Statutes of Limitations

In Montana, medical malpractice actions alleging personal injury or wrongful death must be brought within three years from the date of injury or from the date when the claimant discovered (or with the exercise of reasonable diligence should have discovered) the injury. Mont. Code Ann. § 27-2-205(1) (1997). In no event may an action be brought after five years from the date the injury was incurred. Id. The period is tolled for claimants whose injuries occurred while they were under the age of four years until they are eight years old or until they die, whichever date is earlier, and during any period in which the minor does not reside with a parent or guardian. Mont. Code Ann. § 27-2-205(2) (1997).

Contributory or Comparative Negligence

Montana law is in flux because the legislature has passed alternative versions of its statutes on comparative negligence, joint and several liability, and related subjects, effective for causes of action that arise on or after April 18, 1997. One version embodies the general principle of including non-parties when allocating fault, the other does not. If the former, preferred set is held invalid or unconstitutional, the second is automatically in force. See notes at Mont. Code Ann. §§ 27-1-702, 27-1-703, 27-1- 705, and 27-1-706 (1997). The issue is open because a series of cases, beginning with Newville v. State Dept. of Family Services, 267 Mont. 237, 883 P.2d 793 (1994), invalidated statutes that allowed the allocation of fault to non-parties, and it is uncertain whether the drafting of the new statutes avoided the infirmities of the old.

Montana has adopted the doctrine of modified comparative negligence. Mont. Code Ann. § 27-1-702 (1977). Under this doctrine, a claimant's action is barred if his negligence exceeds the combined negligence of all defendants (or all defendants and other persons). Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence. Id.

Joint and Several Liability

Any party whose negligence constitutes 50 percent or less of the combined negligence of all tortfeasors is severally liable only. Mont. Code Ann. § 27-1-703 (1997). Otherwise, the tortfeasor is jointly and severally liable. Id. If for any reason all or part of the contribution from a party cannot be obtained, each of the other tortfeasors must contribute a proportionate share of the unpaid portion. Id. In determining liability, the trier of fact may look to the negligence of non-parties, including parties released by the claimant if a non-party defense is properly asserted. Id.

The alternative provision if the foregoing is invalidated is pure several liability. See discussion under Contributory or Comparative Negligence.

Contribution

Montana affords joint tortfeasors a right of contribution in medical malpractice actions. Mont. Code Ann. § 27-1-703 (1997). Contribution may be sought within the principal action by motion against named defendants or by a third-party complaint. Id.

Vicarious Liability

By statute, an ostensible agency is created when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him. Mont. Code Ann. § 28-10-103 (1997). Montana courts have recognized that this doctrine provides a means of imposing liability on a hospital for the negligence of its independently- contracted physicians. Estates of Milliron v. Francke, 243 Mont. 200, 793 P.2d 824 (1990). However, there appear to be no published cases in which this has been done.

Expert Testimony

With rare exceptions, expert testimony is required to establish a cause of action for medical malpractice. Dalton v. Kalispell Regional Hospital, 256 Mont. 243, 846 P.2d 960 (1993); Clark v. Norris, 226 Mont. 43, 734 P.2d 182 (1987).

Damage Caps

For medical malpractice causes of action arising on or after October 1, 1995, there is a limit of $250,000 on the non-economic damages a claimant can recover. Mont. Code Ann. § 25-9-411 (1997). Non-economic damages include, but are not limited to, physical and mental pain and suffering, emotional distress, loss of companionship or consortium, and injury to reputation or humiliation. Id. The cap applies only once to an injury even if caused by a series of acts and more than one health care provider. Id. The jury is not instructed about the cap and any award that exceeds it is reduced by the court. Id.

Statutory Cap on Attorneys' Fees

There is no Montana statutory provision which limits attorneys' fees in medical malpractice actions.

Periodic Payments

In a medical malpractice action arising on or after October 1, 1995, at the request of any party, the court must enter an order for the periodic payment of any future damages that exceed $50,000. Mont. Code Ann. § 25-9-412 (1997). If the claimant dies before all of the payments have been made, then the remaining payments become the property of his estate. Id.

Collateral Source Rule

In any bodily injury or death case in which the damages exceed $50,000 and the claimant will be fully compensated, the claimant's damages must be reduced by payments from collateral sources which do not involve rights of subrogation. Mont. Code Ann. § 27-1-308 (1997). Any payments the claimant has made from the fifth year preceding the injury to trial and any future payments necessary for such collateral benefits will serve as an offset to the initial reduction. Id. The reduction of a claimant's award for collateral benefits is performed by the judge and not the jury. Id.

Pre-Judgment Interest

Montana law generally provides for the award of pre-judgment interest as a matter of right on damages capable of being made certain by calculation. Mont. Code Ann. § 27-1-210 (1997). The statutory rate is ten percent. Interest accrues from 30 days after the claimant presents a written claim including an explanation of the damage calculation. Id. Under the statute, damages not capable of being made certain include future damages and damages for, inter alia, pain and suffering, mental anguish, punitive damages, loss of consortium, or attorneys' fees. Id. Hence, at most, pre-judgment interest may be earned only on a claimant's incurred pecuniary damages.

Patient Compensation Funds and Physician Insurance

Montana does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

The State of Montana has waived its immunity as well as that of its political subdivisions, including municipalities, counties, and towns. Mont. Code Ann. § 2-9-102 (1997); see also Mont. Code Ann. § 7-1-4125 (1997) (specifically waiving the immunity of its municipalities). The state and its political subdivisions are, however, immune from liability for exemplary and punitive damages. Mont. Code Ann. § 2-9-105 (1997).

The liability of the state and its political subdivisions is limited to $750,000 per claim and $1,500,000 per occurrence. Mont. Code Ann. § 2-9-108 (1997). If an insurer specifically agrees to provide insurance in amounts in excess of the above-noted limitations, the insurer may not claim the benefits provided by the state's tort claims act. Id. Although a former damage cap of $300,000 was found to be unconstitutional in White v. State, 203 Mont. 363, 661 P.2d 1272, (1983), White was overruled by Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488(1989) (a case not involving damage caps), so the current cap may be valid.

Government employees must be defended and indemnified by the public employer for suits arising in connection with their negligent conduct which occurred in the course of their employment. Mont. Code Ann. § 2-9-305 (1997).

Arbitration

All medical malpractice actions not subject to a valid arbitration agreement must be reviewed by the Montana Medical Legal Panel prior to the filing of a complaint in the state district court. Mont. Code Ann. §§ 27-6-105 and 27-6-701 (1997). The panel is charged with the responsibility of deciding whether there is substantial evidence that the alleged acts occurred, that the alleged acts constituted malpractice, and that within a reasonable medical probability, the claimant was injured thereby. Mont. Code Ann. § 27-6-602 (1997). The panel's decision is neither binding nor admissible in court. Mont. Code Ann. §§ 27- 6-606 and 27-6-704 (1997).