June 8 2010
DA 09-0633
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 132
ANDY GRIFFIN, Individually and as
Personal Representative of the Estate of
CARLA GRIFFIN,
Plaintiff and Appellant,
v.
JOHN MOSELEY, M.D.,
Defendant and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 2006-0457
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Torger Oaas, Attorney at Law, Lewistown, Montana
Jon A. Oldenburg, Attorney at Law, Lewistown, Montana
For Appellee:
John J. Russell, Lisa A. Speare, Brown Law Firm, Billings, Montana
Submitted on Briefs: April 14, 2010
Decided: June 8, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Andy Griffin appeals from a grant of summary judgment in the
Thirteenth Judicial District Court, as well as an order denying leave to amend his
complaint. We reverse the grant of summary judgment, and remand the order denying
leave to amend to the District Court for further proceedings consistent with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 2003, Carla Griffin (Carla) was suffering from a condition known as
pseudotumor cerebri (PTC). PTC can cause headaches and vision loss. PTC generally
affects obese women during their child-bearing years, and can be treated by
ophthalmologists, neurologists, and neurosurgeons. One method for treating PTC
consists of implanting a lumbar peritoneal shunt in the patient’s lumbar subarachnoid
space to divert excess cerebral spinal fluid, thereby reducing pressure on the optic nerve.
This shunt surgery is performed by neurosurgeons. Other conservative medical
treatments are also available for treating PTC. These include the use of weight loss
regimens in combination with pharmaceutical drugs. These more conservative treatments
do not require surgery.
¶3 Carla had been referred by Dr. Frances Saboo, an optometrist at Crow Agency,
Montana, to Dr. Roger Williams, a Billings, Montana, neurologist, for an evaluation of
her PTC. Dr. Williams confirmed Carla’s PTC diagnosis and referred her to Dr. John
Moseley, a neurosurgeon, for a consideration of the shunt surgery. Dr. Moseley saw
Carla on March 26, 2003. Dr. Moseley recommended that Carla undergo the shunt
surgery. In a letter written to Dr. Williams after his visit with Carla, Dr. Moseley stated
2
that he had discussed the associated risks of the surgery including chronic low pressure
headaches and subdural hematomas, but also stated these risks were probably minimal
when compared to Carla’s daily severe headaches and risk of further change in vision.
¶4 On May 7, 2003, Dr. Moseley performed the shunt surgery on Carla. Prior to
surgery, Dr. Moseley had Carla sign an informed consent form describing some of the
risks of the surgery. The informed consent form did not list weight loss and the
administration of pharmaceutical drugs such as Lasix as alternative treatments for PTC.
¶5 When Carla awoke from her surgery, she was suffering from severe leg pain. It
was subsequently discovered that the placement of some tubing used during the surgery
was likely causing the pain. Dr. Moseley performed follow-up surgery on May 9, 2003,
and pulled the tubing back several inches. However, Carla’s leg pain never went away,
and she was later determined to be totally disabled from work. Carla spent the next six
years in and out of hospitals and took powerful prescription pain medication for her leg
pain. On March 10, 2009, Carla died from complications related to her pain medication.
¶6 In May 2006, prior to her death, Carla and her husband Andy (Griffins) filed a
negligence suit against Dr. Moseley.1 On January 30, 2007, the Griffins filed a first
amended complaint. The amended complaint contains the following counts against Dr.
Moseley:
[Count I] The actions of Carla Griffin’s treating physician, John
Moseley, M.D., constitute a deviation from [the] accepted standard of care
and constitute negligence which has caused the injuries to Carla Griffin as
described above.
1
The Griffins also filed claims against Medtronic, Inc., the manufacturer of the shunt used in her
operation.
3
[Count II] Carla Griffin’s treating physician, John Moseley, M.D.,
failed to fully inform Carla Griffin about the known risks associated with
the placement of a lumbar peritoneal shunt and therefore did not properly
obtain her consent for surgery.
¶7 The parties engaged in discovery after the filing of the complaint. One of the
Griffins’ expert witnesses, Dr. Patrick E. Galvas, who is not a neurosurgeon, opined that
Carla had suffered a nerve injury during the surgery. In deposition testimony, Dr.
Moseley acknowledged that nerve damage was a risk of shunt implementation.
