*1 GER, HELEN KIRWIN EISENMEN an incapacitated person, by Veronica Eisenmenger, her Guardian and Conservator, Respondent Cross-Appellant,
Plaintiff, and
v. Jersey corporation, INC., a ETHICON, New Appellant, Defendant and JAMES E. MUNGAS and MONTANA
DEACONESS MEDICAL CENTER,
Cross-Respondents.
Defendants
No. 93-034.
February
Submitted
1994.
Rehearing
April 14,
Denied
1994.
Decided March
1994.
St.Rep.
For Defendant and Appellant: Maxon Borer & Davis, P.C., Falls; Preuss, Preuss, Great Charles F. Walker & Shanagher, Francisco, San California. Newhall, Alexander,
For L. Respondents: Norman Baucus & Linnell, Reheck, P.C., Falls; Rebeck, PC., Great Susan J. Susan J. E, Tracy Aiken and (Eisenmenger); Axelberg, Great Falls James Jardine, P.C., Stephenson, Weaver, (Mungas); & Great Blewett Falls Slovak, Falls, Ugrin, Alexander, & Ugrin,
Neil E. Zadick Great Medical). (Montana Deaconess Opinion TURNAGE delivered the Court.
CHIEF JUSTICE Eisenmenger injury undergoing after sur- Helen suffered serious Ethicon, by material manufactured defendant gery in which suture Inc., against claim Ethicon product liability used. She filed this was District, County. Eighth for the Judicial Cascade the District Court against million entered it. We appeals judgment Ethicon a $2.3 affirm. dispositive restate the issues as:
We in holding Court that the statute of 1. the District erred Whether product liability against Ethicon Eisenmenger’s limitations by MCA. was tolled in denying Ethicon’s motion for sum- the court erred Whether
mary judgment. in imposing court a default sanction
3. Whether the erred liability. the issue 30,1985, Eisenmenger left Helen underwent a carotid On October (the Medical hos- endarterectomy at the Montana Deaconess Center Falls, M.D., Mungas, performed E. pital) in Great Montana. James Eisenmenger’s artery left carotid surgery. The incision using 6-0 Prolene suture material manufactured sold closed Ethicon. room, later, resting hospital in her Eisen- days while she was
Two surgical experienced bleeding and from the site. menger suddenly room, Mungas per- Dr. operating returned to the where She was second, emergency surgery repair suture in the formed a broken Eisenmenger artery operation, After second incision. carotid resulting There was little complications. a stroke and serious suffered Eisenmenger’s and sub- stroke that the broken suture caused doubt the suture to complications; question was what caused sequent break. 1988, Eisenmenger, through guardian and conser- January her liability against Ethicon in the District
vator, filed a suit product District. Ethicon removed Eighth for Montana’s Judicial *4 Court That diversity jurisdiction. case case federal court based on filed. voluntarily dismissed, action was eventually after this conservator, her and 27,1988, again through guardian On October with the Montana Medical Eisenmenger filed She named Ethicon Mungas hospital. Dr. and the Legal against Panel proper part[y]” to that claim. After the as an “other decision, Eisenmenger rendered its filed this action on March panel 30, summary judgment, arguing that the promptly
Ethicon moved for general three-year against tort statute of limitations on the claim it motion, holding court denied Ethicon’s that had run. The MCA, during Legal tolled the statute of limitations the Medical decision-making process thirty days Panel’s and for thereafter. years later, in February Almost three the court entered summary judgment Mungas hospital, holding favor of Dr. and the theory ipsa loquitur applicable that the of res was not to the claims against Eisenmenger those defendants and that produced had no negligence by time, evidence of those defendants. At the same summary judgment court denied Ethicon’s motion for grounds that premature admissibility it would be to rule out the of circumstantial by Eisenmenger evidence offered to show that there had been a manufacturing defect in the suture.
At the end of March Eisenmenger deposed Ethicon’s witness Olcott, professor surgery Dr. University. Stanford Dr. Olcott’s opinions, deposition, clearly supported as stated his theory that Mungas hospital conduct of Dr. or the could have been the cause of breakage the suture leading Eisenmenger’s injuries. days Ten later, Eisenmenger asking filed a motion the court to assess sanctions opinions Ethicon for failure to disclose Dr. Olcott’s in response discovery requests dating back to 1988. motion, granting Eisenmenger’s its order the court stated that “knowing testimony, Ethicon had made a concealment” of Dr. Olcott’s that, had the court of Dr. testimony “very known Olcott’s it was Mungas’s summary judgment doubtful” that Dr. motion for would granted. Eisenmenger have been The court concluded had suffered рrejudice discovery extreme due to Ethicon’s abuses and that she was judgment against entitled to sanctions. It entered a default liability. on the issue of jury purposes
The case was tried to a ofdetermining the amount damages. Following jury’s Eisenmenger’s damages verdict that $2,308,155, Ethicon appeals. Eisenmenger Mungas totaled and Dr. but, on cross-appeal have each raised issues as a result of our by Ethicon, resolution the issues raised we do not reach those issues.
