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Wilson v. Brandt

Supreme Court of Montana

November 28, 2017

YVONNE WILSON, Plaintiff and Appellant,

          Submitted on Briefs: October 4, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 15-938C Honorable Heidi Ulbricht, Presiding Judge

          James G. Hunt, Hunt Law Firm, Helena, Montana for Appellant

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

          Justice Beth Baker

         ¶1 Dr. Rodney D. Brandt performed surgery to repair Yvonne Wilson's torn ACL in February 2008. She began to experience new and excruciating knee pain shortly after surgery. On November 5, 2012, Wilson filed a claim with the District Court asserting that Dr. Brandt negligently performed surgery on her knee. The District Court granted summary judgment to Dr. Brandt, holding that Wilson's claim was filed after the three-year statute of limitations had run. Wilson appeals, arguing the District Court erred in concluding as a matter of law that her claims were barred by the applicable statute of limitations. We reverse.


         ¶2 On October 30, 2007, Wilson twisted her left knee while removing a pool cover at work. An MRI showed a medial meniscus tear of her left knee. Dr. Brandt, an orthopedic surgeon at Flathead Valley Orthopedic Center, P.C. (FVOC), performed a medial meniscus resection on December 13, 2007, to repair the tear. During surgery, Dr. Brandt discovered that Wilson's ACL was partially torn, but did not repair the tear, noting that the chance of needing additional surgery was less than 50 percent. Wilson's symptoms of knee instability and buckling continued, however, and Dr. Brandt performed ACL reconstruction surgery on February 4, 2008. The ACL reconstruction procedure involved drilling a hole through the tibia bone, known as a "tibial tunnel."

         ¶3 In follow-up appointments from March through May 2008, Dr. Brandt noted that Wilson was "doing absolutely fabulous, " "extremely well, " and was "approaching maximum medical improvement." His notes after the May 2008 appointment indicate that Wilson was having "some pes anserinus pain." The pes anserinus refers to the area where three tendons insert into the tibia bone located at the inner part of the knee. Dr. Brandt gave her a local injection of cortisone to help ease the pain.

         ¶4 Contrary to Dr. Brandt's impressions, Wilson testified that in the weeks following surgery, she experienced new and excruciating pain at the site of the tibial tunnel, as well as popping and cracking and continued knee buckling. She testified that during this time she "didn't know" if the "pain . . . was related to the hole that had been drilled in [her] knee, " and that she did not ask why she was having the new pain because she had had "two different types of surgeries, one was more aggressive than the other, like the ACL is more aggressive than the meniscus. And so [she] thought it all joined together." During her deposition, in response to the question whether she thought there was something new wrong, she said she was "concerned" and that she "knew there was something wrong" with her knee during this time. In July 2008, Dr. Brandt performed a third knee surgery on Wilson after she fell and reinjured her left knee meniscus.

         ¶5 Dr. Brandt's notes from a September 2008 appointment state that Wilson was "starting to have some nerve type pain." The notes go on to say that he told Wilson that she would "get better and the nerve pain will burn out." At Wilson's appointment on October 8, 2008, Dr. Brandt noted that Wilson "continue[d] to struggle" and that "I have discussed with the patient that I am really not certain what is going on" and that she was "not within the bell curve of normalcy" for recovery after an ACL surgery. He ordered an MRI to rule out "internal derangement." In his notes reviewing the October 2008 MRI, Dr. Brandt stated that he "continue[d] to diagnose this as complex regional pain syndrome"-also known as reflex sympathetic dystrophy (RSD)-that "will eventually burn out." Wilson testified that sometime during this period Dr. Brandt told her that RSD developed because "he did too many surgeries in a short period of time."

         ¶6 Over the next several months, Wilson met with Ann Ingraham, a nurse practitioner at FVOC, and continued to report knee pain to her. On January 13, 2009, Ingraham ordered another MRI to investigate the pain. Upon review of the MRI, Dr. Brandt noted that Wilson continued to report a "significant amount of nerve pain, " but he saw "no interval change" since the last MRI. He believed additional surgical intervention would be inappropriate based on what he saw in the MRI. Wilson, meanwhile, continued to report pain to her healthcare providers. After another MRI on June 25, 2009, Dr. Brandt repeated his recommendation that further surgical intervention would be inappropriate. In September 2009, Wilson's workers' compensation insurance stopped authorizing further treatment from FVOC providers. She was referred from FVOC to Montana Center for Wellness & Pain Management on November 3, 2009, to manage her pain.

         ¶7 In June 2010, providers at the Montana Center referred Wilson to Dr. James Blasingame, an orthopedic surgeon with Northwest Orthopedics and Sports Medicine, for a second opinion about her continuing knee pain. Dr. Blasingame wrote in his notes from her initial appointment that he did not think Wilson had RSD and ordered another MRI. At the July 26, 2010 appointment to discuss the results of the MRI, Dr. Blasingame noted "a somewhat unusual tibial tunnel" and a possible need for surgical intervention. After gathering other opinions, Dr. Blasingame met with Wilson again on September 10, 2010, and recommended surgical intervention to bone graft the tibial tunnel. He noted he was "unclear as to the exact reason for her knee discomfort. Certainly, the patient's study is quite abnormal with the course of the graft and the subchondral support being compromised by the graft." On December 7, 2010, he noted: "The thought of bone grafting [the tibial tunnel] was an effort to decrease her pain, obviously, but the pain may well be multifactorial as fully outlined in the chart."

         ¶8 The Montana State Fund sent Wilson to get another opinion from Dr. Michael J. Schutte on January 25, 2011. Upon review of her MRI and medical records, Dr. Schutte noted an "anterior impingement of ACL graft tissue related to aberrant tunnel placement" and suggested a two-stage surgical intervention. Wilson attested in an affidavit: "I did not know that Dr. Brandt messed up my surgery until I met with Dr. Schutte." Dr. Blasingame agreed with Dr. Schutte's ...

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