DA 12-0046 December 11 2012
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 283
ANN M. BROOKINS, as an individual and
ANN M. BROOKINS, as natural parent
and legal guardian on behalf of
ALLEN GOTCHER, a minor.
Plaintiff and Appellant,
v.
FREDERICK MOTE, M.D. and
MINERAL COMMUNITY HOSPITAL,
Defendants and Appellees.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 05-410
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James P. O’Brien; O’Brien Law Office, P.C.; Missoula, Montana
For Appellee:
Gary Kalkstein, Travis B. Dye; Kalkstein, Johnson & Dye, P.C.;
Missoula, Montana
Submitted on Briefs: August 22, 2012
Decided: December 11, 2012
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Ann M. Brookins (Ann) appeals from three orders of the Fourth Judicial District
Court. The first reopened discovery, while the other two granted summary judgment to
the Mineral Community Hospital (the Hospital) on all of Ann’s claims. We address the
following issues and affirm:
¶2 1. Did the District Court err in reopening discovery?
¶3 2. Did the District Court err in granting summary judgment to the Hospital on the
agency claims?
¶4 3. Did the District Court err in granting summary judgment to the Hospital on the
joint venture claim?
¶5 4. Did the District Court err in granting summary judgment to the Hospital on the
Consumer Protection Act Claim?
¶6 5. Did the District Court err in granting summary judgment to the Hospital on the
negligent credentialing claim?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 In early 1993, Ann gave birth to Allen Gotcher (Allen) at the Hospital in Superior.
Dr. Frederick Mote (Dr. Mote) was Ann’s obstetrician and delivered Allen. Medical
complications arose prior to and after Allen’s delivery, leading to problems with Allen’s
brain development. In 2005, Ann, individually and on behalf of Allen, sued Dr. Mote
and the Hospital. She subsequently settled her claims with Dr. Mote. This appeal arises
out of pre-trial rulings made by the District Court in Ann’s litigation with the Hospital.
¶8 At the time of Allen’s birth, Dr. Mote was living in Superior for a second time.
He originally moved to Superior from Oregon in early 1992 to take employment at the
2
Hospital, but his stay was short-lived. In April 1992, Dr. Mote was charged in the State
of Oregon with sexual abuse of a minor and endangering the welfare of a minor. He
resigned his employment with the Hospital and returned to Oregon to face the charges.
¶9 Dr. Mote’s legal difficulties were reported in local newspapers, the Mineral
Independent and Missoulian, throughout the spring and summer of 1992. The Hospital
wrote an “Open Letter to the Mineral County Community” in the Mineral Independent,
explaining that the Hospital was taking steps to ensure patient safety. The Mineral
Independent reported Dr. Mote’s departure from Superior, and later reported that he had
pleaded guilty to misdemeanor sexual abuse of a child. As part of his sentence, Dr. Mote
attended a rehabilitation facility in Minnesota that specialized in sexual addiction.
¶10 In September 1992, the Montana Board of Medical Examiners (the Medical
Board) and Dr. Mote entered an agreement providing that Dr. Mote would keep his
medical license, subject to a 15-year probationary period and a prohibition on treatment
of minor patients unless a third party was present. Dr. Mote returned to Superior but the
Hospital determined not to rehire him as an employee. Dr. Mote opened a private
practice in his home. After review, the Hospital extended credentials for Dr. Mote to use
the Hospital’s facilities as an independent physician. A letter from Madelyn Faller
(Faller), the Hospital’s chief administrative officer during the early 1990’s, advising the
public of these circumstances was published in the Mineral Independent.
¶11 Ann hired Dr. Mote as her obstetrician immediately following his return to
Superior. Ann was living in St. Regis and was approximately four months pregnant.
3
Ann’s mother, Fran Brookins (Fran), was a registered nurse at the Hospital. According to
Fran, she and Ann discussed whether Dr. Mote should be Ann’s doctor given his
conviction in Oregon. Ann decided to hire Dr. Mote because his home-office was close
to Ann’s residence and she was concerned about not being able to make it to a Missoula
hospital when it came time to deliver her child. All of Ann’s prenatal appointments with
Dr. Mote were conducted at his home-office. The only times Ann recalled going to the
Hospital prior to delivery were for ultrasound procedures and blood tests. These were
performed by Hospital staff without Dr. Mote being present.
¶12 Allen was born in February of 1992, and Dr. Mote delivered him at the Hospital.
Medical complications persisted during Allen’s pre-delivery, delivery, and post-delivery
periods, which may have caused brain development problems. Allen has since been
diagnosed with brain damage, resulting in learning difficulties.
¶13 In April 2005, Ann, individually and on behalf of Allen, sued Dr. Mote and the
Hospital. Ann claimed malpractice against Dr. Mote for his care of Allen, assault and
battery for his performance of unnecessary pelvic exams on Ann, and “unauthorized
sexual contact with Allen during Dr. Mote’s delivery, examination and subsequent
circumcision” in violation of the restrictions placed on his medical license. Against the
Hospital, Ann alleged it was vicariously liable for Dr. Mote’s negligence under agency
and joint venture theories, and directly liable under the Consumer Protection Act and
negligent credentialing theories for allowing Dr. Mote to use its facilities. After Ann
settled her claims against Dr. Mote and the District Court dismissed him with prejudice in
4
August 2007, the lawsuit was dormant for over a year thereafter, but moved forward after
the District Court ordered Ann to file a status report.
¶14 During the ensuing discovery process, neither party adhered to the court-ordered
deadlines. The District Court issued three scheduling orders extending deadlines, and the
parties agreed between themselves to extend deadlines on several occasions. The parties
eventually became embroiled in two disputes, resulting in a discovery standoff. The first
concerned the Hospital’s failure to provide complete M. R. Civ. P. 26(b)(4) disclosures
for the three expert witnesses it retained to compare a 1993 MRI with a 2000 MRI of
Allen’s brain by the May 11, 2010 deadline.1 In correspondence to Ann’s counsel,
defense counsel explained that because the Hospital could not locate the 1993 MRI, the
experts could not compare it with the 2000 MRI and thus, disclosures could not be
completed by the deadline. The search culminated in the Hospital subpoenaing
St. Patrick Hospital in Missoula (where the 1993 MRI had taken place) to produce a copy
of the 1993 MRI.
¶15 The second dispute pertained to the deposition of two of Ann’s experts. The
Hospital repeatedly asked Ann for times her experts could be deposed, but Ann’s counsel
was resistant to allow their depositions before receiving the Hospital’s expert disclosures,
believing it would give the Hospital an unfair advantage. Throughout the summer of
2010, the parties continued these back and forth demands. Eventually, St. Patrick
1
The Hospital was interested in this evidence because an earlier report compiled as part of the
Medical Malpractice Legal Panel proceedings suggested that the 2000 MRI showed brain
damage that was not present in the 1993 MRI, suggesting that trauma other than Dr. Mote’s
delivery caused Allen’s brain injuries.