398
ISSUE 1 in holding Whether the District Court erred that the statute of Eisenmenger’s product liability against limitations for claim 27-6-702, was tolled MCA. § 27-6-702, MCA, part
Section which is of the Montana Medical (Act), Legal provides: Panel Act running applicable
The of the limitation period malpractice upon receipt by claim is tolled the director of the apрlication for providers application review as to health care named in the as parties panel proceeding and as to all other persons or application necessary entities named in the or proper parties any might subsequently for court action which arise out of the application. same factual circumstances set forth in the 27-6-702, MCA, Ethicon contends tolls the statute of limitations in § only, liability malpractice product claims and not claims such as this one. reference, position beginning
Ethicon’s reflects the at the of the statute, malpractice “Malpractice to “a claim.” claim” is defined at 27-6-103(5), MCA, potential “against as a claim or a health § provider.” provider” 27-6-103(3), care “Health care is defined under § MCA, dentist, physician, facility. to mean a or a health care claim” “malpractice against
Because is defined as a claim a “health 27-6-702, MCA, provider,” care statement that the statute of § providers limitations is tolled as to “all health care named in the application” “malpractice addresses most claims” as defined in the initially only exception appears malpractice Act. The to be claims However, providers application. health care not named in the 27-6-702, MCA, tolling provides applies further that the also “as to § named persons proper parties all other or entities ... as for court action ... out of the same factual circumstances.” We 27-6-702, MCA, ambiguous the types conclude that about claims for which it tolls the statute of limitations.
If plain ambiguous, step words оf statute are the next judicial interpretation of the statute is to determine the intent of the (1986), Dept. of Hwys. v. legislature. Montana Contractors’ Ass’n. 392, 394, 1056, 1058. accomplished by 715 P.2d This is exam Mont. history statute, including the title of the ining legislative of the 1058; Ass’n., 715 v. original bill. Montana Contractors’ P.2d Gaub 424, 428, 443, (1986), Mont. 715 P.2d Milbank Ins. Co. 27-6-702, MCA read: Section in a period limitation applicable of the running The application by the director of receipt upon tolled claim is final days panel’s after the begin again until 30 does not review and panel copy and a files of permanent in the is entered decision certified mail. attorney by his complainant and upon the is served 1977.) (Enacted amendment L. The 1985 by Sec. Ch. 17-1314 the first sentence MCA, following language to added the to § the statute: application named providers all health care as to or entities named persons and as to all other panel proceeding *6 any necessary parties court action proper application in the for the same circum- subsequently arise out might which factual added.] [Emphasis application. in the stances set forth 27-6-702, MCA, created unquestionably amendment to § The 1985 we are faced. ambiguity the with which explanation the offered with amending the 1985 act and The title to MCA, 27-6-702, are instructive. The proposed the amendment § amending act stated: title THE MONTANA MEDICAL LEGAL PANEL
AN ACT REVISING “HEALTH CARE BY THE DEFINITIONS OF ACT CLARIFYING CLAIM,” “PHYSICIAN;” FACILITY,” “MALPRACTICE AND DE- THE ALLOCATION OF ASSESSMENTS AND CLARIFYING ASSESSMENTS; ALATE PROVIDING FOR TERMINATION OF ASSESSMENTS; DELINQUENT THE CLARIFYING FEE FOR PANEL; THE THE CLARIFYING TOLLING COMPOSITION OF PARTIES NOT OF LIMITATIONS AGAINST OF THE STATUTE FOR DISMISSAL THE CLAIM AND PROVIDING PARTIES TO LIMI- THE OF THE RUNNING OF STATUTE CLAIMS AND OF 27-6-103,27-6-206,27-6-301, TATIONS; AMENDING SECTIONS 27-6-702, MCA; AN 27-6-401, AND PROVIDING 27-6-303, AND [Emphasis supplied.] DATE. EFFECTIVE IMMEDIATE Medical by the Montana explanation The offered L. 1985. Ch. proposed the amendment was: Legal Panel for does or whether the statute is unclear as to The current statute nurses, panel, such as parties not not toll as to those does are in the same matter physiсians under circumstances where this, legislation clarifies panel. proposed The brought before named parties as to all those tolling of the statute providing for providers care before proper health application, whether panel or not. D
Exhibit Judiciary minutes of House Committee, February 19, legislative history 27-6-702, MCA, supports The con tolling clusion that provision applies to malpractice claims, argued by Ethicon, but also to actions against all other persons or entities application named as necessary or proper for court arising action out of the same facts. This conclusion is further supported by the rule that an ambiguous statute oflimitations should be interpreted, in the justice, interest of to allow longer period prosecute which to the action. See v. James Buck 111Idaho 1136, 1138 727 P.2d (citing Alaska, cases from Utah). Hawaii, Arizona, and Wenote that long Ethicon has had notice alleged liability action, this minimizing any surprise or prejudice to it from the interpretation give we now to § MCA. case,
In this the application for review ofclaim Eisenmenger which filed with the Montana Legal Medical Panel listed Ethicon as an “other proper partly].” We hold that the District Court did not err in ruling that the statute of limitations was tolled as against Ethicon.
