Healthcare Law and Business Library: The Definitive Online Source for Healthcare Data

Contributing Editor:

Dean A. Hoistad
Garlington, Lohn & Robinson PLLP
199 West Pine Street, P.O. Box 7909
Missoula, MT 59807
Telephone: (406) 523-2500
Fax: (406) 523-2595
E-mail: dahoistad@garlington.com
Website: www.garlington.com

I. Statute of Limitations
	A.	General Provisions
		An action for malpractice against a healthcare provider - a physician, surgeon, dentist, registered nurse, nursing home or hospital administrator, dispensing optician, optometrist, licensed physical therapist, podiatrist, psychologist, osteopath, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, pharmacist, veterinarian, a licensed hospital or long-term care facility, or licensed medical professional corporation - alleging professional negligence, rendering professional services without consent, or an act, error, or omission must be commenced within three years after the date of the injury. Mont. Code Ann. § 27-2-205(1) (2001). All tort actions alleging general or personal injuries must be commenced within three years after the date of the injury. Mont. Code Ann. § 27-2-204(1) (2001).
	B.	Variations Among Providers
		There are no differences in statutes of limitation among providers. Section 27-2-205(1) applies to all healthcare providers; no distinction is made between any of the professions or specialties.
	C.	Extensions Available
		1.	Tolling Provisions
			Generally, statutes of limitation are tolled by the commencement of an action, which occurs when the complaint is filed. Webb v. T.D., 245 Mont. 243, 912 P.2d 202 (1996); Mont. Code Ann. § 27-2-102(1)(b) (2001). Montana law requires that all malpractice actions against healthcare providers, with the exception of chiropractors and their employees who are covered under a separate statute, be brought before the Medical Legal Panel prior to filing a claim in district court in order to determine if a valid cause of action exists. Mont. Code Ann. §§ 27-6-102, 27-6-105 (2001). Consequently, the statute of limitation for malpractice is tolled upon the panel's receipt of an application for review. Mont. Code Ann. § 27-6-702 (2001). The statute of limitation begins running 30 days after the application is dismissed, the parties consent to dismissal, or the panels enters a final decision on the claim. Mont. Code Ann. § 27-6-702 (2001). Malpractice actions against chiropractors and their employees are initially brought before the Chiropractic Legal Panel. Similar to actions against all other healthcare providers, the statute of limitations is tolled upon the receipt of the application for review and begins to run 30 days after the application is dismissed or immediately upon the panel's final decision. Mont. Code Ann. § 27-12-701 (2001). An injunction, order, or statutory provision that stays an action from commencing tolls the applicable statute of limitation until the stay expires. Mont. Code Ann. § 27-2-406 (2001). An agreement between parties to submit to arbitration tolls the statute of limitation until the arbitration concludes. Mont. Code Ann. § 27-2-405 (2001).
		2.	Discovery Rules
			Section 27-2-205 allows for the plaintiff to commence a suit for malpractice within three after the date the injury is discovered or should have been discovered through reasonable diligence. However, the discovery rule does not apply to general tort actions. Bennett v. Dow Chemical Co., 220 Mont. 117, 713 P.2d 992 (1986). With the exception of malpractice actions, statutes of limitation do not begin running until the facts constituting the claim have been discovered or should have been discovered through reasonable diligence. Only when the facts are by their nature concealed or are self-concealing, or the defendant somehow prevents the plaintiff from discovering the injury or its cause is an extension allowed. Mont. Code Ann. § 27-2-102(3) (2001).
		3.	Minors
			If an injury arises when a child is under the age of four, the statute of limitation begins to run when the child reaches the age of eight or dies, whichever occurs first. Mont. Code Ann. § 27-2-205(2) (2001). If the child is is over the age of four when the injury occurs, the statute of limitation does not begin running until the child reaches the age of majority. Mont. Code Ann. § 27-2-401(1) (2001).
		4.	Incapacitated Persons
			The limitation period does not begin running when the plaintiff is incapacitated due to mental illness until the person recovers. Mont. Code Ann. § 27-2-401(1) (2001). If the person is under civil commitment, the limitation period is tolled only for a maximum of five years. Mont. Code Ann. § 27-2-401(1) (2001). A person cannot claim a disability unless it existed at the time the action accrued. Mont. Code Ann. § 27-2-401(3) (2001). If a person is a minor and under a disability simultaneously, the limitation period does not begin running until both are removed. Mont. Code Ann. § 27-2-401(4) (2001).