5
advised the parties that, pursuant to protocol, the 1993 MRI had been destroyed following
a seven year storage period. With no opportunity for its experts to analyze the earlier
MRI, the Hospital moved to name a different expert.
¶16 Ann moved to exclude any expert witnesses the Hospital had not fully disclosed
by the May 11, 2010 deadline—namely, the expert hired to replace its MRI experts—
asking the court to strictly enforce the discovery deadlines. The Hospital countered that
Ann should not benefit from strict enforcement of the scheduling order because she had
routinely missed deadlines. The Hospital also pointed out that its disclosure was delayed
by circumstances out of its control—the search for the 1993 MRI that was destroyed by
St. Patrick Hospital. The Hospital moved to extend discovery, or alternatively, to
exclude Ann’s experts it had not deposed.
¶17 After a hearing, the court issued an order extending discovery deadlines. The
court stated that both parties’ request to exclude the other side’s expert witness was
“extreme” and found the Hospital’s failure to provide full disclosures was “excusable in
light of the late discovery that the films of the 1993 MRI had been destroyed.” The court
further held that Ann’s delay in presenting her experts for deposition was “also
excusable” since the Hospital had not made its expert disclosures. Ann moved the court
to reconsider its ruling, arguing the court had erred, inter alia,2 by extending discovery
deadlines after they had closed without a finding of “excusable neglect.” The court
2
In her motion for reconsideration, Ann asserted seven grounds of error, but does not raise all of
them on appeal.
6
entered an order clarifying that it found both parties’ failure to comply with discovery
was due to “excusable neglect.”
¶18 Discovery proceeded, including two depositions which are particularly relevant to
this appeal. Ann deposed Faller, who testified that as the Hospital’s chief administrative
officer she had used a recruiting service to initially contact Dr. Mote. Following
Dr. Mote’s resignation and resolution of his criminal charges, Faller said the Hospital
decided not to rehire him. Faller contacted the treatment center Dr. Mote attended in
Minnesota and was advised that Dr. Mote “was not a pedophile and that he would not
reoffend.” As to re-credentialing Dr. Mote as an independent physician after his return to
Superior, Faller testified that Dr. Mote was required to submit an application, about
which Fallen was questioned extensively.
¶19 The Hospital deposed Ann’s expert on hospital credentialing, Dr. Daniel Boatman
(Dr. Boatman). Dr. Boatman had submitted his expert disclosure about three years
earlier. The disclosure explained that the “standard practice” in hospitals before
credentialing a doctor required, inter alia:
[A] query to the National Practitioner Data Bank, verification of medical
school education, verification of licensure in any and all other states the
physician indicates licensure in and status, verification of DEA licensure
status, and any restrictions, request for professional references and a series
of questions on the medical staff application regarding drug or alcohol use
or criminal convictions.
However, regarding whether the Hospital had breached this standard of care,
Dr. Boatman stated: “Without a credentials file for Dr. Mote, however, I cannot render an
7
opinion about the medical staff privileges granted as a violation of the standard of care
for hospitals.” Additional statements from these depositions will be referenced herein.
¶20 Following discovery, both Ann and the Hospital moved for summary judgment.
The District Court granted summary judgment to the Hospital on all claims and entered
judgment in favor of the Hospital. Ann appeals.
STANDARD OF REVIEW
¶21 In recognition of the district court’s “inherent discretionary power to control
discovery” and its “authority to control trial administration[,]” we review discretionary
pre-trial and discovery rulings for abuse of discretion. Anderson v. Werner Enterprises,
Inc., 1998 MT 333, ¶ 13, 292 Mont. 284, 972 P.2d 806. Further, in interpreting discovery
rules, “this Court will reverse the trial judge only when his or her judgment may
materially affect the substantial rights of the complaining party and allow the possibility
of a miscarriage of justice.” Anderson, ¶ 13. “We will not reverse the District Court
when it reaches the right result, even if for the wrong reason.” Palmer v. Bahm, 2006
MT 29, ¶ 20, 331 Mont. 105, 128 P.3d 1031.
¶22 We review summary judgment rulings de novo. Estate of Willson v. Addison,
2011 MT 179, ¶ 11, 361 Mont. 269, 258 P.3d 410. We apply the same M. R. Civ. P. 56
criteria as the district court to determine “whether the moving party has established both
the absence of any genuine issues of material fact and entitlement to judgment as a matter
of law.” Estate of Willson, ¶ 11. The district court’s conclusions of law are reviewed for
8
correctness, while findings of fact are reviewed to determine whether they are clearly
erroneous. Estate of Willson, ¶ 11.
DISCUSSION
¶23 1. Did the District Court err in reopening discovery?
¶24 Ann offers two arguments in support of her position that the District Court erred
by extending discovery deadlines. First, Ann argues that the Hospital waived its right to
an extension by failing to request an extension until after discovery had closed.
However, the record demonstrates that Ann did not make this waiver argument in district
court. “In Montana, the general rule is that an issue which is presented for the first time
to the Supreme Court is untimely and cannot be considered on appeal.” Day v. Payne,
280 Mont. 273, 276-77, 929 P.2d 864, 866 (1997). The rule is “rooted in fundamental
fairness to the parties and to the trial court[.]” Gary & Leo’s v. Dept. of Lab. & Indus.,
2012 MT 219, ¶ 16, ___ Mont. ___, ___ P.3d ___ (citing Day, 280 Mont. at 276-77, 929
P.2d at 866). The District Court was never presented with a waiver argument, and thus
the argument must be denied as untimely.
¶25 Secondly, Ann argues the District Court erred by concluding the circumstances
constituted “excusable neglect” justifying an extension of discovery. The Hospital
counters that the appropriate standard is not “excusable neglect,” but rather, “good
cause,” and that under either standard the District Court acted properly within its broad
discretion when it reopened discovery.
9
¶26 Discovery deadlines are governed by the Montana Rules of Civil Procedure.
M. R. Civ. P. 16(b)(3)(A) provides that a scheduling order “must limit the time to join
other parties, amend the pleadings, complete discovery, and file motions.” The rule also
states that a “schedule may be modified only for good cause and with the judge’s
consent.” M. R. Civ. P. 16(b)(4) (emphasis added). M. R. Civ. P. 6(b) provides that a
court may extend a deadline “after the time has expired if the party failed to act because
of excusable neglect.” (Emphasis added.) The parties argue over whether the “good
cause” standard of M. R. Civ. P. 16(b)(4) or the “excusable neglect” standard of M. R.
Civ. P. 6(b) applies to the modification of scheduling orders. There is a difference
between the two standards, as “[g]ood cause is a more liberal standard than excusable
neglect . . . .” N.W. Truck & Trailer Sales, Inc. v. Dvorak, 265 Mont. 327, 333, 877 P.2d
31, 34 (1994) (noting that “good cause” was used instead of “excusable neglect” in rule
of appellate procedure to “provide greater flexibility to district courts in reviewing
motions for extending time for filing a notice of appeal.”).
