Camen v. Glacier Eye Clinic, P.C.

413 Mont. 277

539 P.3d 1062

Brett CAMEN, Plaintiff and Appellant,

v.GLACIER EYE CLINIC, P.C., and Kalispell Regional Medical Center, Inc., Defendants and Appellees.

DA 22-0123

Supreme Court of Montana.

Argued and Submitted: April 26, 2023

Decided: September 19, 2023

For Appellant: Martha Sheehy (argued), Sheehy Law Firm, Billings, Montana, E. Craig Daue, Buxbaum Daue, PLLC, Missoula, Montana, Nicholas Rowley, Benjamin Novotny, Karen Zahka, Trial Lawyers for Justice, Decorah, Iowa

For Appellees Glacier Eye Clinic, P.C.: Sean Goicoechea (argued), Katrina L. Feller, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana, Kent Mathewson, Donohue Brown Mathewson & Smith, LLC, Chicago, Illinois

For Appellees Kalispell Regional Medical Center, Inc.: Dale Schowengerdt (argued), Landmark Law, PLLC, Helena, Montana, Victoria Nickol, Crowley Fleck PLLP, Helena, Montana, Jori L. Quinlan, Gabrielle N. Gee, Hall Booth Smith, P.C., Attorney at Law, Missoula, Montana, Kevin J. Kuhn, Wheeler Trigg O‘Donnell LLP, Denver, Colorado

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Plaintiff and Appellant Brett Camen (Camen) appeals from the February 17, 2022 Judgment issued by the Eleventh Judicial District Court, Flathead County, which followed a jury verdict in favor of Defendants and Appellees Glacier Eye Center, P.C. (GEC), and Kalispell Regional Medical Center, Inc. (KRMC). Camen argues the District Court made a series of decisions during the January 31-February 9, 2022 trial which deprived him of a fair trial.

¶2 We address the following restated issues on appeal:

1. Whether the District Court abused its discretion by refusing to give the jury proportionate duty and loss of chance instructions.

2. Whether the District Court abused its discretion by allowing Dr. Wheeler to testify as an expert to matters beyond his disclosure.

3. Whether the District Court erred by failing to poll the jury in the manner required by statute.

¶3 We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In November of 2017, Camen was a 16-year-old with normal eyesight. On Thanksgiving, he began experiencing severe headaches, which he described as feeling like his head "was gonna explode." On December 15, Camen's vision suddenly changed. At school, during his last class of the day, Camen noticed he could no longer read normally as things became blurry. While driving home from school, he began seeing double. Still dealing with both the excruciating headaches and the vision deterioration, Camen went to the Cabinet Peaks Medical Center emergency room on December 17. A CT scan conducted there was negative, as it found "[n]o evidence of acute intracranial process."

¶5 On December 18, Camen saw his optometrist, Dr. Steven Sorensen. Dr. Sorensen dilated Camen's eyes and detected both flame hemorrhages, which occur when blood vessels in the retinal nerve head rupture, and severe papilledema, the swelling of the optic nerve head caused by increased intracranial pressure. On December 19, Dr. Sorensen spoke with Dr. Marcus Wheeler, a pediatric neurologist at KRMC, and Matthew Bauer, PA-C, Camen's primary care provider, regarding Camen's case. PA Bauer also spoke with Dr. Wheeler that same day. Dr. Wheeler recommended PA Bauer have Camen undergo testing in the form of a brain MRI, lumbar puncture, and laboratory testing of cerebral spinal fluid (CSF). Dr. Wheeler's office also scheduled Camen for an appointment on January 3, 2018.

¶6 On December 20, 2017, Dr. Sorensen performed automated visual field tests on Camen, which showed nearly complete blackouts in the lower half of both eyes. Camen also underwent an MRI on December 20, which showed his brain was normal. On December 21, Camen underwent the lumbar puncture test. This test showed his CSF pressure was extremely high, overflowing the 55 cm tube. A "normal" CSF pressure is generally regarded as less than 25 cm. Dr. Wheeler received the results of Camen's testing on December 21 and spoke with PA Bauer that same day. Dr. Wheeler advised that both the MRI and pathology results appeared normal, but the lumbar puncture indicated high intracranial pressure. These results, in conjunction with Camen's negative CT scan, indicated Camen was suffering from idiopathic intracranial hypertension (IIH). IIH may be either common, or, in rare cases, fulminant. Dr. Wheeler recommended PA Bauer begin treatment for common IIH by prescribing Camen a low dose of Diamox, a medication which reduces the production of CSF. PA Bauer prescribed Diamox that same day, and scheduled a follow-up appointment with Camen. Dr. Wheeler, meanwhile, left for vacation. PA Bauer's follow-up appointment occurred on December 27, at which Camen indicated his headaches had improved since starting the medication, but was unsure if his vision had improved. On December 28, Dr. Sorensen mailed a letter to Dr. Aaron Alme at GEC to advise of Camen's examination and test results, which showed Camen's visual acuities to be 20/40 and 20/60. GEC received Dr. Sorensen's letter on January 2, 2018. Camen's mother scheduled him for an appointment with Dr. August Stein, an ophthalmologist at GEC, on January 5, 2018.

