A number of Montana laws will come into play if you want to file a medical malpractice lawsuit in the state's civil courts. In this article, we’ll take a look at the most important of these rules, including the time limits for filing a medical malpractice lawsuit, procedural prequisites for doing so, and statutory restrictions on certain compensation (damages) that a successful plaintiff can receive.
Like all states, Montana has passed laws known as statutes of limitations, which set time limits on filing different kinds of lawsuits in court. For a medical malpractice case in Montana, the time limit is currently (and temporarily) two years from the “date of discovery,” which is the date the injured person knew or reasonably should have known that medical negligence may have occurred after receiving treatment from a health care professional. However, Montana also has a "statute of repose" on the books when it comes to medical malpractice lawsuits. This staute says that no medical malpractice lawsuit can be filed if more than five years have passed since the commission of the underlying medical error. In other words, even if the medical negligence wasn't discoverable through reasonable diligence, if more than five years have passed since it occurred, you can't file a medical malpractice lawsuit in Montana.
An exception to the five-year statute of repose is when the health care provider fails to disclose the occurrence of the medical error, or the potential harm, including through fraudulent concealment. In that situation, the two-year "clock" starts running once the occurrence of the medical error would have been discovered with reasonable diligence, and there's no over-arching five-year deadline.
Montana has a special statute of limitations for medical negligence that injures a young patient. If the child was under four years old when he or she was injured, the two-year and five-year statutes of limitations begin to run on the child’s eighth birthday.
If you don't get your lawsuit filed before the deadline set in the statute of limitations has passed, the court will throw out your case, and you'll lose the right to any civil remedy for medical malpractice. So it's important to understand how these filing rules affect your potential case.
Editor's Note: According to Montana Code Annotated section 27-2-205, Montana's medical malpractice statute of limitations is set to change, effective July 1, 2019. For lawsuits filed after that date, a three-year deadline will apply (extended from the current two-year deadline), with the same five-year statute of repose and other considerations covered above still in effect.
Montana also requires that most potential medical malpractice claims be submitted to and examined by the Montana Medical Legal Panel before a lawsuit can be filed in court. The panel is usually made up of three health care providers and three attorneys.
The purpose of the panel is to review the case and decide whether or not there is “substantial evidence” that the defendants failed to provide treatment that was in line with the applicable medical standard of care, causing the patient’s injuries.
The injured patient (usually through his or her attorney) first files an application for review, in accordance with the requirements set out in Montana Code Annotated section 27-6-302. After the health care provider is served with the application, records are exchanged, and a hearing takes place, the panel decides:
The decision of the panel is not binding, and it is not admissible in court, but the panel can recommend a financial award to the patient where substantial evidence is found. The panel also has the power to oversee and approve a settlement agreement between the parties, and if such an agreement is approved, it's binding.
Montana "caps" or limits non-economic damages in medical malpractice cases. “Non-economic” damages are those that can’t be easily quantified. They include compensation for things like pain and suffering and loss of the ability to enjoy various life activities due to the malpractice.
In Montana, non-economic damages in medical malpractice cases are capped at $250,000. It's important tonote that this cap does not affect “economic” damages like medical bills and lost wages. It also does not affect any award of punitive damages or the amount or method of paying attorney’s fees.
Montana also has a rule requiring damages payments to be offset by any collateral sources if the total damages award -- including both economic and non-economic damages -- is more than $50,000. “Collateral sources” are other sources of payments related to an injury, like disability insurance or workers’ compensation payments.