Pickett v. CortesePickett v. Cortese
Lead Opinion
delivered the Opinion of the Court.
¶1 Flоrian Córtese, M.D., appeals the September 9,2013 order of the Second Judicial District Court, Silver Bow County, denying Cortese’s motion to dismiss plaintiffDonna Pickett’s complaint for lack of subject matter jurisdiction, denying Cortese’s motion to preclude Pickett from presenting impleaded сlaims at trial, and denying Cortese’s motion for summary judgment.
¶2 We address the following issues on appeal:
¶3 1. Whether the District Court erred when it determined that it had jurisdiction to consider arguments that Pickett had not specifically presented to the Montana Medical Legal Panel.
¶4 2. Whether this Court should suspend the Rules of Appellate Procedure to consider the District Court’s decisions allowing Pickett to present unpleaded claims at trial and denying Cortese’s motion for summary judgment.
¶5 We affirm the District Court’s determination that it had jurisdiction to decide Pickett’s claims. We decline to suspend the Rules of Appellate Proсedure to consider the other issues raised by Córtese.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 On January 18,2007, Córtese performed an endoscopic retrograde cholangiopancreatography (ERCP) with sphincterotomy on Donna Pickett. During the course ofthe procedure, the first section of Pickett’s small intestinе was perforated. As a result, Pickett developed pancreatitis, which became septic. Pickett underwent extensive medical care and incurred significant expense to address these complications.
¶7 On January 15, 2010, Pickett filed a claim for review with the Montanа Medical Legal Panel (MMLP). She asserted claims of medical malpractice against Córtese stemming from the 2007 procedure. Pickett alleged that Córtese was negligent in three ways: (1) in negligently perforating her intestine; (2) in failing to timely diagnose the
¶8 Following the MMLP’s confidential decision, Pickett filed a complaint before the Second Judicial District Court. The complaint alleged that Córtese breached his duty of care in numerous ways, including “carelessly, unskillfully, and negligently perforating [Pickett’s] duodenum; failing to timely diagnose and treat [her] perforation; failing to disclose all material facts and the nature of significant risks that may bе encountered so that necessary consent to treatment could be based on an intelligent exercise of judgment; failing to employ appropriate after-care or post-operative management; and failing to otherwise use that degree of care and skill required of physicians practicing in Dr. Cortese’s specialty....”
¶9 Córtese asked Pickett in written discovery to list and explain every distinct action or omission that constituted a departure from the standard of care. Pickett replied with the allegations from her complаint and stated that she would supplement her answer with her expert witness disclosures. On June 3,2013, Pickett served her expert disclosure identifying three experts who would offer standard of care opinions. Pickett’s experts opined that Córtese did not obtain all necessary data before recommending and performing the ERCP or sphincterotomy and that he should have managed her care with more conservative, alternative measures.
¶10 On July 25,2013, Córtese moved to dismiss Pickett’s claims that Córtese “performed an unnecessary procedure and failed to disclose thаt less-invasive alternatives were available.” Córtese argued that these claims were not presented to the MMLP, so the District Court lacked subject matter jurisdiction to consider them. After briefing and argument, the court denied Cortese’s motion to dismiss. It determined that “[p]art of the standard of care analysis concerns whether or not the procedure should have been performed at all,” and that Córtese “presented an expert’s report addressing this exact issue” to the MMLP. In the same order, the Court denied Cortese’s motions for summary judgment and to precludе unpleaded claims from being presented at trial.
STANDARD OF REVIEW
¶11 A district court’s decision to grant or deny a motion to dismiss for lack of subject matter jurisdiction is a question of law that we review for correctness. Ballas v. Missoula City Bd. of Adjustment,
DISCUSSION
¶12 1. Whether the District Court erred when it determined that it hаd jurisdiction to consider arguments that Pickett had not specifically presented to the Montana Medical Legal Panel.
¶13 Any person alleging malpractice against a health care provider must submit a claim to the MMLP before filing a complaint in district court. Section 27-6-301, MCA. With fеw exceptions, none applicable here, the panel is required to review all malpractice claims against health care providers. Section 27-6-105, MCA. The application to the MMLP must contain “a statement in reasonable detail of the elements of the health care provider’s conduct that are believed to constitute a malpractice claim, the dates on which the conduct occurred, and the names and addresses of all physicians... and hospitals having contact with the claimant and all witnesses.” Sectiоn 27-6-302(1), MCA.
