                                                                                             June 27 2014


                                          DA 13-0609

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 166



DONNA PICKETT,

               Plaintiff and Appellee,

         v.

FLORIAN M. CORTESE,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Second Judicial District,
                       In and For the County of Butte/Silver Bow, Cause No. DV 10-202KK
                       Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Travis Dye, Gary Kalkstein; Kalkstein, Johnson & Dye, PC; Missoula,
                       Montana

                For Appellee:

                       Dennis P. Conner; Keith D. Marr; Conner & Marr, PLLP; Great Falls,
                       Montana



                                                   Submitted on Briefs: April 30, 2014
                                                              Decided: June 27, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Florian Cortese, M.D., appeals the September 9, 2013 order of the Second Judicial

District Court, Silver Bow County, denying Cortese’s motion to dismiss plaintiff Donna

Pickett’s complaint for lack of subject matter jurisdiction, denying Cortese’s motion to

preclude Pickett from presenting unpleaded claims 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 Procedure to consider the

other issues raised by Cortese.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶6     On   January    18,   2007,    Cortese   performed     an   endoscopic    retrograde

cholangiopancreatography (ERCP) with sphincterotomy on Donna Pickett. During the

course of the procedure, the first section of Pickett’s small intestine was perforated. As a

result, Pickett developed pancreatitis, which became septic. Pickett underwent extensive

medical care and incurred significant expense to address these complications.




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¶7     On January 15, 2010, Pickett filed a claim for review with the Montana Medical

Legal Panel (MMLP).         She asserted claims of medical malpractice against Cortese

stemming from the 2007 procedure. Pickett alleged that Cortese was negligent in three

ways: (1) in negligently perforating her intestine; (2) in failing to timely diagnose the

perforation; and (3) in failing to disclose all material facts and the nature of significant

risks that may be encountered so that necessary consent to treatment could be based on an

intelligent exercise of judgment.

¶8     Following the MMLP’s confidential decision, Pickett filed a complaint before the

Second Judicial District Court. The complaint alleged that Cortese 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 be 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     Cortese 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 complaint 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

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opined that Cortese 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, Cortese moved to dismiss Pickett’s claims that Cortese

“performed an unnecessary procedure and failed to disclose that less-invasive alternatives

were available.” Cortese 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 Cortese “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 preclude 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, 2007 MT 299, ¶ 9, 340 Mont. 56, 172 P.3d 1232. “The inquiry is

whether the complaint states facts that, if true, would grant the district court subject

matter jurisdiction.” Ballas, ¶ 9. Denial of a motion to dismiss for lack of subject matter

jurisdiction is reviewable prior to final judgment. M. R. App. P. 6(3)(c). We are

confined to whether the district court correctly decided the limited question of subject

matter jurisdiction. Ballas, ¶ 9.

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                                      DISCUSSION

¶12 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.

¶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 few 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.” Section 27-6-302(1), MCA.

¶14    In her MMLP filing, Pickett did not expressly allege that Cortese should have

explored alternative treatment and that he unnecessarily performed the ERCP. Cortese

contends that Pickett failed to meet the statutory requirement to bring this claim to the

MMLP before filing it with the District Court. Pickett responds by arguing that this

claim is included within two issues she presented to the MMLP—whether Cortese

negligently operated on her and whether Cortese failed to obtain informed consent.

¶15    We have not previously addressed the specificity of pleading required before the

MMLP. Cortese urges us to adopt the rule from 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

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Labor & Indus. ex. rel. Mason, 2002 MT 327, ¶ 14, 313 Mont. 197, 60 P.3d 958; Marble

v. Mont. Dept. of Health & Human Servs., 2000 MT 240, ¶ 28, 301 Mont. 373, 9 P.3d

617. Pickett distinguishes these cases because the standard of review that the trial court

utilizes in an administrative law action differs from a medical malpractice claim. Trial

courts review administrative decisions to determine whether the agency “exceeded its

authority, abused its discretion, made clearly erroneous findings of fact, or interpreted the

law incorrectly.” Marble, ¶ 15. In contrast, filing a claim with the MMLP is simply a

condition precedent to filing a medical malpractice action in district court.

¶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

Procedure 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, 193 Mont. 20, 629 P.2d 1187 (1981). A “claim” must include “reasonable detail

                                          6
of the elements of the health care provider’s conduct that are believed to constitute a

malpractice claim.” Section 27-6-301, MCA. The essence of Pickett’s claim against

Cortese is that he failed to meet the standard of care in performing the January 18, 2007

ERCP. This claim was submitted to the MMLP before Pickett commenced her district

court action. The District Court’s subject matter jurisdiction is based on its “fundamental

authority to hear and adjudicate cases” of medical malpractice. BNSF Ry. Co. v. Cringle,

2010 MT 290, ¶ 15, 359 Mont. 20, 247 P.3d 706. The issue is whether the elements of

Pickett’s malpractice complaint were sufficiently presented before the panel in order to

satisfy the condition precedent to filing in court.

