What to do when you or a loved one are hurt by a health care professional
Contrary to popular belief, medical students don't swear to "first, do no harm" immediately after graduating. While some medical schools ask their graduates to abide by the Hippocratic Oath, the Oath doesn't contain the phrase "first, do no harm."
Nevertheless, most newly-minted doctors promise one way or another to treat their patients competently and properly. But doctors are human too, and sometimes they fail to perform to the best of their abilities—or they fail to exercise the degree of care and skill expected of a reasonably competent practitioner.
When this happens, a medical malpractice claim might be appropriate.
Medical malpractice claims are more complicated than most other personal injury claims. This article examines medical malpractice claims in Montana, including the ways in which they differ from other personal injury claims.
What is medical malpractice?
Medical malpractice occurs when a patient is harmed because a health care professional deviates from the accepted standard of care.
A study by Johns Hopkins University suggests that medical errors are the 3rd leading cause of death in the US, and a recent report indicates that there are roughly 15 medical malpractice lawsuits for every 100,000 people in Montana.
A medical malpractice claim can be filed against any health care professional, including the following:
- Physician
- Surgeon
- Physician assistant
- Dentist
- Dental hygienist
- Registered nurse
- Nursing home or hospital administrator
- Dispensing optician
- Optometrist
- Licensed physical therapist
- Podiatrist
- Psychologist
- Osteopath
- Chiropractor
- Clinical laboratory technologist
- Pharmacist
- Veterinarian
- Licensed hospital or long-term care facility
- Licensed medical professional corporation
- Failure to diagnose an illness
- Misdiagnosis of an illness
- Misreading an important lab result
- Prescribed improper medication or dosage
- Failure to follow proper medical procedure
- Failure to warn a patient of known risks
- Prematurely discharging a patient
Elements of a medical malpractice claim in Montana
In order to establish a medical malpractice claim in Montana, you must prove the following 2 elements:
- Your health care provider failed to exercise the degree of care and skill expected of a reasonably competent health care professional acting in the same or a similar community in the United States, and
- Such failure was the proximate cause of your injury.
In a medical malpractice case, the main focus of the lawsuit will generally be on what the health care provider should have done in a specific set of circumstances. The standard by which the health care professional is judged is called the "medical standard of care."
While most health care professionals in Montana are expected to exercise the degree of care and skill expected of a reasonably competent health care professional acting in a similar community, the medical standard of care that a board-certified specialist must meet is slightly higher.
A board-certified specialist must exercise the reasonable and ordinary degree of learning, skill, and care exercised by practitioners of good standing who hold the same national board certification.
Special requirements for malpractice lawsuits in Montana
Montana has a unique procedural rule that requires plaintiffs to file a claim with the Montana Medical Legal Panel (MMLP) before filing a medical malpractice lawsuit.
The claim must include the following information:
- A reasonably detailed statement describing the health care provider's conduct, the dates on which the conduct occurred, and the names and addresses of all known witnesses.
- A statement authorizing the MMLP to obtain access to all medical records and information pertaining to the claim.
The MMLP will review the claim, consult with expert witnesses, and determine whether the claim has merit. If the MMLP determines that the claim is legitimate, they will notify the involved parties and may attempt to help the parties reach a settlement.
The purpose of this procedural rule is to prevent baseless claims from clogging the court system and to encourage the settlement of legitimate claims.
Medical malpractice statute of limitations in Montana
Medical malpractice claims must generally be filed within 2 years after the date of injury or within 2 years after the plaintiff discovers (or through the use of reasonable diligence should have discovered) the injury.
However, there are a few important points to keep in mind:
- The statute of limitations will change to 3 years beginning on July 1, 2019.
- In no case may an action be filed after 5 years from the date of injury.
- In an action for death or injury of a minor who was under the age of 4 on the date of the minor's injury, the statute of limitations doesn't begin to run until the minor reaches their 8th birthday or dies (whichever occurs first).
- A notice of claim must be filed within 180 days of the injury when the defendant is a government-run healthcare facility or the services were provided by a government institution.
What damages can be recovered in a medical malpractice lawsuit?
In Montana, a plaintiff in a medical malpractice lawsuit can recover both economic and non-economic damages. However, like many states, Montana has passed a law that limits (or "caps") non-economic damages in medical malpractice cases.
Montana's cap for non-economic damages in medical malpractice cases is set at $250,000. The cap is per incident of malpractice. For example, if a plaintiff sues 1 doctor for 2 separate instances of medical malpractice, the plaintiff can receive (at most) $500,000.
Montana Good Samaritan law
Montana has 1 more "limitation" you should know about. Any licensed health care professional who renders emergency care or assistance without compensation at the scene of an emergency is immune (not liable) for civil damages unless the health care professional acted in a grossly negligent manner or wilfully harmed the person.
This is referred to as the "good Samaritan immunity law," and it applies, for example, to a case where a doctor having dinner in a restaurant provides aid to a choking victim.
Still think you might have a medical malpractice claim? Use our free online directory to contact a Montana attorney in your area.
Did you know that medical malpractice law varies by state?
What does an injury lawyer do?
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more
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