¶27 Rule 16 applies to scheduling orders generally, and Rule 16(b)(4) provides the
“good cause” standard for modification of scheduling orders. We have commonly
applied this Rule in discovery deadline modification cases, even where discovery has
closed. See e.g. Lindey’s, Inc. v. Prof. Consultants, Inc., 244 Mont. 238, 243, 797 P.2d
920, 923-24 (1990) (holding that the district court “did not err in finding there was not
good cause to amend the scheduling order” after the original deadlines had already
passed); In re Marriage of Smith, 270 Mont. 263, 270-71, 891 P.2d 522, 526-27 (1995)
10
(affirming district court ruling denying the extension of discovery beyond scheduling
order deadline because the appellant failed to show “good cause” to modify the
scheduling order); Farmers Coop. Assn. v. Amsden, LLC, 2007 MT 286, ¶ 22, 339 Mont.
445, 171 P.3d 690 (2007) (affirming district court’s denial of plaintiff’s motion to amend
complaint after deadline set out in scheduling order for amendment had passed because
plaintiff did not show “good cause” for delay). This precedent is consistent with federal
court precedent.3
¶28 It appears that we have not previously considered the overlapping nature of the
two rules, which both address extensions of time. Rule 6 provides an excusable neglect
standard and conflicts with Rule 16, which provides a good cause standard. Rule 6 is a
more general rule which governs the computation and extension of time for the rules,
court orders, or statutes that do not specify a method of computing time. See M. R. Civ.
P. 6(a). Rule 16 specifically governs scheduling orders that include discovery deadlines.
See M. R. Civ. P. 16(b). “When a general statute and a specific statute are inconsistent,
the specific statute governs, so that a specific legislative directive will control over an
inconsistent general provision.” Mosley v. Am. Express Fin. Advisors, Inc., 2010 MT 78,
¶ 20, 356 Mont. 27, 230 P.3d 479 (citation omitted). The “good cause” standard found in
3
See Marcin Engg., LLC v. Founders at Grizzly Ranch, LLC, 219 F.R.D. 516, 521 (D. Colo.
2003) (“In order for expert disclosures and related discovery to be reopened as Grizzly Ranch
requests, Grizzly Ranch must show good cause to amend the discovery deadlines stated in the
[scheduling order].”); Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226
(D.C. Cir. 2011) (applying “good cause” standard to defendant’s argument that the district court
should have reopened expert disclosure deadlines). Fed. R. Civ. P. 16(b)(4) is identical to M. R.
Civ. P. 16(b)(4).
11
M. R. Civ. P. 16(b)(4) is the appropriate standard for a district court to apply in
determining whether to modify a scheduling order, even after deadlines have passed.
¶29 “Good cause is generally defined as a ‘legally sufficient reason’ and referred to as
‘the burden placed on a litigant (usu. by court rule or order) to show why a request should
be granted or an action excused.’” City of Helena v. Roan, 2010 MT 29, ¶ 13, 355 Mont.
172, 226 P.3d 601 (quoting Black’s Law Dictionary 251 (Bryan A. Garner ed., 9th ed.,
West 2009)). We have stated that “good cause” is a flexible standard, and whether it is
present “will necessarily depend upon the totality of the facts and circumstances of a
particular case.” City of Helena, ¶ 13. We conclude there was a “legally sufficient
reason” for the District Court to modify the scheduling order. It found that both parties’
conduct led to the passing of the discovery deadlines without necessary discovery being
completed, and that a discovery standoff had occurred. Concluding that “[b]oth parties
had a justifiable reason for their respective failures to comply,” the District Court brought
the dispute to a détente by reopening discovery so that Ann could receive a complete
disclosure from the Hospital’s expert and the Hospital could depose Ann’s experts. This
is the kind of “trial administration” matter that is within the proper “inherent
discretionary power” of the district court. Anderson, ¶ 13. We conclude the District
Court did not abuse its discretion in reopening discovery.
¶30 2. Did the District Court err in granting summary judgment to the Hospital on
Ann’s agency claims?
¶31 The District Court held that there was not an actual agency relationship between
Dr. Mote and the Hospital because the undisputed facts established that Dr. Mote was not
12
actually employed by the Hospital at the time he treated Ann and Allen. As to ostensible
agency, the District Court held that the undisputed facts established that the Hospital took
no actions that would have led a reasonable person to believe Dr. Mote was its employee.
The District Court reasoned that the Hospital went out of its way to inform the public that
Dr. Mote was no longer employed by the Hospital. Ann argues these rulings were error
because genuine issues of fact exist as to whether the Hospital severed its employment
relationship with Dr. Mote following his return to Superior, and whether the Hospital’s
actions of allowing Dr. Mote to use its facilities would lead a person to believe Dr. Mote
was a Hospital employee.
A. Actual Agency
¶32 Montana statute provides that an “agency is actual when the agent is really
employed by the principal.” Section 28–10–101(1), MCA. “An individual is an
employee of another when that other has the right to control the details, methods, or
means of accomplishing the individual’s work.” Butler v. Domin, 2000 MT 312, ¶ 29,
302 Mont. 452, 15 P.3d 1189 (collecting Montana cases). We utilize four factors to
determine whether a hospital has “right of control” over a doctor, so as to form an
employment relationship: (1) direct evidence of right or exercise of control, (2) method of
payment, (3) furnishing of equipment, and (4) right to fire. Butler, ¶ 29 (citation
omitted). Our cases provide guidance on the issue of actual agency between a doctor and
a hospital.
13
¶33 In Kober v. Stewart, 148 Mont. 117, 417 P.2d 476 (1966), we reversed summary
judgment because genuine issues of material fact existed as to factors (1), (2), and (3). A
patient sued a radiologist and Billings Deaconess Hospital after he broke his leg while
getting X-rays. Kober, 148 Mont. at 118, 417 P.2d at 477. We noted a factual issue
under factor (1) because the patient had not chosen the radiologist and the radiologist was
working “on call” at the Hospital. Kober, 148 Mont. at 123, 417 P.2d at 479. As to
factor (2), we noted that the X-ray department was owned and operated by the Hospital,
which shared profits generated by the radiology department. Kober, 148 Mont. at 123,
417 P.2d at 479. As to factor (3), we noted that the Hospital employed all of the X-ray
technicians and furnished the equipment. Kober, 148 Mont. at 123, 417 P.2d at 479.
¶34 Conversely, we upheld summary judgment in favor of the hospital in Butler. A
patient sued two anesthesiologists and St. Patrick Hospital after he contracted an
infectious disease in his spine while receiving steroid injections for back pain. Butler,
¶¶ 7-9. As in Kober, the patient in Butler did not choose his anesthesiologists, who were
chosen by the Hospital. However, unlike the in-house, “on call” radiologist in Kober, the
anesthesiologists did not have offices within the hospital, performed their own billing
services, and did not share income with the Hospital. Butler, ¶ 31. We held that when
“viewed in a light most favorable to [the patient],” the evidence failed to raise material
issues of fact as to actual agency because under these facts it was not reasonable to infer
that the “Hospital had the right to control or exercised control over the details, methods,
or means of accomplishing [the anesthesiologists’] work.” Butler, ¶ 32.
