Montana Medical Malpractice Complaint

COMPLAINT FOR MEDICAL MALPRACTICE AND DEMAND FOR JURY TRIAL

IN THE [____________________] JUDICIAL DISTRICT COURT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF [____________________]

Cause No. DV-[____________________]

Hon. [____________________], Presiding

COMPLAINT AND DEMAND FOR JURY TRIAL

COMES NOW Plaintiff, [PLAINTIFF FULL LEGAL NAME], by and through undersigned counsel, and for causes of action against the above-named Defendants, alleges and states as follows:

I. PARTIES

1. Plaintiff [PLAINTIFF FULL LEGAL NAME] is, and at all times relevant hereto was, a resident of [____________________] County, State of Montana, residing at [____________________________________].

2. Defendant [DEFENDANT PHYSICIAN NAME], M.D. (hereinafter "Defendant Physician") is, upon information and belief, a physician licensed to practice medicine in the State of Montana under license number [____________________], with a principal place of practice at [____________________________________] in [____________________] County, Montana.

3. Defendant [DEFENDANT HOSPITAL / CLINIC NAME] (hereinafter "Defendant Facility") is, upon information and belief, a [hospital / clinic / health care facility] organized and existing under the laws of the State of Montana, with its principal place of business located at [____________________________________] in [____________________] County, Montana.

4. At all times relevant hereto, Defendant Physician was an employee, agent, apparent agent, ostensible agent, or independent contractor of Defendant Facility, acting within the course and scope of such employment or agency, such that Defendant Facility is vicariously liable for the acts and omissions of Defendant Physician under the doctrines of respondeat superior, apparent agency, and ostensible agency.

5. Defendants JOHN AND JANE DOES 1–10 are individuals, health care providers, employers, employees, agents, or entities whose true identities are presently unknown to Plaintiff but who are believed to have participated in the negligent acts and omissions described herein. Plaintiff will move to amend this Complaint to substitute their true names when ascertained.

II. JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction pursuant to Article VII, Section 4 of the Montana Constitution and Mont. Code Ann. § 3-5-302 because the amount in controversy exceeds the jurisdictional minimum and because this is a civil action arising under the laws of the State of Montana.

7. Venue is proper in this Court pursuant to Mont. Code Ann. § 25-2-122 because the cause of action arose in [____________________] County, Montana, and/or because one or more Defendants reside or maintain a principal place of business in [____________________] County.

8. This Court has personal jurisdiction over each Defendant because each Defendant resides in, transacts business in, and/or committed tortious acts within the State of Montana giving rise to the claims asserted herein.

III. CONDITION PRECEDENT — MONTANA MEDICAL LEGAL PANEL REVIEW

9. Pursuant to the Montana Medical Legal Panel Act, Mont. Code Ann. § 27-6-101 et seq., Plaintiff submitted this malpractice claim to the Montana Medical Legal Panel ("MLP") prior to filing this Complaint, as required by Mont. Code Ann. §§ 27-6-105 and 27-6-301.

10. Plaintiff filed an Application for Review with the MLP on [__/__/____], MLP Case No. [____________________], naming each of the above-captioned Defendants and presenting the malpractice claim asserted herein.

11. On [__/__/____], the Montana Medical Legal Panel rendered its decision in the matter. A true and correct copy of the MLP decision letter is attached hereto as Exhibit A and incorporated by reference.

12. Pursuant to Mont. Code Ann. § 27-6-702, the running of the statute of limitations was tolled upon the MLP's receipt of the Application for Review and resumed thirty (30) days after the MLP's decision. This Complaint is timely filed within the limitations period as so tolled.

13. All conditions precedent to the filing of this action under the Montana Medical Legal Panel Act have been satisfied, waived, or excused.

IV. FACTUAL ALLEGATIONS

14. On or about [__/__/____], Plaintiff sought medical care from Defendant Physician at Defendant Facility for [____________________________________________________________].

15. At the time Plaintiff presented for care, Plaintiff's relevant medical history included: [____________________________________________________________].

16. Defendant Physician undertook the medical care and treatment of Plaintiff, and a physician–patient relationship was thereby established, giving rise to a duty of care running from Defendant Physician to Plaintiff under Montana law.

17. Defendant Facility, through its credentialing, staffing, supervision, equipment, and/or institutional policies, owed Plaintiff an independent and/or vicarious duty of reasonable care.

18. Between [__/__/____] and [__/__/____], Defendants undertook the following diagnostic, therapeutic, surgical, and/or follow-up acts and omissions: [____________________________________________________________].

