Medical Malpractice in Montana

When someone sustains an injury at the hands of a health care provider, a medical malpractice case can be filed in the state of Montana. These cases require many people to look over what happened, numerous levels of evidence, statements from witnesses, and a visible connection between the behavior of the medical care provider and the injury itself. From there, the court system takes over to determine if guilt is apparent, and if so, what the compensation should be for the misbehavior or neglectful action of the provider. Anyone suffering from an injury that could have been prevented, caused by any type of medical personnel, can file a medical malpractice claim. The best approach is to have a medical malpractice attorney do all of the filings and investigating, as that gives the injured party the best chances to receive compensation. It also allows for the injured party to be able to focus his or her time on healing.

What Defines Montana Medical Malpractice?

When it comes to defining malpractice, it is more than just having some type of injury because a doctor or other medical staff was not paying attention. There needs to be an injury that was sustained because the medical staff was not providing the right level of patient care that the patient deserves and could expect under the circumstances. People trust that when they go to see a doctor, they are going to be treated fairly, the doctor will know what he or she is doing, and the treatment will be sufficient for the patient’s problem. This is reasonable for anyone who seeks medical attention. However, when this is not what happens, it could fall into the category of malpractice.

Any malpractice case needs to begin with a proof of what occurred. This starts with showing the type of care that would be reasonable to expect under the given circumstances. For example, if a person went to seek medical attention for a sore throat, he or she could reasonably expect a throat examination, a strep test, and the gathering of vitals while being checked. However, if the doctor gave the patient medication that would not fight infection or never looked at the patient’s throat, this could fall under the malpractice category, especially if the ailment was strep and the virus spread to other parts of the body. When strep is not treated, it can lead to necrotizing fasciitis, or flesh-eating disease, which is a much more intense problem than strep throat.

The goal of all claims of malpractice is to prove the following:

• There was a relationship between the accused and the plaintiff. This means there is proof the accused did something to care for the injured party.
• There was an expectation of care that was reasonable from the patient.
• The way the accused acted was not up to the expectation of care.
• Other providers of care would have acted more appropriately under the circumstances.
• The accused was negligent of something he or she should have done or acted in some way that directly caused the injury.
• The injured party needs compensation to cover expenses that came about due to the unexpected nature of the injury.

The Proof that the Court System Requires for Medical Malpractice Cases

The level of care a patient should be able to expect is called the standard of care. This means that any doctor or similar medical professional would reasonably treat a patient that came in with the same symptoms, in the same manner. This is the type of standard that should apply to any medical facility in Montana, including anything from a Helena hospital to a Hamilton chiropractor. Patients should expect respect and fair treatment across the board, as that is part of the doctor’s oath to “first, do no harm”.

Next, the court will want to see proof that the care the injured party received was below this reasonable expectation of care. This is often when expert witnesses are called in because they can help to establish the type of care that they would apply to patients under the same circumstances. Most witnesses for this type of testimony are doctors who work in a similar capacity so they can explain what type of care they would provide. This means the doctor would explain what he or she would do given the circumstances so that the court can see the right procedures.

Finally, the court will need documentation that proves that the injury sustained came as a direct result of the professional who provided the care now deemed substandard. This is the most important aspect of the case as nearly all cases will be dismissed from the court if the injured party is unable to prove this connection. There needs to be evidence that shows the injury would not have happened if the injured party was being treated by another professional for the same symptoms.

What Is the Montana Medical Legal Panel and What Is It For?

Prior to filing medical malpractice lawsuits in Montana, the injured party must file paperwork with the Montana Medical Legal Panel. This panel of professionals is put together to discern any frivolous lawsuits that people want to file. There are several steps to this filing, including:

• Application for Review of Claim: Paperwork that shows the action or inaction of the medical personnel led to the harm the injured party sustained. It should also include names and dates of people involved, medical providers involved in the care of the injury, and information to contact everyone who witnessed the injury take place. The injured party also needs to release his or her medical records to the panel to look over.
• Hearing: In this hearing, witnesses testify about what they saw, the evidence is shown to the panel, and each side gets to introduce the court what happened. The panel can ask questions and both sides have the opportunity to respond with anything that can be proven through evidence.
• Deliberation: This is when the panel looks over whether or not there was enough evidence to point to an act of malpractice, and whether or not it is a reasonable probability that the injury stems from that act of malpractice.