14
¶35 Here, the undisputed facts fall far short of establishing an employment relationship
between Dr. Mote and the Hospital. Dr. Mote resigned his employment with the Hospital
months before he started treating Ann. The Hospital did not rehire him upon his return to
Superior. When he opened a home-office, Ann chose Dr. Mote to be her obstetrician,
and saw him at his home-office for all prenatal visits. Ann never saw Dr. Mote at the
Hospital prior to the delivery. Dr. Mote did not have office space at the Hospital, billed
for his own services, and did not share any revenue with the Hospital. These undisputed
facts do not raise a genuine issue as to whether the Hospital “had the right to control or
exercised control over the details, methods, or means of accomplishing” Dr. Mote’s
work. Butler, ¶ 31. Summary judgment was appropriate.
B. Ostensible Agency
¶36 An “ostensible agency” relationship arises “when the principal intentionally or by
want of ordinary care causes a third person to believe another to be the principal’s agent
when that person is not really employed by the principal.” Section 28-10-103(1), MCA.
The acts of the principal, not the putative employee, are the focus of an ostensible agency
inquiry. Sunset Point Partn. v. Stuc-O-Flex Intl., Inc., 1998 MT 42, ¶ 22, 287 Mont. 388,
954 P.2d 1156. A patient’s belief that her doctor is a hospital employee must be
reasonable. Sunset Point Partn., ¶¶ 23-24; Butler, ¶¶ 37, 39.
¶37 We have decided two cases involving claims of ostensible agency between a
doctor and a hospital. In Estates of Milliron v. Francke, 243 Mont. 200, 203, 793 P.2d
15
824, 826-27 (1990), a patient claimed an ostensible agency between a radiologist and a
hospital in Roundup because
the hospital agreed to provide adequate space, equipment, and personnel for
the radiology department; it sent and collected bills on behalf of the
radiologist; and provided the radiologist with an office at the hospital. The
radiologist had no separate office in Roundup, rather he privately consulted
in hospitals and would travel around to those hospitals, including Roundup
Memorial, performing work as a radiologist.
We held these facts were insufficient to raise a genuine issue as to ostensible agency
because they did not establish that the Hospital had intentionally or by “want of ordinary
care,” § 28-10-103(1), MCA, led the patient to believe it had employed the radiologist.
Milliron, 243 Mont. at 203, 793 P.2d at 827. We reasoned that “providing adequate
space, equipment, and personnel is nothing more than what a hospital provides other
doctors for the treatment of their patients.” Milliron, 243 Mont. at 204, 793 P.2d at 827.
¶38 Conversely, in Butler, we held there were genuine issues of material fact as to
ostensible agency between the anesthesiologists and the Hospital. We reasoned that,
unlike Milliron, where the treating physician referred his patient to the radiologist,
“Butler testified that neither he nor his treating physician chose either [anesthesiologist]
for treatment. Both doctors were selected and scheduled by St. Patrick Hospital. . . .
Butler also testified that upon arrival St. Patrick Hospital did not inform him that [the
anesthesiologist] was an independent contractor.” Butler, ¶ 37. We held that these facts
were sufficient to raise a genuine issue as to “whether St. Patrick Hospital intentionally or
negligently caused Butler to believe that [the anesthesiologist] was its agent.” Butler,
¶ 43.
16
¶39 Here, we first note that, two weeks prior to her child’s delivery, Ann signed a
Hospital consent form acknowledging that she understood Dr. Mote was an “independent
contractor” and not an employee or agent of the Hospital. She signed the form at the
Hospital. Dr. Mote did not have an office at the Hospital, and the Hospital and Dr. Mote
billed for their respective services separately. Unlike the patients in Milliron and Butler,
Ann never saw Dr. Mote at the Hospital prior to Allen’s birth. All of her appointments
were at Dr. Mote’s office. Given this record, the Hospital’s provision of “space,
equipment, and personnel” for the onetime event of Allen’s delivery is insufficient to
give rise to an ostensible agency. Milliron, 243 Mont. at 203, 793 P.2d at 827.
¶40 The Hospital did not do anything that would have led Ann to reasonably believe
that it employed Dr. Mote. To the contrary, the Hospital took action to inform the public
that Dr. Mote was not an employee of the Hospital. After Dr. Mote returned to Superior
in the fall of 1992, the local paper carried a story stating that he would be opening his
medical practice in the basement of his home. Madelyn Faller, then the Hospital’s chief
administrative officer, subsequently wrote a letter that was published in the local paper
clarifying that Dr. Mote was not an employee of the Hospital: “Our hospital has not
hired Dr. Mote for anything. Dr. Mote is in private practice in a location apart from the
hospital and clinic. People who choose to go to him do so at their own will.”
¶41 Summary judgment was appropriate because the undisputed facts show that the
Hospital did not “intentionally or by want of ordinary care,” § 28-10-103(1), MCA, cause
Ann to reasonably believe that Dr. Mote was an employee of the Hospital.
17
¶42 3. Did the District Court err in granting summary judgment to the Hospital on the
joint venture claim?
¶43 A joint venture is an “‘association of two or more persons to carry on a single
business enterprise for profit.’” Sunbird Aviation, Inc. v. Anderson, 200 Mont. 438, 444,
651 P.2d 622, 625 (1982) (quoting Rae v. Cameron, 112 Mont. 159, 167, 114 P.2d 1060,
1064 (1941)). To qualify as joint venturers, two parties must have: (1) an express or
implied agreement or contract creating a joint venture, (2) a common purpose among the
parties, (3) community of interest, and (4) an equal right of control of the venture. Papp
v. Rocky Mt. Oil & Minerals, Inc., 236 Mont. 330, 342, 769 P.2d 1249, 1257 (1989).
Because we conclude the fourth element is not met, we do not address the other elements.
¶44 Ann appears to define the “joint venture” as the mutually beneficial business
relationship between Dr. Mote and the Hospital, wherein the Hospital granted Dr. Mote
privileges to its facilities, and Dr. Mote used its facilities. We reject this overly broad
application of joint venture. Assertion of a mutually beneficial relationship, without
more, is insufficient to establish an “equal right and control” of a venture. Undisputed
facts show that Dr. Mote did not have an “equal right of control” of the Hospital policies
or operation, and the Hospital did not have an “equal right of control” over Dr. Mote’s
treatment of his patients. There was no agreement that Dr. Mote would send his patients
to the Hospital—those decisions were made between Dr. Mote and his respective patients
without input from the Hospital. Ann has failed to raise a genuine issue of material fact
as to the “equal right of control of the venture” factor of the joint venture test, and
summary judgment was appropriate. Papp, 236 Mont. at 342, 769 P.2d at 1257; cf.
