of states that support the combined tortfeasors rule.  We interpret § 27-1-702, MCA, as requiring, in cases of multiple defendants, against whom recovery is sought, that the negligence of the plaintiff is to be compared with the combined negligence of the concurrent tortfeasor defendants to determine if plaintiff may recover.”  Id.

Under Montana law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

IX. Limitation on Noneconomic Damages

Montana law imposes a limit on the amount of noneconomic damages that can be recovered in a medical malpractice action.  MCA § 25-9-411(1).  It states: “In a malpractice claim or claims against one or more health care providers based on a single incident of malpractice, an award for past and future damages for noneconomic loss may not exceed $250,000. All claims for noneconomic loss deriving from injuries to a patient are subject to an award not to exceed $250,000.”  Id.

The statute further provides that the cap applies whether:

  1. based on the same act or a series of acts that allegedly caused the injury, injuries, death, or deaths on which the action or actions are based; or

 

  1. the act or series of acts were by one or more healthcare providers.

The statute states that if “a single incident of malpractice injures multiple, unrelated patients, the limitation on awards” under the statutory cap “applies to each patient and all claims deriving from injuries to that patient.”  MCA § 25-9-411(1)(b).

Plaintiffs have the burden of establishing that multiple injuries are the result of different, separate acts of medical malpractice in order for the $250,000 cap to apply to each injury individually, rather than a single cap for all the injuries.  MCA § 25-9-411(2)(a).  The statute states: “a claimant has the burden of proving separate injuries, each arising from a different act or series of acts.”  Id.

The statute details how trial courts are to impose the cap on noneconomic damages.  It instructs:

An award or combination of awards in excess of $250,000 must be reduced to $250,000, after which the court shall make other reductions that are required by law.  If a combination of awards for past and future noneconomic loss is reduced in the same action, future noneconomic loss must be reduced first and, if necessary to reach the $250,000 limit, past noneconomic loss must then be reduced.  If a combination of awards is reduced to $250,000, a claimant’s share of the $250,000 must be the same percentage as the claimant’s share of the combined awards before reduction.

The jury may not be told about the statutory cap on noneconomic damages.  MCA § 25-9-411(4).

For purposes of the statute, the term ‘noneconomic loss’ means “subjective, nonmonetary loss, including but not limited to: (i) physical and mental pain or suffering; (ii) emotional distress; (iii) inconvenience; (iv) subjective, nonmonetary loss arising from physical impairment or disfigurement; (v) loss of society, companionship, and consortium, other than household services; (vi) injury to reputation; and (vii) humiliation.”  MCA § 25-9-411(5)(d).

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Montana  

Montana law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases.  However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Montana under Rule 1.5 of the Montana Rules of Professional Conduct.  Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses.  The factors to be considered in determining the reasonableness of a fee include the following:

 

  • the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;

 

  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

 

  • the fee customarily charged in the locality for similar legal services;

 

  • the amount involved and the results obtained;

 

  • the time limitations imposed by the client or by the circumstances;

 

  • the nature and length of the professional relationship with the client;

 

  • the experience, reputation and ability of the lawyer or lawyers performing the services; and

 

  • whether the fee is fixed or contingent.

 

Contingent fee arrangements are expressly permitted by Rule 1.5(c), subject to the requirements described therein.  A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal….”  Id.  It must also explain what “litigation and other expenses [are] to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.”  Id.  The agreement must “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.”  Id.  Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”  Id.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Montana is among the states that have enacted an “I’m Sorry” law.  It is contained in MCA §26-1-814(1) and is specific to healthcare providers.  The statute shields healthcare providers who communicate statements of apology, sympathy, or benevolence by making them inadmissible as evidence of liability in an action for medical malpractice.  The statute reads as follows:

A statement, affirmation, gesture, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence relating to the pain, suffering, or death of a person that is made to the person, the person’s family, or a friend of the person or of the person’s family is not admissible for any purpose in a civil action for medical malpractice.

For purposes of the statute, the term ‘apology’ means “a communication that expresses regret.”  MCA §26-1-814(2)(a).

The term ‘benevolence’ means “a communication that conveys a sense of compassion or commiseration emanating from humane impulses.”  MCA §26-1-814(2)(b).

The term ‘communication’ means “a statement, writing, or gesture.”  MCA §26-1-814(2)(c).

The term ‘family’ means “the spouse, parent, spouse’s parent, grandparent, stepmother, stepfather, child, grandchild, sibling, half-sibling, or adopted children of a parent of an injured party.”

Note that Montana’s statute on the issue provides relatively robust protection for healthcare providers.  In contrast to similar laws in most other states, Montana’s does not distinguish between statements of apology, sympathy, or benevolence and admissions of liability or guilt.  Accordingly, under Montana’s law, statements made by healthcare providers that can be characterized as an admission of error or mistake still may not be used as evidence against them in a medical malpractice action.

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Montana understand that they can still be useful to potential plaintiffs.  Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider.  While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XII. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free, written information about our qualifications and experience.

 

[1] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

 

[2] Barmeyer v. Montana Power Co., 657 P.2d 594 (Mont. 1983).

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