¶14 In her MMLP filing, Pickett did not expressly allege that Córtese should have explored alternative treatment and that he unnecessarily performed the ERCP. Córtese contends that Pickett failed to meet the statutory requirement to bring this claim to the
¶15 We have not previously addressed the specificity of pleading required before the MMLP. Córtese urges us to adopt the rule frоm two administrative law cases in which we held that an issue not squarely raised, argued or adjudicated in the administrative context is not ripe for consideration in a judicial review proceeding. Art v. Mont. Dept. of Labor & Indus. ex. rel. Mason,
¶16 We agree with Pickett that Art and Marble have no application here because both involve judicial review of an agency decision under the Montana Administrative Procеdure Act. A proceeding before the MMLP, however, results in no record and no agency decision presented to the court for review. “The panel’s decision is without administrative or judicial authority and is not binding upon any party.” Section 27-6-606(1), MCA. The decision and reasoning of the panel are confidential and cannot be used as evidence in an action filed in court. Sections 27-6-703, -704, MCA. A district court presented with a medical malpractice claim analyzes that claim anew rather than relying on any finding made by the MMLP.
¶17 Nevertheless, there must be some relationship between a claim filed with the MMLP and a complaint filed in district court. Submitting a claim for evaluation by the MMLP is a condition precedent to commencing a medical malpractice action. Linder v. Smith,
¶18 Although the scope of a claim before the MMLP was not at issue, our decision in Griffin v. Moseley,
¶19 Griffin is useful here for its discussion regarding what a general claim for negligence encompasses. A claimant before the MMLP is required to provide only “reasonable detail” of the elements of her claim. Section 27-6-301, MCA. The requirement that a claimant first file a claim with the MMLP exists to avoid litigation where possible.
¶20 In her filing with the MMLP, Pickett alleged that Córtese negligently performed the ERCP and failed to provide her with sufficient infоrmation to enable her informed consent. Pickett’s expert disclosure alleged that Córtese failed to obtain all relevant data, failed to explore alternative solutions and performed the ERCP unnecessarily. Both allegations arise out of the same procеdure and are premised on Cortese’s alleged failure to meet the standard of care in performing that procedure. Like Griffin, Pickett’s claim that Córtese failed to consider alternative treatment before performing the ERCP properly may be subsumed into her claims that Córtеse negligently performed the ERCP and failed to get informed consent. Further, as the District Court noted, Córtese presented an expert’s report to the MMLP that spoke to the necessity of the procedure. Córtese reasonably was on notice of Pickett’s claims and had the оpportunity to conduct additional discovery once Pickett’s expert disclosure was served. Under these facts, the District Court correctly determined that Pickett’s claim to the MMLP was sufficient to encompass her claims before the court. Accordingly, we affirm its decision denying Cortese’s motion to dismiss for lack of subject matter jurisdiction.
¶21 2. Whether this Court should suspend the Rules of Appellate Procedure to consider the District Court’s decisions allowing Pickett to present unpleaded claims at trial and denying Cortese’s motion for summary judgment.
¶22 Córtese requests that wе consider ruling on two further interlocutory orders — the District Court’s denied of his motion for summeuy judgment and its denied of his motion to exclude impleaded cleiims at trial. Unlike a court’s decision on a motion to dismiss for lack of subject matter jurisdiction, these orders are not appealаble until after final judgment. M. R. App. P. 6(5).
¶23 Nevertheless, Córtese asks us to exercise our authority under M. R. App. P. 29 to suspend the requirements of these rules “[i]n the interest of expediting decision ... or for other good cause shown.” Córtese points out that we have suspended the Rules in the interest of judicial economy. See Durden v. Hydro Flame Corp.,
CONCLUSION
¶24 The District Court’s order denying Cortese’s motion to dismiss for lack of subject matter jurisdiction is affirmed. The cаse is remanded to the District Court for further proceedings.
Concurrence Opinion
specially concurring.
¶25 The Court relies heavily upon Griffin v. Moseley,