18
Barton v. Evanston Hosp., 513 N.E.2d 65, 67-68 (Ill. App. 1987) (affirming summary
judgment on joint venture claim because the patient failed to specify how the hospital
“controlled” the doctor’s treatment of patients).
¶45 4. Did the District Court err in granting summary judgment to the Hospital on the
Consumer Protection Act claim?
¶46 The District Court granted summary judgment to the Hospital on Ann’s Consumer
Protection Act (CPA) claim, holding that Montana’s CPA only applies to “business” or
“entrepreneurial” actions of a health-care provider. Ann appeals, arguing that nothing in
the “plain language” of the CPA requires a hospital to be engaged in an “entrepreneurial
aspect” of its business to be liable.
¶47 Montana’s CPA provides that “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce are unlawful.”
Section 30-14-103, MCA (1991).4 “Trade” and “commerce” are statutorily defined as
the advertising, offering for sale, or distribution of any services, any
property, tangible or intangible, real, personal, or mixed, or any other
article, commodity, or thing of value, wherever located, and includes any
trade or commerce directly or indirectly affecting the people of this state.
Section 30-14-102(8), MCA.
¶48 The first question presented is whether a claim under Montana’s CPA may be
brought against a hospital, an issue of first impression in Montana. The relationship
between consumer protection laws and the medical profession has been the subject of
much discussion over the years. Historically, the traditional “learned professions” of
4
The 1991 version of the CPA applies because that version was in effect when the Hospital’s
allegedly deceptive or unfair practices occurred.
19
theology, law, and medicine, St. Bar of Ariz. v. Ariz. Land Title & Trust Co., 366 P.2d 1,
6 (Ariz. 1961), were exempt from federal consumer protection laws under the reasoning
that learned professions did not engage in “trade” or “commerce.” The Schooner Nymph,
18 F. Cas. 506, 507 (C.C.D. Me. 1834) (Story, J.); A. Cleaners & Dyers v. U.S., 286 U.S.
427, 435-36 (1932). “The distinction was said to be that, in contrast to practicing a trade
or running a business, ‘competition is inconsistent with the practice of a profession
because enhancing profit is not the goal of professional activities; the goal is to provide
services necessary to the community.’” Nelson v. Ho, 564 N.W.2d 482, 484 (Mich. App.
1997) (quoting Goldfarb v. Va. St. Bar, 421 U.S. 773, 786 (1975)).
¶49 In Goldfarb, the United States Supreme Court abolished this blanket immunity,
holding that a minimum-fee schedule imposed by the Virginia State Bar constituted a
“classic illustration of price fixing” in violation of § 1 of the Sherman Act. Goldfarb, 421
U.S. at 775, 783. In rejecting the Virginia State Bar’s argument that lawyers did not
engage in “trade or commerce,” the Supreme Court recognized that the modern legal
practice had “business aspect[s]” that fell outside the historical practice of the “learned
professions.” Goldfarb, 421 U.S. at 788. The Court was careful, however, to
acknowledge that “professions” are not synonymous with “businesses” for all purposes
under antitrust and consumer protection laws:
The fact that a restraint operates upon a profession as distinguished from a
business is, of course, relevant in determining whether that particular
restraint violates the Sherman Act. It would be unrealistic to view the
practice of professions as interchangeable with other business activities,
and automatically to apply to the professions antitrust concepts which
originated in other areas.
20
Goldfarb, 421 U.S. at 788 n. 17. The Court held that when a “learned profession”
ventures into a “business” role as opposed to its “professional” role, it is subject to the
same antitrust and consumer protection laws as any other business. Goldfarb’s rubric left
to other courts the task of delineating what were “professional aspects” and what were
“business aspects” of the “learned professions.”
¶50 A seminal case in this regard was decided by the Washington Supreme Court. See
Short v. Demopolis, 691 P.2d 163 (Wash. 1984). The court echoed Goldfarb by
concluding that while it would be improper to wholly exempt “learned professionals”
from consumer protection laws, some conduct would remain exempt:
It would be a dangerous form of elitism, indeed, to dole out exemptions to
our antitrust laws merely on the basis of the educational level needed to
practice a given profession, or for that matter, the impact which the
profession has on society’s health and welfare. Clearly, the more
appropriate and fairer course is to examine the nature and conduct involved
in the profession on a case by case basis together with the context in which
it is practiced.
Short, 691 P.2d at 167 (quoting U.S. v. Natl. Socy. of Prof. Engg., 389 F. Supp. 1193,
1198 (D.D.C. 1974)). The court surveyed and distilled federal and state cases into its
holding that “certain entrepreneurial aspects of the practice of law may fall within the
‘trade or commerce’ definition of the CPA.” Short, 691 P.2d at 168.
¶51 The Short court’s “entrepreneurial aspect rule” was illustrated by its application to
the plaintiff’s claims in that case. As to the first claim—a challenge to “how the price of
legal services is determined, billed, and collected”—the court held these were
“entrepreneurial aspects” of running a law firm and therefore actionable. Short, 691 P.2d
21
at 168. As to the second and third claims—challenges based upon a lawyer’s allegedly
sub-par work—the court held the claims were “not chiefly concerned with the
entrepreneurial aspects of legal practice; rather, they concern the actual practice of law.”
Short, 691 P.2d at 168. Because these claims were directed at the “competence of and
strategy” of the plaintiff’s lawyers, the lawyer’s conduct fell under the “professional
aspect” of the practice of law and were exempt from Washington’s CPA. Short, 691 P.2d
at 168.
¶52 The Washington Court of Appeals extended Short to the practice of medicine. See
Quimby v. Fine, 724 P.2d 403, 406 (Wash. App. 1986). Then, in a case with facts similar
to the present case, the Washington Court of Appeals extended Short and Quimby to
hospitals. Jaramillo v. Morris, 750 P.2d 1301, 1304 (Wash. App. 1988). The plaintiff in
Jaramillo sued her doctor and the hospital for injuries sustained during an ankle surgery.
Jaramillo, 750 P.2d at 1302-03. The plaintiff alleged the hospital was negligent by “not
determining Dr. Morris’ qualifications to perform ankle surgery, and, if the ankle surgery
[was] not within his podiatry license, negligence in not determining that fact.” Jaramillo,
750 P.2d at 1304. Because the “entrepreneurial aspects of the hospital’s business, such as
billing, were not implicated . . .” by this negligence claim, the court held that the claims
were not actionable under the CPA. Jaramillo, 750 P.2d at 1304.
