                                                                                           May 19 2009


                                          DA 08-0415

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 171



DOROTHY COBB for the Estate of LOWELL COBB,
and DOROTHY COBB, an Individual,

              Plaintiff and Appellant,

         v.

DOREEN SALTIEL, M.D.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDV 05-562
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        James P. O’Brien, Attorney at Law, Missoula, Montana

                For Appellee:

                        John D. Alexander and Cathy J. Lewis, Ugrin, Alexander, Zadick &
                        Higgins, Great Falls, Montana




                                                    Submitted on Briefs: April 8, 2009

                                                               Decided: May 19, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Dorothy Cobb (Cobb) appeals from an order of the Eighth Judicial District Court,

Cascade County, that granted summary judgment in favor of Doreen Saltiel, M.D. (Dr.

Saltiel). We affirm.

¶2     Cobb presents the following issue on appeal:

¶3     Whether Cobb timely filed her malpractice claim against Dr. Saltiel.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶4     Lowell Cobb’s (Lowell) internist referred him to Michael N. Murphy, M.D. (Dr.

Murphy) for treatment of his hypertension and renal insufficiency. Lowell met with Dr.

Murphy on November 12, 1999. Dr. Murphy noted that Lowell also suffered from Type

1 diabetes, hypothyroidism, peripheral vascular disease, and coronary artery disease.

Lowell had not controlled many of these diseases properly over the years. Dr. Murphy

started Lowell on dialysis for end-state renal disease secondary to diabetic nephropathy.

Dr. Murphy later placed Lowell on a kidney transplant list.

¶5     Lowell complained to Dr. Murphy on November 29, 2000, of an episode of

crushing chest pain.    Dr. Murphy referred Lowell to Dr. Saltiel, a board-certified

interventional cardiologist. Dr. Saltiel met with Lowell and Cobb on December 7, 2000.

Dr. Saltiel performed a complete physical exam. She also recorded Lowell’s medical and

social history.

¶6     Dr. Saltiel determined that Lowell would be a good candidate for a cardiac

catheterization. A cardiac catheterization would determine the condition of Lowell’s
                                            2
heart. Dr. Saltiel discussed the risks of the procedure with Lowell and Cobb. She

explained that the risks included myocardial infarction, stroke, death, arrhythmia,

bleeding, vascular compromise, and infection.

¶7     Cobb, Lowell’s power of attorney, signed the consent for the procedure. Cobb

testified in her deposition that she had a chance to read the consent and freely signed after

having read it.    Cobb later testified that she remained unaware, however, that the

procedure involved risks.

¶8     Dr. Saltiel performed the cardiac catheterization on December 13, 2000. The

procedure revealed that Lowell had considerable coronary artery disease in the left

anterior descending artery. Dr. Saltiel estimated that Lowell’s artery contained an 80%

blockage.

¶9     Dr. Saltiel, after extensive discussion, informed Lowell and Cobb that she could

perform either a rotational atherectomy with intracoronary stenting or a cardiac bypass

graft. Dr. Saltiel proceeded with the rotational atherectomy and intracoronary stenting

later that same day. Dr. Saltiel made certain that Brett Williams, M.D. (Dr. Williams), a

heart surgeon, would be available to provide backup during the procedure. Dr. Saltiel

informed Lowell and Cobb of Dr. Williams’s availability.

¶10    Dr. Saltiel performed the procedure without incident until she attempted to deploy

the second stent. The calcification in the artery required Dr. Saltiel to increase the

balloon pressure. Dr. Saltiel successfully deployed the stent, but in doing so loose plaque

perforated the left anterior descending artery.      Dr. Saltiel immediately alerted Dr.
                                             3
Williams of the need to perform a coronary bypass arterial graft. Dr. Saltiel informed

Cobb about the perforation and the fact that she had called on Dr. Williams.

¶11    Lowell survived the surgery to repair the artery. Dr. Williams cared for Lowell

after the surgery. Lowell initially stabilized, but he began to become agitated the next

day. Lowell died at 9:20 p.m. on December 14, 2000. The autopsy confirmed that

Lowell had died of a myocardial infarction.

¶12    The Montana Medical Legal Panel (MMLP) received Cobb’s handwritten

allegations on November 5, 2003. Cobb failed to submit a formal application or a

consent form. MMLP could not access confidential health care records without these

forms. MMLP requested that Cobb provide the appropriate consent forms in a letter to

Cobb’s counsel, James P. O’Brien (O’Brien), on November 6, 2003.