ISSUE 2 Whether the court erred in denying Ethicon’s motion summary judgment.
This Court’s standard of ruling review of a on a motion for summary judgment is the same as a district court’s ruling standard in *7 on such a motion: whether the genuine record discloses issues of fact, and, not, material if whether the moving party is entitled to judgment a 56(c), as matter of law. Rule M.R.Civ.P.;Knight City v. of (1992), 232, 243, Missoula 1270, 252 Mont. 827 P.2d 1276.
Ethicоn contends that Eisenmenger and the District Court improperly relied on the doctrine ipsa loquitur of res opposing denying summary its motion for judgment. correctly states that the theory ipsa of res loquitur is applicable in products liability liability cases under a strict theory. Rix v. General Motors Corp. (1986), 318, 332, 195, Mont. 723 P.2d 204. But neither the District Court nor Eisenmenger solely relied theory. They on that also relied upon theory a of strict liability.
Eisenmenger that, admits at the time Ethicon moved for summary judgment, she had no direct evidence that the suture which However, broke was defective. she maintains she had sufficient preclude was to circumstantial evidence that suture defective summary product may proven by A defect judgment. be Sales, Brandenburger Toyota v. Motor circumstantial evidence. U.S.A., (1973), 506, 517, 268, Inc. 162 Mont. 513 P.2d 274. away during Eisenmenger’s
The broken suture was thrown surgery. pointed Eisenmenger’s As Ethi opposing second out brief summary judgment, con’smotion for direct evidence concern ing Mungas’s testimony the break in this was Dr. deposition suture midpoint, that the suture broke at or knots. between the Eisen menger that, if produced applied cites evidence it stress to a suture, knot, nondefective the suture will break rather than Thus, argues, knots. Eisenmenger testimony between the of Dr. Mungas was evidence that the suture either or was defective mishan persons assisting dled. All of the surgery having with the denied anything damaged observed or done that or compromised otherwise produced the suture. No direct evidence was to contradict their testimony, credibility their on this is a question issue fact.
Eisenmenger also points to circumstantial she mar evidence concerning shalled other inсidents of failure Ethicon’s Prolene 6-0 suture argues material. Ethicon that this evidence is inadmissible. However, denying summary judgment, Ethicon’s motion for District yet Court stated that had not it determined whether other evidence of incidents of suture failure would be admissible. All reasonable proof inferences from the offered are drawn in party favor of the opposing summary judgment. v. Reaves Reinbold 284, 287, 896, 189 Mont. 615 P.2d We hold that the ruling Eisenmenger court did not err in that entry demonstrated issues of fact precluding material of sum- mary judgment in favor of Ethicon.
