Steffensmier v. Huebner

• Decision Date: 17 July 2018
• Docket Number: DA 17-0416
• Citation: 422 P.3d 95,2018 MT 173,392 Mont. 80
• Parties: Kelley STEFFENSMIER as Personal Representative of the Estate of David C. Bushong, and Kelley Steffensmier, Lacey Bushong, Justus Bushong, and Cayley Bushong, Plaintiffs and Appellants, v. David B. HUEBNER, D.P.M., and Great Falls Clinic, Defendants and Appellees.
• Court: Montana Supreme Court

392 Mont. 80

422 P.3d 95

2018 MT 173

Kelley STEFFENSMIER as Personal Representative of the Estate of David C. Bushong, and Kelley Steffensmier, Lacey Bushong, Justus Bushong, and Cayley Bushong, Plaintiffs and Appellants,

v.David B. HUEBNER, D.P.M., and Great Falls Clinic, Defendants and Appellees.

DA 17-0416

Supreme Court of Montana.

Submitted on Briefs: May 16, 2018

Decided: July 17, 2018

For Appellants: Nathan J. Hoines, Zachary D. Kitchin, Hoines Law Office, P.C., Great Falls, Montana Michael R. Tramelli, Attorney at Law, Great Falls, Montana

For Appellees: Peter J. Stokstad, Elizabeth L. Hausbeck, Leah T. Handelman, Garlington, Lohn & Robinson, PLLP, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 In December 2006, David Bushong saw Dr. David Huebner for a soft-tissue mass on the bottom of his foot, which Dr. Huebner diagnosed as a benign ganglion cyst. Months later, a different provider referred Bushong to the University of Washington Medical Center, where the mass was diagnosed as a rare and aggressive cancer. Bushong died from the cancer in March 2009. His estate, widow, and children (Plaintiffs) filed suit against Dr. Huebner and the Great Falls Clinic, alleging medical malpractice. After a nine-day trial, a Cascade County jury found that Dr. Huebner was not negligent in his treatment of Bushong. Plaintiffs appeal.

¶2 Upon consideration of the following issues, we affirm.

1. Whether Plaintiffs are entitled to a new trial because the District Court refused to instruct the jury on loss of chance pursuant to § 27-1-739, MCA ;

2. Whether the District Court abused its discretion by prohibiting Plaintiffs from asking Bushong’s treating physician Dr. Ronald Ray whether Dr. Huebner breached the applicable standard of care and by limiting Plaintiffs' impeachment of Dr. Ray on redirect;

3. Whether the District Court manifestly abused its discretion by denying Plaintiffs' motion for a new trial because of defense counsel’s misconduct during trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Bushong’s primary care provider referred him to Dr. Huebner, a podiatrist, for evaluation of a soft-tissue mass on the bottom of his right foot. Dr. Huebner saw Bushong for two appointments in December 2006. At the first appointment, Dr. Huebner conducted a physical examination of the mass and reviewed previously ordered x-ray and MRI scans. He diagnosed Bushong with a probable ganglion cyst—a benign, noncancerous condition. He discussed treatment options with Bushong, including surgically removing the cyst or aspirating it to remove the fluid. Bushong opted for aspiration at the first appointment. Dr. Huebner inserted a needle into the mass and aspirated twenty-six milliliters of bloody fluid with a watery consistency. Dr. Huebner sent twelve milliliters to the lab to test for infection. He did not send a sample of the fluid for cytological analysis and did not biopsy the mass. He explained to Bushong that he was not sure this was a ganglion cyst because the fluid was bloody, but that the bloody component may have been caused by Bushong’s blood thinning medication. Because Dr. Huebner was concerned that the mass may be caused by an infection rather than a ganglion cyst, he did not give Bushong a cortisone injection.

¶4 After the lab report came back showing no infection, Dr. Huebner had a follow-up appointment with Bushong. At the follow-up appointment, Dr. Huebner discussed surgical removal of the mass. Dr. Huebner informed Bushong that the mass was a benign ganglion cyst and that surgery was not emergent. They did not schedule a surgery at that appointment.

¶5 About five months later, Bushong saw Dr. Ray, another podiatrist, about the soft-tissue mass. Dr. Ray ordered a new MRI scan. After reviewing the results, he referred Bushong to the University of Washington Medical Center without biopsying the mass out of concern that the new MRI showed signs of potential malignancy. Healthcare providers at the University of Washington Medical Center later diagnosed Bushong with extraskeletal osteosarcoma, a rare and aggressive cancer. Bushong died from the cancer in March 2009.

¶6 Bushong’s estate filed suit against Dr. Huebner and the Great Falls Clinic in the Eighth Judicial District Court, Cascade County, in April 2010, alleging that Dr. Huebner was negligent in failing to diagnose or to take steps to diagnose Bushong’s cancer in December 2006. The first question on the special verdict form asked whether Dr. Huebner was negligent in his treatment of Bushong. The form instructed the jury not to answer further questions if it answered "No." The jury determined that Dr. Huebner was not negligent in his treatment and did not reach the questions pertaining to causation or damages.

