                                                                                               01/16/2018


                                          DA 17-0302
                                                                                           Case Number: DA 17-0302

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 10N



HARRY RICHARDS,

              Plaintiff and Appellant,

         v.

KRMC; PROMPT CARE,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV 16-257C
                        Honorable Robert B. Allison, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Harry Richards, Self-Represented, Trego, Montana

                For Appellee:

                        Sean Goicoechea, Chris Di Lorenzo, Moore, Cockrell, Goicoechea &
                        Johnson, P.C., Kalispell, Montana



                                                    Submitted on Briefs: December 20, 2017

                                                               Decided: January 16, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Plaintiff and Appellant Harry Richards (Richards) filed his first Complaint against

Kalispell Regional Medical Center and Eureka Prompt Care (collectively KRMC) in the

Eleventh Judicial District Court, Flathead County, on January 15, 2015. Richards’s first

Complaint was dismissed because he failed to complete the Montana Medical Legal Panel

(MMLP) process. On September 4, 2015, Richards filed a claim with the MMLP. The

MMLP issued a ruling on February 17, 2016. Richards subsequently filed his Complaint

in District Court alleging three medical malpractice claims: (1) KRMC failed to properly

treat Richards’s medical complaints; (2) KRMC prescribed medications to Richards that

purportedly caused Richards erectile dysfunction and bad dreams; and (3) KRMC

inappropriately discharged Richards as a patient. Richards also alleged that KRMC failed

to provide a written statement refuting various allegations made by Lincoln County Deputy

Sheriff Steve Short.

¶3     In the underlying dispute, Richards asserts that, in 2012, Deputy Short alleged that

Richards and Deputy Short’s wife, Raylee Short, an employee of Eureka Prompt Care, had

sexual relations in an examination room.        Richards alleges that Linda Schatzel, a

physician’s assistant at Eureka Prompt Care, would not provide him with a written


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statement refuting Deputy Short’s allegations. Thereafter, the Director of Eureka Prompt

Care sent Richards a letter discontinuing the patient-provider relationship. Richards’s

Complaint filed in District Court raises claims related to KRMC’s failure to provide a

written statement, as well as claims related to the medical care and treatment Richards

received prior to his discharge by KRMC.

¶4     On September 8, 2016, the District Court issued its Amended Scheduling Order

setting a November 18, 2016 deadline for disclosure of expert witnesses, as required by M.

R. Civ. P. 26. On November 17, 2016, Richards mailed KRMC’s counsel a witness list

that included two categories of witnesses: “Hostile” and “Non Hostile.” Richards’s

witness list was not filed with the District Court. Richards did not disclose or identify any

expert witnesses to offer an opinion that KRMC’s care and treatment of Richards departed

from the accepted standard of care. The District Court granted KRMC’s motion for

summary judgment and agreed with KRMC that Montana law requires expert testimony to

establish the applicable standard of care and any departure from the standard of care. The

District Court also concluded that KRMC did not have a legal duty to provide a written

statement refuting Deputy Short’s allegations.

¶5     Richards has filed a two-page, nine-paragraph opening brief entitled, “OPENING

BRIEF WITH RESERVATION TO ADD TO BECAUSE OF MY CONDITION I M[A]Y

HAVE FORGOT SOMETHING.” Although Richards has failed to assign or adequately

address any alleged errors in the District Court’s order granting summary judgment, we

will construe Richards’s appeal generally as an objection to the Court’s grant of summary

judgment to KRMC. We review a district court’s grant of summary judgment de novo.


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McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 8, 380 Mont. 204, 354 P.3d 604. “Summary

judgment is appropriate when the moving party demonstrates both the absence of any

genuine issues of material fact and entitlement to judgment as a matter of law.” Albert v.

Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. “A material fact is a fact that

involves the elements of the cause of action or defenses at issue to an extent that

necessitates resolution of the issue by a trier of fact.” Williams v. Plum Creek Timber Co.,

2011 MT 271, ¶ 14, 362 Mont. 368, 264 P.3d 1090 (quoting Arnold v. Yellowstone Mt.

Club, LLC, 2004 MT 284, ¶ 15, 323 Mont. 295, 100 P.3d 137) (internal quotations omitted).

¶6     It is well settled in Montana that a plaintiff in a medical malpractice action must

establish the following elements: (1) the applicable standard of care; (2) that the defendant

departed from that standard of care; and (3) that the departure proximately caused the

plaintiff’s injuries. Mont. Deaconess Hosp. v. Gratton, 169 Mont. 185, 189-90, 545 P.2d

670, 672-73 (1976). Further, “[w]ithout expert testimony to establish these elements, no

genuine issue of material fact exists and the defendant is entitled to judgment as a matter

of law.” Estate of Willson v. Addison, 2011 MT 179, ¶ 17, 361 Mont. 269, 258 P.3d 410

(footnote omitted). Richards’s three claims regarding his care at KRMC are claims for

medical malpractice. The District Court found that Richards failed to disclose any expert

witnesses to support his medical malpractice allegations.        Failure to provide expert

testimony is fatal to Richards’s claims regarding his medical treatment. Accordingly, the

District Court correctly granted summary judgment to KRMC on Richards’s claims of

medical malpractice.




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¶7     The District Court also correctly concluded that KRMC had no legal duty to provide

Richards with a written statement refuting Deputy Short’s accusations. Richards failed to

set forth any legal authority that provides KRMC is responsible for Deputy Short’s actions.

Further, Richards testified at his deposition that only Deputy Short made the allegedly false

statement.1

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶9     Affirmed.


                                                    /S/ LAURIE McKINNON

We Concur:
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




1
   The District Court, in its order granting summary judgment to KRMC, also considered claims
raised by Richards during his deposition, which were not raised in his Complaint. These claims
related to KRMC’s allegedly inappropriate dissemination of Richards’s health care information
and use of MMLP records. The District Court concluded that the sharing of Richards’s medical
information was between medical providers at the same medical facility and that § 50-16-529(1)
and (3), MCA, allowed for the sharing of this information. Respecting allegedly inappropriate use
of MMLP records, the District Court determined Richards’s claims were unsubstantiated and
lacked any legal authority. Upon review of the record, we also conclude the District Court did not
err in its determinations on these issues.


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