ISSUE 3 Whether the court in imposing erred a default sanction liability. Ethicon on the issue of
Eisenmenger’s 37(d), motion sanctions made Rule for under M.R.Civ.P, a which authorizes district court to award sanctions: (1)
if party fails appear ... before the officer is to take the who (2) deposition, notice, being proper after served with a to serve objections interrogatories answers or submitted under Rule (3) interrogatories, after service of proper to serve written response request inspection to submitted under Rule after proper of the request^] service
402 (d) only if urges apply that it had failed subsection would
completely interrogatories. support position, answer In ofits it cites to 37(b), of several cases decided under Rule Fed.R.Civ.P. The value they precedent distinctly those as is limited because were cases federal, state, rule. decided under a different subsection ofthe not the (1984), 386, 476, In v. 210 Mont. 684 P.2d this Piquette Vehrs 37(d) late, not-fully-re affirmed Rule for unsigned, Court sanctions Therefore, to sponsive interrogatories. complete to a failure answers discovery is interrogatories respond requests answer or otherwise 37(d), required under Rule before sanctions are allowed power M.R.Civ.P.We conclude the District Court had the to award in this the sanction of sanctions case. We next examine whether judgment justified. default Construction, 94, (1980),
In Services Kraus 189 Mont. Audit v. Inc. 183, quoted approval applied 615 P.2d this Court with entering following judgment a default as a sanction standard for under Rule M.R.Civ.P.: judgment normally
[T]he must as available default be viewed when because of an essen- adversary process has been halted tially instance, diligent In must unresponsive party. party that delay protected lest faced and contin- he be with interminable remedy uncertainty judgment his The rights. ued as to default Furthermore, possibility of protection. serves as such a delay part to those who choose default is deterrent litigative strategy[.][Citation оmitted.] their Services, Audit Ethicon cites Audit Services P.2d 187-88. has authority judgment proper only that default is when there been discovery the last complete respond requests. failure to But allowing supports interpretation quoted sentence above a broader for other and deliberate judgment default as a sanction severe discovery abuse. discovery imposed review
Our standard of of sanctions First Bank district court abused its discretion. abuses is whether the —(N.A.) v. 711 P.2d Billings Heidema Mont. are ability courts’ to decide when sanctions discussing district be, has this Court and how severe those sanctions should appropriate said: 37, M.R.Civ.P, Rule imposition
This has addressed the Court past. primary The thread in the recent sanctions several times gives this is the deference Court binding each of those decisions judge The in the best judges. trial ... trial the decision position parties callously to know ... disregard rights which *9 opponents litigants their seeking day and other their in court. The judge trial position is also the best to determine which sanction appropriate. is the most v. Ray Stanley 178, 179-80,
Dassori Chevrolet Co. 224 Mont. 728 P.2d
In deposition, his March 1992 Dr. concerning Olcott testified (1) eight problems he Eisenmenger saw with the case: that Dr. (2 Mungas used a technique” tying suture; “substandard the and 3) that there was no indication for the surgery performed, first either (4) by symptoms arteriogram; or the results of the arteriogram the operation and the should not have day; both been done on the same (5) in the operation, Heparin after, second wrongly given was (6) before, clamps applied; were operation, second the arterio (7) tomy was not completely reopened; a patch was not usеd in redoing (8) arteriotomy; the and there inappropriate monitoring during following and surgery. the second Dr. given Olcott testified he was Eisenmenger case for review sometime 1988 and that he advised counsel, Ethicon’s “in general,” opinions ofhis eight problems on these “in 1988.” by June clearly which date Dr. Olcott had informed
Ethicon’s counsel of opinion, his Ethicon discovery answered detailed requests by Eisenmenger. Ethicon’s by answers were described District Court in its sanction “incomplete order as and evasive.” objected Ethicon to an interrogatory about posi- whether it took the tion that Mungas Dr. failed to take the precautions in using suture, grounds that the “necessary term precautions” was undefined. Ethicon stated that it was respond” “unable to to inter- rogatories about whether it contended Mungas that Dr. impropеrly tied the any suture or that act Mungas or omission of Dr. or an employee hospital of the caused or contributed to Eisenmenger’s stroke. Ethicon further stated that it was “unable to comment on the specifics of Mungas’ handling Dr. of the suture and the role of that handling in explaining the suture failure.”