¶8 On April 14, 2009, the Griffins filed an expert disclosure for Dr. Kenneth
Houchin, a neuro-ophthalmologist. Dr. Houchin opined that proceeding to surgery for
Carla’s PTC before attempting to relieve her symptoms through less invasive means,
such as weight loss and medication, would constitute a breach of the standard of care for
the treatment of PTC. In his expert disclosure, Dr. Houchin stated as follows:
An opinion on the neuro-surgical technique utilized and/or the informed
consent process for the lumbar peritoneal shunt would best be deferred to
an expert in neuro-surgery.
Although weight loss is considered the definitive treatment for benign
intracranial hypertension,2 at no time is a discussion documented in the
medical record advising weight loss or offering medical assistance in
achieving weight loss. Thus, supervised weight loss with minimal risk was
apparently never tried before proceeding with lumbar peritoneal shunt with
its associated significant risks.
Proceeding to lumbar peritoneal shunt without first offering the patient
medically-supervised weight loss falls below the standard of care in the
management of benign intracranial hypertension.
Furthermore, the diuretic Lasix may be used in a patient that can not
tolerate Diamox or corticosteroids to lower the cerebral spinal fluid
pressure and ameliorate symptoms. No documentation is present that Lasix
2
Benign intracranial hypertension is another name for PTC.
4
was tried. Thus, an adequate well-supervised trial of Lasix with minimal
risk was apparently never tried before proceeding with lumbar peritoneal
shunt with its associated significant risks.
Proceeding to lumbar peritoneal shunt without first giving an adequate trial
of Lasix falls below the standard of care in the management of benign
intracranial hypertension.
¶9 On May 19, 2009, the Griffins deposed Dr. Moseley who admitted that he did not
discuss any forms of alternative treatment with Carla prior to obtaining her consent for
surgery. In light of this information, Griffins moved to amend Count II of their
complaint on May 29, 2009. The Griffins argued that Dr. Moseley’s admission
constituted evidence that Dr. Moseley violated the standard of care with respect to
informed consent. In their brief in support, the Griffins argued that their claims against
Dr. Moseley were based on three sets of facts: (1) lack of informed consent by failing to
disclose the known risks of shunt surgery; (2) medical negligence in proceeding to
surgery for PTC before attempting less invasive treatments for PTC, such as weight loss
and Lasix therapy; and (3) medical negligence in the placement of the shunt. In light of
Dr. Moseley’s testimony, the Griffins sought leave to amend Count II of their complaint
on June 2, 2009, to add allegations that informed consent was ineffective for failure to
inform Carla of alternative treatments for PTC.
¶10 On June 1, 2009, Dr. Houchin was deposed by defense counsel. In his deposition,
Dr. Houchin was asked by counsel about the extent of his medical expertise in treating
PTC. Dr. Houchin stated that he has treated hundreds of patients for PTC. His treatment
regimen consisted of the use of Lasix and other weight loss alternatives. The doctor
testified that referral for neurosurgery was discussed only if the conservative treatment
5
measures failed, but that only 10% or less of his patients failed to respond to alternative
treatment measures. Dr. Houchin testified that the standard of care required Dr. Moseley
to recommend such conservative measures.
¶11 On June 5, 2009, Dr. Moseley moved for summary judgment on the Griffins’
claims, contending that the Griffins did not have expert testimony to support their claims
that he violated the standard of care. Dr. Moseley argued that Dr. Houchin was their only
expert on liability and he could not offer an opinion to support their claims because he
was an ophthalmologist, and not a board-certified neurosurgeon like Dr. Moseley.
¶12 A hearing on the summary judgment motion was scheduled for July 1, 2009.
However, the Griffins had already scheduled a deposition in Portland, Oregon, on that
date for Dr. Edmund Frank, one of Dr. Moseley’s expert witnesses and a board-certified
neurosurgeon. After Dr. Moseley’s counsel informed the Griffins that the deposition
could not be rescheduled, the Griffins asked the District Court to reschedule the hearing.
The District Court then reset the hearing for June 29, 2009, two days before Dr. Frank’s
deposition. The summary judgment was argued as scheduled.
¶13 In his deposition taken two days after the summary judgment hearing, Dr. Frank
testified that the standard of care for informed consent required discussion of alternative
weight loss treatment before attempting surgery. Based upon this testimony, the Griffins
filed a supplement to their response to Dr. Moseley’s summary judgment motion with
this additional information from Dr. Frank’s deposition.