¶13    MMLP received a consent form from Cobb on November 19, 2003. The consent

form did not include the patient’s name or the names of the patient’s health care

providers. Cobb signed the consent form as the “patient/claimant” and did not explain

her capacity in signing. MMLP sent a fax to O’Brien on November 24, 2003, in which it

requested a formal application and identification of the health care providers who

provided care for the patient. Cobb provided a partially completed application to MMLP

on November 25, 2003. The partially completed application failed to designate the health

care providers.

¶14    MMLP did not receive any additional information concerning Cobb’s claim until

MMLP wrote to O’Brien on March 12, 2004. MMLP once again asked O’Brien to
                                              4
provide consent forms for the relevant health care providers. O’Brien called MMLP on

March 22, 2004, to indicate that he had no idea that MMLP had been holding an

incomplete claim. O’Brien claimed that he simply assumed that MMLP had been too

busy to forward the claim.

¶15    MMLP received a consent form that addressed the records from only one of

Lowell’s health care providers on March 25, 2004. The consent form did not designate

other health care providers who cared for the patient relative to the conduct alleged in the

claim. MMLP called O’Brien on March 26, 2004, to ask for a complete listing of

pertinent health care providers. MMLP received the full listing of Lowell’s health care

providers and consents to obtain access to the health care records on April 1, 2004. Cobb

finally completed her claim at that point.

¶16    MMLP transmitted the claim to Dr. Saltiel on April 23, 2004. MMLP heard the

claim and rendered a decision on August 12, 2004. MMLP mailed its decision to the

parties on August 12, 2004. MMLP deemed service complete on August 18, 2004, to

allow three business days for mailing and to account for an intervening weekend.

¶17    Cobb filed her suit against Dr. Saltiel on May 16, 2005. Dr. Saltiel responded by

filing a motion for summary judgment. Dr. Saltiel argued that the three-year statute of

limitations for medical malpractice claims in § 27-2-205, MCA, barred Cobb’s claim.

Dr. Saltiel pointed to several facts to support her motion.         Cobb knew about the

perforation when it happened and that the perforation required bypass surgery to repair it.

Cobb admitted that she believed that the perforation constituted malpractice at the time of
                                             5
Lowell’s death. Cobb further admitted that she had contemplated a lawsuit within a

month or two of Lowell’s death. In fact, Cobb conceded that she had contacted a lawyer

for the first time about a possible malpractice action in January or February of 2001.

Cobb acknowledged that she learned nothing new from the time of Lowell’s death until

the time she first had contacted a lawyer about a possible malpractice action.

¶18    Cobb resisted Dr. Saltiel’s motion on the grounds that Dr. Saltiel had failed to

disclose to her acts, errors, and omissions. Cobb argued that Lowell’s injuries “were well

beyond the understanding of the lay person.” She asserted that Dr. Saltiel’s concealed

acts were sufficiently material to her claim that the court should toll the statute of

limitations. Cobb further alleged that Dr. Saltiel had continued to treat Lowell after his

operation and had concealed this treatment.        Cobb finally argued that Dr. Saltiel’s

extended absence from Montana prevented her from serving Dr. Saltiel with a summons

and complaint. Cobb claimed that Dr. Saltiel’s absence from Montana tolled the running

of the statute of limitations.

¶19    The District Court rejected Cobb’s claim that Dr. Saltiel fraudulently had

concealed Lowell’s injury.       The District Court further determined that Cobb had

“discovered” Lowell’s injury at the time of his death. Cobb knew at the time of Lowell’s

death that something had gone wrong.          The court determined that this knowledge

triggered the running of the three-year statute of limitations in § 27-2-205(1), MCA. The

court opined that the running of the statute of limitations did not require that a lay person

understand the exact nature of the malpractice. The court thus concluded that the statute
                                             6
of limitations had begun to run no later than December 15, 2000, the day after Lowell’s

death.

¶20      The court also rejected Cobb’s argument that Dr. Saltiel’s absence from Montana

tolled the statute of limitations pursuant to § 27-2-402, MCA. The court looked to M. R.

