DA 13-0609

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT 166

DONNA PICKETT,

 Plaintiff and Appellee,

 v.

FLORIAN M. CORTESE,

 Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and For the County of Butte/Silver Bow, Cause No. DV 10-202KK

Honorable Kurt Krueger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Travis Dye, Gary Kalkstein; Kalkstein, Johnson & Dye, PC; Missoula, 

Montana

For Appellee:

Dennis P. Conner; Keith D. Marr; Conner & Marr, PLLP; Great Falls, 

Montana

Submitted on Briefs: April 30, 2014

 Decided: June 27, 2014

Filed:

__________________________________________

Clerk

June 27 2014
2

Justice Beth Baker delivered the Opinion of the Court. 

¶1 Florian Cortese, M.D., appeals the September 9, 2013 order of the Second Judicial 

District Court, Silver Bow County, denying Cortese’s motion to dismiss plaintiff Donna 

Pickett’s complaint for lack of subject matter jurisdiction, denying Cortese’s motion to 

preclude Pickett from presenting unpleaded claims at trial, and denying Cortese’s motion 

for summary judgment. 

¶2 We address the following issues on appeal: 

¶3 1. Whether the District Court erred when it determined that it had jurisdiction to 

consider arguments that Pickett had not specifically presented to the Montana Medical 

Legal Panel.

¶4 2. Whether this Court should suspend the Rules of Appellate Procedure to 

consider the District Court’s decisions allowing Pickett to present unpleaded claims at 

trial and denying Cortese’s motion for summary judgment. 

¶5 We affirm the District Court’s determination that it had jurisdiction to decide 

Pickett’s claims. We decline to suspend the Rules of Appellate Procedure to consider the 

other issues raised by Cortese.

PROCEDURAL AND FACTUAL BACKGROUND

¶6 On January 18, 2007, Cortese performed an endoscopic retrograde 

cholangiopancreatography (ERCP) with sphincterotomy on Donna Pickett. During the 

course of the procedure, the first section of Pickett’s small intestine was perforated. As a 

result, Pickett developed pancreatitis, which became septic. Pickett underwent extensive 

medical care and incurred significant expense to address these complications.
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¶7 On January 15, 2010, Pickett filed a claim for review with the Montana Medical 

Legal Panel (MMLP). She asserted claims of medical malpractice against Cortese

stemming from the 2007 procedure. Pickett alleged that Cortese was negligent in three 

ways: (1) in negligently perforating her intestine; (2) in failing to timely diagnose the 

perforation; and (3) in failing to disclose all material facts and the nature of significant 

risks that may be encountered so that necessary consent to treatment could be based on an 

intelligent exercise of judgment. 

¶8 Following the MMLP’s confidential decision, Pickett filed a complaint before the

Second Judicial District Court. The complaint alleged that Cortese breached his duty of 

care in numerous ways, including “carelessly, unskillfully, and negligently perforating 

[Pickett’s] duodenum; failing to timely diagnose and treat [her] perforation; failing to 

disclose all material facts and the nature of significant risks that may be encountered so 

that necessary consent to treatment could be based on an intelligent exercise of judgment; 

failing to employ appropriate after-care or post-operative management; and failing to 

otherwise use that degree of care and skill required of physicians practicing in 

Dr. Cortese’s specialty . . . .”

¶9 Cortese asked Pickett in written discovery to list and explain every distinct action 

or omission that constituted a departure from the standard of care. Pickett replied with 

the allegations from her complaint and stated that she would supplement her answer with 

her expert witness disclosures. On June 3, 2013, Pickett served her expert disclosure 

identifying three experts who would offer standard of care opinions. Pickett’s experts 
4

opined that Cortese did not obtain all necessary data before recommending and 

performing the ERCP or sphincterotomy and that he should have managed her care with 

more conservative, alternative measures. 

¶10 On July 25, 2013, Cortese moved to dismiss Pickett’s claims that Cortese 

“performed an unnecessary procedure and failed to disclose that less-invasive alternatives 

were available.” Cortese argued that these claims were not presented to the MMLP, so 

the District Court lacked subject matter jurisdiction to consider them. After briefing and 

argument, the court denied Cortese’s motion to dismiss. It determined that “[p]art of the 

standard of care analysis concerns whether or not the procedure should have been 

performed at all,” and that Cortese “presented an expert’s report addressing this exact 

issue” to the MMLP. In the same order, the Court denied Cortese’s motions for summary 

judgment and to preclude unpleaded claims from being presented at trial. 

STANDARD OF REVIEW

¶11 A district court’s decision to grant or deny a motion to dismiss for lack of subject 

matter jurisdiction is a question of law that we review for correctness. Ballas v. Missoula 

City Bd. of Adjustment, 2007 MT 299, ¶ 9, 340 Mont. 56, 172 P.3d 1232. “The inquiry is 

whether the complaint states facts that, if true, would grant the district court subject 

matter jurisdiction.” Ballas, ¶ 9. Denial of a motion to dismiss for lack of subject matter 

jurisdiction is reviewable prior to final judgment. M. R. App. P. 6(3)(c). We are 

confined to whether the district court correctly decided the limited question of subject 

matter jurisdiction. Ballas, ¶ 9.
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DISCUSSION

¶12 1. Whether the District Court erred when it determined that it had jurisdiction to 

consider arguments that Pickett had not specifically presented to the Montana Medical 

Legal Panel.