Though the final results of this inquiry are not binding, the results are given to both sides when the investigation is complete. The panel can also recommend damages to the injured party, but it is not necessarily what the final result of the claim will be. However, if both sides agree, the panel can talk about what amount of compensation should be given for the injury and discuss the specific settlement the injured party should receive. Furthermore, if the panel does agree that malpractice took place, and then the injured party files a case in court, it binds both sides of the lawsuit to attend court-ordered mediation if either side requests that this is how the case should proceed.

What Is the Medical Malpractice Statute of Limitations?

If a case is to be filed for medical malpractice in Montana, the injured party has a total of three years from when he or she first became injured, known as the date of injury, to file a claim. However, if the injured party was totally unaware of what happened, the three-year timer starts when the injured party reasonably became aware that the medical personnel caused the injury. If this is the case, the overall time from the date of occurrence is five years. This means that no matter what, five years from when the injury originally took place is the latest a claim can be filed. If someone does not find out that his or her injury was caused because of the negligent acts of someone during that time, no case can be filed.

Montana has one exception that puts the statute of limitations on pause. If the accused knew he or she injured someone else but did not share it with the plaintiff, then there is no statute of limitations in place. It could be nine years after the injury in this instance, and that is not something the court will dismiss the case for. The accused should have been able to understand how his or her action or inaction led to someone’s injury and notified that party immediately but proving that the accused reasonably knew can be difficult.

Which Type of Health Care Provider or Facility Can Face Medical Malpractice?

When it comes to a medical malpractice lawsuit, any type of professionals who provides healthcare to others can face charges. It does not mean that only doctors or hospitals are vulnerable. Lawsuits can be brought against anyone, including:

• Doctors and their nurses
• Medical clinics
• Dentists and dental hygienists
• Surgeons and the surgical staff
• Surgical outpatient centers
• Medical device manufacturers
• Anesthesiologists
• Chiropractors
• Physical therapists
• Hospice facilities
• Midwives and OB/GYNs
• An elderly care facility or nursing home
• Social workers, therapists, psychologists, or psychiatrists
• Orderlies
• Medical techs doing medical tests

What Qualifies as Medical Malpractice or Medical Negligence?

Several types of procedures could qualify as either medical malpractice or negligence. Any personal injury that could have been avoided may be able to be checked out legally for possible damages. Some of the injuries that can lead to a lawsuit include:

• Not diagnosing the patient early enough to avoid a worsening of his or her condition, when the symptoms pointed to an obvious problem from the onset
• Improper reading of test results that resulted in the misdiagnosis of the patient
• Dropping something on the patient, such as a piece of medical equipment
• Surgical errors that left someone disfigured
• Providing a diagnosis that did not fit the symptoms the patient came in with
• Patients getting medications they are allergic to as listed in their charts
• Not ordering helpful medical tests that would have been obvious based on the symptoms
• Leaving foreign objects behind after a surgical procedure
• Prescribing medications that caused a counteraction in the patient, leading to an injury
• Ignoring a call for help from a patient that resulted in injury or death
• Not getting a full medical history from the injured party or neglecting to read through the full medical history to help with a diagnosis
• Not providing the aftercare that a patient required
• Not offering a traditional treatment for a traditional ailment when there were no indications that a unique treatment was necessary
• Giving a patient the wrong dose of medication that would either be dangerously high or so low it would be ineffective at treating what ails him or her
• Using equipment that has a history of faulty behavior without finding out if it was repaired
• Operating on the wrong body part, such as operating on the wrong leg
• Not realizing a patient showed symptoms of post-operative infection
• Birth injuries that led to an unhealthy newborn or an ailing mother
• Lack of communication that could have prevented an injury, such as not describing side effects that went with a procedure or treatment and that resulted in the injury of the plaintiff
• Early discharge that leads to a patient’s condition getting worse
• Not placing an intubation tube into someone who was not able to breathe easily on his or her own
• Turning off any alarm that would have helped notify medical staff of a problem, such as a warning when a heart rate dropped dangerously low

Do Device Malfunctions Qualify for a Montana Medical Malpractice Lawsuit?

Sometimes, the injury does not seem to be because of the attending medical personnel, but because of a device. In these types of cases, courts will have to decide who is at fault for the injury. Through the use of reasonable diligence, the court will have to decide if the failure of the device was the problem or if there was an issue that led to the device failing.

