Pickett v. Cortese, 2014 MT 166

In 2007 Dr. Florian Córtese performed an ERCP with sphincterotomy on Donna Pickett; the duodenum was perforated, leading to pancreatitis, sepsis, extensive treatment, and expense.
Pickett submitted a malpractice claim to the Montana Medical Legal Panel (MMLP) in 2010 alleging negligent perforation, delayed diagnosis/treatment, and inadequate informed consent.
After the MMLP issued a confidential decision, Pickett sued in state district court alleging broader breaches of the standard of care, including that the ERCP was unnecessary and less-invasive alternatives were not tried/disclosed.
Córtese moved to dismiss those particular allegations for lack of subject matter jurisdiction, arguing they were not presented to the MMLP as required. He also moved for summary judgment and to preclude unpleaded claims.
The district court denied dismissal, summary judgment, and exclusion; it found Pickett’s MMLP submission and expert disclosures put Córtese on notice of the necessity/alternative-treatment issues.
The Montana Supreme Court affirmed jurisdiction (denying the dismissal) but declined to suspend appellate rules to consider the interlocutory denials of summary judgment and exclusion motions, remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court has subject-matter jurisdiction over malpractice theories not expressly alleged to the MMLP (e.g., unnecessary procedure/alternative treatment)	Pickett: those theories are reasonably encompassed by her MMLP claims of negligent performance and inadequate informed consent; MMLP filing gave adequate notice.	Córtese: claims were not specifically presented to the MMLP as required by § 27-6-302, MCA, so the district court lacks jurisdiction to hear them.	The Court affirmed jurisdiction. A claimant need only provide "reasonable detail" to MMLP; Pickett’s MMLP claim and expert disclosures put Córtese on notice and encompassed the unnecessary-procedure/alternative-treatment theory.
Whether this Court should suspend the Rules of Appellate Procedure to review interlocutory denials of summary judgment and exclusion of unpleaded claims	Córtese: appellate review now would promote judicial economy and avoid possible subsequent appeals.	State: interlocutory orders (denial of summary judgment/exclusion) are not appealable until final judgment; no extraordinary circumstances justify suspending the rules.	The Court declined to suspend the rules and refused to consider those interlocutory orders absent final judgment.

Griffin v. Moseley, 234 P.3d 869 (Mont. 2010) (a general negligence/informed-consent pleading can encompass claims about pre-surgical/alternative-treatment decisions and puts defendant on notice)
Ballas v. Missoula City Bd. of Adjustment, 172 P.3d 1232 (Mont. 2007) (standard for reviewing district court denial of subject-matter jurisdiction: correctness review)
Durden v. Hydro Flame Corp., 955 P.2d 160 (Mont. 1998) (Court may suspend appellate rules in rare cases for judicial economy)
Art v. Mont. Dept. of Labor & Indus., 60 P.3d 958 (Mont. 2002) (administrative-review ripeness principles; distinguished by the Court as inapplicable to MMLP proceedings)
Marble v. Mont. Dept. of Health & Human Servs., 9 P.3d 617 (Mont. 2000) (administrative-review principles; also distinguished here)