In answer to an interrogatory asking it to set forth “each factor you which substantially contend Eisenmenger’s post- contributed” to operative stroke, responded:
Many may factors including age, history, contribute smoking, general physical condition, dehiscence, wound post-operative and complications among many possible other factors. Ethicon intends possibilities may, depend-
to examine these well as all other and outcome, ing expert opinion subject. on the offer medical on this name as potential expert Dr. Olcott’s was first disclosed witness 30,1991. 9,1991, might August who be called trial on On December discovery attorney following responses: Ethicon and made Interrogatory your No. 1: Is it contention that Defendant James Mungas injuries damages caused or E. or contributed Plaintiff, allegedly fully suffered or sustained as more so, please particular- her If set forth with Complaint? described ity and in detail:
(a) every contention; supporting and each fact this (b) identity persons testify all any who could would contention; as to the truthfulness of this (c) notes, identity letter, records, of writings, other support which could or would the truthfulness this document *10 contention. (a)
RESPONSE TO NO. 1: Based on its INTERROGATORY by investigation postoperative experienced plain- of dehiscence her following surgery tiff October Ethicon contends that any property due to inherent such dehiscence was not manufacturing proce- PROLENE* suture material or to Ethicon’s labeling information, dures or but rather to inadvertent suture use, damage mishandling during precise or its nature which Ethicon, unavoidably by one of the individuals unknown present operating surgery, in the at the or to the room time of technique by one individuals. surgical employed of those same exercised no over the suture after it left Ethicon’s Ethicon control Ethicon was the time the suture was facility. present during not received, by personnel prior and from MDMC to its stored handled present not in the during surgery question. use Ethicon was procedure initial or the during operative room either operating by operating arteriotomy the suture handled repair, when was Mungas, occasions and including multiple Dr. personnel, room surgical variety сontact instruments. Because came into with a arteriotomy was utilized in the initial closure of the the suture away by Mungas, employees MDMC or other [sic] thrown Mr. opportunity was ofthe personnel, deprived room Ethicon operating evidence, from which cause of piece examine this crucial Moreover, Mungas, Dr. could obtained. because the dehiscence keep did operating personnel or room employees MDMC other came, track of the lot question number from which the suture in Ethicon was further deprived opportunity of the to demonstrate that such in particular manufacturing lot met and with Ethicon’s quality control/quality specifications every respect. assurance Thus, although Mungas Dr. among present those operating room handling surgical technique may whosе suture or have inadvertently caused or plaintiff’s damages, contributed to who, directly indirectly, may inadvertently mishandled, have misused, changed altered or otherwise the suture material question, Ethicon say Mungas cannot that Dr. indi- was the sole vidual responsible Nevertheless, for the dehiscence. no PROLENE* 6/0 suture material following returned to Ethicon an alleged postoperative dehiscence has failed to meet USP or Ethicon specifications, and Ethicon is of opinion that the suture in this case was within USP specifications and Ethicon present has no information or evidence to the contrary.
(b)All the individuals disclosed in the medical records or known plaintiff and to Ethicon’s co-defendants as well as those indi- viduals disclosed in responses Ethicon’s parties’ discovery requests and/or the depоsitions of employees Ethicon’s in this case.
(c) All produced written information or discovered in this case by parties or available to in the medical and scientific literature. date,
On the same Ethicon interrogatory requesting answered an concerning information the substance of supporting facts for expert opinions concerning mishandling, misuse, or alteration of the suture material Mungas. Dr. response, merely referred to the above expert disclosure, answer and to its witness which set forth the names of the experts. provided It no further information.
Summary judgment Mungas was entered in favor of Dr. and the hospital some six months after Ethicon disclosed Dr. Olcott as an expert During months, witness. those update Ethicon did not discovery responses to disclose opinions, despite Dr. Olcott’s its clear duty 26(e), to do so under Rule M.R.Civ.P. Dr. Olcott was not made deposed available to be until Mungas a month after Dr. and the hospital time, had By been dismissed from this lawsuit. that severe prejudice already had Eisenmenger, occurred to and the court had options few for appropriate meaningful against sanctions Ethi- stated, Mungas’s con. As the court it “very doubtful” that Dr. if granted made or summary judgment would have been motion discovery Ethicon’s abuses opinion had been disclosed. Dr. Olcott’s decision in the case. directly interfered with a correct therefore only inculpated argues that the evidence it withheld Ethicon also withholding prejudice the evidence did not Mungas, Dr. and that However, the District Court Eisenmenger’s case Ethicon. allowed, admits, would, if to use Ethicon seek recognized and trial as relevant to causаtion. The concealed the concealed evidence at to Eisen- clearly went to the heart of Ethicon’s defense evidence menger’s claim. “wrong” questions were asked
This is not a situation where the artfully avoided. discovery and the critical answers were thereafter in order to elicit nothing more which could have been asked There was conclude that opinion. from Ethicon the substance of Dr. Olcott’s We supplement and the failure to interrogatories answers to above gamesmanship and obstructive- demonstrate intolerable the same the rules of Playing Ethicon. loose and fast with part ness on the of advocacy, equivalent playing to Russian discovery, guise — upon relied to empty one chamber it cannot be roulette with result. lead to favorable finding that Ethicon’s supports record the District Court’s
The
and in bad faith.
respond
discovery requests
to
was willful
failure to
Eisenmenger on an issue
prejudice
failure caused severe
to
This
Court did not abuse its
central to the case. We hold that the District
issue
judgment
of default
on the
imposing
discretion in
the sanction
liability.
to due
deprived
right
it was
of its
Finally, Ethicon contends
argues
judgment as a sanction. It
through entry ofthe default
process
(9th Cir.