Civ. P. 4D(3). M. R. Civ. P. 4D(3) provides the same force and effect of service of a

summons and complaint outside of Montana as though service had been perfected in

Montana. The court determined that Cobb had a legal mechanism available to serve Dr.

Saltiel. The court further determined that Cobb had failed to raise material facts to show

that she could not serve Dr. Saltiel while she was out of Montana and thus had failed to

establish that the tolling provision in § 27-2-402, MCA, should apply.         The court

concluded that the three-year statute of limitations in § 27-2-205(1), MCA, barred Cobb’s

claims. Cobb appeals.

                               STANDARD OF REVIEW

¶21      We review de novo a district court’s grant of summary judgment based on the

same criteria applied by the district court. Hopkins v. Superior Metal Workings Systems,

L.L.C., 2009 MT 48, ¶ 5, 349 Mont. 292, 203 P.3d 803. The moving party must establish

the absence of genuine issues of material fact and entitlement to judgment as a matter of

law. Hopkins, ¶ 5. The opposing party must raise a genuine issue of material fact to

defeat the motion. The opposing party must present material evidence beyond mere

conclusory or speculative statements. Hopkins, ¶ 5.



                                            7
                                     DISCUSSION

¶22   Whether Cobb timely filed her malpractice claim against Dr. Saltiel.

¶23   Cobb puts forth two separate arguments in support of her claim that she timely

filed her malpractice action against Dr. Saltiel. Cobb first argues that her filing of a

handwritten application with the MMLP on November 5, 2003, tolled the three-year

statute of limitations. She further argues that Dr. Saltiel’s absence from Montana

triggered the tolling provision in § 27-2-402, MCA. She contends that this tolling

provision stopped the clock on the running of the three-year statute of limitations until

Dr. Saltiel returned to Montana on August 12, 2004. Cobb contends, therefore, that the

three-year statute of limitations for medical malpractice actions in § 27-2-205, MCA,

allowed her until March 28, 2007, to commence the action against Dr. Saltiel. Cobb

argues that she timely filed her action on May 16, 2005.

¶24   Section 27-2-205(1)(2), MCA, provides that an action in tort for injury or death

against a physician based upon alleged professional negligence “must be commenced

within 3 years after the date of injury.” MMLP’s receipt of an “application for review”

tolls the running of the three-year statute of limitations. Section 27-6-702, MCA. The

running of the three-year statute of limitations period begins again 30 days after the

panel’s final decision. Section 27-6-702, MCA.

¶25   Dr. Saltiel argues that the three-year statute of limitations for medical malpractice

claims provided in § 27-2-205, MCA, commenced upon Lowell’s death on December 14,

2000. Dr. Saltiel concedes that MMLP proceedings tolled the running of the three-year
                                            8
statute of limitations. Dr. Saltiel argues, however, that Cobb did not file a completed

claim with MMLP until April 1, 2004. In that event, Cobb had blown the three-year

statute of limitations before she even had reached the MMLP.

¶26   Dr. Saltiel further contends that Cobb failed to file her claim within the three-year

statutory period, even assuming for sake of argument, that Cobb’s incomplete application

tolled the statute of limitations on the date of her first handwritten application with the

MMLP on November 5, 2003. The statute of limitations started to run again no later than

September 18, 2004, 30 days after the MMLP had issued its decision. Dr. Saltiel argues

that tolling on the date of Cobb’s first attempted application with MMLP, November 5,

2003, would have left Cobb with only thirty-nine days to file suit after the statute of

limitations began to run again on September 18, 2004. Cobb waited nearly seven months

before eventually filing her action on May 16, 2005. We agree.

¶27   Cobb’s complaint remains time barred even if we accept the tolling based upon

her November 5, 2003, incomplete application. By this date, Cobb had used 2 years, 10

months and 21 days of the three-year statute of limitations. Thirty-nine days remained

for Cobb to file a timely complaint. Cobb received service of the MMLP’s decision no

later than August 18, 2004. Section 27-6-702, MCA, allowed Cobb 30 days before the

renewed running of the statute of limitations clock. Cobb could have filed a timely action

up through October 27, 2004. Cobb instead waited nearly seven months until May 16,

2005, before filing her complaint.



                                            9
¶28    Cobb further argues that Dr. Saltiel’s absence from Montana saves her action.