¶14 On October 23, 2009, the District Court entered two written orders. The first
order granted Dr. Moseley’s motion for summary judgment and rejected the Griffins’
6
supplemental response to this motion. The second order denied the Griffins’ motion to
amend their complaint.
¶15 With respect to the motion for summary judgment, the District Court first
concluded it did not have the discretion to accept the Griffins’ supplemental response,
noting that the Griffins did not seek leave of court to file a supplemental response brief,
and that in the absence of such leave the additional brief would not be allowed under the
Montana Rules of Civil Procedure or the Uniform District Court Rules.
¶16 Turning then to the merits of the summary judgment motion, the District Court
agreed with Dr. Moseley that the Griffins’ complaint contained only two claims against
him: (1) negligence during the performance of the surgery; and (2) failure to obtain
informed consent prior to surgery. The District Court concluded that the complaint did
not state a claim for failure to exhaust non-surgical therapies before attempting surgery,
and stated that it would consider only the two allegations set forth in the existing
complaint.
¶17 The District Court then concluded that the Griffins could not meet their burden of
proof regarding the standard of care to be applied to the performance of the surgery and
the failure to obtain informed consent prior to surgery. Noting that the Griffins’ only
expert witness, Dr. Houchin, was an ophthalmologist, and not a board-certified
neurosurgeon like Dr. Moseley, the District Court concluded that Dr. Moseley was
entitled to judgment as a matter of law under Mont. Deaconess Hosp. v. Gratton, 169
Mont. 185, 545 P.2d 670 (1976), because the Griffins could not provide the requisite
testimony that Dr. Moseley violated the applicable standard of care.
7
¶18 In its second order, the District Court denied Griffins’ motion to amend their
complaint. The Court premised its denial of the motion to amend upon its summary
judgment order. As stated by the District Court:
The First Amended Complaint set forth two claims against Defendant: (1)
negligence during the performance of surgery; and (2) failure to obtain
informed consent prior to surgery. Pl.’s First Amended Complaint and
Jury Demand 2 (Jan. 30, 2007). If the amendment were allowed, the
Second Amended Complaint would still only set forth those same two
claims against Defendant. Plaintiff’s proposed amendment, rather than
setting forth a new cause of action, simply adds a new set of facts under
which Plaintiff alleges Defendant failed to obtain informed consent prior to
surgery. See Pl.’s Br. in Supp. of Pl.’s Mot. For Leave to File Pl.’s 2nd
Amended Comp. 3 (June 2, 2009) (stating that Defendant failed to obtain
informed consent prior to surgery because he did not disclose other
available treatment choices). The Court has found that these two claims do
not survive summary judgment. See Order Granting Def.’s Mot. S.J. and
Denying Pl.’s Mot. to Supplement Pl.’s Resp. to Def.’s Mot. S.J. and
Denying Pl.’s Mot. to Supplement Pl.’s Resp. to Def.’s Mot. S.J. 8 (October
23, 2009). Therefore, the Court holds that Plaintiff’s motion should be
denied because allowing the amendment would be futile.
Accordingly, the District Court denied the motion for leave to amend.
¶19 The Griffins now appeal from these two orders. We state the issues presented by
the Griffins’ appeal as follows:
¶20 Issue One: Did the District Court abuse its discretion in denying the Griffins
leave to amend their complaint?
¶21 Issue Two: Did the District Court err in granting summary judgment?
STANDARD OF REVIEW
¶22 M. R. Civ. P. 15(a) of the Montana Rules of Civil Procedure states that leave to
amend should be freely given by the district courts. Upky v. Marshall Mtn., LLC, 2008
MT 90, ¶ 18, 342 Mont. 273, 180 P.3d 651. While amendments are not permitted in
8
every circumstance, they may be allowed when they would not cause undue prejudice to
the opposing party. Upky, ¶ 18. We generally review a district court’s decision denying
leave to amend for an abuse of discretion. Deschamps v. Treasure State Trailer Court,
Ltd., 2010 MT 74, ¶ 18, 356 Mont. 1, ___ P.3d ___. As we recently stated in Deschamps,
“[a]lthough leave to amend is properly denied when the amendment is futile or legally
insufficient to support the requested relief, it is an abuse of discretion to deny leave to
amend where it cannot be said that the pleader can develop no set of facts under its
proposed amendment that would entitle the pleader to the relief sought.” Deschamps,
¶ 18 (quotation omitted). The only exception to this abuse of discretion standard of
review arises in cases where the district court’s decision is rendered pursuant to
M. R. Civ. P. 15(c), which addresses the relation back of amendments; in such cases, we
review the legal question presented de novo. Deschamps, ¶ 19 (discussing Citizens
Awareness Network v. Mont. Bd. of Envtl. Rev., 2010 MT 10, 355 Mont. 60, 227 P.3d
583).
