Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Montana has capped non-economic damages (pain and suffering) in medical malpractice cases at $250,000, without regard to the severity of the injury to the plaintiff.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Montana follows a modified rule of joint and several liability. If a party's responsibility for the injury is determined to be fifty percent or less of the combined negligence of all persons, then that party is severally liable only for the party's proportionate share of the damages. Any remaining parties are jointly and severally liable for the total damages less the percentage attributed to the claimant and to any claimaint with whom the plaintiff has entered into a settlement or has released from liability. A party may be held jointly and severally liable for all damages caused by the negligence of another if those parties acted in concert in causing or contributing to the plaintiff's injuries, or if the other party was acting as the party's agent.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. In Montana, evidence of collateral source payments is inadmissible at trial, but may be introduced after the verdict in order to reduce the damages to the amount actually paid.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. The statute of limitations for medical malpractice in Montana is three years from the date of injury, or the date the plaintiff discovered or reasonably should have discovered the injury, but not more than five years from the date of the act or omission alleged to have caused the injury. For minors under the age of four, the statute of limitations starts to run on the child's eighth birthday or at the time of the minor's death, whichever occurs first.
Additional rules affecting malpractice litigation in the State of Montana include:
For medical malpractice actions in which the plaintiff is awarded more than $50,000 in damages, a defendant may request that the court enter an order providing that future damages be paid in periodic installments instead of through a lump sum payment.
Medical Expert Witness Restrictions
In order to qualify as an expert witness on issues relating to negligence or standards of care and practice in a medical malpractice action, the proposed expert must be licensed to practice medicine in at least one state, and within the previous five years must routinely treat or have treated the diagnosis or types of treatment that is at issue in the malpractice claim, or was within the previous five years an instructor of students in an accredited health professional school or residency or clinical research program relating to the diagnosis or condition or the type of treatment at issue in the claim. It must be demonstrated by competent evidence that the expert's relevant education, trainin, knowledge and experience relates to the evaluation, diagnosis, or treatment of the disease or injury that is the subject matter of the malpractice claim, and that the proposed witness is thoroughly familiar with the standards of care and practice as they related to that act or omission on the date of its alleged occurrence. If the defendant is a physician, the proposed expert must also be a physician. Unless the subject matter of the malpractice claims is unrelated to the defendant's specialty or subspecialty, a proposed expert witness is not qualified to testify with regard to malpractice by a health care provider in a different specialty or subspecialty unless it is first demonstrated that the standards of care and practice in the two specialty or subspecialty fields are substantially similar.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Montana's apology law for medical malpractice actions, a statement, affirmation, gesture, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence relating to the pain, suffering, or death of a person that is made to the person, their family or friend, is not admissible for any purpose.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.