Gilkey v. Schweitzer, No. 98-646.
| Docket Nº | No. 98-646. |
| Citation | 983 P.2d 869, 1999 MT 188 |
| Case Date | August 10, 1999 |
| Court | United States State Supreme Court of Montana |
983 P.2d 869
1999 MT 188
v.
Mike SCHWEITZER, M.D., Defendant and Respondent
No. 98-646.
Supreme Court of Montana.
Submitted on Briefs April 1, 1999
Decided August 10, 1999
James G. Edmiston III, Edmiston & Schermerhorn; Billings, Montana, For Appellant.
Herbert I. Pierce III and Colette Baumgardner Davies, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana, For Respondent.
Justice TERRY N. TRIEWEILER delivered the opinion of the Court.
¶ 1 The plaintiff, Darlene Gilkey, individually and on behalf of the estate of her deceased husband, Joseph Gilkey, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County, in which she alleged that the defendant, Mike Schweitzer, M.D., failed to obtain her husband's informed consent for placement of an epidural catheter in his thoracic spine
¶ 2 The issue on appeal is whether the District Court erred when it relied on the Daubert1 rule to exclude opinion evidence offered by Gilkey to prove that the defendant breached the applicable standard of care.
FACTUAL BACKGROUND
¶ 3 The following facts were before the District Court by deposition or affidavit. Because Gilkey's claim was resolved by summary judgment, we set forth the facts most favorable to her claim. However, we note these facts are controverted and factual issues have not been resolved.
¶ 4 Joseph Gilkey was afflicted with cancer of the colon and rectum which, despite treatment, spread to his left lung. On June 4, 1991, he underwent a pneumonectomy to remove part of the lung. In order to remove the lung, the procedure required that a large incision be made from approximately the middle of Joseph's back to the middle of his chest.
¶ 5 Anesthesiologist Mike Schweitzer, M.D. discussed with Joseph the significant pain that he would probably experience following the surgery and recommended that he be allowed to insert a "thoracic spinal epidural catheter" between the vertebrae of Joseph's thoracic spine and alongside his spinal cord. From the catheter, anesthetic drugs could then be delivered directly to the area of the spinal cord nearest the pain source. The purpose of this procedure was to significantly reduce Joseph's postsurgical pain without administration of postoperative narcotics in a manner that would disburse them throughout his entire body. Joseph consented to the procedure as described to him. Dr. Schweitzer later admitted that, during his discussion with Joseph about the procedure, he did not differentiate the risks of administering an epidural catheter while a patient is asleep under general anesthesia as opposed to while a patient is awake.
¶ 6 Dr. Schweitzer's first attempt to insert the catheter failed, but on the second attempt, Joseph's medical chart indicates that the catheter was inserted "without complications." However, after the surgery Joseph's left leg was paralyzed. By the time he left the hospital a few days later he was able to walk with a cane, but according to one of Gilkey's medical experts, he continued to manifest objective signs of upper motor neuron injury until his death from cancer approximately two and one-half years later.
¶ 7 Gilkey retained Eric Grigsby, M.D. as an expert. It was his opinion that Dr. Schweitzer violated the standard of care when he failed to inform Joseph that a greater risk was posed by the catheterization procedure if it was administered while Joseph was under general anesthesia, as opposed to while he was awake. Dr. Grigsby opined in his deposition that Dr. Schweitzer breached the standard of care "with regard to ... informed consent."
¶ 8 Dr. Schweitzer moved for summary judgment on the basis that there was no medical or scientific basis to support Dr. Grigsby's conclusion that placement of a thoracic spinal epidural catheter while a patient is anesthetized increases the risk of injury. The District Court agreed and concluded that Dr. Grigsby's opinion regarding the standard of care was inadmissible because it was not based on scientific evidence supported by reliable methodology or research. The District Court awarded summary judgment on the basis that without a qualified medical opinion, Gilkey could not prove medical malpractice.
