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Griffin v. Lewis

Supreme Court of Montana

April 16, 2019

JANICE GRIFFIN, M.D., Plaintiff and Appellant,
RICHARD LEWIS, D.O. and MARK NICHOLS, M.D., Defendants and Appellees.

          Submitted on Briefs: February 27, 2019

          APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DV 16-049 Honorable Olivia C. Rieger, Presiding Judge

          For Appellant: John C. Doubek, Doubek, Pyfer & Storrar, PC, Helena, Montana For Appellee Richard Lewis, D.O.:

          Lisa A. Speare, William J. Speare, Speare Law Firm, PC, Billings, Montana For Appellee Mark Nichols, M.D.:

          John J. Russell, Brown Law Firm, PC, Billings, Montana


          Beth Baker, Justice.

         ¶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 Janice Griffin, M.D., appeals the summary judgment dismissal of her medical malpractice claim against Richard Lewis, D.O., and Mark Nichols, M.D., entered by the Seventh Judicial District Court, Dawson County, on grounds that Dr. Griffin's disclosed expert lacked proper qualifications to render opinions on the standard of care. We affirm.

         ¶3 Dr. Griffin worked in Glendive, Montana, as a board-certified internist. In June 2013, Dr. Griffin discussed not feeling well with her colleague, Dr. Nichols, a board-certified surgeon. Dr. Griffin reported feeling bloated and constipated and experiencing pelvic pressure. Dr. Nichols ordered an abdominal CT scan and stated in his office notes that a "colonoscopy may be indicated for possible identification of an obstructing lesion of the colon causing your symptoms." Dr. Griffin had moved to Helena for a new position by the time the scan was signed by a radiologist and available for review. Prior to moving, Dr. Griffin spoke with another colleague, Dr. Lewis, a board-certified OB-GYN, about her physical symptoms. Dr. Lewis ordered an ultrasound of her pelvis and related the results of the report to Dr. Griffin. Neither Dr. Nichols nor Dr. Lewis diagnosed Dr. Griffin with cancer.

         ¶4 Nine months later, Dr. Griffin was evaluated by several different physicians in Helena, none of whom diagnosed her with cancer. Dr. Griffin decided to travel to Michigan, where she underwent surgical diagnosis that revealed Stage IV uterine cancer. In April 2016, Dr. Griffin filed suit against Dr. Lewis and Dr. Nichols alleging that the care she received was substandard and negligent because the doctors did not make a recommendation for a colonoscopy. Dr. Griffin maintained that if Dr. Nichols had performed a colonoscopy and Dr. Lewis had performed a gynecological pelvic exam and/or a colonoscopy, her cancer diagnosis would have been made earlier and led to a Stage I diagnosis rather than a Stage IV diagnosis.

         ¶5 Dr. Griffin disclosed Dr. Anna C. Beck as the only witness who would supply the requisite standard of care testimony as to both Dr. Nichols and Dr. Lewis. The Defendants deposed Dr. Beck and asked numerous questions about her qualifications. Dr. Beck testified that she is board-certified in internal medicine, medical oncology, and hospice and palliative care. She explained that palliative care is not limited to cancer but includes "providing support structures for people with serious illnesses," citing rheumatoid arthritis as an example. Dr. Beck testified that she teaches courses at the University of Utah on oncology and palliative medicine. Dr. Beck confirmed that she does not perform evaluations or work-ups of patients with abdominal complaints who are not already oncology or palliative patients. She testified that she does not perform colonoscopies or pelvic examinations routinely as part of her practice. Plaintiff's counsel did not question Dr. Beck during the deposition to develop additional information regarding her qualifications.

         ¶6 Dr. Nichols and Dr. Lewis concurrently filed motions for summary judgment, alleging that judgment was appropriate as a matter of law because Dr. Beck is not qualified to testify to the appropriate standards of care, departure from those standards, and causation. The District Court granted Dr. Nichols and Dr. Lewis summary judgment, concluding that Dr. Beck lacked the requisite knowledge, training, experience, and/or education to render her qualified to offer expert testimony regarding the standard of care of a board-certified general surgeon or a board-certified OB-GYN. The District Court reasoned that Dr. Beck's specialties are not substantially similar to that of either Dr. Nichols or Dr. Lewis as required by § 26-2-601(3), MCA.

         ¶7 On appeal, Dr. Griffin argues that Dr. Beck's credentials satisfy the statutory requirements for expert testimony in a medical malpractice case because the medical area in which Dr. Beck is routinely involved and the symptoms with which Dr. Griffin presented intersect the medical backgrounds of the Defendants.

         ¶8 We review summary judgment rulings de novo, applying the criteria of M. R. Civ. P. 56. Melton v. Speth, 2018 MT 212, ¶ 5, 392 Mont. 409, 425 P.3d 700. We generally review the exclusion of expert witness testimony for abuse of discretion. McColl v. Lang, 2016 MT 255, ¶ 7, 385 Mont. 150, 381 P.3d 574. When the trial court excludes an expert based on its ...

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