FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA A. GIBSON, as No. 20-35333
Personal Representative of
the Estate of Johnny G. D.C. No.
Gibson, and for herself; JOHN 4:18-cv-00112-BMM
TRAVIS MORGAN GIBSON;
DIXIE LEE GIBSON,
Plaintiffs-Appellants, ORDER CERTIFYING
QUESTIONS TO THE
v. SUPREME COURT OF
MONTANA
UNITED STATES OF
AMERICA,
Defendant-Appellee.
Filed June 22, 2021
Before: Danny J. Boggs, * Richard A. Paez, and
Paul J. Watford, Circuit Judges.
Order
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 GIBSON V. UNITED STATES
SUMMARY **
Montana Law
The panel certified to the Montana Supreme Court the
following questions:
1. Under Montana law, for a claim that accrued prior to
the effective date of Mont. Code Ann. § 27-1-308
(2021), may a plaintiff in a survival action recover
the reasonable value of medical care and related
services when the costs of such care or services are
written-off under the provider’s charitable care
program?
2. For a claim that accrued prior to the effective date of
Mont. Code Ann. § 27-1-308 (2021), does a
charitable care write-off qualify as a collateral source
within the meaning of section 27-1-307? If so, does
a charitable care write-off qualify for the “gifts or
gratuitous contributions” exception under section 27-
1-307(1)(c)?
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GIBSON V. UNITED STATES 3
ORDER
Pursuant to Montana Rule of Appellate Procedure 15(3),
we respectfully certify the questions set forth below to the
Montana Supreme Court. If the Montana Supreme Court
accepts certification, the court’s decision will “be
determinative of an issue” in this appeal, Mont. R. App. P.
15(3)(a), and there is “no controlling appellate decision,
constitutional provision, or statute” under Montana law,
Mont. R. App. P. 15(3)(b).
I. Administrative Information
We provide the following information in accordance
with Montana Rule of Appellate Procedure 15(6)(a)(iv).
The names and addresses of counsel are:
For Plaintiffs-Appellants Barbara Gibson, as personal
representative of the estate of Johnny G. Gibson, and for
herself; John Travis Morgan Gibson; Dixie Lee Gibson:
John M. Morrison, Morrison, Sherwood, Wilson & Deola,
PLLP, 401 North Last Chance Gulch, P.O. Box 557, Helena,
MT 59624-0557.
For Defendant-Appellee United States of America: Tim
Tatarka, Assistant U.S. Attorney, District of Montana, U.S.
Courthouse, 2601 Second Avenue North, Box 3200,
Billings, MT 59101.
II. Certified Questions
We present the following certified questions. We
acknowledge that the Montana Supreme Court, as the
receiving court, may reformulate the questions presented.
Mont. R. App. P. 15(4).
4 GIBSON V. UNITED STATES
1. Under Montana law, for a claim that
accrued prior to the effective date of
Mont. Code Ann. § 27-1-308 (2021), may
a plaintiff in a survival action recover the
reasonable value of medical care and
related services when the costs of such
care or services are written-off under the
provider’s charitable care program?
2. For a claim that accrued prior to the
effective date of Mont. Code Ann. § 27-
1-308 (2021), does a charitable care
write-off qualify as a collateral source
within the meaning of section 27-1-307?
If so, does a charitable care write-off
qualify for the “gifts or gratuitous
contributions” exception under section
27-1-307(1)(c)?
III. Statement of Facts
In 2015, Johnny Gibson (“Gibson”) was working as a
seasonal rancher in Montana. On September 14, 2015, he
visited the Central Montana Community Health Center
(“CMCHC”), a federally-funded health care center in
Lewistown, Montana, due to chest pain, pain between the
shoulder blades, heartburn, and fatigue. The nurse did not
perform a heart workup, refer Gibson for a heart workup, or
mention potential heart issues in the medical record. One
week later, Gibson, his wife Barbara, and his adult daughter
Dixie Lee began driving back home to Colorado, but stopped
at a truck stop when Gibson experienced chest pain. He was
transported by ambulance to St. Vincent Hospital in Billings,
Montana, where he died following a myocardial infarction.
GIBSON V. UNITED STATES 5
In 2018, Barbara Gibson filed a wrongful death and
survival action pursuant to the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2672, in her role as the personal
representative of her late husband’s estate, and on behalf of
Gibson’s heirs: herself and their two adult children, Dixie
Lee and John Travis (collectively, the “Gibson Estate”). The
government conceded negligence in the failure to evaluate
and treat Gibson’s heart condition at CMCHC, and that the
negligence was more likely than not a substantial factor in
Gibson’s death. The district court granted summary
judgment to the Gibson Estate on these issues and proceeded
to a bench trial to determine damages. The district court
awarded $183,814 to the estate, $289,434 to Barbara Gibson,
$70,000 to Dixie Lee Gibson, and $35,000 to John Travis
Gibson, for a total of $578,248. 1
The district court did not award damages for the
reasonable value of medical expenses incurred at St. Vincent
Hospital or for the cost of the ambulance service, because
the hospital and ambulance provider wrote off Gibson’s bills
as part of their charity programs. The hospital and
ambulance provider sent Gibson statements listing a total of
$165,661.50 in medical charges, but both the hospital and
ambulance provider showed on the same documents that
those amounts were forgiven in full as part of their charity
1
The district court initially awarded a higher amount of damages.
The government moved to alter the judgment under Federal Rule of Civil
Procedure 59(e), arguing that Montana law capped non-economic
damages in medical malpractice cases at $250,000. See Mont. Code
Ann. § 25-9-411. The district court then reduced the damages to comply
with the limitation on non-economic damages. The district court
awarded $328,248 in economic damages.
