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,
DAVID B. HUEBNER, D.P.M., and GREAT FALLS CLINIC, Defendants and Appellees.
Submitted on Briefs: May 16, 2018
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
Appellants: Nathan J. Hoines, Zachary D. Kitchin, Michael R.
Tramelli, Attorney at Law,
Appellees: Peter J. Stokstad, Elizabeth L. Hausbeck, Leah T.
Handelman, Garlington, Lohn & Robinson, PLLP,
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.
Upon consideration of the following issues, we affirm.
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;
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;
Whether the District Court manifestly abused its discretion
motion for a new trial because of defense counsel's
misconduct during trial.
AND FACTUAL BACKGROUND
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.
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.
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