Beehler v. E. Radiological Assocs., P.C., DA 11–0618.

Docket NºNo. DA 11–0618.
Citation367 Mont. 21, 2012 MT 260, 289 P.3d 131
Case DateNovember 13, 2012
CourtUnited States State Supreme Court of Montana

367 Mont. 21
289 P.3d 131
2012 MT 260

Tony BEEHLER, individually and as Co-representative of the Estate of Katherine Ann Beehler–Goodson; Robert Goodson, individually and as Co-representative of the Estate of Katherine Ann Beehler–Goodson, and as natural guardian and next friend of E.G. and R.G., minors, Plaintiffs and Appellants,
v.
EASTERN RADIOLOGICAL ASSOCIATES, P.C.; Anne Giuliano, M.D.; and St. Vincent Healthcare, Defendants and Appellees.

No. DA 11–0618.

Supreme Court of Montana.

Argued Aug. 1, 2012.
Submitted Aug. 15, 2012.

Decided Nov. 13, 2012.


289 P.3d 133

For Appellants: John L. Amsden (argued), Justin P. Stalpes, Beck & Amsden, PLLC, Bozeman, Montana.

For Appellees: Julie A. Lichte (argued), Kiely Keane, Christopher K. Olivereira, Crowley Fleck, PLLP, Bozeman, Montana (Eastern Radiological Assoc.), Robert C. Brown (argued), Charles K. Smith, Poore, Roth & Robinson, P.C., Butte, Montana (St. Vincent Healthcare).

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

367 Mont. 22

¶ 1 Plaintiffs Tony Beehler (“Tony”), individually and as a co-representative of the Estate of Katherine Ann Beehler–Goodson, and Robert Goodson (“Robert”), individually and as a co-representative of the Estate and as natural guardian and next friend of E.G.

289 P.3d 134

and R.G., minors,FN1 appeal an order from the Thirteenth Judicial District Court, Yellowstone County, granting Defendants' Eastern Radiological Associates (“ERA”), Dr. Anne Giuliano (“Dr. Giuliano”), and St. Vincent Healthcare (“SVH”) FN2 motion for summary judgment. We reverse and remand.


367 Mont. 23

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Katherine Beehler–Goodson (“Katherine”) was the mother of minor children E.G. and R.G., the wife of Robert, and the sister of Tony. Prior to 2009, Katherine had suffered various back injuries. Katherine sought surgery in 2009 to address persistent pain resulting from these injuries. In preparation for surgery, Katherine saw Dr. Giuliano, a board certified radiologist associated with ERA, for a myelogram. A myelogram is a radiological procedure where a needle is used to inject dye into the sac surrounding the spine to help reveal the bones, nerves, and fluid filled spaces in an X-ray. As a radiological procedure, a myelogram consists of procedures, such as X-rays and the analysis thereof, which are not pertinent to this case. For our purposes, the only relevant portion of the myelogram consists of the infection control procedures taken preceding and surrounding the insertion of the myelogram needle into Katherine's spinal column and the subsequent injection of a dye into Katherine's cerebrospinal fluid (“CSF”). The further administration of radiological procedures is not at issue and was not raised by Plaintiffs at the District Court or on appeal.

¶ 3 Dr. Giuliano performed the myelogram on Katherine on June 17, 2009, in a radiology suite at SVH. Dr. Giuliano did not wear a mask during the procedure, including while she prepared the needle and inserted it into Katherine's spinal column. Both parties agree Dr. Giuliano was the only person within the zone of oral droplet transmission surrounding Katherine during the critical portions of the myelogram. Following the procedure, Katherine was discharged without complication and returned to her hotel room to rest. Later that evening, Katherine developed a headache and nausea and returned to SVH, where she was admitted to the SVH Emergency Room and diagnosed with spinal meningitis. The time between the procedure and the diagnosis was roughly 12 hours. Spinal meningitis is a bacterial infection of the membranes (meninges) covering the spinal cord. Laboratory work determined that the bacteria that caused the infection were Group B Streptococci (“GBS”). The parties agree that the GBS bacteria were introduced into Katherine's CSF when the myelogram needle entered her spinal column. Katherine died as a result of the meningitis infection on June 20, 2009.

