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Ann M. Brookins, As An Individual and v. Frederick Mote

December 11, 2012

ANN M. BROOKINS, AS AN INDIVIDUAL AND ANN M. BROOKINS, AS NATURAL PARENT AND LEGAL GUARDIAN ON BEHALF OF ALLEN GOTCHER, A MINOR. PLAINTIFF AND APPELLANT,
v.
FREDERICK MOTE, M.D. AND MINERAL COMMUNITY HOSPITAL, DEFENDANTS AND APPELLEES.



APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 05-410 Honorable Karen Townsend, Presiding Judge

The opinion of the court was delivered by: Jim Rice

December 11 2012

Submitted on Briefs: August 22, 2012

Filed:

Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 Ann M. Brookins (Ann) appeals from three orders of the Fourth Judicial District Court. The first reopened discovery, while the other two granted summary judgment to the Mineral Community Hospital (the Hospital) on all of Ann's claims. We address the following issues and affirm:

¶2 1. Did the District Court err in reopening discovery?

¶3 2. Did the District Court err in granting summary judgment to the Hospital on the agency claims?

¶4 3. Did the District Court err in granting summary judgment to the Hospital on the joint venture claim?

¶5 4. Did the District Court err in granting summary judgment to the Hospital on the Consumer Protection Act Claim?

¶6 5. Did the District Court err in granting summary judgment to the Hospital on the negligent credentialing claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 In early 1993, Ann gave birth to Allen Gotcher (Allen) at the Hospital in Superior. Dr. Frederick Mote (Dr. Mote) was Ann's obstetrician and delivered Allen. Medical complications arose prior to and after Allen's delivery, leading to problems with Allen's brain development. In 2005, Ann, individually and on behalf of Allen, sued Dr. Mote and the Hospital. She subsequently settled her claims with Dr. Mote. This appeal arises out of pre-trial rulings made by the District Court in Ann's litigation with the Hospital.

¶8 At the time of Allen's birth, Dr. Mote was living in Superior for a second time. He originally moved to Superior from Oregon in early 1992 to take employment at the Hospital, but his stay was short-lived. In April 1992, Dr. Mote was charged in the State of Oregon with sexual abuse of a minor and endangering the welfare of a minor. He resigned his employment with the Hospital and returned to Oregon to face the charges.

¶9 Dr. Mote's legal difficulties were reported in local newspapers, the Mineral Independent and Missoulian, throughout the spring and summer of 1992. The Hospital wrote an "Open Letter to the Mineral County Community" in the Mineral Independent, explaining that the Hospital was taking steps to ensure patient safety. The Mineral Independent reported Dr. Mote's departure from Superior, and later reported that he had pleaded guilty to misdemeanor sexual abuse of a child. As part of his sentence, Dr. Mote attended a rehabilitation facility in Minnesota that specialized in sexual addiction.

¶10 In September 1992, the Montana Board of Medical Examiners (the Medical Board) and Dr. Mote entered an agreement providing that Dr. Mote would keep his medical license, subject to a 15-year probationary period and a prohibition on treatment of minor patients unless a third party was present. Dr. Mote returned to Superior but the Hospital determined not to rehire him as an employee. Dr. Mote opened a private practice in his home. After review, the Hospital extended credentials for Dr. Mote to use the Hospital's facilities as an independent physician. A letter from Madelyn Faller (Faller), the Hospital's chief administrative officer during the early 1990's, advising the public of these circumstances was published in the Mineral Independent.

¶11 Ann hired Dr. Mote as her obstetrician immediately following his return to Superior. Ann was living in St. Regis and was approximately four months pregnant.

Ann's mother, Fran Brookins (Fran), was a registered nurse at the Hospital. According to Fran, she and Ann discussed whether Dr. Mote should be Ann's doctor given his conviction in Oregon. Ann decided to hire Dr. Mote because his home-office was close to Ann's residence and she was concerned about not being able to make it to a Missoula hospital when it came time to deliver her child. All of Ann's prenatal appointments with Dr. Mote were conducted at his home-office. The only times Ann recalled going to the Hospital prior to delivery were for ultrasound procedures and blood tests. These were performed by Hospital staff without Dr. Mote being present.

¶12 Allen was born in February of 1992, and Dr. Mote delivered him at the Hospital. Medical complications persisted during Allen's pre-delivery, delivery, and post-delivery periods, which may have caused brain development problems. Allen has since been diagnosed with brain damage, resulting in learning difficulties.