STANDARDS OF REVIEW

¶7 "This Court ‘must exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision.’ " Seltzer v. Morton , 2007 MT 62, ¶ 94, 336 Mont. 225, 154 P.3d 561 (quoting Kneeland v. Luzenac Am., Inc. , 1998 MT 136, ¶ 53, 289 Mont. 201, 961 P.2d 725 ). Because of the deference accorded a jury’s verdict, we will not reverse a district court for improper exclusion of evidence unless the complaining party shows prejudice to a substantial right. S & P Brake Supply, Inc. v. STEMCO LP , 2016 MT 324, ¶ 51, 385 Mont. 488, 385 P.3d 567 ; see also M. R. Evid. 103(a). A party’s substantial right is not affected unless the error "is ‘of such character to have affected the result’ of the case." S & P Brake Supply , ¶ 51 (quoting In re A.N. , 2000 MT 35, ¶ 55, 298 Mont. 237, 995 P.2d 427 ); see also Reese v. Stanton , 2015 MT 293, ¶ 25, 381 Mont. 241, 358 P.3d 208.

¶8 We review a trial court’s decision to grant or deny a jury instruction for an abuse of discretion. Mickelson v. Mont. Rail Link, Inc. , 2000 MT 111, ¶ 51, 299 Mont. 348, 999 P.2d 985. The standard of review of a trial court's denial of a motion for a new trial " ‘depends on the basis of the motion.’ " Reese , ¶ 17 (quoting Fish v. Harris , 2008 MT 302, ¶ 8, 345 Mont. 527, 192 P.3d 238 ). Regarding a district court's evidentiary rulings, we review for abuse of discretion. Reese , ¶ 17. We review a trial court’s decision on a motion for a new trial pursuant to M. R. Civ. P. 59 for a manifest abuse of discretion. Evans v. Scanson , 2017 MT 157, ¶ 10, 388 Mont. 69, 396 P.3d 1284. "A manifest abuse of discretion is obvious, evident, or unmistakable, and significant enough to materially affect the substantial rights of the complaining party." Evans , ¶ 10.

DISCUSSION

¶9 1. Whether Plaintiffs are entitled to a new trial because the District Court refused to instruct the jury on loss of chance pursuant to § 27-1-739, MCA.

¶10 Plaintiffs argue that the District Court misapplied the law when it rejected their proposed loss of chance jury instruction because Plaintiffs had not pleaded loss of chance as a separate claim. Plaintiffs argue that § 27-1-739, MCA, is not a separate cause of action from a medical malpractice case, and that it does not need to be pleaded specifically. Plaintiffs maintain that testimony from two of their expert witnesses was sufficient to warrant the instruction.

¶11 Section 27-1-739, MCA, allows damages against a health care provider if a negligent act or omission during diagnosis or treatment reduces a patient’s chance of recovering and was a contributing cause of death or survival for a shorter period of time. A loss of chance theory allows the jury to determine that a provider’s negligence denied a patient "the opportunity to recover." Aasheim v. Humberger , 215 Mont. 127, 133, 695 P.2d 824, 828 (1985). Now codified in § 27-1-739, MCA, loss of chance is included in the issue of causation. Aasheim , 215 Mont. at 133, 695 P.2d at 828 (holding that the trier of fact determines whether a defendant’s negligence was a substantial factor in reducing plaintiff’s chance of obtaining a better result).

¶12 Bushong’s jury found that Dr. Huebner was not negligent. It did not reach the issue of causation. In light of the jury’s finding that Dr. Huebner was not negligent, the District Court’s instructional error, if any, did not affect Plaintiffs' substantial rights and was harmless. M. R. Civ. P. 61. We will not reverse for an alleged error when the outcome would have been the same had the error not been committed. See Pula v. State , 2002 MT 9, ¶¶ 34-35, 308 Mont. 122, 40 P.3d 364 (concluding that, because the jury did not consider the issue of intervening cause in reaching its verdict, the instructions on intervening cause had no effect on the outcome of the trial).

¶13 2. Whether the District Court abused its discretion by prohibiting Plaintiffs from asking Bushong’s treating physician Dr. Ray whether Dr. Huebner breached the applicable standard of care and by limiting Plaintiffs' impeachment of Dr. Ray on redirect.

¶14 Plaintiffs raise two arguments in regard to Dr. Ray’s testimony. First, they challenge the District Court’s order prohibiting them from asking Dr. Ray about the applicable standard of care and whether Dr. Huebner breached it. Second, they challenge the District Court’s ruling limiting their impeachment of Dr. Ray on redirect examination.

¶15 Mont. R. Civ. P. 26(b)(4)(A)(i) requires the parties to identify each person they expect "to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Rule 26(b)(4), however, does not provide disclosure requirements for either identity or opinions of non-retained experts. Norris v. Fritz , 2012 MT 27, ¶ 31, 364 Mont. 63, 270 P.3d 79. We have explained, nevertheless, that the opposing party must have adequate notice of a non-retained expert’s testimony for it to be admissible. Norris , ¶ 32.

¶16 As part of its Rule 16 Scheduling Order, the District Court ordered the parties to exchange expert...