Exchange
Corp.
v.Seaboard
that Securities and
Commission
process
due
allows a sanction
1982), 666 F.2d
establishes that
complete
produce
to a
failure to
judgment only
response
default
holding
for the
Sea
disagree. The basis
requested evidence. We
for failure
imposed
in that case was
board was that the sanction
arising
discovery
violations.
a fine
out
obey
pay
а court order to
by the time sanctions
complied
had been
with
discovery requests
The
contrast,
Ethicon never
Seaboard,
407
(1909),
322, 29
370,
Hammond
Arkansas
212 U.S.
S.Ct.
Due that default not absent be willfulness, faith, Rogers bad or fault. Societe Internationale v. 197, 212, Here, 1087, 1096, 2 357 U.S. 78 S.Ct. L.Ed.2d above, giving as stated the court found that Ethicon’s actions in discovery and incomplete requests failing evasive answers to and in supplement those answers “have been willful and in faith.” In bad case, this the sanction of default judgment process by enforces due preventing profiting by discovery Ethicon from abuse assuring process opposing due rights whose have been prejudiced. process We hold that Ethicon’s due rights were not vio lated when the court ordered a judgment sanction default on the liability. issue
Affirmed. HARRISON, TRIEWEILER,
JUSTICES HUNT and WEBER concur.
JUSTICE respectfully NELSON dissents from opinion the Court’s on and, Issue consistent position, with that does not reach Issues or 3. acknowledge legislature’s While I that amendments to 27-6- § 702, MCA, ambiguity, created an I submit that we have erroneously ambiguity resolved that perceive on the basis of what we legislature intention of the as derived legislative from a is, best, history that at doing, suggest inconclusive. so I that we impermissibly have tolling provisions inserted into the of the statute by implication, a class of legislature claims that the did not include or, by specific language that, by in default clearly expressed 1-2-101, intention. Section MCA. fully
In order to appreciate what the 1985 amendment did and did accomplish, it is to examine the amended MCA(1987), in the context ofthe entire Montana Legal Medical Panel (Act), focusing, Act rather than opinion, simply does Court’s the statute itself.1 mentioned, specifically statutory 1 Unlessotherwise all references to the Act are to version, Eisenmenger
the 1987 since that is the version that was in effect when filed malpractice panel comрlaint against her claim with the and when she filed her second Also, emphasis supplied by Ethicon. in the cited statutes has been the author. 27-6-102, MCA, purpose Section defines the of the Act as follows: The purpose chapter prevent possible of this is to where filing in court actions providers health care and their employees professional liability in situations where the permit facts do not least reasonable inference of and to make possible equitable disposition the fair and of such *13 against providers claims health care reasonably may as are or be well founded. 27-6-103, MCA,
Section defines various terms used in the Act. Of importance here are following:
(2) facility” facility... “Health care means a licensed as a health facility care under Title chapter 5.