¶53 Other courts have followed Washington’s lead and applied the “entrepreneurial
aspect test,” or a similar version thereof, to CPA claims brought against doctors and
hospitals. See e.g. Haynes v. Yale-New Haven Hosp., 699 A.2d 964, 974 (Conn. 1997)
22
(concluding that “the touchstone for a legally sufficient [consumer protection act] claim
against a health care provider is an allegation that an entrepreneurial or business aspect of
the provision of services aside from medical competence is implicated, or aside from
medical malpractice based on the adequacy of staffing, training, equipment or support
personnel.”); Nelson, 564 N.W.2d at 486 (Mich. App. 1997) (holding that only acts, or
practices “in the conduct of the entrepreneurial, commercial, or business aspect of a
physician’s practice may be brought under [Michigan’s consumer protection act].”);
Dorn v. McTigue, 157 F. Supp. 2d 37, 48-49 (D.D.C. 2001) (granting summary judgment
to doctor on consumer protection claim because the plaintiff “failed to make a showing
sufficient to establish the [doctor’s] alleged statement was motivated by entrepreneurial
motives.”); Simmons v. Stephenson, 84 S.W.3d 926, 928 (Ky. App. 2002) (affirming
summary judgment to doctor on consumer protection claim because the “allegations in
the complaint did not relate to the entrepreneurial, commercial, or business aspect of
Dr. Stephenson’s practice of medicine.”).5
¶54 We agree with the courts that have reasoned that exempting hospitals entirely from
consumer protection laws would be an improper “form of elitism[.]” Short, 691 P.2d at
167. A wholesale exemption would be inconsistent with the definitions of “trade” and
“commerce” in § 30-14-102(8), MCA. We also agree with the near unanimous line of
5
But see Crowe v. Tull, 126 P.3d 196, 205 (Colo. 2006) (“We are convinced by our reading of
the [Colorado Consumer Protection Act] that a judicially forged distinction between the
professional and entrepreneurial activities of attorneys, exempting the ‘actual practice’ of law
from [Colorado Consumer Protection Act] liability, is not the proper vehicle for analyzing a
deceptive trade practice claim against a lawyer.”).
23
authority that has exempted from the CPA conduct by health-care providers in the “actual
practice” of the profession. These professions are liable under Montana’s consumer
protection laws only for activities related to the “entrepreneurial, commercial, or
business” aspects of their practices. As the Michigan Court of Appeals reasoned in
Nelson, 564 N.W.2d at 486, failing to exempt professional negligence in the course of the
“actual practice” of medicine could render medical malpractice law “obsolete”:
We do not consider the Legislature’s use of “trade or commerce” in
defining the application of the act to exhibit an intent to include the actual
performance of medical services or the actual practice of medicine. If we
were to interpret the act as such, the legislative enactments and
well-developed body of law concerning medical malpractice would become
obsolete. While we are aware of the expense and difficulty in maintaining
a medical malpractice action, we do not think [Michigan’s Consumer
Protection Act] was meant by the Legislature to be an alternative to its
specific statutory scheme addressing medical malpractice claims.
This reasoning is especially persuasive given that we are herein recognizing the tort of
negligent credentialing—a form of professional negligence. Therefore, we hold that only
those acts or practices in the conduct of the entrepreneurial, commercial, or business
aspects of running a hospital are actionable under Montana’s CPA.
¶55 Ann’s claim against the Hospital is not actionable under Montana’s CPA. Her
claim implicates the Hospital’s failure to properly vet Dr. Mote before credentialing him
to use its facilities. The process undertaken by a hospital to determine if a doctor is
medically qualified to use its facilities implicates the “actual practice” of medicine. If the
Hospital failed to properly vet Dr. Mote prior to granting privileges, it is subject to
negligent credentialing liability, a form of professional negligence. Credentialing a
24
doctor is not an entrepreneurial, commercial, or business aspect of providing healthcare,
such as the practice of billing patients, advertising, etc. Jaramillo, 750 P.2d at 1304. The
District Court properly granted summary judgment to the Hospital on Ann’s CPA claim.
¶56 5. Did the District Court err in granting summary judgment to the Hospital on the
negligent credentialing claim?
¶57 Ann explains that “negligent credentialing is a legal theory of first impression in
Montana.” The District Court noted that Montana has not specifically adopted “negligent
credentialing” as a cause of action, and we first undertake that question. This Court has
the power to recognize and abolish common-law doctrines and to define any
accompanying defenses. See e.g. Sacco v. High Country Indep. Press, Inc., 271 Mont.
209, 896 P.2d 411 (1995) (recognizing negligent infliction of emotional distress and
intentional infliction of emotional distress as independent causes of action under the
common law); Meech v. Hillhaven West, Inc., 238 Mont. 21, 33-34, 776 P.2d 488, 494-95
(1989). When asked to recognize a new cause of action, the Court will review “our own
caselaw and the authorities from other jurisdictions” to determine if the “gradual
evolution” of the common law supports recognition of the new claim. Sacco, 271 Mont.
at 220, 234, 896 P.2d at 418, 426.
¶58 While we have not formally recognized the tort of “negligent credentialing,” we
foreshadowed its adoption 40 years ago. In Hull v. North Valley Hosp., 159 Mont. 375,
498 P.2d 136 (1972), the plaintiff sought treatment from a doctor who misdiagnosed and
mistreated a “general infection” of his knee, exacerbating the plaintiff’s original injury.
Hull, 159 Mont. at 379-81, 498 P.2d at 138-39. The plaintiff sued the hospital for
25
negligence in “permitting Dr. Kauffman to use its facilities in ministering to his patients
in light of his previous record.” Hull, 159 Mont. at 382, 498 P.2d at 140. We did not
reach the negligent credentialing issue because we held that the hospital was not liable
because there was no reason for the hospital to have restricted Dr. Kauffman’s license
prior to the botched surgery—e.g., he did not have a history of malpractice. Hull, 159
Mont. at 389-90, 498 P.2d at 143-44. However, in doing so, we acknowledged that the
rise of the “modern hospital” imposed a duty on hospitals to take steps to ensure patient
safety in the process of accreditation and granting of privileges:
[T]he integration of a modern hospital becomes readily apparent as the
various boards, reviewing committees, and designation of privileges are
found to rest on a structure designed to control, supervise, and review the
work within the hospital. The standards of hospital accreditation, the state
licensing regulations, and the [hospital’s] bylaws demonstrate that the
medical profession and other responsible authorities regard it as both
desirable and feasible that a hospital assume certain responsibilities for the
care of the patient.
Hull, 159 Mont. at 389, 498 P.2d at 143. This reasoning is even more persuasive 40
years later, with the development of hospitals into “comprehensive health care” facilities.
Butler, ¶ 41 (citation omitted).