19. Specifically, Defendants negligently failed to:

☐ Timely and accurately diagnose [____________________];
☐ Order appropriate diagnostic testing, including [____________________];
☐ Recognize and respond to [____________________];
☐ Obtain timely consultation with [specialty: ____________________];
☐ Obtain Plaintiff's informed consent for [procedure: ____________________];
☐ Provide appropriate post-procedure monitoring, including [____________________];
☐ Communicate critical findings to Plaintiff and/or treating providers;
☐ Timely refer Plaintiff to a higher level of care; and/or
☐ [Other: ____________________________________________________________________________________].

20. As a direct and proximate result of Defendants' acts and omissions, Plaintiff suffered the following injuries: [____________________________________________________________].

21. Plaintiff first discovered, or through the exercise of reasonable diligence should have discovered, the injury and its causal connection to Defendants' conduct on or about [__/__/____].

V. CAUSE OF ACTION I — MEDICAL NEGLIGENCE (Defendant Physician)

22. Plaintiff incorporates by reference paragraphs 1 through 21 above as though fully set forth herein.

23. Defendant Physician owed Plaintiff a duty to exercise the degree of skill, care, and learning ordinarily possessed and exercised by physicians of the same specialty in good standing under the same or similar circumstances, as recognized under Montana law.

24. Defendant Physician breached the applicable standard of care in one or more of the particulars set forth in Paragraph 19 above.

25. As a direct and proximate result of Defendant Physician's breach of the standard of care, Plaintiff suffered injuries and damages as set forth herein.

VI. CAUSE OF ACTION II — VICARIOUS LIABILITY / RESPONDEAT SUPERIOR (Defendant Facility)

26. Plaintiff incorporates by reference paragraphs 1 through 25 above as though fully set forth herein.

27. At all times relevant hereto, Defendant Physician and other health care providers whose conduct contributed to Plaintiff's injuries were employees, agents, apparent agents, or ostensible agents of Defendant Facility, acting within the course and scope of their employment or agency.

28. Defendant Facility is vicariously liable for the negligent acts and omissions of its employees and agents, including Defendant Physician, under the doctrines of respondeat superior, apparent agency, and ostensible agency.

VII. CAUSE OF ACTION III — INSTITUTIONAL / CORPORATE NEGLIGENCE (Defendant Facility)

29. Plaintiff incorporates by reference paragraphs 1 through 28 above as though fully set forth herein.

30. Defendant Facility owed Plaintiff an independent, non-delegable duty to exercise reasonable care in:

☐ Credentialing and privileging health care providers;
☐ Adequately staffing the facility, including nursing and ancillary personnel;
☐ Promulgating, implementing, and enforcing appropriate policies and procedures;
☐ Maintaining safe and properly functioning equipment;
☐ Supervising trainees, residents, and other personnel; and
☐ Reviewing and acting upon known patient-safety risks.

31. Defendant Facility breached one or more of these institutional duties in the following particulars: [____________________________________________________________].

32. As a direct and proximate result of Defendant Facility's institutional negligence, Plaintiff suffered injuries and damages as set forth herein.

VIII. CAUSE OF ACTION IV — LACK OF INFORMED CONSENT

33. Plaintiff incorporates by reference paragraphs 1 through 32 above as though fully set forth herein.

34. Prior to performing [procedure: ____________________] on Plaintiff, Defendant Physician owed Plaintiff a duty to disclose information that a reasonable patient would consider material to the decision whether to undergo the procedure, including the nature of the procedure, the material risks and complications, reasonable alternatives, and the risks of foregoing the procedure.

35. Defendant Physician failed to disclose the following material information: [____________________________________________________________].

36. Had Plaintiff been adequately informed of the foregoing material information, a reasonable patient in Plaintiff's position would not have consented to the procedure.

37. As a direct and proximate result of Defendant Physician's failure to obtain informed consent, Plaintiff suffered injuries and damages as set forth herein.

IX. DAMAGES

38. As a direct and proximate result of Defendants' negligent acts and omissions, Plaintiff has suffered, and will continue to suffer, the following damages, in amounts to be proven at trial:

☐ Past and future medical, hospital, surgical, rehabilitative, and pharmaceutical expenses;
☐ Past and future lost wages and lost earning capacity;
☐ Past and future physical pain, suffering, and disability;
☐ Past and future mental and emotional distress;
☐ Past and future loss of enjoyment of life;
☐ Past and future loss of household services;
☐ Disfigurement and scarring;
☐ Other economic and noneconomic damages to be proven at trial.

39. Plaintiff acknowledges that any award for noneconomic loss is subject to the limitation set forth in Mont. Code Ann. § 25-9-411 to the extent constitutionally applicable.

40. Joint and several liability has been substantially abolished in Montana by Mont. Code Ann. § 27-1-703; Plaintiff seeks apportionment of fault among all parties consistent with that statute.

X. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally to the extent permitted by Mont. Code Ann. § 27-1-703, as follows:

1. For special (economic) damages in an amount to be proven at trial;
2. For general (noneconomic) damages in an amount to be proven at trial, subject to applicable statutory limitations;
3. For prejudgment and post-judgment interest as allowed by Mont. Code Ann. §§ 27-1-210 and 25-9-205;
4. For costs of suit incurred herein;
5. For reasonable attorney's fees to the extent recoverable by statute or contract; and
6. For such other and further relief as the Court deems just and equitable.

DEMAND FOR JURY TRIAL

Pursuant to Mont. R. Civ. P. 38 and Article II, Section 26 of the Montana Constitution, Plaintiff demands a trial by jury on all issues so triable.

DATED this [____] day of [____________________], 20[____].

[LAW FIRM NAME]

By: ______________________________________
[ATTORNEY FULL NAME], Esq.
Montana State Bar No. [____________]
[Firm Address]
[City, MT ZIP]
Telephone: [(___) ___-____]
Facsimile: [(___) ___-____]
Email: [____________________]

Attorney for Plaintiff

VERIFICATION

STATE OF MONTANA
COUNTY OF [____________________] ss.

I, [PLAINTIFF FULL LEGAL NAME], being first duly sworn upon oath, depose and state that I am the Plaintiff in the above-entitled action; that I have read the foregoing Complaint and Demand for Jury Trial; and that the matters stated therein are true to the best of my knowledge, except those matters stated upon information and belief, which I believe to be true.

______________________________________
[PLAINTIFF FULL LEGAL NAME]

SUBSCRIBED AND SWORN to before me this [____] day of [____________________], 20[____].

______________________________________
Notary Public for the State of Montana
Residing at: [____________________]
My Commission Expires: [__/__/____]

[NOTARIAL SEAL]

EXHIBIT LIST

• Exhibit A — Montana Medical Legal Panel Decision Letter, MLP Case No. [____________]
• Exhibit B — [____________________]
• Exhibit C — [____________________]

MONTANA-SPECIFIC PRACTICE NOTES

Medical Legal Panel (Mont. Code Ann. § 27-6-101 et seq.). Submission to the MLP is a JURISDICTIONAL prerequisite to filing in any Montana state or federal district court. The panel under § 27-6-401 sits as six members — typically three physicians and three attorneys for physician-only claims, with substitutions for dentists, podiatrists, or facility administrators based on the defendants named. The panel decision is advisory only and is not admissible at trial.

Statute of Limitations / Repose (Mont. Code Ann. § 27-2-205). Three (3) years from the date of injury or from the date the plaintiff discovered or reasonably should have discovered the injury, whichever is later, with an outer five-year statute of repose from the date of injury. The repose is subject to a fraudulent-concealment exception. Special tolling rules apply to minors and persons of unsound mind.

MLP Tolling (Mont. Code Ann. § 27-6-702). The limitations period is tolled from MLP receipt of the Application for Review until thirty (30) days after the MLP's final decision.

Noneconomic Damages Cap (Mont. Code Ann. § 25-9-411). Awards for past and future noneconomic loss are capped at $250,000 per claim arising from a single incident of malpractice, with statutory adjustments to the cap amount in subsequent years — verify the current cap before trial.

Several Liability (Mont. Code Ann. § 27-1-703). Joint and several liability is substantially abolished. Defendants whose negligence is determined to be 50% or less of the combined negligence of all persons are severally liable only.

Apology Statute (Mont. Code Ann. § 26-1-814). Statements of apology, sympathy, commiseration, condolence, compassion, or general benevolence are not admissible as evidence of admission of liability in a medical malpractice action.

Common Venues. Yellowstone County (13th Judicial District — Billings); Cascade County (8th Judicial District — Great Falls); Missoula County (4th Judicial District — Missoula); Lewis and Clark County (1st Judicial District — Helena); Gallatin County (18th Judicial District — Bozeman).

SOURCES AND REFERENCES

• Mont. Code Ann. § 25-9-411 — Medical malpractice noneconomic damages limitation
• Mont. Code Ann. § 27-2-205 — Actions for medical malpractice
• Mont. Code Ann. §§ 27-6-101 to 27-6-704 — Montana Medical Legal Panel Act
• Mont. Code Ann. § 27-6-301 — How cases submitted
• Mont. Code Ann. § 27-6-401 — Composition of panel
• Mont. Code Ann. § 27-6-606 — Findings of panel — admissibility
• Mont. Code Ann. § 27-6-702 — Tolling of statute of limitations
• Mont. Code Ann. § 27-1-703 — Multiple defendants — determination of liability
• Mont. Code Ann. § 26-1-814 — Apology — inadmissible
• Newville v. State, Dep't of Family Servs., 267 Mont. 237 (1994)
• Rules of Procedure for the Montana Medical Legal Panel (Mont. Sup. Ct.)
• Mont. R. Civ. P. 8, 9, 10, 11, 38