White v. Johnson

• Decision Date: 03 August 2009
• Docket Number: No. DA 08-0460.,DA 08-0460.
• Citation: White v. Johnson, 215 P.3d 11, 2009 MT 254, 351 Mont. 534 (Mont. 2009)
• Parties: Brianna WHITE, Plaintiff and Appellant, v. Linda JOHNSON, M.D., Defendant and Appellee.
• Court: Montana Supreme Court

215 P.3d 11

2009 MT 254

351 Mont. 534

Brianna WHITE, Plaintiff and Appellant, v. Linda JOHNSON, M.D., Defendant and Appellee.

No. DA 08-0460.

Supreme Court of Montana.

Submitted on Briefs June 25, 2009.

Decided August 3, 2009.

For Appellant: James M. Ragain, John R. Christensen, Ben T. Sather, Ragain Christensen Fulton & Filz, PLLC, Billings, Montana.

For Appellee: Herbert I. Pierce, III, Christopher Stoneback, Crowley Fleck, PLLP, Billings, Montana.

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

¶ 1 Brianna White (Brianna) appeals from a jury verdict in the Thirteenth Judicial District Court finding that defendant Linda Johnson, M.D. (Dr. Johnson) was not negligent in her medical treatment of Brianna. Brianna asserts that the District Court erred when it denied her motion for judgment as a matter of law, her motion for a proposed jury instruction, her post-verdict motion for a new trial, and her request for reasonable attorney fees and costs pursuant to § 37-61-421, MCA. We conclude the District Court did not err in denying these motions and affirm the jury's verdict.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On November 24, 1999, Brianna was brought to a medical clinic in Billings, Montana, by her mother Gina White (Gina) with complaints about a headache and overall flu symptoms. Brianna was seen by Dr. Johnson. At the time, Brianna was approximately 11 years, 8 months old and weighed 57 pounds. Gina later testified that during this visit she expressed to Dr. Johnson concerns that Brianna's growth was stagnant and that she was small for her age. Gina claims that Dr. Johnson told her that some children were late bloomers and did not explore the topic further. Dr. Johnson prescribed Imitrex for the headache and, according to Gina, told her to return in a couple of days if the symptoms persisted.

¶ 3 Gina and Brianna did not return to see Dr. Johnson until February 12, 2001. At that time, Brianna was complaining of pain in her jaw and upper facial area, headaches, and flu-like symptoms. By this time, Brianna was approximately 12 years and 10 months old. Gina claims that she once again inquired of Dr. Johnson about Brianna's size and general lack of growth and development. Gina claims Dr. Johnson told her that if Brianna did not show signs of maturing by age 16, then her lack of development would be something to investigate. Dr. Johnson diagnosed Brianna with a sinus infection, and gave her a prescription for an antibiotic.

¶ 4 On November 27, 2002, Brianna visited the clinic for possible strep throat. By this time, Brianna was nearly 15 years old. At this visit, Brianna and Gina saw Dr. Paul Kelker (Dr. Kelker) because Dr. Johnson was on vacation. Dr. Kelker immediately expressed concerns about Brianna's size. According to Gina, Dr. Kelker seemed "disgusted" at the fact that Brianna's lack of development had not been previously addressed and told Gina that Brianna appeared to him to be about 10 years old. Dr. Kelker began testing and evaluation which ultimately led to the discovery of a craniopharyngioma that had engulfed Brianna's pituitary gland. Within 30 days, Brianna underwent surgery in Denver, Colorado, for removal of the craniopharyngioma. After the surgery, Brianna began daily hormone therapy in order to bring her development up to normal standards.

¶ 5 In March 2007, Brianna filed a negligence action against Dr. Johnson. Brianna alleged that Dr. Johnson had breached the applicable standard of care in her treatment of her by failing to appreciate the signs and symptoms of her abnormally small stature, immature appearance, and general lack of growth and development and by failing to conduct the necessary follow-up and investigation of these symptoms. As a result, Brianna asserted that she suffered serious, severe and permanent injuries and damages. Dr. Johnson answered, denying she was negligent.

¶ 6 Prior to trial, the District Court issued rulings with respect to several pretrial motions and motions in limine filed by Brianna and Dr. Johnson, some of which are germane to the present appeal. First, the District Court ruled that Dr. Johnson could not argue or attempt to shift the fault or blame to Brianna or Gina for any alleged lack of diligence in pursuing a diagnosis; however, Dr. Johnson would be allowed to address and explain the standard of care. Second, the District Court prohibited Dr. Johnson from calling Dr. Kelker to testify about whether or not she violated the standard of care in her treatment of Brianna.

