Pickett v. Cortese: Medical Malpractice and the State Review Board

Our Winston-Salem personal injury lawyers know medical malpractice cases can result in complex litigation.

doctor1.jpgPickett v. Cortese, a medical malpractice case from the state of Montana, involved a plaintiff who had her appendix punctured during what doctor’s refer to as an ECRP procedure. ECRP is an abbreviation for endoscopic retrograde cholangiopancreatography, which involves placing the patient under anesthesia and inserting an endoscope/fluoroscope into the patient’s mouth, thus allowing doctors to diagnose and treat conditions of the common bile duct.

In Pickett, the plaintiff alleged that the defendant was negligent in perforating her intestine, failing to discover the perforation quick enough, and not informing her that there may have been less risky alternatives to the ECRP procedure that caused her to suffer the personal injury.

The plaintiff went before a medical malpractice review board before filing a case in state court. If this were a North Carolina case, the state medical board handles this process.

In Pickett, the medical malpractice board concluded that the doctor had breached his professional responsibilities in several ways, including failing to exercise the degree of skill and care expected of a doctor performing an ECRP procedure.

The plaintiff was asked during the discovery process to provide specific responses to the question as to how the defendant did not utilize all available data when recommending the ECRP procedure, rather than a less risky alternative. The plaintiff responded that she would supplement her responses with opinions from her expert witnesses.

The defendant did not feel that these questions had been sufficiently responded to and argued to dismiss the allegation based on negligence related to other procedures, on grounds that the medical malpractice board had not made such a finding. The defendant argued that, due to the board’s failure to certify this allegation, the trial court lacked subject matter jurisdiction over the claim. The trial court denied this motion to dismiss and the case continued.

A motion to dismiss based upon lack of subject matter jurisdiction is unique type of motion to dismiss. Unlike other motions, dismissal for lack of subject matter can be raised at any time before, during, or after trial. In order for a case to be heard in any court, the court must have jurisdiction over the subject matter of the case. For example, a small claims case can be heard in the small claims court, because the subject matter is appropriate for that court to hear under the rules of law and procedure. On the other hand, the small claims court could not hear a murder case, because that court lacks subject matter jurisdiction over homicide charges.

In Pickett, the question is a bit more complicated. The defendant is claiming that, even though the civil trial court has subject matter jurisdiction to hear medical malpractice claims, the court can only hear claims that have been reviewed and certified by the medical malpractice board. Here, the defendant claims that, because the medical malpractice board did not certify the specific negligence claim at issue, the court did not have subject matter jurisdiction over that specific claim.

On appeal, the Supreme Court affirmed the trial court’s denial of the defendant’s motion to dismiss that claim.

Contact the Winston-Salem personal injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Pickett v. Cortese, June 27, 2014, Supreme Court of Montana http://statecasefiles.justia.com/documents/montana/supreme-court/2014-da-13-0609.pdf?ts=1404014303

More Blog Entries:

Gallant v. MacDowell: Medical Malpractice and the Discovery Rule, June 14, 2014, North Winston-Salem Personal Injury Lawyers Blog

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