¶23 We review a district court grant of summary judgment de novo, applying the same
standards as the district court pursuant to M. R. Civ. P. 56. Signal Perfection, Ltd. v.
Rocky Mtn. Bank - Billings, 2009 MT 365, ¶ 9, 353 Mont. 237, 224 P.3d 604. Under
M. R. Civ. P. 56(c), summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”
DISCUSSION
9
¶24 Issue One: Did the District Court abuse its discretion in denying the Griffins
leave to amend their complaint?
¶25 The Griffins argue that the District Court abused its discretion when it denied
them leave to amend Count II of their complaint to add allegations that Dr. Moseley did
not have Carla’s informed consent since he failed to advise her of alternatives to the
shunt surgery. In order to place this question in the proper context, we must look to the
predicate order of summary judgment.
¶26 In opposing the motion for summary judgment, the Griffins argued that Count I of
their existing complaint did encompass a claim against Dr. Moseley for negligently
proceeding to surgery without first exhausting the medical therapies of weight loss and
medication. In the motion to amend they argued that their proposed amendment to Count
II of their complaint would add a cognizable claim for lack of informed consent about
alternatives to surgery. However, the District Court found no allegation of negligent
pre-surgical treatment in Count I, and further refused to consider any allegation that Dr.
Moseley breached the standard of care for informed consent by failing to inform Carla of
alternatives to surgery. Then, because the District Court concluded that Dr. Houchin
could not offer an expert opinion on whether Dr. Moseley violated the neurosurgical
standard of care with respect to the surgery or informed consent thereon, it granted Dr.
Moseley’s motion for summary judgment.
¶27 The District Court denied the motion to amend on the grounds that the Griffins’
proposed amendment would be futile since the amended claim, if allowed, would still be
defeated on summary judgment. The District Court noted that the Griffins’ proposed
10
amendment would not add a new cause of action, but would instead simply add a new set
of facts to the claim that Dr. Moseley failed to obtain informed consent prior to surgery.
The District Court had already found these claims would not survive summary judgment
due to the Griffins’ failure to provide expert testimony on the standard of care. The
District Court therefore concluded that an amendment would be futile.
¶28 It is important to note in this procedurally confusing case that Griffins’ motion to
amend their complaint was filed before Dr. Moseley’s motion for summary judgment
was filed. The Griffins sought to add an allegation to Count II of their complaint to
clarify that their claim for violation of the standard of care for informed consent was
premised on two grounds. The first ground—that Dr. Moseley failed to inform Carla of
the risks of the surgery—was already set forth in the complaint. The second ground
which they sought to add was that informed consent was lacking because Dr. Moseley
did not discuss alternative treatments for PTC with Carla. However, because the District
Court addressed the summary judgment motion before it addressed the motion to amend,
it considered only the informed consent with respect to the risks of surgery, and not the
informed consent with respect to alternative treatments for PTC. Herein lies the problem:
the court premised its denial of the motion to amend upon its order of summary
judgment, when it should have first considered the prior-filed motion to amend under
M. R. Civ. P. 15, and then addressed the summary judgment motion in the context of its
ruling on the motion to amend.
¶29 As noted above, leave to amend should be freely given absent prejudice to the
opposing party. Upky, ¶ 18. We conclude that the order denying the motion to amend
11
Count II must be reversed because it was premised upon the order of summary judgment.
We therefore remand this matter to the District Court for evaluation of the motion to
amend on its own merits. On remand, the District Court will have the opportunity to
exercise its discretion under M. R. Civ. P. 15 in deciding whether to allow the Griffins to
add allegations to the informed consent claim in Count II, and the opportunity to issue an
order explaining its rationale for granting or denying leave to amend.