¶18     Although the scope of a claim before the MMLP was not at issue, our decision in

Griffin v. Moseley, 2010 MT 132, 356 Mont. 393, 234 P.3d 869, is therefore instructive.

Griffin’s complaint alleged that her doctor was negligent and that his actions fell below

the standard of care. Griffin, ¶ 37. The complaint contained only two claims against

Moseley: “(1) negligence during the performance of the surgery; and (2) failure to obtain

informed consent prior to surgery.” Griffin, ¶ 16. We determined that the District Court

construed those claims too narrowly when it did not allow Griffin to argue that the doctor

failed to attempt alternative pre-surgical treatment.    Griffin, ¶ 39.    In light of the

allegations of the complaint and the deposition testimony of Griffin’s experts, we held

that the doctor was on notice that the plaintiff claimed he was negligent “in both his

surgical treatment of [Griffin], as well as in his pre-surgical treatment of her.” Griffin,

¶ 39.

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¶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. Section 27-6-102, MCA. Filing with the MMLP is just the first step in a

medical malpractice case, occurring well before the conduct of any discovery, the

substantial involvement of experts or the full development of legal theories. As such,

“reasonable detail” of a party’s claim cannot be expected to include each and every

theory that may come to fruition after discovery occurs. For these reasons, we decline to

impose Cortese’s suggested heightened pleading standard for “reasonable detail.” The

notice requirement we utilized in Griffin applies a standard that is equally workable in the

analysis of a claim before the MMLP.

¶20    In her filing with the MMLP, Pickett alleged that Cortese negligently performed

the ERCP and failed to provide her with sufficient information to enable her informed

consent. Pickett’s expert disclosure alleged that Cortese failed to obtain all relevant data,

failed to explore alternative solutions and performed the ERCP unnecessarily. Both

allegations arise out of the same procedure and are premised on Cortese’s alleged failure

to meet the standard of care in performing that procedure. Like Griffin, Pickett’s claim

that Cortese failed to consider alternative treatment before performing the ERCP properly

may be subsumed into her claims that Cortese negligently performed the ERCP and

failed to get informed consent. Further, as the District Court noted, Cortese presented an

                                          8
expert’s report to the MMLP that spoke to the necessity of the procedure. Cortese

reasonably was on notice of Pickett’s claims and had the opportunity 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    Cortese requests that we consider ruling on two further interlocutory orders—the

District Court’s denial of his motion for summary judgment and its denial of his motion

to exclude unpleaded claims at trial. Unlike a court’s decision on a motion to dismiss for

lack of subject matter jurisdiction, these orders are not appealable until after final

judgment. M. R. App. P. 6(5).

¶23    Nevertheless, Cortese 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.” Cortese points out that we have suspended the Rules in the

interest of judicial economy. See Durden v. Hydro Flame Corp., 1998 MT 47, ¶¶ 17-19,

288 Mont. 1, 955 P.2d 160. In Durden, we faced one of a “limited class of cases” where

a party appeals an order granting a motion for judgment as a matter of law and an order

granting a new trial on damages. Durden, ¶ 19. Because the order granting a new trial

was appealable, we chose to also consider the order granting judgment as a matter of law

                                          9
to “save the necessity either for a second appeal or a second trial,” an outcome we

characterized as a “near certainty.” Durden, ¶ 19. Here, there has been no trial, and there

is no “near certainty” of a second appeal.        “In the absence of extraordinary and

compelling circumstances beyond simply requiring a party to proceed to trial,” we have

declined to review orders denying summary judgment before the entry of final judgment.

State ex rel. Kosena v. Dist. Ct., 172 Mont. 21, 22, 560 P.2d 522, 523 (1977). Cortese

has not presented any compelling reason necessitating review of these pretrial rulings,

and, consistent with our Rules of Appellate Procedure, we decline to address them.

                                     CONCLUSION

¶24    The District Court’s order denying Cortese’s motion to dismiss for lack of subject

matter jurisdiction is affirmed. The case is remanded to the District Court for further

proceedings.

                                                 /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE



Justice Jim Rice, specially concurring.

¶25    The Court relies heavily upon Griffin v. Moseley, 2010 MT 132, 356 Mont. 393,

234 P.3d 869, a case in which I dissented. See Opinion, ¶¶ 18-20. Griffin is now

governing authority and, further, my dissent there was concerned with the subsidiary
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question of whether the Plaintiff’s expert witness was qualified to testify concerning a

neurosurgeon’s standard of care, not the adequacy of Plaintiff’s pleadings. See Griffin,

¶¶ 41-46 (J. Rice, dissenting). Therefore, I concur.



                                                 /S/ JIM RICE




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