B.J. v. Shultz

• Decision Date: 21 July 2009
• Docket Number: No. DA 08-0215.,DA 08-0215.
• Citation: 214 P.3d 772,351 Mont. 436,2009 MT 245
• Parties: B.J. and J.J., Individually and on behalf of E.J., a minor, Plaintiffs and Appellants, v. Keith SHULTZ, M.D., Gary Mermel, M.D.; Anesthesia Partners of Montana, Defendants and Appellees.
• Court: Montana Supreme Court

214 P.3d 772

2009 MT 245

351 Mont. 436

B.J. and J.J., Individually and on behalf of E.J., a minor, Plaintiffs and Appellants, v.Keith SHULTZ, M.D., Gary Mermel, M.D.; Anesthesia Partners of Montana, Defendants and Appellees.

No. DA 08-0215.

Supreme Court of Montana.

Submitted on Briefs March 4, 2009.

Decided July 21, 2009.

For Appellants: Monte D. Beck, John Lyman Amsden; Beck & Amsden PLLC; Bozeman, Montana.

For Appellees: Gary Kalkstein; Kalkstein & Johnson, P.C.; Missoula, Montana (for Gary Mermel, M.D.), John J. Russell; Brown Law Firm, P.C.; Billings, Montana (for Keith Shultz, M.D.), Mark S. Williams; Missoula, Montana (for Anesthesia Partners of Montana, P.C.).

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 B.J., J.J., and E.J. (collectively "the J.'s") appeal the order of the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment in favor of Keith Shultz, M.D., Gary Mermel, M.D., and Anesthesia Partners of Montana (collectively "the AP defendants") on the J.'s medical negligence claim.The J.'s also appeal the District Court's decision to allow the AP defendants to proceed with a non-party defense under § 27-1-703, MCA.We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In June, 2005, the J.'s entered Saint Vincent Hospital to deliver twins.At approximately 3:36, J.J. (the mother) requested a spinal epidural.¹Dr. Shultz was paged, and administered the epidural.Before leaving J.J.'s birthing suite, Dr. Shultz and Dr. Dahl (the J.'s Obstetrician) agreed that Dahl would notify Shultz when J.J. entered Stage II of labor and moved to the operating room for delivery.(Because of the increased potential of complications requiring an emergency cesarean section(c-section) during twin deliveries, hospital protocol required that all twin deliveries take place in an operating room.)The accepted standard of care and AP policy required that an anesthesiologist be "physically present" or "available immediately in the presence of the mother" at Stage II of labor for all twin births.Therefore, it is standard procedure that an anesthesiologist is paged when the laboring mother is moved to the operating room, whether or not the need for their services has arisen.Due to an internal communication error between Dr. Dahl and the unit clerk, Dr. Shultz was not paged when J.J. was moved to the operating room at approximately 4:48.

¶ 3 Dr. Shultz was the "first call" anesthesiologist on the day J.J. was in labor.As first call anesthesiologist, Shultz was responsible for directing the other on-call anesthesiologists to the various places they were needed.The hospital staff, including the labor and delivery ward, was provided the name of the first and second call anesthesiologist each day.It was standard protocol that hospital staff would page the first call anesthesiologist when an anesthesiologist was needed, and he would determine which anesthesiologist reported for that procedure.However, the second call anesthesiologist's pager number was provided to the labor and delivery staff in the event the first call anesthesiologist did not respond to the page.On the day in question, Dr. Reitz was the second call anesthesiologist, and Dr. Mermel was the fourth call anesthesiologist.

¶ 4 When J.J. was moved to the operating room for delivery, Dr. Shultz was not attending a procedure.It was AP's policy that the fourth call doctor, here Dr. Mermel, had the option of having the first call doctor relieve him in whatever procedure he was attending.The fourth call doctor would then cover the labor and delivery ward.It was AP's policy that the anesthesiologist covering labor and delivery could leave the hospital, so long as he could return to the hospital within a half hour of being paged.Dr. Mermel therefore chose to have Dr. Shultz relieve him in a complex back surgery.Dr. Shultz relieved Dr. Mermel at approximately 5:10, and gave him the status of the patients in labor and delivery, including J.J.Several laboring mothers had epidurals administered, including J.J.Dr. Mermel left the hospital at approximately 5:25, without personally checking the status of the laboring mothers with epidurals administered.The second call doctor, Reitz, came out of surgery at approximately 5:06, and was in the doctors' lounge thereafter.

