Howlett v. Chiropractic Ctr., P.C.
| Decision Date | 31 March 2020 |
| Docket Number | DA 19-0327 |
| Citation | 399 Mont. 401,2020 MT 74,460 P.3d 942 |
| Parties | Jessie HOWLETT, Plaintiff and Appellant, v. CHIROPRACTIC CENTER, P.C., and Michael Craig Morris, Defendants and Appellees. |
| Court | Montana Supreme Court |
For Appellant: Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana
For Appellees: Steve Reida, Patrick C. Riley, Planalp, Reida, Roots & Riley, P.C., Bozeman, Montana
¶1 Jessie Howlett appeals following a trial in Montana’s First Judicial District Court in which a jury determined that Michael Craig Morris, D.C., was not negligent in his care of Howlett. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 On June 6, 2015, Howlett, an ophthalmology technician, awoke to numbness in her right-hand pinky and ring fingers. Two days later, she began to experience stiffness in her upper back. On June 10, 2015, Howlett attended Chiropractic Center, P.C., in Helena, Montana, to receive treatment from Morris. Prior to treatment, Howlett signed a "consent to examination, treatment and procedures" form and an authorization for an "open door adjusting environment." Howlett received various pre-adjustment therapies before proceeding to the treatment room with Morris. Howlett was placed on an adjustment table and Morris examined her, suspecting she had a compromised cervical spine and possibly suffered a herniation at the C5-C6 vertebrae. Morris concluded that Howlett’s neck muscles were hypertensive in order to protect this compromise from further injury. Morris asked Howlett to breathe in and out, and then adjusted her spine.1 Howlett alleged that she felt an electric shock sensation from the cervical adjustment, to which Morris purportedly responded, "it’s going to get worse before it gets better."
¶4 Howlett continued to see Morris for six subsequent visits over the next two weeks, reporting that she felt worse each time Morris adjusted her cervical spine. Howlett then went to Urgent Care where she saw Dr. Earl Book. Dr. Book ordered an MRI and referred Howlett to Dr. Kenneth Brewington for a neurosurgical consult. Brewington reviewed the MRI, which reflected a compression of Howlett’s spinal cord. Brewington determined Howlett’s injury was severe and required urgent decompression and stabilization. Brewington believed that the symptoms Howlett experienced during her first adjustment were consistent with what someone would feel when a disc herniates into their spinal canal.
¶5 On November 3, 2016, Howlett filed a Complaint and Demand for Jury Trial in District Court, alleging that Morris herniated her cervical disc;2 that Morris did not possess the knowledge, skill, or expertise to examine, diagnose, or treat Howlett consistent with the standard of care required by a chiropractor in Montana; that Morris was negligent in his examination, diagnosis, and treatment of Howlett; and that Morris failed to disclose the nature and extent of the injury to Howlett or provide alternatives to chiropractic treatment. Howlett requested general damages as well as punitive damages for malice and fraud.
¶6 On August 23, 2018, Morris filed a Motion for Partial Summary Judgment with the court, seeking to dismiss Howlett’s claim for punitive damages. On August 27, 2018, Howlett filed a Motion for Partial Summary Judgment, requesting the court enter judgment on the issue of liability for Morris’s failure to obtain Howlett’s voluntary informed consent to treatment. Howlett also filed multiple motions in limine seeking to preclude at trial (1) evidence or argument of her smoking habit; (2) evidence of other potential causes of the disc herniation and apportionment; (3) evidence of the personal practices of other medical providers; and (4) evidence regarding Morris’s claim of habit or routine practice within the standard of care.
¶7 At the time of summary judgment, Howlett relied on Morris’s deposition from November 10, 2017, in which Morris purportedly conceded that he did not explain any risks of chiropractic adjustment to Howlett prior to administering treatment. In response, Morris provided the court with an affidavit clarifying that he was not asked in his deposition about routine statements he makes to first time patients or asked to explain his initial and continuing diagnosis of cervical segmental and somatic dysfunction
, or that such diagnosis does not exclude herniated discs. Morris also submitted an interrogatory explaining that he "likely informed" Howlett about the risks of chiropractic treatment, including the possibility that her pain condition could continue and could increase temporarily, as well as short-term goals and symptoms as a result of treatment. It was undisputed that Howlett signed a general consent to treatment form.
¶8 Both Howlett and Morris also submitted to the court competing expert testimony as to the chiropractic standard of care. Howlett’s expert, Dr. James Vancho, asserted that in his opinion, Morris did not gather sufficient history, perform enough tests, or provide adequate information to obtain Howlett’s informed consent. However, Vancho did not know whether he warned patients that a herniated disc
was a risk of chiropractic adjustment and he did not provide an opinion as to whether it was a violation of the standard of care for Morris to not explain alternatives to chiropractic care prior to administering treatment. Morris’s expert, Dr. Gary Blom, disagreed with Vancho as to whether there is a standard of care in Montana regarding the content required to obtain informed consent in the chiropractic profession. Both experts agreed that neither Montana regulations nor the American Chiropractic Association Guidelines provide a standard of care detailing the content required to obtain informed consent. In addition, Morris provided an expert disclosure from Dr. Steve Klein disputing the issue of causation as to when, where, and how Howlett’s injury occurred.
¶9 On October 15, 2018, the court denied both parties’ motions for partial summary judgment, determining there were disputed issues of material fact concerning Howlett’s claims for liability and punitive damages and Morris’s defenses to those allegations. The court also denied Howlett’s motion in limine seeking to preclude at trial evidence of Morris’s habits or routine practices when treating other patients, subject to the foundational requirements set forth in M. R. Evid. 406(c).3
¶10 On February 28, 2019, the court held its final pretrial conference. The court determined that the witness exclusion rule, pursuant to M. R. Evid. 615, would apply during trial. For the first time, Howlett raised a new allegation of "loss of chance to obtain a better medical outcome" not previously raised in the complaint. The pretrial order was signed on the same date. On March 4 and March 8, 2019, Howlett’s counsel perpetuated the testimony of her expert witnesses, Dr. Vancho and Dr. Brewington, both of whom provided testimony regarding her new theory of recovery for loss of chance. Morris responded to this new testimony by supplementing expert witness disclosures from Dr. Blom and Dr. Klein.
¶11 On April 2, 2019, Howlett filed another motion in limine requesting the court exclude Dr. Blom’s and Dr. Klein’s supplemental testimony from the trial pursuant to the court’s order requiring witnesses be sequestered. On April 22, 2019, the court denied Howlett’s motion, concluding that M. R. Evid. 615 does not apply to deposition testimony in Montana, that Howlett’s tactics were that of gamesmanship, and that Morris had a duty to supplement his expert disclosures in response to Howlett’s new claim to assist with trying the case on its facts. In addition, the court found that the purpose behind Rule 615—to prevent witness collusion where witnesses tailor testimony at trial upon hearing other witness testimony—was not a concern under the circumstances as the experts were on opposing sides.
¶12 From April 22 to April 25, 2019, a jury trial was held on Howlett’s negligence claim. During trial, Morris testified to his routine practices and habits during patient visits, explaining that he had seen over 1000 patients and that he always inputs patient history and findings into patients’ files through the Chiropractic Center’s electronic record system. Additionally, Morris testified that he always provides extensive testing to first time patients prior to administering treatment and that he always discusses findings with patients and encourages questions before moving to a treatment room. Morris further submitted at trial evidence of possible alternate causes of Howlett’s injury, including her smoking habit, genetics, and repetitive work habits as an ophthalmology technician.
¶13 During cross-examination of Howlett, Morris’s attorney wished to impeach her with her attorney’s application to the Panel based...
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