¶30 Before leaving this issue, it is likely that in determining whether to grant leave to
amend, the District Court will be faced with the argument that leave to amend should be
denied because Dr. Houchin cannot in any event provide the requisite expert testimony
on the standard of care to be exercised by a neurosurgeon securing informed consent
from his patient. Because this issue has been fully briefed by the parties, and in the
interests of judicial efficiency, we will resolve this issue here and now. Should the court
grant leave to amend on remand, this resolution will be useful; should the court deny
leave to amend, it will be moot.
¶31 It is clear that Dr. Houchin, as a neuro-ophthalmologist, is not qualified to render
an expert opinion on whether Dr. Moseley violated the standard of care in performing the
shunt operation, or in advising Carla on the risks of the surgery itself. He conceded as
much himself. The question is whether Dr. Houchin has the expertise to render an expert
opinion on the standard of care for informed consent in relation to the disclosure of
alternatives to PTC surgery. In Gratton, this Court stated that a plaintiff has the burden
in a medical malpractice case of presenting evidence on the medical standard of care “by
expert medical testimony unless the conduct complained of is readily ascertainable by a
12
layman.” Gratton, 169 Mont. at 189, 545 P.2d at 672. Failure to present such evidence
is fatal to the plaintiff’s claim. Gratton, 169 Mont. at 190, 545 P.2d at 673.
¶32 A review of Dr. Houchin’s expert disclosure and his deposition testimony
demonstrates a sufficient basis for Dr. Houchin to render expert testimony on the
standard of care for informed consent as it pertains to alternatives to the PTC surgery. In
his expert disclosure, Dr. Houchin described the alternative methods for treating PTC
which he routinely uses with his patients. Dr. Houchin stated that he has treated
hundreds of patients for PTC, using a regimen consisting of the use of Lasix and other
weight loss alternatives. Dr Houchin stated that a referral for neurosurgery is done only
if the conservative treatment measures fail, and that in roughly 90% of his cases, his
patients respond to such alternative measures. Furthermore, Dr. Houchin specifically
opined in his deposition that Dr. Moseley violated the standard of care for informed
consent by failing to discuss these alternative treatments with Carla. The sufficiency of
Dr. Houchin’s opinion was later confirmed by the deposition testimony of Dr. Frank, who
opined that a discussion of the types of PTC treatments routinely performed by Dr.
Houchin constitutes a portion of the standard of care of the informed consent process for
a neurosurgeon performing PTC surgery.
¶33 Under these circumstances, we conclude that Dr. Houchin is qualified to render an
opinion on whether a neurosurgeon should discuss alternative treatments for PTC prior to
attempting surgery. There is no absolute requirement under Montana law that a physician
must be a neurosurgeon in order to testify as to that aspect of the informed consent
process for the treatment of PTC which is within his area of expertise. See Glover v.
13
Ballhagen, 232 Mont. 427, 429, 756 P.2d 1166, 1168 (1988) (citing Hunsaker v.
Bozeman Deaconess Found., 179 Mont. 305, 588 P.2d 493 (1978)) (“We [have] not
declare[d], as a matter of law, that doctors practicing in the same specialty were the only
ones who could testify as to that standard of care. For example, in the past we have
allowed a general practitioner to testify as to the standard of care required of a
specialist.”).
¶34 Based upon the foregoing, in its reconsideration of the motion to amend, the
District Court should not assume that the amendment would be futile, as Dr. Houchin’s
testimony would be sufficient on that aspect of the informed consent dealing with the
obligation to address alternative conservative therapies before attempting surgery. In so
holding, however, we do not imply that the District Court is therefore bound to grant the
motion to amend, as it must still exercise its discretion under M. R. Civ. P. 15.
¶35 Issue Two: Did the District Court err in granting summary judgment?
¶36 Because we have concluded that the District Court abused its discretion in the
manner in which it denied leave to amend Count II of the complaint, we must vacate the
order of summary judgment as it pertains to Count II of the complaint. The District
Court must first determine the scope and nature of the allegations in the complaint before
it is in a position to ultimately grant or deny summary judgment on Count II. However,
we must still resolve a second issue briefed by the parties, which is whether the court
erred in granting summary judgment on Count I of the Griffins’ complaint (for which no
amendment was sought). Plaintiffs argued that Count I, as pled, was sufficient to
encompass the allegation that Dr. Moseley breached the standard of care by proceeding to
14
shunt surgery without first exhausting the medical therapies of weight loss and
medication. The District Court rejected this argument, finding no such textual allegation
in the complaint, and entered summary judgment.