¶59 We have recognized analogous torts. Negligent selection/hiring of an independent
contractor, for example, has long been recognized by this Court. See Gurnsey v. Conklin
Co., 230 Mont. 42, 53-54, 751 P.2d 151, 157-58 (1988) (adopting Restatement (Second)
of Torts § 411). Numerous jurisdictions have adopted the tort of negligent credentialing
against hospitals. As the Minnesota Supreme Court recently noted when adopting the
tort, “negligent credentialing is recognized as a common law tort by a substantial
26
majority of the other common law states.” Larson v. Wasemiller, 738 N.W.2d 300, 309
(Minn. 2007). By our count, at least 30 states currently recognize the tort of negligent
credentialing.6 In 2010, the Supreme Court of Utah succinctly explained this widespread
acceptance of negligent credentialing as a claim: “[N]egligent credentialing is simply the
application of broad common law principles of negligence, and is a natural extension of
torts such as negligent hiring.” Archuleta v. St. Mark’s Hosp., 238 P.3d 1044, 1049
(internal quotation marks and citations omitted). The tort “is inherent in and the natural
extension of well-established common law rights.” Larson, 738 N.W.2d at 306.
¶60 Based on these authorities, we are persuaded that the “gradual evolution” of the
common law supports the recognition of the tort of negligent credentialing. Sacco, 271
Mont. at 234, 896 P.2d at 426. We therefore recognize negligent credentialing as a valid
6
See Humana Med. Corp. of Ala. v. Traffanstedt, 597 So.2d 667, 668-69 (Ala. 1992); Fletcher v.
S. Peninsula Hosp., 71 P.3d 833, 842 (Alaska 2003); Tucson Med. Ctr., Inc., v. Misevch, 545
P.2d 958, 960 (Ariz. 1976); Elam v. College Park Hosp., 132 Cal. App. 3d 332, 183 Cal. Rptr.
156, 160 (1982); Kitto v. Gilbert, 570 P.2d 544, 550 (Colo. 1977); Insinga v. LaBella, 543 So.2d
209, 214 (Fla. 1989); Mitchell Co. Hosp. Auth. v. Joiner, 189 S.E.2d 412, 414 (Ga. 1972);
Domingo v. Doe, 985 F. Supp. 1241, 1244-45 (D. Haw. 1997); May v. Wood River Twp. Hosp.,
257, 629 N.E.2d 170, 171 (Ill. 1994); Winona Meml. Hosp., Ltd. P’ship v. Kuester, 737 N.E.2d
824, 828 (Ind. Ct. App. 2000); Baublitz v. Penn. Regl. Med. Ctr., 2010 WL 3199343, *6 (D. Md.
August 12, 2010); Ferguson v. Gonyaw, 236 N.W.2d 543, 550 (Mich. 1975); Larson v.
Wasemiller, 738 N.W.2d 300, 313 (Minn. 2007); Taylor v. Singing River Hosp. Sys., 704 So.2d
75, 78 n. 3 (Miss. 1997); Corleto v. Shore Meml. Hosp., 350 A.2d 534, 537-38 (N.J. 1975); Diaz
v. Feil, 881 P.2d 745, 749 (N.M. 1994); Sledziewski v. Cioffi, 137 A.D.2d 186, (N.Y. App. Div.
1988); Blanton v. Moses H. Cone Meml. Hosp., Inc., 354 S.E.2d 455, 458 (N.C. 1987); Albain v.
Flower Hosp., 553 N.E.2d 1038, 1045 (Ohio 1990); Strubhart v. Perry Meml. Hosp. Trust Auth.,
903 P.2d 263, 276 (Okla.1995); Welsh v. Bulger, 698 A.2d 581, 586 (Pa. 1997); Rodrigues v.
Miriam Hosp., 623 A.2d 456, 462-63 (R.I. 1993); Crumley v. Meml. Hosp., Inc., 509 F. Supp.
531, 535 (E.D. Tenn. 1978); Archuleta v. St. Mark’s Hosp., 238 P.3d 1044, 1048-49 (Ut. 2010);
Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46 (Tex. 2004); Wheeler v. Cent. Vt. Med.
Ctr. Inc., 582 A.2d 165, 166 (Vt. 1989); Pedroza v. Bryant, 677 P.2d 166, 168-70 (Wash. 1984);
Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791, 798 (W. Va. 1986); Johnson v.
Misericordia Cmty. Hosp., 301 N.W.2d 156, 164 (Wisc. 1981); Greenwood v. Wierdsma, 741
P.2d 1079, 1088 (Wyo. 1987).
27
cause of action in Montana. Similar to a medical malpractice claim, a plaintiff in a
negligent credentialing 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, ¶ 17.
¶61 The second issue is whether expert testimony is necessary to support a claim for
negligent credentialing, and, if so, what testimony is sufficient to raise a genuine issue as
to liability. The District Court ruled that expert testimony was required. Ann argues that
expert testimony is not necessary because the Hospital’s “credentialing decision is not
beyond the understanding of a jury.” The Hospital counters that the determination that a
physician was “medically unqualified” is not an ordinary negligence inquiry, arguing the
evidentiary burden is no different than in medical malpractice claims and expert
testimony is required.
¶62 It has been noted that “[a]ll courts that have looked at the question have concluded
that expert testimony is necessary to establish the standard of care owed by a hospital, or
whether the hospital has been negligent.” Benjamin J. Vernia, Tort Claim for Negligent
Credentialing of Physician, 98 A.L.R. 5th 533, 553 (2002) (internal citation omitted).
The courts that have already addressed this question have reasoned that the process
through which a hospital credentials a doctor to use its facilities is outside the knowledge
of a common person. See e.g. Johnson v. Misericordia Cmty. Hosp., 301 N.W.2d 156,
172 (Wisc. 1981) (“[S]ince the procedures ordinarily employed by hospitals in evaluating
applications for staff privileges are not within the realm of the ordinary experience of
28
mankind . . . expert testimony was required to prove the same.”); Neff v. Johnson Meml.
Hosp., 889 A.2d 921, 928 (Conn. App. 2006) (“we hold that the parameters of a
hospital’s judgment in credentialing its medical staff is not within the grasp of ordinary
jurors.”).
¶63 Under Montana law, expert testimony is required to establish the standard of care
“unless the conduct complained of is readily ascertainable by a layman.” Mont.
Deaconess Hosp. v. Gratton, 169 Mont. 185, 189, 545 P.2d 670, 672 (1976); Dalton v.
Kalispell Regl. Hosp., 256 Mont. 243, 246, 846 P.2d 960, 962-63 (1993). We have
reasoned that because “juries composed of laymen are normally incompetent to pass
judgment” on questions of whether “reasonable care” was exercised in undertaking
“work calling for a special skill[,]” there can be “no finding of negligence in the absence
of expert testimony to support it.” Carlson v. Morton, 229 Mont. 234, 239, 745 P.2d
1133, 1137 (1987) (quoting Prosser and Keeton, The Law of Torts, § 32 (West 5th ed.,
1984)). We agree with other courts that the process of physician credentialing can be
complicated and that the “reasonable care” a hospital must undertake in credentialing a
doctor is not “readily ascertainable by a layman.” Gratton, 169 Mont. at 189, 545 P.2d at
672. This is particularly true in a case like this one, where a physician seeks credentials
after being convicted of a crime. Therefore, we affirm the District Court’s determination
that expert testimony is required to establish the applicable standard of care in a negligent
credentialing claim and a deviation from that standard of care.