¶ 4 Plaintiffs filed a medical malpractice claim against the Defendants on April 8, 2010, alleging, inter alia, that “Defendants failed to adhere to proper infection control measures,” thereby negligently causing Katherine's meningitis infection. In particular,

367 Mont. 24

Plaintiffs alleged Dr. Giuliano negligently failed to wear a mask during the myelogram, causing Katherine's infection. Regarding SVH, Plaintiffs alleged that the hospital had a duty to promulgate infection control policies that specifically required wearing a mask during a myelogram. Plaintiffs claimed that SVH's failure to do so caused Katherine's infection.

¶ 5 Following extensive discovery and briefing, Defendants filed motions in limine on August 19, 2011, attacking, inter alia, the qualifications of Plaintiffs' proposed expert witness, Dr. Patrick Joseph, MD, (“Dr. Joseph”). The Defendants opposed Dr. Joseph's qualification as an expert witness on the appropriate standards of care, departure from those standards, and causation. Defendants sought to cast the subject matter of Plaintiffs' malpractice claim as specifically concerning myelograms performed by radiologists, not the infection prevention procedures taken surrounding the insertion of the needle into Katherine's spinal column. With

289 P.3d 135

regards to the relevant standards of care, Defendants essentially claimed that Dr. Joseph was not qualified to testify as an expert under § 26–2–601, MCA, because he is not a radiologist and does not perform myelograms. Regarding causation, Defendants argued that Dr. Joseph's testimony lacked a scientific basis and did not establish that it was more likely than not that the GBS bacteria traveled from Dr. Giuliano's uncovered mouth into Katherine's spinal column.

¶ 6 Defendants concurrently filed motions for summary judgment on the standard of care and causation, alleging that if Plaintiffs' sole expert witness on the standard of care, breach, and causation was not qualified, judgment was appropriate as a matter of law. See Montana Deaconess Hosp. v. Gratton, 169 Mont. 185, 189, 545 P.2d 670 (1976). The District Court held a hearing on Defendants' motions on September 22, 2011, and granted summary judgment on the standard of care and causation on October 11, 2011.

¶ 7 In its summary judgment order, the court found that Dr. Joseph was not qualified to offer expert testimony on the applicable standards of care, breach, or causation. The court found that “the requisite qualifications for expert witnesses in medical malpractice cases are set forth in Mont.Code Ann. § 26–2–601,” and that because Dr. Joseph was not a board certified radiologist, he “cannot give an opinion regarding Dr. Giuliano's duty based on board certified radiological standards.”

¶ 8 Respecting SVH, the court found that “[t]he standards of care for a given specialty still control,” and focused on Dr. Joseph's use of a 2007 Centers for Disease Control and Prevention (“CDC”) publication

367 Mont. 25

recommending masks during myelograms. The court found that because “the CDC does not impose requirements on healthcare providers,” neither its recommendations nor Dr. Joseph's use of them could establish a hospital's standard of care.

¶ 9 As to Dr. Joseph's proposed opinion on causation, the court found that Dr. Joseph's testimony did not meet the necessary standard for expert medical opinion testimony. In so holding, the court applied M.R. Evid. 702 and our requirement that medical expert testimony be based upon a “more likely than not” standard. See Dallas v. Burlington N., Inc., 212 Mont. 514, 523, 689 P.2d 273 (1984).

¶ 10 Without Dr. Joseph's expert testimony, the court found Plaintiffs lacked the necessary expert witness to establish the elements of medical negligence, making summary judgment for the Defendants appropriate as a matter of law. See Seal v. Woodrows Pharm., 1999 MT 247, ¶ 35, 296 Mont. 197, 988 P.2d 1230.

¶ 11 This appeal followed, and we held oral argument on August 1, 2012.


STATEMENT OF THE ISSUES

¶ 12 We restate the issues on appeal as follows:

¶ 13 1. Did the District Court err by excluding Dr. Joseph's expert testimony on Dr. Giuliano's and SVH's standard of care?

¶ 14 2. Did the District Court err by excluding Dr. Joseph's expert testimony on causation?

¶ 15 3. Did the District Court err by granting the Defendants' motion for summary judgment?

¶ 16 4. Did the District Court err in granting costs for depositions?


STANDARD OF REVIEW
1] [2] [3] [4] [5] ¶ 17 A district court's evidentiary rulings are reviewed for an abuse of discretion. State v. Wilmer, 2011 MT 78, ¶ 11, 360 Mont. 101, 252 P.3d 178. This...

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