(3) providеr” physician, dentist, “Health care means a a or a facility. health care
(4) “Hospital” hospital means a as defined in 50-5-101. (5) “Malpractice any claim” means claim potential or claim of a against provider claimant a health care for medical or dental treatment, treatment, alleged lack of medical or dental or other departure accepted from standards of health care proxi- which mately claimant, damage results in whether claimant’s potential contract, claim or claim in sounds tort or and includes allegations is not limited battery wrongful but death. (7) (a) “Physician” pertinent part] [in means: ... an individual practice licensed to provisions medicine under the of Title 3,... chapter 27-6-105, MCA, provides,
Section in pertinent part, that: legal] [Montana The Medical panel malpractice shall review all potential against providers.... claims or claims health care 27-6-302, MCA, provides, pertinent part, Section in that: (1) application panel] following: [to The shall contain the a statement in detail reasonable of the elements of the health care provider’s malprac- conduct are a which believed constitute claim, occurred, tice the dates conduct and the names and physicians, dentists, hospitals having addresses of all and witnesses;... contact with the claimant and all 27-6-304, MCA, provides, pertinent part, Section that: applications employing theory instances where are received respondeat theory or some other derivative superior of recov- ery, application рrofes- the director shall forward the to the state associations, societies, licensing indi- sional boards both the provider alleged malpractice vidual health care whose caused provider and application to be filed the health care named master, respondent employer, or principal. 27-6-502, MCA, pertinent provides, part, Section that: (1) At for hearing, submitting the time set the claimant the case present shall for review be and shall make brief introduction case, including a constituting alleged his resume of facts professional malpractice prepared prove. which he is The provider against brought health care claim is whom the his attorney may present may introductory make an statement of his case. 27-6-602, MCA, provides, pertinent
Section part, that: material, Upon consideration of all the relevant panel shall (1) decide whether there is: substantial evidence that the acts complained of they malpractice; occurred and that constitute 27-6-701, MCA, Section provides that: may No be filed in court a health provider care application before an panel is made to the and its decision is rendered. 27-6-702, MCA,
Section provides pertinent part: *14 running The of the applicable period limitation in a malpractice upon receipt by claim is tolled the director of the application for providers review as to all health care in application named the parties as to the as panel proceeding and to all persons other or entities named in application the or necessary proper pаrties any might for court action subsequently which arise out the same factual circumstances set in applica- forth the running tion. The ofthe applicable period limitation in malprac- a begin tice claim again days does not until after an either dismissal, prejudice against order of with or without refiling, is chairman, panel issued from the or upon from the director the claim, consent the parties panel’s decision, or the final first, in permanent whichever occurs is entered the files of the panel copy complainant and a is upon attorney served the or if his counsel, represented by by he is certified mail.
Reading plain language Act, the in referring any the without to past legislative history, recent using or and the terms of art as those Act, are defined in the several conclusions fоllow: First, purpose prevent filing the the Act is to screen and the professional against court ill-founded claims for acts or omissions (i) only physicians, are to include providers, health care which defined (iii) (ii) 27-6-102,27-6-103(2), Sections dentists and licensed facilities. (3) those, Ethicon, being entity subject is an none of and MCA. the the protection to of Act. Second, (regardless or ofwhether the professional the act omission — contract)
theory “malpractice” to is is tort or which is be screened art, potential a or claim for a term of defined in the Act as departure accepted from stand- alleged treatment or other medical 27-6-103(5), MCA. ards of health care. Section omission Ethicon alleged or to have been committed The act or medical treatment health care. providing does not involve — product specifically, to manufactured alleged improperly have surgical suture. Third, consider, hear rule panel upon malpractice can 27-6-105, 27-6- providers. filed health care Sections claims 27-6-304, 27-6-502, 27-6-602, entity MCA. Ethicon is neither an alleged acts or subject jurisdiction panel, of the nor are its to subject review, Act. panel as defined omissions Fourth, required potential to submit their claim claimants are provider” panel against a “health care “malpractice” claim for 27-6-301, Sections 27-6-302 filing before the claim court. Act, however, 27-6-701, preclude nothing MCA. There is any liability suit in court at filing products from a related claimant limitations, panel has since the applicable time statute of within the claims, except authority any over sorts of jurisdiction no or reviеw malpractice claims. 27-6-702,
Fifth, of limitations under tolling of the statute to all MCA, [named] "... claim... as obviously applies to a amendment, the Moreover, under providers...”. health care to “... other or entities persons is also tolled as statute oflimitations court proper application named in the cir- arise out of same factual might subsequently action which The MCA. application.” Section cumstances set forth limita- is, however, “for is the statute of what claim question critical tions tolled?” *15 phrase read added necessary it is to the question,
To answer that existing qualifying the the in context of by the 1985 amendment First, phrase. the added before and after language ofthe statute both fact, 27-6-702, MCA, (and, is referred to only § the “claim”that Act) is claim “mal- entire the “claim” referred to the only 411 — practice,” Ethicon, by definition, a term defined of art which that cаnnot commit. 27-6-702, MCA,
Second, according malpractice to is claim § tolled:
(i) which, providers,” again, as to “health care is defined term of Ethicon; art which does include not (ii) persons application “as to all other named in or entities — proper parties” be, which Ethicon could it could if “malpractice” by commit as defined the Act.