¶37 Count I of the complaint alleges generally that the actions of Dr. Moseley deviated
from the standard of care and constituted negligence. See Opinion, ¶ 6. The Griffins
contend that this claim encompasses negligence in pre-surgical as well as surgical care.
As noted above, Dr. Houchin stated that the conservative measures are part of his
treatment regimen prior to a referral to a neurosurgeon. Additionally, Dr. Michael
Power, a defense expert and ophthalmologist, also testified during his deposition that he
treats PTC with conservative management measures. Relying on Gonzalez v. Walchuk,
2002 MT 262, 312 Mont. 240, 59 P.3d 377, the Griffins argue that because this issue has
been raised in depositions, Dr. Moseley is on notice that his alleged negligence
encompassed both the surgical and pre-surgical treatment of Carla’s condition. The
Griffins argue that the District Court construed the allegations in Count I too narrowly
when it held that Dr. Moseley’s alleged negligence did not encompass pre-surgical
treatment, such notice notwithstanding.
¶38 In Gonzalez, this Court noted that:
It is well settled that “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.” Larson v. Green Tree Financial Corp., 1999
MT 157, ¶ 35, 295 Mont. 110, ¶ 35, 983 P.2d 357, ¶ 35 (citation omitted).
The complaint must provide a defendant with notice and an opportunity to
defend himself. Larson, 1999 MT 157 at 35.
Gonzalez, ¶ 13.
15
We reversed the District Court’s order of summary judgment, concluding that while fraud
allegations were not included in the complaint, the defendants had notice of these
allegations based both on the contents of the complaint and the issues raised and litigated
during discovery, and that therefore summary judgment was improperly granted.
Gonzalez, ¶ 17.
¶39 The same result is compelled here. Count I alleged that Dr. Moseley was
negligent and that his actions fell below the standard of care. This count did not
specifically allege that Dr. Moseley’s negligence encompassed his failure to attempt
alternative pre-surgical treatment. However, the doctor was clearly on notice of this
aspect of the plaintiffs’ case. Even setting aside consideration of Dr. Frank’s testimony,3
the deposition testimony of Drs. Houchin and Power put Dr. Moseley on notice that the
plaintiff maintained he was negligent in both his surgical treatment of Carla, as well as in
his pre-surgical treatment of her. Therefore, we conclude the District Court construed
Count I too narrowly when it concluded that the negligence allegations were confined
solely to the surgical procedures in this case. As this Court stated in Spaberg v. Johnson,
143 Mont. 500, 392 P.2d 78 (1964),
“[A] ll the Rules require is ‘a short and plain statement of the claim’ that
will give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests. The illustrative forms appended to the Rules
plainly demonstrate this. Such simplified ‘notice pleading’ is made
possible by the liberal opportunity for discovery and the other pre-trial
3
Dr. Frank’s testimony was not considered by the District Court when it granted summary
judgment. Dr. Frank testified that the conservative treatment methods, which were discussed by
Drs. Houchin and Power in their depositions, were part of the standard of care for the treatment
of PTC.
16
procedures established by the Rules to disclose more precisely the basis of
both claim and defense and to define more narrowly the disputed facts and
issues.”
Spaberg, 143 Mont. at 503, 392 P.2d at 80 (quoting Conley v. Gibson, 355 U.S. 41,
47-48, 78 S. Ct. 99, 103 (1957)). Accordingly, we reverse the entry of summary
judgment on Count I of the plaintiff’s complaint.
CONCLUSION
¶40 We conclude that the District Court abused its discretion in the fashion in which it
denied leave to amend, and remand for reconsideration in a manner consistent with this
Opinion. Furthermore, we reverse in part and vacate in part the order of summary
judgment. We reverse summary judgment on Count I, and remand the summary
judgment order with respect to Count II for reconsideration after the court resolves the
motion to amend the complaint pursuant to M. R. Civ. P. 15.
/S/ PATRICIA O. COTTER
We concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
Justice Jim Rice, dissenting.
