Griffin v. Moseley

• Decision Date: 08 June 2010
• Docket Number: No. DA 09-0633.,DA 09-0633.
• Citation: 234 P.3d 869,2010 MT 132,356 Mont. 393
• Parties: Andy GRIFFIN, Individually and as Personal Representative of the Estate of Carla Griffin, Plaintiff and Appellant,v.John MOSELEY, M.D., Defendant and Appellee.
• Court: Montana Supreme Court

356 Mont. 393

234 P.3d 869

2010 MT 132

Andy GRIFFIN, Individually and as Personal Representative of the Estate of Carla Griffin, Plaintiff and Appellant,v.John MOSELEY, M.D., Defendant and Appellee.

No. DA 09-0633.

Supreme Court of Montana.

Submitted on Briefs April 14, 2010.

Decided June 8, 2010.

For Appellant: Torger Oaas, Attorney at Law, Lewistown, Montana, Jon A. Oldenburg, Attorney at Law, Lewistown, Montana.

For Appellee: John J. Russell, Lisa A. Speare, Brown Law Firm, Billings, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellant Andy Griffin appeals from a grant of summary judgment in the Thirteenth Judicial District Court, as well as an order denying leave to amend his complaint. We reverse the grant of summary judgment, and remand the order denying leave to amend to the District Court for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In 2003, Carla Griffin (Carla) was suffering from a condition known as pseudotumor cerebri (PTC). PTC can cause headaches and vision loss. PTC generally affects obese women during their child-bearing years, and can be treated by ophthalmologists, neurologists, and neurosurgeons. One method for treating PTC consists of implanting a lumbar peritoneal shunt in the patient's lumbar subarachnoid space to divert excess cerebral spinal fluid, thereby reducing pressure on the optic nerve. This shunt surgery is performed by neurosurgeons. Other conservative medical treatments are also available for treating PTC. These include the use of weight loss regimens in combination with pharmaceutical drugs. These more conservative treatments do not require surgery.

¶ 3 Carla had been referred by Dr. Frances Saboo, an optometrist at Crow Agency, Montana, to Dr. Roger Williams, a Billings, Montana, neurologist, for an evaluation of her PTC. Dr. Williams confirmed Carla's PTC diagnosis and referred her to Dr. John Moseley, a neurosurgeon, for a consideration of the shunt surgery. Dr. Moseley saw Carla on March 26, 2003. Dr. Moseley recommended that Carla undergo the shunt surgery. In a letter written to Dr. Williams after his visit with Carla, Dr. Moseley stated that he had discussed the associated risks of the surgery including chronic low pressure headaches and subdural hematomas, but also stated these risks were probably minimal when compared to Carla's daily severe headaches and risk of further change in vision.

¶ 4 On May 7, 2003, Dr. Moseley performed the shunt surgery on Carla. Prior to surgery, Dr. Moseley had Carla sign an informed consent form describing some of the risks of the surgery. The informed consent form did not list weight loss and the administration of pharmaceutical drugs such as Lasix as alternative treatments for PTC.

¶ 5 When Carla awoke from her surgery, she was suffering from severe leg pain. It was subsequently discovered that the placement of some tubing used during the surgery was likely causing the pain. Dr. Moseley performed follow-up surgery on May 9, 2003, and pulled the tubing back several inches. However, Carla's leg pain never went away, and she was later determined to be totally disabled from work. Carla spent the next six years in and out of hospitals and took powerful prescription pain medication for her leg pain. On March 10, 2009, Carla died from complications related to her pain medication.

¶ 6 In May 2006, prior to her death, Carla and her husband Andy (Griffins) filed a negligence suit against Dr. Moseley.¹ On January 30, 2007, the Griffins filed a first amended complaint. The amended complaint contains the following counts against Dr. Moseley:

[Count I] The actions of Carla Griffin's treating physician, John Moseley, M.D., constitute a deviation from [the] accepted standard of care and constitute negligence which has caused the injuries to Carla Griffin as described above.

[Count II] Carla Griffin's treating physician, John Moseley, M.D., failed to fully inform Carla Griffin about the known risks associated with the placement of a lumbar peritoneal shunt and therefore did not properly obtain her consent for surgery.

¶ 7 The parties engaged in discovery after the filing of the complaint. One of the Griffins' expert witnesses, Dr. Patrick E. Galvas, who is not a neurosurgeon, opined that Carla had suffered a nerve injury during the surgery. In deposition testimony, Dr. Moseley acknowledged that nerve damage was a risk of shunt implementation.