¶13 In April 2005, Ann, individually and on behalf of Allen, sued Dr. Mote and the Hospital. Ann claimed malpractice against Dr. Mote for his care of Allen, assault and battery for his performance of unnecessary pelvic exams on Ann, and "unauthorized sexual contact with Allen during Dr. Mote's delivery, examination and subsequent circumcision" in violation of the restrictions placed on his medical license. Against the Hospital, Ann alleged it was vicariously liable for Dr. Mote's negligence under agency and joint venture theories, and directly liable under the Consumer Protection Act and negligent credentialing theories for allowing Dr. Mote to use its facilities. After Ann settled her claims against Dr. Mote and the District Court dismissed him with prejudice in August 2007, the lawsuit was dormant for over a year thereafter, but moved forward after the District Court ordered Ann to file a status report.

¶14 During the ensuing discovery process, neither party adhered to the court-ordered deadlines. The District Court issued three scheduling orders extending deadlines, and the parties agreed between themselves to extend deadlines on several occasions. The parties eventually became embroiled in two disputes, resulting in a discovery standoff. The first concerned the Hospital's failure to provide complete M. R. Civ. P. 26(b)(4) disclosures for the three expert witnesses it retained to compare a 1993 MRI with a 2000 MRI of Allen's brain by the May 11, 2010 deadline.*fn1 In correspondence to Ann's counsel, defense counsel explained that because the Hospital could not locate the 1993 MRI, the experts could not compare it with the 2000 MRI and thus, disclosures could not be completed by the deadline. The search culminated in the Hospital subpoenaing St. Patrick Hospital in Missoula (where the 1993 MRI had taken place) to produce a copy of the 1993 MRI.

¶15 The second dispute pertained to the deposition of two of Ann's experts. The Hospital repeatedly asked Ann for times her experts could be deposed, but Ann's counsel was resistant to allow their depositions before receiving the Hospital's expert disclosures, believing it would give the Hospital an unfair advantage. Throughout the summer of 2010, the parties continued these back and forth demands. Eventually, St. Patrick advised the parties that, pursuant to protocol, the 1993 MRI had been destroyed following a seven year storage period. With no opportunity for its experts to analyze the earlier MRI, the Hospital moved to name a different expert.

¶16 Ann moved to exclude any expert witnesses the Hospital had not fully disclosed by the May 11, 2010 deadline-namely, the expert hired to replace its MRI experts- asking the court to strictly enforce the discovery deadlines. The Hospital countered that Ann should not benefit from strict enforcement of the scheduling order because she had routinely missed deadlines. The Hospital also pointed out that its disclosure was delayed by circumstances out of its control-the search for the 1993 MRI that was destroyed by St. Patrick Hospital. The Hospital moved to extend discovery, or alternatively, to exclude Ann's experts it had not deposed.

¶17 After a hearing, the court issued an order extending discovery deadlines. The court stated that both parties' request to exclude the other side's expert witness was "extreme" and found the Hospital's failure to provide full disclosures was "excusable in light of the late discovery that the films of the 1993 MRI had been destroyed." The court further held that Ann's delay in presenting her experts for deposition was "also excusable" since the Hospital had not made its expert disclosures. Ann moved the court to reconsider its ruling, arguing the court had erred, inter alia,*fn2 by extending discovery deadlines after they had closed without a finding of "excusable neglect." The court entered an order clarifying that it found both parties' failure to comply with discovery was due to "excusable neglect."

¶18 Discovery proceeded, including two depositions which are particularly relevant to this appeal. Ann deposed Faller, who testified that as the Hospital's chief administrative officer she had used a recruiting service to initially contact Dr. Mote. Following Dr. Mote's resignation and resolution of his criminal charges, Faller said the Hospital decided not to rehire him. Faller contacted the treatment center Dr. Mote attended in Minnesota and was advised that Dr. Mote "was not a pedophile and that he would not reoffend." As to re-credentialing Dr. Mote as an independent physician after his return to Superior, Faller testified that Dr. Mote was required to submit an application, about which Fallen was questioned extensively.

¶19 The Hospital deposed Ann's expert on hospital credentialing, Dr. Daniel Boatman (Dr. Boatman). Dr. Boatman had submitted his expert disclosure about three years earlier. The disclosure explained that the "standard practice" in hospitals before credentialing a doctor required, inter alia:

[A] query to the National Practitioner Data Bank, verification of medical school education, verification of licensure in any and all other states the physician indicates licensure in and status, verification of DEA licensure status, and any restrictions, request for professional references and a series of questions on the medical staff application regarding drug or alcohol use or criminal convictions.

However, regarding whether the Hospital had breached this standard of care, Dr. Boatman stated: "Without a credentials file for Dr. Mote, however, I cannot render an opinion about the medical staff privileges granted as a violation of the standard of care for hospitals." ...


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