¶ 7 A jury trial was held from June 24 to June 27, 2008. The jury returned a verdict in favor of Dr. Johnson, finding that she was not negligent in her treatment of Brianna. During trial, the jury heard testimony from Brianna, Gina, Dr. Johnson, and other witnesses for the defense and plaintiff, including the videotaped deposition testimony of Richard Oken, M.D. (Dr. Oken) of California which had been taken by Brianna's counsel prior to trial.

¶ 8 Brianna claims that throughout the trial, Dr. Johnson's defense counsel Herbert Pierce (Pierce) repeatedly violated the District Court's rulings noted directly above. With respect to the first ruling—the prohibition on shifting blame to Gina or Brianna— Brianna argues that Pierce first violated this ruling in his opening statement, when he pointed out to the jury that Gina had only taken Brianna to Dr. Johnson for "sick" visits, but had not taken her for "well child" visits. He told the jury:

Brianna White and her mother were one of [Dr. Johnson's] patients. And the first visit was in November of 1999. That visit and the second visit and last visit with Dr. Johnson was in February of 2001. Both of those visits were sick child visits. Those appointments were made that day by Mrs. White to bring her daughter in for an urgent visit because of a specific medical problem. The first visit was for a headache, the second visit was for a sinus infection.

Now, there are other types of visits as I alluded to a little earlier. There are visits for wellness checks and chronic problems. During well child checkups is when a doctor—Mr. Ragain [Brianna's counsel] put this chart on the overhead for you—that's when a doctor takes these values and other values and puts them on a chart and tracks a child's progress and development. No pediatrician does that during a sick child visit. In fact, their own expert, alluded to by Mr. Ragain, admitted that the standard of care doesn't require that a doctor during a sick child visit even to take a patient's heighth [sic]. Nobody does that.

So the two types of visits that were made and appointments that were made by Brianna's mother were for sick child visits. The first one focused on the headache and the second one focused on a sinus infection. They were not well child visits. They could have been, but they weren't. They were not for chronic problems, long-standing problems. They could have been, but they weren't.

¶ 9 Brianna argues that by raising this argument, Pierce was blaming Gina for the failure to diagnose her condition in direct violation of the District Court's order. Brianna further points to several places in Pierce's opening statement where he made references to Gina and her role in the visits—including the fact that Gina herself was small in size, thus making Brianna's small size by comparison seem less abnormal—and reiterated the fact that Gina had failed to schedule any medical appointments for the "specific purpose of investigating heighth [sic ] or weight or growth issues at all."

¶ 10 Although Brianna's counsel James Ragain (Ragain) did not object to these statements during Pierce's opening, he did bring them to the District Court's attention outside the presence of the jury immediately thereafter. Ragain asserted that Pierce was violating the District Court's pretrial ruling and shifting blame to Gina by referring to her failure to schedule follow-up appointments to check on Brianna's development. Pierce argued that he was not attempting to shift blame, but was simply challenging Gina's credibility regarding her concerns about Brianna's development. Pierce asserted that Gina's failure to schedule well-child checkups was probative as to whether she was actually worried about Brianna's development at the time, and that such evidence was admissible as corroborative evidence that Gina was not overly concerned about Brianna's development. To bolster this argument, Pierce observed that in Dr. Kelker's notes of his examination with Brianna and Gina, he stated that Gina is "just beginning to get concerned" about Brianna's development. The District Court reiterated its ruling that counsel was "not going to cast blame upon the mother." However, the District Court also noted that Dr. Kelker's notes would be part of the case and their contents were probative of the issues to be determined at trial.

¶ 11 In spite of this ruling, Brianna's counsel asserts that Pierce went on to violate this prohibition later in trial. For instance, one aspect of Brianna's damages claim was that the delayed diagnosis of her condition had a negative impact on her social life and social development among her peers because she was not developing physically at the same rate as others of her age. When inquiring of the schedule for Brianna's post-diagnosis hormone injection regimen, Brianna asserts that Pierce implied to the jury that Brianna had to take the injections on a rigid schedule which impacted her ability to carry on a normal social life, in order to fit Gina's schedule. Furthermore, Pierce posed questions to Gina at other points in the trial about the circumstances of her concern over Brianna's development and whether she did, or did not, bring up these concerns in medical appointments or schedule any appointments to look into these concerns. Brianna also argues that questions elicited during Dr. Johnson's testimony about Brianna's history of well-child check ups was done in effort to imply to...