Author: Dean Hoistad

Labair v. Carey, 2012 WL 6707719. Under the legal malpractice case-within-a-case analysis, the defendant’s legal expert opined that plaintiffs could not have prevailed against their physician and so even if it was negligent for their attorney to have missed the statute of limitation, his admitted omission did not cause or result in any harm or damages since they could not have prevailed anyway.  The court held that the defendant’s expert on the legal standard of care, a lawyer, was not qualified to express an opinion about whether plaintiffs would have prevailed in their medical malpractice claims against their physician.  In order to prove causation plaintiffs must establish that but for the attorney’s negligence (missed statute of limitation) the plaintiff’s damage or harm (missed opportunity to present their damage claims to a jury) would not have occurred. It is not necessary to prove that plaintiff would have prevailed in the medical malpractice case in order to state a viable legal malpractice claim.  An attorney’s negligence is the cause of the plaintiff’s injury if there is an uninterrupted chain of events from the negligent act to the injury. In such cases, proof of causation is satisfied by proof that the attorney’s negligent conduct was a cause-in-fact of the damage alleged, i.e., that the injury would not have occurred “but for” that conduct. Only when the attorney alleges that the chain of causation has been severed by an independent intervening cause should there be any discussion or consideration of whether the attorney’s negligent act was the “proximate cause” of the plaintiff’s injury, i.e., whether the attorney’s breach “foreseeably and substantially” caused the injury. The manner of proof in any type of legal malpractice case will must be tailored to the nature of the loss sustained.  The court and the parties shall settle the manner in which the case shall be tried.  Regardless of how the evidence is presented, it shall be incumbent on the plaintiffs to show that they more probably than not would have recovered a jury verdict or settlement against the doctor but for the attorney’s negligence, and the value of the claim that was lost. Testimony and evidence regarding damages occasioned by attorney malpractice may not be speculative and must afford a sufficient basis for an award of damages.

Gatlin-Johnson ex rel. Gatlin v. City of Miles City,  — P.3d —-, 2012 WL 6643862 (Mont.), 2012 MT 302  The public duty doctrine provides that a governmental entity cannot be held liable for an individual plaintiff’s injury resulting from a governmental officer’s breach of a duty owed to the general public rather than to the individual plaintiff.  Exceptions exist where a “special relationship” exists that gives rise to a duty to a particular class of people to which the plaintiff belongs. A special relationship can be established where there is a statute intended to protect from harm a specific class of persons including the plaintiff; when the government undertakes to protect a specific person; when governmental actions reasonably induce detrimental reliance by an individual; and where the government has actual custody of the plaintiff or of a third person who harms the plaintiff. The public duty doctrine was not intended to apply in every case to the exclusion of any other duty a public entity may have. It applies only if the public entity truly has a duty owed only to the public at large, such as a duty to provide law enforcement services or regulate the practice of medicine. It does not apply where the government’s duty is defined by other generally applicable principles of law.

§26-2-601 MCA. Beehler and Goodson v. Eastern Radiological Assoc., Giuliano, and St. Vincent Healthcare, DA 11-618. A non-radiologist infection specialist was qualified to testify about the subject matter of whether failure of a radiologist to wear a mask while performing a myelogram violated the standard for infection control applicable to the radiologist and the hospital where the myelogram was performed. §26-2-601 MCA provides: A person may not testify as an expert witness on issues relating to negligence and standards of care and practice in an action on a malpractice claim . . . unless the person is licensed as a health care provider in at least one state and routinely treats or has routinely treated within the previous 5 years the diagnosis or condition or provides the type of treatment that is the subject matter of the malpractice claim or is or was within the previous 5 years an instructor of students in an accredited health professional school or accredited residency or clinical research program relating to the diagnosis or condition or the type of treatment that is the subject matter of the malpractice claim; and shows by competent evidence that, as a result of education, training, knowledge, and experience in the evaluation, diagnosis, or treatment of the disease or injury that is the subject matter of the malpractice claim against the health care provider, the person is thoroughly familiar with the standards of care and practice as they related to the act or omission that is the subject matter of the malpractice claim on the date of the incident upon which the malpractice claim is based. A person qualified as an expert in one medical specialty or subspecialty is not qualified to testify with respect to a malpractice claim against a health care provider in another medical specialty or subspecialty unless there is a showing that the standards of care and practice in the two specialty or subspecialty fields are substantially similar, but this does not apply if the subject matter of the malpractice claim against the health care provider is unrelated to the relevant specialty or subspecialty.

Nelson v. Hartford Ins. Co. of Midwest, 2012 WL 5874457 (D. Mont.)  Montana’s Unfair Trade Practices Act requires third-parties pursuing a claim under the Act to do so within one year from teh the date of the settlement or entry of judgment in the underlying claim, § 33-18-242 (7)(b) MCA. A claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action. This means the statute of limitations begins to run when “the last fact essential to the cause of action” occurs, regardless of whether the damages are complete.  Common-law bad-faith claims are governed by the three year statute of limitations applicable to torts.  § 27-2-204 MCA

Kuszmaul v Sterling Life Ins. Co., 365 Mont. 390, 282 P3rd 665 2012 MT 154.  Employee’s mailing of unapproved marketing material constituted good cause for termination under the Wrongful Discharge from Employment Act (WDEA), where employee admitted she had read, signed, and understood the employment policy that required prior approval of all marketing material, and that she sent out her unapproved letter, and policy clearly stated that a violation of the policy resulted in immediate termination. § 39-2-904(1)(b) MCA. Employee handbook did not require progressive discipline prior to termination of an employee for violation of employment policy; handbook clearly contemplated that a termination of employment could be appropriate depending on the seriousness of the situation, thus, the discharge of an employee for a significant infraction was within the purview of the handbook. § 39-2-904(1)(c) MCA.