In an unreported opinion last month, the Supreme Court of Montana decided an appeal of an order granting a motion for judgment as a matter of law in favor of a doctor in Yellowstone County. The court found that the patient failed to present expert testimony that the doctor breached the standard of care in obtaining informed consent before performing surgery.
- Montana Supreme Court’s ruling in a birth injury case in 2023
Facts of Greene v. McDowell
The case revolved around an orthopedic spine surgeon who performed an anterior cervical discectomy and fusion (ACDF) surgery on the patient. These are extremely difficult malpractice cases to bring. It is not that doctors do not make mistakes when performing spinal disc surgery. It is just that it is so hard to prove. The patient in this case claimed the doctor failed to fully inform her of the risk of long-lasting or permanent voice hoarseness and difficulty swallowing as a result of the surgery. So the patient did not allege that the surgery itself was performed negligently but argued that the doctor did not meet the standard of care in obtaining informed consent. The patient claimed that if they had known about the remote possibility of permanent vocal changes, they would have sought a second opinion before proceeding with the surgery.
The case went to trial, and the patient called a single expert, initially listed as an expert for the doctor but later cross-designated by the patient, to testify regarding the standard of care in obtaining informed consent for such surgeries. Because it is not a breach of the standard of care question, you can use the doctor’s expert to prove the risks of the procedure. Is this a good idea? Generally, it is not.
Anyway, the expert testimony presented at trial established that the risk of permanent injury causing hoarseness or difficulty swallowing was so low that the standard of care did not require such a remote risk to be disclosed during the consent discussion. Again, not the best idea to use the defendant’s experts. But maybe the malpractice lawyer had no other choice.
After the patient presented her case, the doctor moved for a directed verdict, arguing that the patient failed to present the required expert testimony to establish that the doctor breached the standard of care in obtaining informed consent. The District Court agreed and granted the motion. The patient then appealed the decision.
Informed Consent in Montana
In a medical malpractice claim, a plaintiff must present competent expert testimony to establish the standard of care, any deviation from it, and that the departure caused damages. While a lack of informed consent is a separate cause of action and not a component of professional negligence, the rules governing it are the same.
The informed consent theory of liability acknowledges that a physician has a duty to inform the patient of the known risks of the proposed treatment so that the patient can make an informed decision. The physician’s responsibility to disclose is limited to what a reasonable practitioner would disclose in similar circumstances, and the physician’s judgment on how to best fulfill this duty is a matter of medical judgment. So to prove an informed consent claim, a plaintiff must provide expert testimony to establish the standard of care regarding the information necessary for informed consent. The specifics of the information required for informed consent are determined on a case-by-case basis, and there is no universal rule on what must be disclosed.
What is significant about this from the perspective of this case is that Montana law looks at informed consent from the doctor’s perspective of what a reasonable doctor would do. This requires expert testimony. This decision might have been very different in a jurisdiction.
Montana Supreme Court Decision
The plaintiff argued on appeal that expert testimony was not needed to establish the standard of care or to show a breach of that standard in a case involving informed consent. The plaintiff claimed that the doctor informed them about the potential for lasting hoarseness and difficulty swallowing while maintaining that they were only told about the risk of temporary injury. But the court’s believed that argument overlooks the difference between the minimum a reasonable practitioner must tell a patient about risks and the requirement to disclose every possible risk.
The court was clear that Montana law requires expert testimony to establish the elements of a lack of informed consent case. During a hearing on the doctor’s directed verdict, the plaintiff’s medical malpractice lawyer even conceded that expert testimony is required in an informed consent case. The plaintiff’s expert witness testified that the standard of care did not require a discussion with the patient about the remote possibility of lasting or permanent injury causing hoarseness or difficulty swallowing.
Under state law, to prove their case, a plaintiff must produce expert testimony to establish a standard of medical practice and show the defendant’s deviation from that standard. Without expert testimony to establish these elements, no genuine issue of material fact exists, and the defendant is entitled to judgment as a matter of law.
In this case, the plaintiff did not produce expert testimony that established a standard of care requiring the doctor to advise the patient of the remote possibility of permanent hoarseness or difficulty swallowing or that the doctor deviated from that standard. In fact, the plaintiff’s only expert witness – again, the defense expert – on this topic testified that the doctor did meet the standard of care and that discussion of potentially permanent paralysis of the recurrent laryngeal nerve causing permanent hoarseness or difficulty swallowing was not required to meet the standard of care.
Without this expert testimony, the court concluded, a plaintiff cannot prove all the elements of a claim of lack of informed consent. Even viewing all evidence in the light most favorable to the plaintiff, the court found this medical malpractice lawsuit fails as a matter of law because the plaintiff failed to produce expert testimony that the doctor did not adhere to the standard of care.
Reported Versus Unreported Opinions in Montana
This case is an unreported opinion. The line between reported and unreported cases is getting blurred. But the line is still there.
A legal opinion is a written explanation by a judge or panel of judges accompanying their decision in a case, outlining the rationale and principles that led to the outcome. Legal opinions can be either reported or unreported, with the main difference between the two lies in their publication status, accessibility, and the weight they carry as precedents.
Reported legal opinions are published in official law reporters or legal databases, making them more easily accessible to the public, legal professionals, and the judiciary. They generally carry more weight, as they establish binding precedents that lower courts must follow in similar cases. Reported opinions serve as authoritative interpretations of the law and help ensure consistency in the legal system. They are often more thorough and carefully edited, as they are intended for broader dissemination and scrutiny.
On the other hand, unreported legal opinions are not published in official law reporters or widely accessible databases. They may still be available through court records or other sources but are not as easily accessible as reported opinions. Unreported opinions generally carry less weight as precedents, and lower courts are not necessarily required to follow them. But, boy, a Montana Supreme Court opinion like this is hard for a trial judge to look past. These opinions might be less detailed or polished because they are intended for the same level of scrutiny and dissemination as reported opinions. Many think this reported and unreported distinction is antiquated. And it probably is.