¶ 8 On April 14, 2009, the Griffins filed an expert disclosure for Dr. Kenneth Houchin, a neuro-ophthalmologist. Dr. Houchin opined that proceeding to surgery for Carla's PTC before attempting to relieve her symptoms through less invasive means, such as weight loss and medication, would constitute a breach of the standard of care for the treatment of PTC. In his expert disclosure, Dr. Houchin stated as follows:

An opinion on the neuro-surgical technique utilized and/or the informed consent process for the lumbar peritoneal shunt would best be deferred to an expert in neuro-surgery.

Although weight loss is considered the definitive treatment for benign intracranial hypertension,² at no time is a discussion documented in the medical record advising weight loss or offering medical assistance in achieving weight loss. Thus, supervised weight loss with minimal risk was apparently never tried before proceeding with lumbar peritoneal shunt with its associated significant risks.

Proceeding to lumbar peritoneal shunt without first offering the patient medically-supervised weight loss falls below the standard of care in the management of benign intracranial hypertension.

Furthermore, the diuretic Lasix may be used in a patient that can not tolerate Diamox or corticosteroids to lower the cerebral spinal fluid pressure and ameliorate symptoms. No documentation is present that Lasix was tried. Thus, an adequate well-supervised trial of Lasix with minimal risk was apparently never tried before proceeding with lumbar peritoneal shunt with its associated significant risks.

Proceeding to lumbar peritoneal shunt without first giving an adequate trial of Lasix falls below the standard of care in the management of benign intracranial hypertension.

¶ 9 On May 19, 2009, the Griffins deposed Dr. Moseley who admitted that he did not discuss any forms of alternative treatment with Carla prior to obtaining her consent for surgery. In light of this information, Griffins moved to amend Count II of their complaint on May 29, 2009. The Griffins argued that Dr. Moseley's admission constituted evidence that Dr. Moseley violated the standard of care with respect to informed consent. In their brief in support, the Griffins argued that their claims against Dr. Moseley were based on three sets of facts: (1) lack of informed consent by failing to disclose the known risks of shunt surgery; (2) medical negligence in proceeding to surgery for PTC before attempting less invasive treatments for PTC, such as weight loss and Lasix therapy; and (3) medical negligence in the placement of the shunt. In light of Dr. Moseley's testimony, the Griffins sought leave to amend Count II of their complaint on June 2, 2009, to add allegations that informed consent was ineffective for failure to inform Carla of alternative treatments for PTC.

¶ 10 On June 1, 2009, Dr. Houchin was deposed by defense counsel. In his deposition, Dr. Houchin was asked by counsel about the extent of his medical expertise in treating PTC. Dr. Houchin stated that he has treated hundreds of patients for PTC. His treatment regimen consisted of the use of Lasix and other weight loss alternatives. The doctor testified that referral for neurosurgery was discussed only if the conservative treatment measures failed, but that only 10% or less of his patients failed to respond to alternative treatment measures. Dr. Houchin testified that the standard of care required Dr. Moseley to recommend such conservative measures.

¶ 11 On June 5, 2009, Dr. Moseley moved for summary judgment on the Griffins' claims, contending that the Griffins did not have expert testimony to support their claims that he violated the standard of care. Dr. Moseley argued that Dr. Houchin was their only expert on liability and he could not offer an opinion to support their claims because he was an ophthalmologist, and not a board-certified neurosurgeon like Dr. Moseley.

¶ 12 A hearing on the summary judgment motion was scheduled for July 1, 2009. However, the Griffins had already scheduled a deposition in Portland, Oregon, on that date for Dr. Edmund Frank, one of Dr. Moseley's expert witnesses and a board-certified neurosurgeon. After Dr. Moseley's counsel informed the Griffins that the deposition could not be rescheduled, the Griffins asked the District Court to reschedule the hearing. The District Court then reset the hearing for June 29, 2009, two days before Dr. Frank's deposition. The summary judgment was argued as scheduled.

¶ 13 In his deposition taken two days after the summary judgment hearing, Dr. Frank testified that the standard of care for informed consent required discussion of alternative weight loss treatment before attempting surgery. Based upon this testimony, the Griffins filed a supplement to their response to Dr. Moseley's summary judgment motion with this additional information from Dr. Frank's deposition.

¶ 14 On October 23, 2009, the District Court entered two written orders. The first order granted Dr. Moseley's motion for summary judgment and rejected the Griffins' supplemental response to this motion. The second order denied the Griffins' motion to amend their complaint.

¶ 15 With respect to the motion for summary judgment, the District Court first concluded it did not have the discretion to accept the Griffins' supplemental response, noting that the Griffins did not seek leave of court to file a supplemental response brief, and that in the absence of such leave the additional brief would not be allowed under the Montana...