For example, if the device was placed and maintained properly, there is a good chance that the device failed on its own. However, if the surgeon who placed the device did not keep up with regular maintenance or never trained the injured on how to maintain his or her device, the surgeon will likely be found at fault.

There are also times when it could be a combination of factors that cause the injury. One example would be if the device was part of a recall, but the doctor failed to notify the injured. In this case, the device manufacturer and the physician could both be found at fault. Determining this is often difficult, which is why it is so important that a medical malpractice lawyer or law firm is part of the process.

Does Montana Place Caps on the Damages an Injured Party Could Receive?

There are many types of damages that an injured party could go after. They fall into two categories. These are monetary damages and non-economic damages. Each category covers a different type of compensation the injured party could be owed if the accused is found guilty. Monetary damages are for money lost as a result of the injury, as the name implies. However, the damages that fall into the non-economic category cover things that get lost outside of money, such as confidence or companionship.

Monetary damages include things like:

• Wages that the injured party is unable to earn while recovering from the unexpected injury. If the injury is long-term or permanent, this can include future lost wages as well since the injured may not be able to go back to his or her job in the future.
• Bills for any additional treatment the injured party needed to receive in an attempt to recover from the injury. This can be a doctor’s visits, additional surgeries, prescription medications, or therapy that the injured party may need to relearn lost skills.
• Future medical bills if the injury’s recovery is going to be long-term. This needs to be determined when a person goes to court so that if monetary damages are awarded, the plaintiff has an idea of what to ask for to allow for as much healing as possible.
• Medical equipment that the injured party may need moving forward. This can include things like a hospital bed for at home, a walker, crutches, bathroom equipment, and therapy mats.

Non-economic damages include things like:

• Pain and suffering the injured party went through as a result of the injury itself
• Embarrassment due to the injury, such as if the injured party was disfigured
• Loss of companionship if the injury resulted in the loss of a relationship or the original injured party died from his or her injuries
• Loss of consortium, which is the inability to perform daily duties the same way as the injured party was once able to do, such as helping around the house, taking care of kids, or earning the same type of income
• The anguish that came as a result of the injury
• Payment to bury the deceased if the injury led to the patient’s death

In Montana, the cap is only placed on damages that fall into the non-economic category. No matter what type of medical error occurred, the damage cap is $250,000 for these damages. There is no damage cap placed on the medical damages. If the cost of current medical expenses and future medical expenses stretches into millions of dollars, then the court can award that much.

Does Joint Liability Apply to Malpractice Cases?

Montana is somewhat unique from most of the other states in the United States. When a lawsuit is brought against two or more parties for malpractice and found guilty, each party is responsible for the total amount of the damages. This allows the injured party to ensure he or she gets fully compensated no matter what type of insurance one accused may have or in case one of the accused does not have enough capital to pay the compensation.

However, this rule only applies to both (or more) of the parties that are found to be at least 50 percent liable for the injury. For anyone that is found under 50 percent liable, he or she is only responsible for the percentage the court applies to them specifically. This could be a hospital, a doctor, or a medical device.

Also, during any trial, no one is allowed to bring up any type of compensation the injured party has received from any outside source, as it could taint the final compensation the court determines is fair. It could be brought up during the time following the final verdict if the accused’s insurance company was part of where that compensation came from. That way, it reduces the total amount owed. However, if the insurance payment came from the injured party’s own policy, it is not a part of the compensation that goes to the plaintiff that the court awarded.

Gathering Evidence for a Malpractice Case

Many types of evidence need to be gathered in order to make a malpractice case work. It all needs to be able to show the chain of events that led from the injured party arriving at the facility to seek medical treatment through the injury. The investigation may turn up quite a few pieces of evidence that could make their way to court. This can include things like:

• Statements from anyone who may have witnessed the injury when it took place. This can be medical staff members who were around at the time, friends and family who were with the injured party when the injury took place, or people who simply happened to be around when the injury took place.
• Any type of photographs of the original injury or videos taken at the time the injury took place. This could include surveillance videos if there were any in the area where the injury happened. Even if they do not show the injury but show the state the plaintiff or defendant was in around the time of the accident, they could help in court.
• Medical records from prior to the injury, the time of the injury, and any treatment that has happened since the injury. This shows the condition of the plaintiff’s body before any injury through what it is like when the injured party is in court. Plus, it shows that the injured has been receiving treatment since the injury happened to try to help it heal.