¶7 On January 3, 2018, Camen had his first appointment with Dr. Wheeler. Dr. Wheeler noted Camen's headaches had improved while taking the Diamox, and that Camen's vision had "improved a bit," though Camen's visual acuity was now shown to be 20/50 in the right eye and 20/100 in the left eye. Dr. Wheeler recommended continuing Diamox at the same dosage and scheduled Camen to come "back in about 6 weeks’ time," or sooner if problems developed. Dr. Wheeler also recommended an ophthalmology assessment once Camen had been taking Diamox for "about 3 months."

¶8 On January 5, Camen had his first appointment with Dr. Stein at GEC. Dr. Stein found hemorrhages in Camen's retinas and noted visual acuity to be 20/80 in the right eye and 20/100 in the left eye. Optical coherence tomography (OCT) tests performed that day showed "massive edema." Dr. Stein raised Camen's Diamox dosage and noted he would "confer with Dr. Wheeler about [a] plan." Dr. Stein attempted to reach Dr. Wheeler on January 5, but was unable to and left a message. Dr. Stein did not hear back from Dr. Wheeler until the two spoke on January 9. Camen again visited the Cabinet Peaks emergency room on January 7 and saw Dr. Sorensen on January 8. Dr. Stein saw Camen again on January 9, and again saw significant hemorrhages around Camen's retinas. Dr. Stein again raised the Diamox dose and also ordered a repeat lumbar puncture, requesting the pathologist seek for cells to rule out cancer. Dr. Stein spoke with Dr. Wheeler on January 9. Dr. Wheeler told Dr. Stein that the MRI showed no venous clot and earlier testing did not appear to show malignant cells, but agreed repeating the lumbar procedure was appropriate. The lumbar puncture procedure was done on January 10. Once again, Camen's CSF pressure overflowed the 55 cm tube. Dr. Stein received the cytology results on January 11, which ruled out cancer.

¶9 Dr. Stein saw Camen again on January 12. Camen's visual acuity at this appointment showed 20/80 in the right eye and 20/400 in the left eye. Dr. Stein called Dr. Kelly Schmidt, a pediatric neurosurgeon, and spoke to her about Camen's case. Dr. Stein referred Camen to Dr. Schmidt for placement of a shunt to relieve the pressure in Camen's brain due to fulminant IIH and again increased the Diamox dose. Camen was admitted to the hospital on January 14, and Dr. Schmidt performed the brain shunt surgery on January 15. Camen's vision slightly improved after the surgery for a brief time, but he is now permanently blind.

¶10 On April 23, 2019, Camen filed his Complaint and Demand for Jury Trial, alleging GEC and KRMC were responsible for their employees, Dr. Stein and Dr. Wheeler, respectively, departing from the standard of care by failing to recognize Camen's need for urgent neurological evaluation due to fulminant IIH.¹ Camen's Complaint alleged the delay in referring him for urgent neurological evaluation "reduced his chance for more successful treatment," because the high CSF pressure continued to damage his optic nerves in the meantime.

¶11 The matter was tried before a jury from January 31-February 8, 2022. At trial, Camen presented the expert testimony of Dr. Andrew Lee, a neuro-ophthalmologist; Dr. Todd Lefkowitz, an ophthalmologist; and Dr. Steven Glass, a pediatric neurologist. Camen's expert witnesses testified that blindness was the main risk posed by fulminant IIH and Dr. Wheeler and Dr. Stein violated the standard of care by not referring Camen for treatment earlier, which lost Camen the chance of preserving his eyesight. Dr. Wheeler and Dr. Stein both testified regarding the standard of care required and to their care and treatment of Camen.

¶12 During the settling of jury instructions, the District Court refused to give two of Camen's proposed instructions relevant to this appeal. Camen's Proposed Instruction No. 9, the proportionate duty instruction, stated:

The care required of a defendant in a negligence claim is always reasonable care. This standard never varies but the care which it is reasonable to require of the defendant varies with the danger involved in his acts, and is proportionate to it. The greater the danger, the greater the care which must be exercised.

KRMC and GEC objected to this instruction, asserting it was not appropriate for a medical malpractice case. Camen responded that "in medicine, absolutely, the greater the risk ... that's what this whole case has been about[.]" The District Court refused to give this instruction, reasoning it may be appropriate for common law negligence cases, but was not appropriate in a medical malpractice case where the "standard of care is established appropriately by expert testimony." Proposed Instruction No. 11, the loss of chance instruction, stated:

A doctor's negligence is a cause of damage to the plaintiff if it

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