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Steffensmier v. Huebner

Supreme Court of Montana

July 17, 2018

KELLEY STEFFENSMIER as Personal Representative of the ESTATE OF DAVID C. BUSHONG, and KELLEY STEFFENSMIER, LACEY BUSHONG, JUSTUS BUSHONG, and CAYLEY BUSHONG, Plaintiffs and Appellants,
v.
DAVID B. HUEBNER, D.P.M., and GREAT FALLS CLINIC, Defendants and Appellees.

          Submitted on Briefs: May 16, 2018

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DV 10-402 Honorable Kurt Krueger, Presiding Judge

          For Appellants: Nathan J. Hoines, Zachary D. Kitchin, Michael R. Tramelli, Attorney at Law,

          For Appellees: Peter J. Stokstad, Elizabeth L. Hausbeck, Leah T. Handelman, Garlington, Lohn & Robinson, PLLP,

          OPINION

          BETH BAKER JUSTICE

         ¶1 In December 2006, David Bushong saw Dr. David Huebner for a soft-tissue mass on the bottom of his foot, which Dr. Huebner diagnosed as a benign ganglion cyst. Months later, a different provider referred Bushong to the University of Washington Medical Center, where the mass was diagnosed as a rare and aggressive cancer. Bushong died from the cancer in March 2009. His estate, widow, and children (Plaintiffs) filed suit against Dr. Huebner and the Great Falls Clinic, alleging medical malpractice. After a nine-day trial, a Cascade County jury found that Dr. Huebner was not negligent in his treatment of Bushong. Plaintiffs appeal.

         ¶2 Upon consideration of the following issues, we affirm.

         1.Whether Plaintiffs are entitled to a new trial because the District Court refused to instruct the jury on loss of chance pursuant to § 27-1-739, MCA;

         2.Whether the District Court abused its discretion by prohibiting Plaintiffs from asking Bushong's treating physician Dr. Ronald Ray whether Dr. Huebner breached the applicable standard of care and by limiting Plaintiffs' impeachment of Dr. Ray on redirect;

         3. Whether the District Court manifestly abused its discretion by denying

         Plaintiffs' motion for a new trial because of defense counsel's misconduct during trial.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 Bushong's primary care provider referred him to Dr. Huebner, a podiatrist, for evaluation of a soft-tissue mass on the bottom of his right foot. Dr. Huebner saw Bushong for two appointments in December 2006. At the first appointment, Dr. Huebner conducted a physical examination of the mass and reviewed previously ordered x-ray and MRI scans. He diagnosed Bushong with a probable ganglion cyst-a benign, noncancerous condition. He discussed treatment options with Bushong, including surgically removing the cyst or aspirating it to remove the fluid. Bushong opted for aspiration at the first appointment. Dr. Huebner inserted a needle into the mass and aspirated twenty-six milliliters of bloody fluid with a watery consistency. Dr. Huebner sent twelve milliliters to the lab to test for infection. He did not send a sample of the fluid for cytological analysis and did not biopsy the mass. He explained to Bushong that he was not sure this was a ganglion cyst because the fluid was bloody, but that the bloody component may have been caused by Bushong's blood thinning medication. Because Dr. Huebner was concerned that the mass may be caused by an infection rather than a ganglion cyst, he did not give Bushong a cortisone injection.

         ¶4 After the lab report came back showing no infection, Dr. Huebner had a follow-up appointment with Bushong. At the follow-up appointment, Dr. Huebner discussed surgical removal of the mass. Dr. Huebner informed Bushong that the mass was a benign ganglion cyst and that surgery was not emergent. They did not schedule a surgery at that appointment.

         ¶5 About five months later, Bushong saw Dr. Ray, another podiatrist, about the soft- tissue mass. Dr. Ray ordered a new MRI scan. After reviewing the results, he referred Bushong to the University of Washington Medical Center without biopsying the mass out of concern that the new MRI showed signs of potential malignancy. Healthcare providers at the University of Washington Medical Center later diagnosed ...


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