		5.	Prisoners
			Since 1995, there is neither a statutory nor a common-law extension for prisoners. Prior to that time, the limitation period was tolled for prisoners sentenced to less than life imprisonment until that person was released. Mont. Code Ann. § 27-4-401 (1993).
		6.	Out-of-state Defendants
			A cause of action that arises when the defendant is out of the state and cannot be properly served results in the tolling of the limitation period until the defendant returns to the state. The limitation period is also tolled when the defendant leaves the state after the action arises and begins running only when the defendant returns or can be properly served outside of the state. Mont. Code Ann. § 27-2-402 (2001).
	D.	Statutes of Repose
		The Montana Supreme Court recognized that § 27-2-205(1), the statute of limitation governing medical malpractice claims, contained a statute of repose that requires that all malpractice actions, regardless of the discovery of the injury, must be commenced within five years, absent a failure by the defendant to disclose any act, error, or omission that is known to the defendant or should have been known to the defendant through reasonable diligence. Blackburn v. Blue Mountain Women's Clinic, 286 Mont. 60, 951 P.2d 1 (1997).
	E.	Limitations for Alternative Theories
		The statute of limitation for breach of contract, obligation, or liability evidenced by a writing is eight years. The limitation period for a breach of contract not in writing is five years and three years for a breach of an obligation or liability not in writing. Mont. Code Ann. § 27-2-202 (2001). An action based on fraud or mistake has a limitation period of two years. In order for the discovery doctrine to apply, there must be an active concealment of the facts unless a fiduciary relationship exists. Kerrigan v. O'Meara, 71 Mont. 1, 227 P. 819 (1924). If a fiduciary relationship exists, then there is an affirmative duty to disclose all facts and failure to disclose equates to active concealment. Skierka v. Skierka Bros., Inc., 192 Mont. 505, 629 P.2d 214 (1981). The limitation period for an action to enforce a judgment is ten years; the action arises when the final judgment is entered. Mont. Code Ann. § 27-2-201 (2001).
	F.	When a Cause of Action Arises
		According to § 27-2-102(1), a cause of action arises when all elements of the claim exist or have occurred. Unless a statute exists that provides for a different period, the statute of limitation for the action begins when the cause arises. Mont. Code Ann. § 27-2-102(2) (2001).
	G.	Miscellaneous
		Any action that is not specifically provided for in Title 27, Chapter 2, has a limitation of 5 years. Mont. Code Ann. § 27-2-231 (2001). If a party entitled to bring an action dies before the limitation period expires and the action survives, the action may be commenced by the decedent's estate within one year of the death or the expiration of the limitation period, whichever comes first. Mont. Code Ann. § 27-2-403 (2001).
II. Damage Caps
	A.	Constitutional or Statutory Prohibitions on Damage Caps
		Montana currently has neither a constitutional nor statutory prohibition on damage caps.
	B.	Limits on General Damages
		Damages for a single medical malpractice claim that are non-economic in nature are limited to $250,000. The limitation applies to situations where one or more acts cause the injury or death, or where one or more healthcare providers were negligent. If a single malpractice incident injures multiple, unrelated people, the limitation applies to each person. Mont. Code Ann. § 25-9-411(1) (2001). If separate injuries are alleged, the burden is on the plaintiff to show how each arose from a different act. The maximum recovery for non-economic damages for multiple acts of medical malpractice is $250,000. Mont. Code Ann. § 25-9-411(2). Reductions to the damages are made if the plaintiff is found to be comparatively negligent, multiple defendants are jointly and severally liable, and the defendant is entitled to a setoff or credits. Mont. Code Ann. § 25-9-411(2)(b) (2001). Furthermore, the limitation cannot be discounted to present value or disclosed to the jury. Mont. Code Ann. § 25-9-411(3)-(4) (2001).