¶ 5 J.J. uneventfully delivered the first twin at approximately 5:06.A few minutes later, the second twin's cord prolapsed.A prolapsed cord can become an obstetric emergency requiring a c-section.At approximately 5:18 (5:21), the labor and delivery staff placed a page to Dr. Shultz, to which he did not respond.Shultz maintains he did not receive the page.Although the labor and delivery staff was provided with the second call doctor's pager number in the event the first call doctor did not promptly respond to a page, they did not call Dr. Reitz when Dr. Shultz failed to respond to the page.Rather, the staff waited approximately seven minutes, and paged Dr. Shultz again, at 5:25 (5:28).Shultz did receive this page.There is varying testimony regarding whether the labor and delivery staff conveyed a sense of urgency to Shultz at that time—Shultz maintains he assumed the 5:28 page was simply to inform him that J.J. had moved into the operating room for delivery.Shultz contacted Mermel at approximately 5:26 (5:29), and they agreed Mermel would return to the hospital.At 5:30 (5:33), Dr. Dahl began an emergency c-section, without anesthesia present.At 5:31 (5:34), the labor and delivery staff paged Dr. Reitz, who had been in the doctors' lounge since he came out of a surgery at 5:06.He administered anesthesia to J.J. approximately two minutes after receiving the page.The second twin was born with severe brain damage, including cerebral palsy, related to prolonged hypoxia resulting from the prolapsed cord.

¶ 6 The J.'s filed suit against the hospital, Dr. Dahl and her practice group, and Dr.'s Shultz and Mermel and their practice group, AP, alleging medical negligence.The AP defendants raised two relevant affirmative defenses: 1) that the J.'s injury was due to acts or events unrelated to the care and treatment provided by AP; and 2) that AP has "rights and remedies under § 27-1-703, MCA, regarding persons who have settled with Plaintiffs."Approximately 10 months before trial, Dr. Dahl and her practice group offered to settle with the J.'s for full insurance policy limits.The J.'s accepted the offer on the eve of trial, and therefore withdrew their expert obstetrician.The District Court allowed AP to proceed with a non-party claim under § 27-1-703, MCA, over the J.'s objection, ruling that it would allow the jury to consider Dr. Dahl's conduct when allocating fault among the parties.The court vacated the trial date, and re-opened discovery in order to allow AP to conduct additional discovery and designate experts to support their settled party defense.The J.'s sought a writ of supervisory control from this Court, seeking reversal of the District Court's decision allowing AP to pursue a non-party defense.We declined to exercise supervisory control.

¶ 7 Just prior to trial, upon AP's motion for reconsideration, the District Court granted summary judgment in favor of AP, concluding the J.'s expert anesthesiologist (Dr. Sheren) failed to establish that the anesthesiologists deviated from any applicable standard of medical care.The District Court also concluded Dr. Sheren's deposition testimony did not create issues of material fact sufficient to preclude summary judgment.This appeal followed.

¶ 8We restate the issues on appeal as follows:

¶ 9 Did the District Court err in granting summary judgment to the AP defendants?

¶ 10 Did the District Court err in its application of § 27-1-703, MCA, or in the alternative, is the statute unconstitutional as applied?

STANDARD OF REVIEW

¶ 11We review a district court's summary judgment ruling de novo.Town and Country Foods, Inc. v. City of Bozeman,2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283.We review a district court's rulings on discovery motions and trial scheduling for abuse of discretion.In re S.C.,2005 MT 241, ¶ 16, 328 Mont. 476, 121 P.3d 552.To the extent the court's rulings are based on statutory interpretation, our review is de novo.In re C.D.H.,2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126.

DISCUSSION

¶ 12 Did the District Court err in granting summary judgment to the AP defendants?

¶ 13 In order to survive a motion for summary judgment in a negligence action, the plaintiff must raise genuine issues of material fact with regard to a legal duty on the part of the defendant, breach of that duty, causation, and damages.Butler v. Domin,2000 MT 312, ¶ 21, 302 Mont. 452, 15 P.3d 1189.In a cause of action alleging medical malpractice, the plaintiff must produce expert medical testimony establishing the applicable standard of care and departure from that standard.Butler,¶ 21.The J.'s presented Dr. Sheren's expert medical opinion for the...