¶41 I disagree with the Court’s conclusion regarding Dr. Houchin’s ability to testify
regarding the standard of care applicable to neurosurgeons. The Court recognizes that
17
Dr. Houchin was not qualified to render an expert opinion regarding the standard of care
governing a board-certified neurosurgeon’s obtaining a patient’s informed consent about
the risks of the surgery itself. See Opinion, ¶ 31. Nonetheless, the Court determines that
Dr. Houchin was qualified to render an expert opinion regarding the standard of care
governing a board-certified neurosurgeon’s obtaining a patient’s informed consent about
alternatives to PTC surgery. See Opinion, ¶ 33. I do not believe the distinction the Court
has made between these subcomponents of informed consent is viable. Both are part of
the patient’s giving of consent to the neurosurgeon for surgery, and are obtained in a
singular process. As Dr. Houchin acknowledged, “An opinion on the neuro-surgical
technique utilized and/or the informed consent process . . . would best be deferred to an
expert in neuro-surgery.” (Emphasis added.)
¶42 This is further illustrated by the deposition testimony regarding the respective
qualifications and duties of the practitioners involved in this case. Dr. Houchin is not
board-certified in neurology, has not been trained in neurosurgery, and does not perform
the surgery at issue in this case. Dr. Houchin is a neuro-opthamologist who is an expert
on alternative (nonsurgical) treatment of PTC. As the Court notes, Dr. Houchin testified
that 90% of his patients respond to alternative treatment of PTC, and he refers them for
neurosurgery “only if the conservative treatment measures fail.” Opinion, ¶ 32 (emphasis
added). By Dr. Houchin’s admission, all patients who are referred by him for
neurosurgery have already tried alternative treatment, and have failed to obtain relief. At
that point, his practice and expertise have ended, and the patient is placed in the hands of
the neurosurgeon.
18
¶43 Dr. Frank’s deposition testimony confirmed this assessment. Under questioning
by Griffins’ counsel about a neurosurgeon’s standard of care, he testified as follows:
Q. Before neurosurgeons in general would agree to operate or use a
surgical option, there would have to be some sort of work or inquiry
as to whether or not medical treatment had been tried on a particular
patient and didn’t work, and that’s the reason that they were referred
for surgery?
A. Well, the referral for surgery would imply that medical treatment—
conservative treatment had failed.
. . .
Q. What would you do in a situation where the records from her
referring physician were silent as to whether or not medical therapy
had been tried? . . .
A. As I also said before, I believe, that we would get a referral from
someone that was a neurologist or a neuro-ophthalmologist, which
would mean that they have exhausted the conservative treatment,
which is their area of expertise. A cover letter often does not
include everything that has been done. [Emphasis added.]
¶44 Dr. Frank thus agrees with Dr. Houchin’s practice on this point—that patients are
not referred to neurosurgeons until they have already exhausted conservative treatment.
Dr. Houchin’s expertise is also exhausted at this point, as he is not qualified by either
training or experience to render an expert opinion on how a neurosurgeon should proceed
after the referral—in other words, to establish the neurosurgeon’s standard of care.
¶45 It is true that, during the later course of Dr. Frank’s deposition, he opined within
an expanded discussion that a neurosurgeon should discuss alternative treatments with
referred patients, despite his earlier testimony that a referral meant that alternative
treatments had already failed. However, we have never held that the standard of care can
19
be established through a defendant’s expert and, nationally, courts have resisted doing so.
We have explained that the two exceptions to the plaintiff’s duty to provide qualified
expert testimony regarding a defendant’s standard of care are, first, when the conduct
complained of is readily ascertainable by a layperson and, second, when a defendant
doctor’s own testimony establishes the standard of care and departure from it. See
Dalton v. Kalispell Regional Hosp., 256 Mont. 243, 246, 846 P.2d 960, 961-62 (1993);
Hunter v. Missoula Community Hosp., 230 Mont. 300, 305, 750 P.2d 106, 109 (1988).
¶46 “The trial court has broad discretion in determining whether a particular witness is
qualified to testify as an expert.” Glover v. Ballhagen, 232 Mont. 427, 430, 756 P.2d
1166, 1168 (1988); see also O’Leyar v. Callender, 255 Mont. 277, 281, 843 P.2d 304,
306 (1992). Given the record, I cannot conclude that the District Court abused its broad
discretion in determining that Dr. Houchin was not qualified to testify regarding a
neurosurgeon’s standard of care. Because the Court’s conclusion on this point is central
to its reversal under both Issues 1 and 2, I dissent and would affirm the District Court.
/S/ JIM RICE
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