Third, might while “court subsequently action which arise out arguably, the same factual circumstances” might, prod- include liability claim, again, ucts claim for which the statute of is malpractice limitations tolled claim. That conclusion is immediately phrase buttressed the sentence which follows the added in 1985 running “[t]he which states that the applicable period malpractice begin again limitation in a claim does until 30 days 27-6-702, after...”. very specific Section MCA.Since the statute is about when the statute of malpractice begins limitations on the to run again, begs question, it assuming arguendo that claims malpractice tolled, besides the claim are when the statute of limita- tions begins on those latter claims panel’s to run after the decision. The statute is on point. silent that 27-6-702, MCA,
Therein lies the ambiguity. Section spec- does not ify any claim, claim, other malpractice besides the for which the tolled, statute of limitations is nor it claim, does refer to other claim, besides the applicable which the limitation period begins again days to run specified after the statute has elapsed. plain reading Act,
From a of the entire in context and without legislative resort history, necessarily Act, one concludes that the including tolling provisions, only applies malpractice claims involving providers. health care
What, then, aсcomplish? did the 1985 amendment It is an estab- statutory lished rule of presume legis- construction that we that the meaningless lature not pass legislation, would and that we must relating subject, giving harmonize statutes to the same effect to each. Ass’n, Montana v. Department Highways Contractors’ Inc. 1056, Furthermore, Mont. P.2d MCA, “[w]here mandates that provisions particu- there are several lars, is, if possible, adopted [in statute] such a to be construction give Hence, legislative history. will effect to all.” the need resort to *16 rationale, give effect to the way Under the Court’s there no other to giving it the construction which this Court language, added absent legislature to the ofthe perceive has on the basis ofwhat we be intent gathered legislative history. from as the clear, agree Court’s legislature’s
Were the intent I would with the concede, however, that the interpretation of the statute. I do not history intent in legislative clearly legislature’s is as indicative of the suggest. as to enacting opinion the 1985 amendments our seems actually the referred to the Literally, only group persons of 1985) (enacted history being HB as legislative to as Ch. L. — who, tolling language, the added are nurses included within by legislative history, not want to be covered the according did HB Judiciary hearing the Committee panel. See minutes of House history as February 19, There is no discussion in the to legislature of the would be covered under what sorts claims intended tolling language. The Act is silent as who or what the added itself might “necessary parties for court action which proper are subsequently circumstances set forth arise out of the same factual 27-6-702, hardly be that аpplication.” the Section MCA. It can denied malpractice. panel the “factual circumstances” before the deal with toll most, appears legislature arguably At that the intended to the it e.g. provider, care employees statute of limitations as to of the health nurses. intention, the legislature’s by enacting
If it the additional was 27-6-702, MCA, or entities other bring persons phraseology § statute, of providers tolling provisions care the the than health within merely of statute legislature scope then needed to broaden the the the Unfortunately, it claims than claims. to include other failed that. to do only of statute legislature change part did one the What the
— tolling provisions “...other expanded it the ofthe statute to include necessary proper application named in thе persons or entities in “mal- ...”, being it the claims tolled those parties but left which, definition, purposes cannot committed practice” by dentists and physicians, Act are not by persons the or entities who health care facilities. balance, existing qualifying language preceding and given
On in 1985 to legislature added following language which was Act; MCA; the context of entire reading that section in changes legislature of other given that the 1985 made number legisla- if Act, to conclude that appropriate in the it seems more ture tolling intended to include all claims within the provisions statute, it have made the that would changes provisions clearly in other of the Act to effect that intention history. I implicit legislative difficulty which we now find have reading language types into the statute broadens the which legislative legis- claims tolled on basis intent divining from is, history best, lative that at inconclusive. statutory
It apparent should be that the amendment suffers from drafting some major provide trap unwary. flaws for the which statute, Plaintiff understandably quick perusal, relied on what the say. Similarly, hardly seems reading can be faulted for *17 great statute awith deal more care than that with which the amend- ment was But drafted. for the District Court’s and this Court’s generous interpretation language give of the amended effect to what perceived legislative is the amendment, intent behind the 1985 plaintiff would out interpretation be of court. The Court’s plaintiff’s case, statute saves language but the added to § MCA, ambiguous, confusing still remains and out of with context other provisions of the Act.
Hopefully, 27-6-702, MCA, will further amended legislature’s intent, actually is, whatever that will be clearly made language evident in the of the statute itself. joins
JUSTICE GRAY foregoing dissent.