*1 320 PICKETT,
DONNA
Aрpellee,
Plaintiff and
CORTESE,
M.
FLORIAN
Appellant.
Defendant
13-0609.
No. DA
April
Submitted on Briefs
2014.
Decided June
2014.
For Dennis P. D. Conner & Appellee: Keith Marr, PLLP; Falls. Great Opinion BAKER of the Court.
JUSTICE delivered 9,2013 Córtese, M.D., appeals September Florian order оf Court, County, denying Cortese’s Silver Bow Judicial Second lack plaintiffDonna to dismiss motion from preclude Cortese’s motion to denying jurisdiction, trial, motion for impleaded claims at presenting *2 following appeal: issues on We address the ¶2 had determined that it Court erred when it 1. Whether District ¶3 arguments specifically Pickett had not jurisdiction to consider that Legal Panel. presented to the Montana Medical Appellate should the Rules suspend this Court Whether ¶4 allowing to Court’s decisions Pickett Procedure to consider the District mоtion at trial and present unpleaded claims had that it affirm the District Court’s determination We ¶5 suspend the Rules jurisdiction to Pickett’s claims. We decline to decide by Córtese. to consider the other issues raised Appellate Procedure AND BACKGROUND PROCEDURAL FACTUAL January 18,2007, retrograde аn endoscopic On Córtese ¶6 (ERCP) Donna sphincterotomy on cholangiopancreatography with During procedure, ofthe the first section ofPickett’s Pickett. course result, developed As Pickett perforated. small intestine was pancreatitis, seрtic. which Pickett underwent extensive became significant expense and these incurred address medical complications. January 15, 2010, Pickett a claim for review with the On filed
¶7 (MMLP). ofmedical Legal Montana Medical Panel She asserted claims stemming proсedure. Córtese from the 2007 (1) ways: in three in alleged negligent Pickett Córtese was that (2) perforating intestine; failing timely diagnose her in negligently (3) failing to in disclose all material facts and the perforation; and may necessary so significant nature of risks that be encountered that intelligent consent to treatment could be based on an exercise of decision, Following the filed a MMLP’s confidential Pickett complaint before the Second Judicial Court. The alleged duty ways, that of care Córtese breached numerous unskillfully, including “cаrelessly, negligently perforating and duodenum; failing timely diagnose [Pickett’s] [her] and treat failing and perforation; to disclose all material facts the nature may that consent to significant necessary risks that be encountered so judgment; failing intelligent on an exercise treatment could be based management; and post-operative or employ appropriate after-care degree of care and skill failing to otherwise use specialty....” Dr. Cortese’s practicing in physicians discovery explаin list and Pickett in written Córtese asked omission from the departure that constituted every distinct action allegations from her with replied standard of care. her answer her supplement that she would complaint and stated 3,2013, On June Pickett served expert witness disclosures. offer standard of care identifying experts three who disclosure would not all opined that Córtese did obtain opinions. experts recommending the ERCP or necessary data before and managed he should have her care with more sphincterotomy cоnservative, measures. 25,2013, claims that July On Córtese moved dismiss Pickett’s unnecessary and failed to disclose “performed argued were available.” Córtese
that less-invasive alternatives MMLP, these claims to the so the District Court were briefing them. After lacked to consider argument, the court denied Cortese’s motion to dismiss. It determined *3 analysis of the of care concerns whether not “[p]art or all,” should have been at and that Córtese to “presented expert’s report addressing this exact issue” order, MMLP. In the same the Court denied Cоrtese’s motions for being to summary judgment preclude unpleaded claims from presented at trial.
STANDARD OF REVIEW
deny
grant
A district court’s decision to
or
a motion to dismiss for
¶11
subject
jurisdiction
lack of
is a
of
question
matter
law that we review
City
Adjustment,
Bd.
correctness. Ballas v. Missoula
2007 MT
of
299, 9,
56,
inquiry
DISCUSSION when it determined it had 1. Whether the District Court erred ¶12 specifically not that Pickett had arguments to consider Legal Panel. Medical the Montana to provider against a health alleging malpractice Any person ¶13 in district filing comрlaint to the MMLP must submit applicable none 27-6-301, exceptions, few MCA. With court. Section claims malpractice all to review here, panel is 27-6-105, application MCA. The Section providers. health care ofthe elements detail reasonable “a statement MMLP must contain to constitute that are believed conduct provider’s health care of the occurred, and the the conduct claim, on which the dates malpractice having contact hospitals all physicians... addresses of names and 27-6-302(1), MCA. Sеction the claimant and all witnesses.” with allege that Córtese expressly did not filing, In MMLP unnecessarily and that he treatment explored have should failed to meet the that Pickett ERCP. Córtese contends performed the filing it to the MMLP before bring this claim statutory requirement arguing that this сlaim is responds by the District Court. Pickett MMLP—whether presented to the two issues she included within failed on her and whether Córtese negligently operated informed consent. obtain pleading specificity addressed the not previously We have from two urges adopt the rulе the MMLP. Córtese us
required before
squarely
not
we held that an issue
cases in which
administrative law
ripe
context is
raised,
adjudicated in the administrative
argued or
Dept.