The investigation should be able to provide evidence that the injury was caused by the accused, and in similar circumstances, another medical provider would not have made the same mistake.

Does an Attorney Need to File a Case of Malpractice?

There is no requirement to have the assistance of a lawyer for filing any case in a court anywhere in Montana. However, it is strongly advised never to file any type of lawsuit, personal injury or otherwise, without legal advice. Ideally, anyone filing a lawsuit should have his or her attorney file the suit. This way, the court can see that the case is meaningful and serious.

Many different loved ones can file lawsuits on behalf of anyone who died as a result of a medical error. However, whoever files the claim should still have the help of a lawyer to proceed with the lawsuit. The people who can file on behalf of a deceased plaintiff include:

• The spouse of someone who sustained a medically negligent injury
• The children of someone who succumbed to the injuries that he or she sustained
• Parents of someone who passed from injuries, or the siblings if the parents are already deceased
• If no one closer to the injured party exists, a grandparent can also file a claim

Attorneys bring a lot to a case that is hard to replicate without their assistance. Objectivity is one of the most powerful things an attorney can bring to a case. Not only can the attorney be objective with the injured party, he or she can also be objective in court instead of proceeding with his or her emotions in charge. This is important when an injury has occurred, but it is far more important when there is wrongful death involved. This is when a loved one has to file the malpractice claim on behalf of someone who has recently passed away.

Experience is another huge asset to a medical malpractice suit. Attorneys learn a lot through trial and error in court. They learn how to speak with insurance companies, the most important questions to ask during a deposition, they learn how to negotiate settlements, and so much more. If a lawsuit is filed, getting the help of an experienced attorney is worth it. It just means it may take more time to find the perfect attorney.

Some of the other things that an attorney can provide to a malpractice case include:

• A requirement understanding that surpasses the injured party’s on what is required.
• Attorneys know how to prove if care fell below standard in medical facilities.
• The attorney might have a physician who works with the firm, allowing the attorney to discuss the case with a medical professional who can pinpoint questions to ask or evidence to gather.
• Attorneys have a network of individuals who can all help with different aspects of the case. This can include investigators, paralegals to help with paperwork or filing, and financial professionals who can calculate current and future medical costs for the specific injury.
• An attorney will know what evidence to present and what evidence to look over if it will not be beneficial to the case.
• Attorneys know how to navigate the courtroom better than a layperson would, allowing the judge to take what he or she says more seriously. The attorney is then able to anticipate what could be coming next and be prepared.
• Attorneys with experience can share an educated guess on what type of compensation an injured party could expect from the injury. Inexperienced attorneys do not have the experience to rely on, so they would only be guessing.

How to Find the Perfect Medical Malpractice Lawyer to Work With

Any injured party must take whatever time it requires to find an attorney who understands his or her medical malpractice case due to the complexities of the law and nuances of each injury. No two injuries are alike, which means the attorney needs to specialize in the type of injury the plaintiff has or something very similar. The early attorney-client relationship says a lot, so taking the time ensures there is better chemistry as the case moves forward. Here are some questions that can help narrow down what attorney to turn to for the case:

• Does the case look like it has the potential to receive compensation based on the early evidence? Does a settlement or trial look like it would be more realistic?
• Is the attorney able to explain what happened, showing he or she understands what happened to cause the injury?
• Are there any deterrents to the case that the attorney sees right off the bat?
• Does the attorney have medical knowledge or work with someone in the medical field so that he or she knows how to explain the injury to people on the jury?
• Is the case still within the time limits for the state? If so, how much longer is there before those limits are up?
• Whom should the injured person expect to be doing the majority of communication in the case? How often should communication be expected?
• What assistants will be helping with the case? Paralegals, investigators, and anyone else?
• Would any types of evidence make the case easier to prosecute? If so, what types of evidence?
• Is this attorney able to take on the case, or is the attorney too busy?
• How much experience does the attorney have with this specific type of injury case? How many cases has he or she prosecuted, and out of those prosecuted, how many have received compensation?
• Would this case require the testimony of any type of expert? If so, what type of expert and what would the point of his or her testimony be?
• How are payments figured out, and when are payments due? Does the attorney work on contingency for his or her payments?
• What payments will the injured party need to come up with to get the case started? Which expenses will the firm cover, and of those expenses not covered, when are the payments due from the injured party?
• How many people make up the network of the attorney for the investigation process?
• Does the attorney come to the house of the injured party when face-to-face meetings are required, or will the injured party need to travel to the attorney’s office?