¶13 Any person alleging malpractice against a health care provider must submit a 

claim to the MMLP before filing a complaint in district court. Section 27-6-301, MCA. 

With few exceptions, none applicable here, the panel is required to review all malpractice 

claims against health care providers. Section 27-6-105, MCA. The application to the 

MMLP must contain “a statement in reasonable detail of the elements of the health care 

provider’s conduct that are believed to constitute a malpractice claim, the dates on which 

the conduct occurred, and the names and addresses of all physicians . . . and hospitals 

having contact with the claimant and all witnesses.” Section 27-6-302(1), MCA. 

¶14 In her MMLP filing, Pickett did not expressly allege that Cortese should have 

explored alternative treatment and that he unnecessarily performed the ERCP. Cortese 

contends that Pickett failed to meet the statutory requirement to bring this claim to the 

MMLP before filing it with the District Court. Pickett responds by arguing that this

claim is included within two issues she presented to the MMLP—whether Cortese 

negligently operated on her and whether Cortese failed to obtain informed consent.

¶15 We have not previously addressed the specificity of pleading required before the 

MMLP. Cortese urges us to adopt the rule from two administrative law cases in which 

we held that an issue not squarely raised, argued or adjudicated in the administrative 

context is not ripe for consideration in a judicial review proceeding. Art v. Mont. Dept. of 
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Labor & Indus. ex. rel. Mason, 2002 MT 327, ¶ 14, 313 Mont. 197, 60 P.3d 958; Marble 

v. Mont. Dept. of Health & Human Servs., 2000 MT 240, ¶ 28, 301 Mont. 373, 9 P.3d 

617. Pickett distinguishes these cases because the standard of review that the trial court 

utilizes in an administrative law action differs from a medical malpractice claim. Trial 

courts review administrative decisions to determine whether the agency “exceeded its 

authority, abused its discretion, made clearly erroneous findings of fact, or interpreted the 

law incorrectly.” Marble, ¶ 15. In contrast, filing a claim with the MMLP is simply a 

condition precedent to filing a medical malpractice action in district court. 

¶16 We agree with Pickett that Art and Marble have no application here because both 

involve judicial review of an agency decision under the Montana Administrative 

Procedure Act. A proceeding before the MMLP, however, results in no record and no 

agency decision presented to the court for review. “The panel’s decision is without 

administrative or judicial authority and is not binding upon any party.” Section 

27-6-606(1), MCA. The decision and reasoning of the panel are confidential and cannot 

be used as evidence in an action filed in court. Sections 27-6-703, -704, MCA. A district 

court presented with a medical malpractice claim analyzes that claim anew rather than 

relying on any finding made by the MMLP. 

¶17 Nevertheless, there must be some relationship between a claim filed with the 

MMLP and a complaint filed in district court. Submitting a claim for evaluation by the 

MMLP is a condition precedent to commencing a medical malpractice action. Linder v. 

Smith, 193 Mont. 20, 629 P.2d 1187 (1981). A “claim” must include “reasonable detail 
7

of the elements of the health care provider’s conduct that are believed to constitute a 

malpractice claim.” Section 27-6-301, MCA. The essence of Pickett’s claim against 

Cortese is that he failed to meet the standard of care in performing the January 18, 2007 

ERCP. This claim was submitted to the MMLP before Pickett commenced her district 

court action. The District Court’s subject matter jurisdiction is based on its “fundamental 

authority to hear and adjudicate cases” of medical malpractice. BNSF Ry. Co. v. Cringle, 

2010 MT 290, ¶ 15, 359 Mont. 20, 247 P.3d 706. The issue is whether the elements of 

Pickett’s malpractice complaint were sufficiently presented before the panel in order to 

satisfy the condition precedent to filing in court. 

¶18 Although the scope of a claim before the MMLP was not at issue, our decision in 

Griffin v. Moseley, 2010 MT 132, 356 Mont. 393, 234 P.3d 869, is therefore instructive. 

