Submitted on Briefs: February 27, 2019
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
Appellant: John C. Doubek, Doubek, Pyfer & Storrar, PC,
Helena, Montana For Appellee Richard Lewis, D.O.:
A. Speare, William J. Speare, Speare Law Firm, PC, Billings,
Montana For Appellee Mark Nichols, M.D.:
J. Russell, Brown Law Firm, PC, Billings, Montana
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
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.
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.
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.
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.
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.
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
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 ...