Another reason that it is important to make sure that the right attorney represents the case is that some attorneys are simply trying to make a buck. The initial consultation with the attorney should leave the injured party feeling as though he or she is well-represented. Things to watch out for with the wrong kind of attorney include:

• Conflicts of interest between the attorney and the injured party, such as representing both a doctor and an injured patient
• An attorney that is not aware of what deadlines exist or how soon a client is to missing any deadline the court requires
• Poor handwriting or grammar to where the court is unable to determine what the case is about or whether or not the case has any merit
• No experience in the malpractice field, or misrepresentation of how much experience the attorney has
• Having a relationship with the injured party before or at the time of the filing
• Excessively high costs that do not match the effort being put forth or the average costs of attorneys in the area
• Investigating the injury and creating false evidence
• Saying anything false about the plaintiff when in front of the judge, jury, or defense

Injured Parties Could Face Health Problems If They Go Into Court Alone

Due to the problems with negligence, the injured party is already facing a problem with his or her body that needs to heal as much as it can. Going into court while trying to heal is going to be stressful. Stress can harm the body in many different facets, making it a very bad idea for the injured party to try and go into court alone. Here are just a few of the health issues an injured party could have to contend with if he or she went on to try to battle the stressors of court alone:

• Poor decision-making is common when someone faces chronic stress. It means that someone may become so overly stressed, that he or she would take a subpar settlement, even though he or she knows it would not cover the bills.
• When someone is stressed out, the pressure of stress leads to higher heart rates and blood pressure. This puts more pressure on the heart and can cause a heart attack or even lead the injured party to have a stroke.
• Breathing rates are higher in those who are stressed, meaning the person may not be getting as much oxygen. This can decrease a person’s ability to think on his or her feet, plus it can also lead to making poor decisions. People facing acute stress can also start having asthma attacks, even if they never had them in the past.
• Many mental illness symptoms pop up when someone is under heavy This can lead to a feeling of being worthless, struggling with self-confidence, and giving up. That can impact an injured party’s ability to heal as well.
• Being stressed out can lead to weight gain through the cortisol created by the body. Cortisol increases inflammation and pain, plus it holds weight to help protect the body since it recognizes the body is under stress. The extra weight can make injuries more painful and slow down healing.
• The immune system in someone who is stressed out is also working harder than in someone who is not. This means that the person is more likely to get sick or struggle with the healing process. It could delay the healing of the injured party, or even lead to the inability for the injured party to heal if the stress gets bad enough.
• The adrenaline that comes with stress makes any pain a person has even stronger. This means that the pain leftover from the injury is stronger and can make going about day-to-day activities more difficult.
• Frustration can come with stress, which can lead to making impulse decisions. This can make healing harder, or put the injured party in a bad situation that he or she would not otherwise be in.
• Healing slows when a person gets too little sleep, which is common among people who get stressed out. Insomnia is a common ailment that people under much stress or worry get since they find it more difficult to turn their minds off at night.

On top of these health concerns, there are other reasons that an injured party should not go into court alone. This includes the simple fact that courtrooms favor the experienced. This means that a judge is going to give more credence to a person who went to college to become a lawyer than someone who is trying to prosecute a problem on his or her own. A lawyer will know what to present into evidence and what to ignore, whereas a layperson will not.

Attorneys know when to object to something the defense says or does, but a layperson probably will not. Plus, those with attorneys are far more likely to get some type of compensation out of an injury case than those who go into court alone. That means that trying to face the stressors of court alone could be for nothing if the judge dismisses the case for missing a tiny detail that an attorney would know about.

Conclusion

While the laws regarding Montanamedical malpractice cases are complicated, having an attorney assist with the case makes things far simpler. The attorney knows the deadlines, requirements, and verbiage the case will require. Anyone who has suffered an injury at the hands of any type of healthcare professional should seek compensation through the courts. Through reasonable diligence, any injured party should be able to prove the extent of the injury and who caused it. Take the time to gather the evidence of the case before taking it to court. That way, the injured party has a solid understanding of what reasonable outcome can be expected. Always have the help of an attorney when the court is involved. It allows for the best possible chances of getting compensation in the end.

Damage Caps in Montana

The cap on noneconomic damages in the state is $250,000.

See Damage Caps by Each State