Griffin’s complaint alleged that her doctor was negligent and that his actions fell below 

the standard of care. Griffin, ¶ 37. The complaint contained only two claims against 

Moseley: “(1) negligence during the performance of the surgery; and (2) failure to obtain 

informed consent prior to surgery.” Griffin, ¶ 16. We determined that the District Court 

construed those claims too narrowly when it did not allow Griffin to argue that the doctor 

failed to attempt alternative pre-surgical treatment. Griffin, ¶ 39. In light of the 

allegations of the complaint and the deposition testimony of Griffin’s experts, we held 

that the doctor was on notice that the plaintiff claimed he was negligent “in both his 

surgical treatment of [Griffin], as well as in his pre-surgical treatment of her.” Griffin, 

¶ 39. 
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¶19 Griffin is useful here for its discussion regarding what a general claim for 

negligence encompasses. A claimant before the MMLP is required to provide only

“reasonable detail” of the elements of her claim. Section 27-6-301, MCA. The 

requirement that a claimant first file a claim with the MMLP exists to avoid litigation 

where possible. Section 27-6-102, MCA. Filing with the MMLP is just the first step in a 

medical malpractice case, occurring well before the conduct of any discovery, the 

substantial involvement of experts or the full development of legal theories. As such,

“reasonable detail” of a party’s claim cannot be expected to include each and every

theory that may come to fruition after discovery occurs. For these reasons, we decline to 

impose Cortese’s suggested heightened pleading standard for “reasonable detail.” The 

notice requirement we utilized in Griffin applies a standard that is equally workable in the 

analysis of a claim before the MMLP.

¶20 In her filing with the MMLP, Pickett alleged that Cortese negligently performed 

the ERCP and failed to provide her with sufficient information to enable her informed 

consent. Pickett’s expert disclosure alleged that Cortese failed to obtain all relevant data, 

failed to explore alternative solutions and performed the ERCP unnecessarily. Both

allegations arise out of the same procedure and are premised on Cortese’s alleged failure 

to meet the standard of care in performing that procedure. Like Griffin, Pickett’s claim 

that Cortese failed to consider alternative treatment before performing the ERCP properly 

may be subsumed into her claims that Cortese negligently performed the ERCP and 

failed to get informed consent. Further, as the District Court noted, Cortese presented an 
9

expert’s report to the MMLP that spoke to the necessity of the procedure. Cortese 

reasonably was on notice of Pickett’s claims and had the opportunity to conduct 

additional discovery once Pickett’s expert disclosure was served. Under these facts, the 

District Court correctly determined that Pickett’s claim to the MMLP was sufficient to 

encompass her claims before the court. Accordingly, we affirm its decision denying 

Cortese’s motion to dismiss for lack of subject matter jurisdiction. 

¶21 2. Whether this Court should suspend the Rules of Appellate Procedure to 

consider the District Court’s decisions allowing Pickett to present unpleaded claims at 

trial and denying Cortese’s motion for summary judgment. 

¶22 Cortese requests that we consider ruling on two further interlocutory orders—the 

District Court’s denial of his motion for summary judgment and its denial of his motion 

to exclude unpleaded claims at trial. Unlike a court’s decision on a motion to dismiss for 

lack of subject matter jurisdiction, these orders are not appealable until after final 

judgment. M. R. App. P. 6(5). 

¶23 Nevertheless, Cortese asks us to exercise our authority under M. R. App. P. 29 to 

suspend the requirements of these rules “[i]n the interest of expediting decision . . . or for 

other good cause shown.” Cortese points out that we have suspended the Rules in the 

interest of judicial economy. See Durden v. Hydro Flame Corp., 1998 MT 47, ¶¶ 17-19, 

288 Mont. 1, 955 P.2d 160. In Durden, we faced one of a “limited class of cases” where 

a party appeals an order granting a motion for judgment as a matter of law and an order 

granting a new trial on damages. Durden, ¶ 19. Because the order granting a new trial 

was appealable, we chose to also consider the order granting judgment as a matter of law 
10

to “save the necessity either for a second appeal or a second trial,” an outcome we 

characterized as a “near certainty.” Durden, ¶ 19. Here, there has been no trial, and there 

is no “near certainty” of a second appeal. “In the absence of extraordinary and 

compelling circumstances beyond simply requiring a party to proceed to trial,” we have 

declined to review orders denying summary judgment before the entry of final judgment. 

State ex rel. Kosena v. Dist. Ct., 172 Mont. 21, 22, 560 P.2d 522, 523 (1977). Cortese 

has not presented any compelling reason necessitating review of these pretrial rulings, 

and, consistent with our Rules of Appellate Procedure, we decline to address them. 

CONCLUSION

¶24 The District Court’s order denying Cortese’s motion to dismiss for lack of subject 

matter jurisdiction is affirmed. The case is remanded to the District Court for further 

proceedings.

/S/ BETH BAKER

We concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ MICHAEL E WHEAT

/S/ JIM RICE

Justice Jim Rice, specially concurring. 

¶25 The Court relies heavily upon Griffin v. Moseley, 2010 MT 132, 356 Mont. 393, 

234 P.3d 869, a case in which I dissented. See Opinion, ¶¶ 18-20. Griffin is now 

governing authority and, further, my dissent there was concerned with the subsidiary 
11

question of whether the Plaintiff’s expert witness was qualified to testify concerning a 

neurosurgeon’s standard of care, not the adequacy of Plaintiff’s pleadings. See Griffin, 

¶¶ 41-46 (J. Rice, dissenting). Therefore, I concur.

/S/ JIM RICE