	C.	Punitive Damages
		During the 2003 Session, the Montana Legislature amended its punitive damages statute to limit punitive damages to $10 million or 3% of the defendant's net worth, whichever is less. However, the limitation does not apply to punitive damages awarded in class action lawsuits. Mont. Code Ann. § 27-1-220(3) (2003). This statute also prohibits punitive damages in breach of contract cases. Mont. Code Ann. § 27-1-220(2) (2003). In order to be recover punitive damages, the plaintiff must show by clear and convincing evidence that the defendant is guilty of actual fraud or actual malice. Mont. Code Ann. § 27-1-221(1), (5) (2003). A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and either deliberately proceeds to act in conscious or intentional disregard of or indifferent to the high probability of injury to the plaintiff. Mont. Code Ann. § 27-1-221(2) (2003). A defendant is guilty if actual fraud if the defendant makes a representation with knowledge of its falsity or conceals a material fact with the purpose of depriving the plaintiff of property or legal rights or otherwise causing injury. Mont. Code Ann. § 27-1-221(3) (2003). Actual fraud exists only when the plaintiff has a right to rely on the defendant's representation and consequently suffers an injury from that reliance. Mont. Code Ann. § 27-1-221(4) (2003). The 2003 Legislature amended the statute to delete the provision of the requirement of a unanimous jury for the award of punitive damages, Mont. Code Ann. § 27-1-221(5) (2003) ; Montana's Constitution only requires a two-thirds majority of the jury. Finstad v. W.R. Grace & Co., 2000 MT 228, 301 Mont. 240, 8 P.3d 778. A judge, either in awarding punitive damages or assessing the award given by the jury, must consider: the nature and reprehensibility of the defendant's wrongdoing; the extent of the defendant's wrongdoing; the defendant's intent in committing the wrong; the profitability of the defendant's wrongdoing, if applicable; the amount of actual damages awarded; the defendant's net worth; and previous awards of punitive damages against the defendant based on the same wrongful act. Mont. Code Ann. § 27-1-221(7) (2003). It is important to note the recent United States Supreme Court decision in State Farm Mut. Auto. Ins. Co. v. Campbell, ____ U.S. ____, 123 S.Ct. 1513 (2003). In Campbell, the Court relied on three "guideposts" in determining if damages were excessive: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. 123 S.Ct. at 1520. The Court also stated, "single-digit multipliers are more likely to comport with due process..." 123 S.Ct. at 1524.
	D.	Elder Abuse or Vulnerable Adult Cases
		The 2003 Montana Legislature strengthened the laws prohibiting abuse of the elderly or persons with developmental disabilities. A person who purposely or knowingly abuses, sexually abuses, neglects, or exploits an older person or a person with a developmental disability is guilty of a crime and may be imprisoned for a term not exceeding 10 years or be fined an amount not exceeding $10,000, or both. Mont. Code Ann. § 52-3-825 (2003). There is not yet a reported case in Montana involving abuse of an elderly person or a vulnerable adult.
	E.	Practical Effect of Insurance Policy Limits
		Insurance does not cover punitive damage awards unless the policy expressly provides for coverage. Mont. Code Ann. § 33-15-317(1) (2001).
	F.	Statutory Cap on Attorney Fees
		Generally, attorney fees are not recoverable unless a contract provision or statute provides for them. No statutory provision provides for attorney fees for claims against healthcare providers.
	G.	Collateral Source Rule
		If the total damages recovered from all defendants exceed $50,000 in an action arising from bodily injury or death, the plaintiff's recovery will be reduced by any amount paid or payable from a collateral source that does not have a subrogation right. Mont. Code Ann. § 27-1-308(1) (2001). Before an insurance policy payment is used to reduce an award, the amount the plaintiff paid for the five years prior to the date of the injury, the amount the plaintiff paid from the date of injury to the date of judgment, and the present value of the amount the plaintiff is obligated to pay to keep the policy in effect is deducted from the amount of the insurance policy payment. Mont. Code Ann. § 27-1-308(2) (2001). The jury does not consider collateral source payments; the trial judge makes all of the appropriate reductions. Mont. Code Ann. § 27-1-308(3) (2001).
	H.	Caps Invoked on Coverage if Insurer Goes Into Liquidation
		If an insurer goes into liquidation, the claimant is allowed only to recover, at the most, the amount of the policy limit. Mont. Code Ann. § 33-2-1372(2) (2001).
	I.	Miscellaneous
		Montana has no intermediate appellate court; the Montana Supreme Court is a "last resort" for appeals. The Court takes an active role in the state judicial system, liberally accepting interlocutory writs of supervision and reviewing trial court proceedings.