Section 27-2-402, MCA, provides that when a cause of action accrues against a person

who 1) is out of state, and 2) cannot be served with process, the action may be

commenced within the term limited after her return to Montana. The time of defendant’s

absence should not be counted as part of the time limited for the commencement of the

action if the defendant leaves Montana after the cause of action has accrued. Section 27-

2-402, MCA.

¶29    The parties agree that Dr. Saltiel moved from Montana in April 2001 and

remained in Missouri until August 12, 2004. The parties further agree that Cobb filed a

medical malpractice claim after Dr. Saltiel had left Montana. Cobb argues that Dr.

Saltiel’s absence from Montana satisfied the “out of state” requirement of § 27-2-402,

MCA.

¶30    Cobb overlooks the fact, however, that she had means of serving Dr. Saltiel

regardless of whether Dr. Saltiel’s absence from Montana satisfied the “out of state”

requirement of § 27-2-402, MCA. First, the Great Falls Clinic employed Dr. Saltiel at

the time of the alleged malpractice. Great Falls Clinic remained opened and operating

throughout the entire time that the statute of limitations was running on Cobb’s

malpractice claim. Cobb simply could have served Dr. Saltiel through the Great Falls

Clinic under M. R. Civ. P. 4D(2)(a). State ex rel. McGhee v. District Ct. of Sixteenth

J.D., 162 Mont. 31, 34, 508 P.2d 130, 132 (1973).



                                           10
¶31   Cobb also could have served Dr. Saltiel in Missouri pursuant to Montana’s “long

arm statute.” McGhee, 162 Mont. at 34, 508 P.2d at 132. M. R. Civ. P. 4D(3) provides

for service upon a person outside of Montana. Cobb claims, however, that § 27-6-701,

MCA, prevented her from serving Dr. Saltiel before August 13, 2004. Section 27-6-701,

MCA, provides that a plaintiff cannot commence a malpractice claim in any court against

a health care provider before she applies to the MMLP and the MMLP renders its

decision. Cobb argues that this procedural requirement of § 27-6-701, MCA, forestalls

application of the provision of the Montana Rules of Civil Procedure regarding service of

process until the MMLP has rendered a decision.

¶32   Cobb asserts that Dr. Saltiel’s absence from Montana prevented the running of the

three-year statute of limitations until the MMLP had issued its decision in August 2004.

Cobb argues that only “after an MMLP decision does a court have authorization to effect

service of process through the long arm statute.” Cobb argues that the District Court

lacked authority to effect service of process through the long-arm statute until after an

MMLP decision as the MMLP process imposes a “delay of subject matter jurisdiction.”

¶33   We rejected a similar claim in Davis v. State, 2008 MT 226, 344 Mont. 300, 187

P.3d 654. There the State argued that § 46-21-102, MCA, deprived district courts of

subject matter jurisdiction over petitions for post-conviction relief that were filed more

than one year after the date that the conviction had become final. We agreed with the

U.S. Supreme Court that the one-year statute of limitations in § 46-21-102, MCA, for the

filing of a petition for post-conviction relief represented an “inflexible claim-processing
                                            11
rule,” rather than a rule that excludes a class of cases from a court’s adjudicatory

authority, or subject matter jurisdiction. Davis, ¶ 13, quoting Eberhart v. United States,

546 U.S. 12, 13, 126 S. Ct. 403, 163 L. Ed. 2d 14, 15 (2005).

¶34    We clarified this analysis in Miller v. Eighteenth Judicial Dist. Court, 2007 MT

149, ¶¶ 44-46, 337 Mont. 488, 162 P.3d 121. We concluded in Miller that a provision

requiring the State to notify the defendant of its intent to seek the death penalty within 60

days of the filing of the information “is, necessarily, a categorical time prescription and

not a jurisdictional provision.” Miller, ¶ 46. The State’s failure to comply with the 60-

day time prescription did not create “a jurisdictional defect” that precluded the State from

seeking the death penalty and precluded the district court from imposing the death

penalty as a sentence. Miller, ¶ 46. The rule simply “assured relief” to a defendant who

properly raised it, but it did not compel the same result if the defendant forfeited it.

Miller, ¶ 46. In other words, the claim processing rules stand in the nature of an

affirmative defense. The defense remains available, and most often lethal, to a defendant

who timely and properly raises it.      Miller, ¶ 46.   A defendant’s failure to raise an

affirmative defense waives this defense.          Meadow Lake Estates Homeowners v.