Art v. Mont.
proceeding.
in judicial
for consideration
review
Mason,
Mont.
¶
& Indus. ex. rel.
Labor
Servs., 2000 MT
Health & Human
958;
Dept.
Marble v. Mont.
distinguishes thеse cases
240, 28, 301
373,
27-6-606(1),
reasoning
panel
of the
are
MCA. The decision and
cannot
in
used as
in an action filed
court.
confidential and
be
evidence
-704,
27-6-703,
presented
A
court
with a
MCA.
district
Sections
analyzes that claim anew rather than
malpractice
medical
claim
relying
any finding
by
made
the MMLP.
on
Nevertheless,
relationship
must be some
between
claim
there
Submitting
in
complaint
the MMLP and a
filed district court.
filed with
by
precedent
the MMLP is a condition
evaluation
Smith, 193
commеncing
medical
action. Linder v.
Mont.
(1981).
detail of
P.2d 1187
A “claim”must include “reasonable
provider’s
of the
care
conduct that are believed to
the elements
health
27-6-301,
malpractice claim.” Section
MCA. The essence
constitute a
against
of Pickett’s claim
Córtese is that he failed to meet
18,
January
in
2007 ERCP. This claim
was
court
submitted to the MMLP before Pickett commenced
district
on
action. The District Court’s
is based
its
adjudicate
authority
“fundamental
hear and
cases” medical
290, 15,
Co. v.
MT
359
malpractice. BNSF Ry.
Cringle, 2010
¶
20,
claim. MCA. The that a claimant Section first litigation possible. file a claim with the MMLP exists to avoid where 27-6-102, Filing just step Section MCA. with the MMLP is the first *5 any occurring the conduct of case, well before a medical the full experts of the substantial involvement discovery, such, party’s detail” of a legal of theories. As “reasonable development may that every theory and expected be to include each claim cannot reasons, these we decline discovery fruition after occurs. For come to heightened for pleading standard suggested Cortese’s impose requirement we utilized in detail.” The notice “reasonable analysis in the of equally that is workable applies MMLP. before the alleged MMLP, that Córtese In her the Pickett providе ERCP failed to her with
negligently performed the and expert her consent. Pickett’s sufficient information enable informed data, failed alleged that failed to obtain all relevant disclosure Córtese the ERCP performed solutions and explore are Both the and unnеcessarily. allegations arise out of same premised alleged on failure to meet the standard of care procedure. Like Pickett’s claim that Córtese performing the ERCP failed to consider alternative treatment may negligently into her propеrly be subsumed claims Córtese Further, get the ERCP and failed to informed as consent. noted, expert’s report Court to the District Córtese necessity reasonably of spoke procedure. MMLP that Córtese of opportunity was on notice Pickett’s claims had the to cоnduct discovery additional oncePickett’s disclosure was served. Under facts, correctly claim these District Court determined encompass to MMLP was claims court. sufficient Accordingly, denying we affirm its decision Cortese’s motion to dismiss subject jurisdiction. for lack of matter 2. should suspend ¶21 Whether this Court the Rules Appellate
Procedure to allowing consider the District Court’s decisions present unpleaded at claims trial and Cortese’s motion for requests ruling Córtese that we on further consider two interlocutory for orders—the Court’s deniеd his motion summeuy judgment and its denied of motion to impleaded exclude cleiimsat trial. Unlike a court’s on motion to decision dismiss for lack jurisdiction, these not appealable orders are until 6(5). App. P. after final M. R. Nevertheless, authority Córtese asks us to exercisе our under M. requirements P. 29 to App. suspend “[i]n
R. of these rules expediting good ... or other interest decision cause shown.” interest of the Rules in the suspended out that we have points Hydro Corp., Flame judicial economy. ¶¶ See Durden v. Durden, one of a “limited 17-19, 288 160. In we faced granting a motion for an order party appeals of cases” where class trial on granting an order a new as a matter of law and judgment Durden, granting a new trial was 19. Because the order damages. granting judgment as to also consider the order appеalable, we chose appeal for a second or a necessity to “save the either a matter law trial,” certainty.” as a “near an outcome we characterized second trial, Durden, Here, no there is no “near there has been *6 extraordinary appeal. “In the absence certainty” of a second beyond simply requiring party proceed compelling circumstances trial,” denying summary judgment orders we have declined to review Ct., entry State ex rel. Kosena v. Dist. of final (1977). 522, 523 any 21, 22, 560 Córtese has not P.2d and, rulings, compelling necessitating pretrial review of these reason Procedure, we decline to address Appellate consistent with our Rules them.
CONCLUSION The District Court’s order Cortese’s motion to dismiss lack of is affirmed. The case is remanded to proceеdings. further the District Court for McGRATH, McKINNON, CHIEF JUSTICE JUSTICES WHEAT and RICE concur. RICE, concurring. specially
JUSTICE heavily upon Moseley, The Court relies Griffin Opinion, in which I See case dissented. and, further, my governing authority 18-20. is now dissent !¶ subsidiary question there was concerned with whether qualified testify concerning Plaintiffs witness was care, neurosurgeon’s adequacy of Plaintiffs (J. Rice, Therefore, pleadings. dissenting). See 41-46 I ¶¶ concur.