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Demoney v. Kaufman

Supreme Court of Montana

August 13, 2019

ANDREW DEMONEY, Plaintiff and Appellant,
v.
RAYMOND A. KAUFMAN, M.D., Defendant and Appellee.

          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

          For Appellant: Wade J. Dahood, Jeffrey W. Dahood, Knight & Dahood, Anaconda, Montana

          For Appellee: J. Daniel Hoven, Carlo J. Canty, Browning, Kaleczyc, Berry & Hoven, Helena, Montana

          OPINION

          Ingrid Gustafson, 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 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.

         ¶3 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.

         ¶4 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.

         ¶5 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 insurance.

         ¶6 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 913.

         ¶7 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.

         ¶8 "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).

         ¶9 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 ...


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