Shoemaker, 2008 MT 41, ¶ 29, 341 Mont. 345, 178 P.3d 81. In neither circumstance,

however, does the action, or inaction, of the defendant affect the court’s subject matter

jurisdiction to hear a case.

¶35    We proceed therefore to analyze whether § 27-2-402, MCA, stopped the clock on

the running of the three-year statute of limitations during Dr. Saltiel’s absence from
                                             12
Montana. A defendant’s presence in Montana at the time of the injury subjects them to

the jurisdiction of Montana courts. M. R. Civ. P. 4B(1); Beedie v. Shelley, 187 Mont.

556, 561, 610 P.2d 713, 716 (1980).       Section 27-2-402, MCA, seeks to prevent a

defendant from defeating a plaintiff’s claim for relief by leaving the state or by

establishing residence in another state. McGhee, 162 Mont. at 34, 508 P.2d at 131 (§ 93-

2702, R.C.M. (1947), now codified at § 27-2-402, MCA). The exception to this rule

applies when a plaintiff may effect service of process by some method, even though the

defendant may be absent from the state. The statute of limitations continues to run during

the absence under these circumstances. McGhee, 162 Mont. at 34, 508 P.2d at 132.

¶36   Dr. Saltiel performed the surgery on Lowell in Montana.           Her presence in

Montana at the time of the alleged malpractice left her amenable to the jurisdiction of a

court in Montana. M. R. Civ. P. 4B(1); Beedie, 187 Mont. at 560, 610 P.2d at 716. M. R.

Civ. P. 4D(3) provides for service of the summons and complaint on persons outside

“with the same force and effect as though service had been made within this state.”

Beedie, 187 Mont. at 559, 610 P.2d at 715.

¶37   The power of § 27-2-402, MCA, to stop the running of the statute of limitations

clock arises only when the defendant remains out of state and cannot be served with

process. McGhee, 162 Mont. at 34, 508 P.2d at 132 (§ 93-2702, R.C.M. (1947)), now

codified at § 27-2-402, MCA).       M. R. Civ. P. 4(B)(1) and 4D(3), taken together,

demonstrate that Dr. Saltiel remained at all times subject to the jurisdiction of Montana

courts and therefore amenable to service of process. Beedie, 187 Mont. at 559, 610 P.2d
                                             13
at 715. The District Court properly barred Cobb’s complaint as being filed beyond the

statute of limitations.

¶38    Affirmed.


                                                /S/ BRIAN MORRIS


We Concur:

/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER




Justice James C. Nelson concurs.

¶39    I concur in the result of the Court’s Opinion, with the exception of the manner in

which the Court has calculated the running of the statute of limitations at ¶¶ 25-26. It

appears from the Court’s language that the date a completed claim is filed with the

Montana Medical Legal Panel (MMLP) has some import. I disagree.

¶40    To recap the dates:

           a. December 13, 2000—Commission of alleged medical malpractice.

           b. November 5, 2003—Cobb files her claim with the MMLP.

           c. August 12, 2004—MMLP convenes and decides claim.

           d. August 18, 2004—MMLP mails its decision to Cobb.

           e. May 16, 2005—Cobb files suit against Salteil.
                                           14
The statute of limitations, § 27-2-205, MCA, began running December 13, 2000. Under

the statute, Cobb had three years in which to file suit. The statute is tolled, however,

during the time that Cobb’s claim was before the MMLP and for 30 days after the MMLP

rules. Section 27-6-702, MCA. Thus, Cobb’s statute of limitations was tolled from

November 5, 2003. At that point in time she was still within the statute of limitations

and, without tolling, still had 38 days to file suit. The MMLP ruled August 18, 2004.

Adding 30 days to that date, the three-year statute of limitations began to run again on

September 17, 2004. Since Cobb had 38 days left in which to file her suit, she had until

October 25, 2004. Clearly her complaint filed May 16, 2005, was time-barred by nearly

seven months.

¶41    Computing the running of the three-year statute of limitations in this fashion

avoids the question of what constitutes a “complete” claim for MMLP purposes along

with the inevitable wrangling that question will raise.

¶42    With this caveat, I otherwise concur in the Court’s Opinion.



                                                  /S/ JAMES C. NELSON




                                             15
