Submitted on Briefs: June 26, 2019
District Court of the Second Judicial District, In and For
the County of Butte-Silver Bow, Cause No. DV-15-413 Honorable
Brad Newman, Presiding Judge
Appellant: Wade J. Dahood, Jeffrey W. Dahood, Knight &
Dahood, Anaconda, Montana
Appellee: J. Daniel Hoven, Carlo J. Canty, Browning,
Kaleczyc, Berry & Hoven, Helena, 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
Plaintiff and Appellant Andrew DeMoney (DeMoney) appeals
following a jury trial in the Second Judicial District Court,
Butte-Silver Bow County, which returned a verdict in favor of
the Defendant and Appellee, Dr. Raymond A. Kaufman, M.D. (Dr.
Kaufman). We affirm.
On June 7, 2013, Dr. Kaufman performed a sinus surgery and
tonsillectomy on DeMoney at St. James Hospital in Butte. Dr.
Kaufman successfully completed the sinus procedure before
beginning the tonsillectomy. During the tonsillectomy,
DeMoney started bleeding uncontrollably. After initially
attempting to stop the bleeding using pressure, Dr. Kaufman
ultimately performed a ligation on DeMoney's external
carotid artery to stop the bleeding. After the surgery,
DeMoney suffered an embolic stroke. DeMoney was taken to
Missoula to recover after the stroke and has since suffered
from speech and other health problems.
In December 2015, DeMoney filed the instant lawsuit against
Dr. Kaufman, alleging that Dr. Kaufman caused DeMoney's
injuries through negligence in performing the tonsillectomy.
Before trial, DeMoney filed a motion for summary judgment on
the issue of liability and a motion in limine to disclose Dr.
Kaufman's insurance to the jury. The District Court
denied both motions. The matter proceeded to a jury trial
from April 9-13, 2018. At the close of evidence, Dr. Kaufman
moved for a directed verdict regarding the issue of informed
consent. The District Court granted Dr. Kaufman's motion
for a directed verdict on that issue, and DeMoney then
withdrew his proposed jury instructions regarding informed
consent. The jury later returned a unanimous verdict finding
that Dr. Kaufman was not negligent.
DeMoney now appeals three decisions of the District Court:
(1) the denial of DeMoney's motion for summary judgment;
(2) the refusal to give DeMoney's proposed jury
instructions regarding informed consent; and (3) the denial
of DeMoney's motion in limine regarding Dr. Kaufman's
We review summary judgment orders de novo, performing the
same M. R. Civ. P. 56 analysis as the district court. Ray
v. Connell, 2016 MT 95, ¶ 9, 383 Mont. 221, 371
P.3d 391. Summary judgment is appropriate only when no
genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Hughes v.
Lynch, 2007 MT 177, ¶ 8, 338 Mont. 214, 164 P.3d
DeMoney moved for summary judgment regarding liability before
trial, arguing that Dr. Kaufman had not contested that he was
medically negligent in performing the tonsillectomy. Dr.
Kaufman responded that DeMoney's argument was incorrect,
and that he had argued-and presented expert testimony
demonstrating-that he had met the standard of care required
in performing the surgery. The District Court ruled that
genuine issues of material fact existed and denied
DeMoney's motion for summary judgment.
"It is well settled Montana law that the plaintiff in a
medical malpractice action must establish the following
elements: (1) the applicable standard of care, (2) the
defendant departed from that standard of care, and (3) the
departure proximately caused plaintiff's injury."
Estate of Willson v. Addison, 2011 MT 179, ¶
17, 361 Mont. 269, 258 P.3d 410 (citation omitted). Expert
testimony is required to establish these elements. Labair
v. Carey, 2012 MT 312, ¶ 29, 367 Mont. 453, 291
P.3d 1160 (citing Estate of Willson, ¶ 17).
Because expert testimony is required to establish negligence
in medical malpractice cases, summary judgment is rarely
proper. In this case, each party presented expert testimony
regarding the standard of care. Dr. Kaufman's expert, Dr.
Michael Olds, testified at his deposition that Dr. Kaufman
met the standard of care required in performing the
tonsillectomy. Dr. Derek Mittledeier and Dr. Lawrence Clarke,
DeMoney's experts, testified at their depositions that
Dr. Kaufman did not meet the required standard of care.
Presented with these differing expert medical opinions
regarding the standard of care, the District ...