Editor's Note: This is Part 4 in a five-part series examining the medical malpractice cap in Montana. You can see Part 1 here, Part 2 here and Part 3 here.
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If you file a medical malpractice claim in Montana, one of the first things you’ll have to do is sit in front of the Montana Medical Legal Panel. The panel was established in 1977, with this stated purpose:
"The purpose of this chapter is to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well founded."
Basically, it’s intended to weed out so-called frivolous lawsuits. The panel is funded by the Montana Medical Association, which advocates for physicians' interests. The MMA CEO, Jean Branscum, is also the panel’s executive director.
"I followed suit of the gentleman before me who had been here for 41 years," Branscum said of her appointment.
She calls herself and her team of three the administrative arm of the panel. They gather medical records for both sides - free of charge - but they have no say in decision-making.
"We’re the paper pushers," Branscum said.
Jamie Bonilla was one of those paper-pushers for about six months in 2022. Her technical job title was claims specialist.
"As a claims specialist, (selecting panel members) was part of my job," Bonilla said.
The panel consists of three lawyers and three doctors; the lawyers are selected at random, and the doctors are taken from a specialty relating to each case. Both the plaintiff and defendant are given three vetoes on panel members, but Bonilla says the defense was often given an advantage.
"We reach out to potential panelists. Some are available, some aren't," Bonilla said. "Defense counsel wanted to know who was available for panel before they gave their disqualifications," she said. "That was communicated to them but not to claimants."
Bonilla said she began to give the info to both sides and was ostracized at work because of it. She resigned shortly after, citing issues with how the panel was run as her main reason.
"I think the process was well-intentioned initially, but I don't think it is any more because it's being run by the Montana Medical Association," she said. "I absolutely feel like one side is given preference over the other. It’s common practice."
Jaimi Espy, who sued a Billings ophthalmologist after complications from an eye procedure caused her to go almost completely blind, said her experience in front of the panel backed up that claim.
"It was openly hostile towards me," she said. "They attacked my character. It was an extremely difficult process. I don’t wish that on my worst enemy."
Espy believed though that results of an expert analysis of her case showed the ophthalmologist was clearly at fault, so she figured she’d have a favorable outcome at the panel. But she didn't.
"They voted against me. They voted that he had no liability, no negligence whatsoever in my case," she said.
But that decision had no bearing on whether or not Espy could move forward with the lawsuit because panel results are non-binding. The results are also not admissible in court - no one in a trial is allowed to know anything said in the hearing. Plaintiff lawyers argue that means the defense gets an inside look at their case and can adjust because of it.
"If one person says something in the panel, and they change their tune after learning what the plaintiff remembered, there’s a space in that vacuum to not be held accountable for that shifting story," said Great Falls attorney Daniel Flaherty.
"(The panel) is not a win or lose kind of screening process," Branscum countered. "It's more about looking at medical records. I’m hoping (claimants) are learning how to make their claim better."
Panel results discourage a lot of claims. From 2012 to 2018, the panel heard 2,033 cases and just 792 lawsuits were filed after - less than 40%. In a majority of the cases, the panel sides with the defendant, saying there was no malpractice.
"There is more that indicate that the standard of care was followed than not followed," Branscum said.
"It’s kind of equivalent to stacking a jury, to vote in that favor," Bonilla argued.
The MMLP said Espy was not the victim of medical malpractice. A Yellowstone County jury disagreed. On June 17, 2021, a jury awarded her $2 million in non-economic damages. The defense then filed a motion to reduce that to the $250,000 state-mandated cap, which Judge Rod Souza agreed to do.
Espy then filed an appeal to the Montana Supreme Court, challenging the cap’s constitutionality, but by that time she had been fighting her legal battle for almost six years.
"Ultimately, I had to make the decision to accept a settlement or go through with possibly six more years with no guarantee on what I would end up with," Bonilla said. "Emotionally, physically, it had been torturous. I reached the end of my stamina to fight the battle."
Espy and Dr. Brian LaGreca settled the case for an undisclosed amount in 2022, which meant the Montana Supreme Court still had not had a chance to weigh in on the constitutionality of Montana’s medical malpractice cap.
It’s going to take someone who is awarded a large verdict, but who is willing to risk it all to see justice done. Someone maybe like Joey Zahara.
"I went seven years already. I’m young. I’m vibrant. I'm a fighter," Zahara said. "And I believe I deserve the $6 million."
Coming up in the final part of our series we’ll dive into the future of Montana’s medical malpractice cap.
Note: MTN reached out to multiple healthcare facilities for this series and were directed to the Montana Medical Association. MTN also reached out to multiple insurance companies with no response.