29
¶64 The District Court granted summary judgment to the Hospital on Ann’s negligent
credentialing claim on an issue of expert testimony. It concluded that, while Ann
provided expert testimony as to the standard of care applicable the Hospital’s decision to
credential Dr. Mote, she failed to provide expert testimony that the Hospital breached
that standard of care. Ann argues that the District Court erred because her expert,
Dr. Boatman, and the Hospital’s former chief administrative officer, Madelyn Faller, both
provided testimony that established the Hospital deviated from reasonable care in
credentialing Dr. Mote. The Hospital counters that Ann failed to establish breach
because her expert never came to the conclusion that the Hospital breached the standard
of care. According to the Hospital, Madelyn Faller’s testimony likewise is insufficient
because her testimony that there were “red flags” in Dr. Mote’s application was not itself
sufficient to establish that the Hospital deviated from the standard of care.
¶65 It is “well settled Montana law” that to survive a motion for summary judgment, a
plaintiff in a medical malpractice action must provide expert testimony that establishes:
“(1) the applicable standard of care, (2) the defendant departed from that standard of care,
and (3) the departure proximately caused the plaintiff’s injury.” Estate of Willson, ¶ 17;
accord Gratton, 169 Mont. at 189, 545 P.2d at 672; Baylor v. Jacobson, 170 Mont. 234,
240, 552 P.2d 55, 58 (1976); Falcon v. Cheung, 257 Mont. 296, 303, 848 P.2d 1050,
1055 (1993); Estate of Nielsen v. Pardis, 265 Mont. 470, 473, 878 P.2d 234, 235-36
(1994); Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, ¶ 21, ___ Mont. ___, ___
P.3d ___. “Without expert testimony to establish these elements, no genuine issue of
30
material fact exists and the defendant is entitled to judgment as a matter of law.” Estate
of Willson, ¶ 17. These standards likewise apply to the similar claim of negligent
credentialing.
¶66 The District Court correctly noted that “Dr. Boatman’s expert disclosure is his
expert testimony.” During his deposition, Dr. Boatman agreed with counsel for the
Hospital that his expert disclosure contained “all of the opinions” he was “offering in this
case.” When asked again whether he had revised any of the opinions since preparing his
disclosure, Dr. Boatman answered “no.” With regard to the Hospital’s breach of standard
of care, Dr. Boatman’s expert disclosure provided:
My understanding is that Dr. Mote had been convicted of a sexual offense
committed upon a minor, had DEA license restrictions and had a history of
malpractice. Assuming one or more of these “red flags” to be the case,
failure to request a list of privileges granted to him by other hospitals or to
insist on evidence of training of changes in behavior is a violation of the
standard of care for hospitals. Without a copy of the hospital governing
bylaws, medical staff bylaws and the credentials file for Dr. Mote, however,
I cannot render an opinion about the medical staff privileges granted as a
violation of the standard of care for hospitals.
(Emphasis added.) This statement does not constitute an opinion that the Hospital
deviated from the applicable standard of care. Rather, it states that at the time of his
disclosure, Dr. Boatman had not been provided with adequate information to offer an
opinion as to whether the Hospital had breached its duty. Dr. Boatman’s disclosure was
insufficient to state that a breach of the standard of care had occurred, as we have held is
necessary. Falcon, 257 Mont. at 304, 848 P.2d at 1055 (plaintiff’s medical expert
hypothesizing as to why the decedent was not transferred to a larger facility “more
31
promptly” failed to establish deviation from standard of care because “not knowing of the
overall hospital situation, he merely raised the question to further explore whether or not
a delay in transferring the patient was an issue.”) (emphasis added); Gratton, 169 Mont.
at 189-90, 545 P.2d at 672-73 (affirming summary judgment because the “testimony
elicited from Drs. Wolgamot and Graham as to their treatment of Gratton as well as their
past experience with infections has not established a standard of medical care or a
deviation therefrom. A defendant doctor’s testimony as to his usual personal practice is
not sufficient to establish a general medical standard of care. Also, the personal and
individual method of practice of the defendant doctor is not sufficient to establish a basis
for an inference that he has negligently departed from the general medical custom and
practice of his community.”); Estate of Willson, ¶ 17 (noting that without expert
testimony to establish applicable standard of care, deviation from standard of care, and
proximate cause “no genuine issue of material fact exists and the defendant is entitled to
judgment as a matter of law.”); Beehler, ¶ 21 (noting that “plaintiff’s failure to provide
this expert testimony is fatal to the plaintiff’s claim.”) (citation and quotation marks
omitted); Griffin v. Moseley, 2010 MT 132, ¶ 31, 356 Mont. 393, 234 P.3d 869 (same);
Estate of Nielsen, 265 Mont. at 473, 878 P.2d at 236 (affirming summary judgment
because plaintiff failed to “affirmatively produc[e]” evidence that the defendant
“breached a duty of care.”).
¶67 For whatever reason, Dr. Boatman’s disclosure was never supplemented and he
apparently was not provided the additional information needed to revise his opinion by
32
the time of his deposition, over two-and-a-half years later. There was clearly enough
time to address the insufficiency in Dr. Boatman’s disclosure yet, at his deposition,
Dr. Boatman testified that nothing had changed from that report. In the end, he never
offered an opinion that the Hospital had breached the applicable standard of care.
¶68 Ann’s assertion that Madelyn Faller’s deposition testimony establishes breach of
the standard of care similarly fails. During Faller’s deposition, the following colloquy
took place regarding the Hospital’s vetting of doctors before granting privileges:
Ann’s counsel: Do you know does the medical staff have an obligation, as
part of assessing credentials and quality, to ensure quality is brought into
the community? Do they have an obligation to determine the malpractice
history of a physician who is applying for staff privileges?
Faller: The chairman of the medical staff perhaps has an obligation.
(Emphasis added.) Even assuming that Faller was qualified to offer an expert opinion,
her equivocal testimony does not clearly establish the standard of care and a deviation by
the Hospital. It merely establishes that Faller was not certain of the standard, but that it
was possible that the medical staff had an obligation they did not fulfill. Ann directs us
to other statements by Faller that are equally insufficient.
¶69 We decline to deviate from our well settled precedent and the sound policy
underlying it. As we have emphasized, “full disclosure during discovery under Rule 26,
M.R.Civ.P., is designed to ‘eliminate surprise and to promote effective cross-examination
of expert witnesses.’” Christofferson v. City of Great Falls, 2003 MT 189, ¶ 11, 316
Mont. 469, 74 P.3d 1021 (quoting Hawkins v. Harney, 2003 MT 58, ¶ 21, 314 Mont. 384,
66 P.3d 305). The plaintiff in a negligent credentialing claim must present expert
33
testimony establishing that the defendant deviated from the applicable standard of care to
raise a genuine issue of material fact. Because Ann did not do so in this case, the District
Court was correct to grant summary judgment to the Hospital.
¶70 We affirm the District Court on all issues raised on appeal.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
34