MTN Investigates


Malpractice in Montana: Is the state's cap on med mal damages unconstitutional?

Montana Supreme Court
Posted at 9:30 PM, Dec 26, 2023
and last updated 2024-01-02 13:46:31-05

Editor's Note: In Part 1 of our series, we introduced you to Montana Code Annotated 25-9-411, a.k.a 'The Cap.' It says a Montanan cannot earn more than $250,000 for their pain and suffering in a medical malpractice case, even one that results in permanent severe damage or even death.

T.J. Reifer
T.J. Reifer was the jury foreman in Zahara vs. Advanced Neurology Specialists. The jury awarded Joey Zahara $6 million, the largest medical malpractice verdict in Montana history.

GREAT FALLS - T.J. Reifer won’t soon forget his week at the Cascade County courthouse in 2022.

"I was one of the lucky 13," he said of his first jury duty selection. "Then I got the luck of the draw to be foreman."

The case: Zahara vs. Advanced Neurology Specialists. Great Falls resident Joey Zahara claimed that Dr. William Henning caused irreparable harm by not showing up to treat him after Zahara had suffered a stroke, even though Henning was the on-call physician. After three days of testimony, the case was given to the jury to render a verdict.

"The first half of the day, we were discussing if we felt (Dr. Henning) was liable or not," Reifer said. "We were all fairly in consensus."

The jury concluded that Henning was guilty of malpractice. Next, they had to decide what that was worth in six different categories, things like pain and suffering and loss of established course of life.

"They wanted a dollar figure on each," Reifer said.

Zahara verdict
A Cascade County jury awarded Joey Zahara $6 million in non-economic damages in his case against Advanced Neurology Specialists.

On Sept. 15, 2022, the jury awarded Zahara a total of $6 million. Reifer and his 11 new friends had done their job. But 13 days later, the defense filed a motion to lower that $6 million to the constitutionally mandated maximum of $250,000 - 'The Cap' in Montana.

"The first time I ever heard anything about the cap was when you mentioned it to me," Reifer said. "I had no idea there was any such thing."

That’s because jurors are not allowed to know, and that’s one of several problems many have with the law.

"It feels like we wasted our time," Reifer said, "if that's the decision they come to."

Over a year later, the judge in the case, John Kutzman, had still not made a decision on whether to cap the award or not.

Steve Harman
Billings attorney Steve Harman is one of the few lawyers in the state that accepts medical malpractice cases.

"The cap itself is a pox on our constitution. It truly is."

Billings attorney Steve Harman spent 20 years as a civil defendant before changing sides largely because of laws like 'The Cap.' Most believe any trial in the United States is supposed to be determined by a jury of your peers, but the cap directly invalidates the jury’s decision.

"You’re no longer the conscious of the community,' Harman argued. "It’s been usurped by the legislature."

The cap was passed by the 1995 Montana legislature for one main reason: to make Montana a more attractive place for doctors by arguing their medical malpractice insurance premiums would go down, knowing the most they could lose in a lawsuit was $250,000. But that hasn’t happened.

"The cap doesn’t affect their premiums. It’s unrelated," said Great Falls attorney Daniel Flaherty. "When the insurance industry advocated for this law, there was testimony to the fact that we would see premiums lowered in 5-7 years. Never has happened. Never has happened."

What has happened is those insurance companies have started offering less and less money in settlements, because they know they have such little risk. From 2012-2018, 2,830 medical malpractice claims were filed in Montana. 20 of them - or 0.7 percent - went to trial.

"I used to be able to settle cases for $250,000 with claims adjusters because they would acknowledge that case had a much higher value," Harman said. "Now, they say, 'The most you could ever recover is $250,000, so we’re only going to offer half that.'"

Medical malpractice stats
Just 0.7 percent of medical malpractice claims filed in Montana from 2012-2018 ended up at trial.

Cap opponents point to Article 2, Section 16 of Montana’s Constitution: “No person shall be deprived of…full legal redress for injury incurred…for which another person may be liable.” Pay attention to the phrase full legal redress. That means the full amount handed down, which by definition they argue, invalidates the cap. But that’s nothing new.

"Lots of laws are passed that are unconstitutional," Flaherty said. "That’s the three-part system. The courts get to review those to see if they protect Montanans."

The problem is, in the nearly 30 years the cap has existed, it’s never been challenged at the Montana Supreme Court. Trial lawyers argue it's because medical insurance companies don’t want it to be.

"In any case with a verdict above the cap, if there's an appeal, there's a requirement to meet with a mediator," Harman said of the process. "If there's a $6 million verdict, the insurance company will come in and pay most of it perhaps in settlement to protect the cap. So if you want to challenge the cap, you have to refuse the offer and risk the Montana Supreme Court upholding the $250,000 cap.

"So there's a real ethical dilemma."

Next in our series, we’ll meet a Miles City woman who was faced with that exact dilemma.

Part I: Malpractice in Montana: Will state's largest med mal verdict ever be capped?

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.