6 GIBSON V. UNITED STATES
care programs. 2 Under the header of “Payments and
Adjustments,” the hospital statement lists the amount of
$164,670.22 followed by the entry “CHARITY – BELOW
FPG” and a balance of zero. Similarly, the ambulance
statement lists “Total Charges” of $991.28 followed by the
notation “HARDSHIP WRITE-OFF” and a balance of zero.
The hospital never tried to collect payment from the estate
or family. 3 The Gibson Estate appealed to the Ninth Circuit,
raising a single issue: whether the Estate was entitled to
damages for the written-off medical and ambulance
expenses.
IV. Explanation of Certification
In Federal Tort Claims Act actions, we apply the law of
the state “where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1); F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994).
The negligent acts in this case occurred in Montana.
Consequently, Montana law applies to this case.
The Montana Legislature recently revised Mont. Code
Ann. § 27-1-308(3) (2021) to provide that a jury cannot
consider “charges for medical services or treatment that were
included on health care providers’ bills but resolved by way
of contractual discount, price reduction, disallowance, gift,
2
The total medical expenses included a $164,670.22 medical bill
from St. Vincent Hospital and a $991.28 bill for the ambulance service.
The district court and parties all state that the medical expenses totaled
$165,651.50, which appears to be a minor miscalculation.
At oral argument, the Gibson Estate conceded that the hospital did
3
not reserve a right to collect payment for the charitable care write-off in
the event the Estate recovered from a third-party tortfeasor. In
supplemental briefing, the Gibson Estate asserted there is no evidence
that the hospital forfeited any subrogation rights, but presented no
affirmative evidence that the hospital retained a subrogation right.
GIBSON V. UNITED STATES 7
write-off, or otherwise not paid.” The revised statute,
however, only “applies to claims that accrue on or after” the
effective date of the act, April 30, 2021. 2021 Mont. Laws
Ch. 327 § 6. Because the Estate’s claim accrued prior to
April 30, 2021, the revised statute does not apply to this case.
Montana law prior to the enactment of Mont. Code Ann.
§ 27-1-308 (2021) provides little guidance on how to
approach the certified questions, and no precedent by the
Montana Supreme Court directly addresses the issues at
hand. The Montana Supreme Court has held in other
contexts that tort plaintiffs should not receive a windfall
recovery by recovering damages in excess of medical
expenses, Newbury v. State Farm Fire & Cas. Ins. Co.,
184 P.3d 1021, 1029 (Mont. 2008); Conway v. Benefis
Health Sys., Inc., 297 P.3d 1200, 1207 (Mont. 2013), and
Montana tort law “works to ensure that an award of damages
restores an injured party as near as possible to the party’s
pre-tort position—no better, no worse,” Lampi v. Speed,
261 P.3d 1000, 1004 (Mont. 2011). There is no controlling
precedent from the Montana Supreme Court, however, that
answers the certified questions.
First, the Montana Supreme Court has not addressed
whether a charitable write-off of medical expenses can be
recovered as damages. Cf. Meek v. Mont. Eighth Judicial
Dist., 349 P.3d 493, 494–95 (Mont. 2015) (holding that a full
hospital bill was admissible as evidence, but declining to
address whether a plaintiff could recover damages for the
full bill when the hospital had accepted a lower payment
from Medicare and an insurer as payment in full). Second,
the Montana Supreme Court has not addressed whether
write-offs are subject to Montana’s collateral source rule.
See id. at 496 (explaining that “payments made by Medicare
to satisfy the providers’ billings are clearly a collateral
8 GIBSON V. UNITED STATES
source” but not addressing whether the written-off portion of
the medical bill was similarly a collateral source). Further,
we are unaware of any precedent interpreting the gifts or
gratuitous assistance exception under Mont. Code Ann.
§ 27-1-307(1)(c). The Restatement (Second) of Torts
§ 920A, which the Montana Supreme Court has relied upon
in a different context, see Five U’s, Inc. v. Burger King
Corp., 962 P.2d 1218, 1220–21 (Mont. 1998), also suggests
that the fact a hospital wrote off a bill will not prevent a
plaintiff from recovering the reasonable value of medical
expenses. Restatement (Second) of Torts § 920A cmt. c(3)
(Am. Law Inst. 1979) (“[T]he fact that the doctor did not
charge for his services . . . does not prevent [the plaintiff’s]
recovery for the reasonable value of the services.”).
We thus respectfully ask the Montana Supreme Court to
exercise its discretionary authority to accept and decide these
certified questions. If the court decides that the questions
presented are inappropriate for certification, or declines the
certification for any other reason, we request that it so state,
and we will resolve the questions according to our best
understanding of Montana law.
The Clerk of this court shall file a certified copy of this
order with the Montana Supreme Court under Montana Rule
of Appellate Procedure 15(5). This appeal is withdrawn
from submission and will be submitted following receipt of
the Montana Supreme Court’s opinion on the certified
questions or notification that it declines to answer the
certified questions. The panel shall retain jurisdiction over
further proceedings in this court. The parties shall notify the
Clerk of this court within one week after the Montana
Supreme Court accepts or rejects certification. In the event
the Montana Supreme Court grants certification, the parties
GIBSON V. UNITED STATES 9
shall notify the Clerk within one week after the court renders
its opinion.
The Clerk of this court shall administratively close this
case pending further court order.
CERTIFICATION REQUESTED; SUBMISSION
VACATED.