STANDARD OF REVIEW
¶ 9 Our standard of review on appeal from summary judgment orders is de novo. See Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782,
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Logerquist v. McVey, No. CV-98-0587-PR.
...to criminal cases. The same rationale is applied in cases involving medical causation and techniques. Gilkey v. Schweitzer, 295 Mont. 345, 983 P.2d 869 (1999) (evidentiary standards applicable to novel scientific evidence should not have been applied to preclude anesthesiologist's expert op......
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State v. Christensen, DA 18-0268
...through expert testimony because the conduct complained of is usually not readily ascertainable by a layman. Gilkey v. Schweitzer , 1999 MT 188, ¶ 17, 295 Mont. 345, 983 P.2d 869. The Opinion discusses the expert medical evidence provided by the State's experts to establish the standard of ......
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State v. Bieber, No. DA 06-0156.
...1, ¶¶ 55-69, 961 P.2d 75, ¶¶ 55-69; State v. Southern, 1999 MT 94, ¶ 59, 294 Mont. 225, ¶ 59, 980 P.2d 3, ¶ 59; Gilkey v. Schweitzer, 1999 MT 188, ¶¶ 18-20, 295 Mont. 345, ¶¶ 18-20, 983 P.2d 869, ¶¶ 18-20; State v. Hocevar, 2000 MT 157, ¶ 56, 300 Mont. 167, ¶ 56, 7 P.3d 329, ¶ 56; State v. ......
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State v. Clifford, No. 03-509.
...1, ¶¶ 55-69, 961 P.2d 75, ¶¶ 55-69; State v. Southern, 1999 MT 94, ¶ 59, 294 Mont. 225, ¶ 59, 980 P.2d 3, ¶ 59; Gilkey v. Schweitzer, 1999 MT 188, ¶¶ 18-20, 295 Mont. 345, ¶¶ 18-20, 983 P.2d 869, ¶¶ 18-20; State v. Hocevar, 2000 MT 157, ¶ 56, 300 Mont. 167, ¶ 56, 7 P.3d 329, ¶ 56; State v. ......
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Logerquist v. McVey, No. CV-98-0587-PR.
...to criminal cases. The same rationale is applied in cases involving medical causation and techniques. Gilkey v. Schweitzer, 295 Mont. 345, 983 P.2d 869 (1999) (evidentiary standards applicable to novel scientific evidence should not have been applied to preclude anesthesiologist's expert op......
-
State v. Christensen, DA 18-0268
...through expert testimony because the conduct complained of is usually not readily ascertainable by a layman. Gilkey v. Schweitzer , 1999 MT 188, ¶ 17, 295 Mont. 345, 983 P.2d 869. The Opinion discusses the expert medical evidence provided by the State's experts to establish the standard of ......
-
State v. Bieber, No. DA 06-0156.
...1, ¶¶ 55-69, 961 P.2d 75, ¶¶ 55-69; State v. Southern, 1999 MT 94, ¶ 59, 294 Mont. 225, ¶ 59, 980 P.2d 3, ¶ 59; Gilkey v. Schweitzer, 1999 MT 188, ¶¶ 18-20, 295 Mont. 345, ¶¶ 18-20, 983 P.2d 869, ¶¶ 18-20; State v. Hocevar, 2000 MT 157, ¶ 56, 300 Mont. 167, ¶ 56, 7 P.3d 329, ¶ 56; State v. ......
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State v. Clifford, No. 03-509.
...1, ¶¶ 55-69, 961 P.2d 75, ¶¶ 55-69; State v. Southern, 1999 MT 94, ¶ 59, 294 Mont. 225, ¶ 59, 980 P.2d 3, ¶ 59; Gilkey v. Schweitzer, 1999 MT 188, ¶¶ 18-20, 295 Mont. 345, ¶¶ 18-20, 983 P.2d 869, ¶¶ 18-20; State v. Hocevar, 2000 MT 157, ¶ 56, 300 Mont. 167, ¶ 56, 7 P.3d 329, ¶ 56; State v. ......