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Eisenmenger v. Ethicon3/24/1994
a health care provider before an application is made to the panel and its decision is rendered.
Section 27-6-702, MCA, provides in pertinent part:
The running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application. The running of the applicable limitation period in a malpractice claim does not begin again until 30 days after either an order of dismissal, with or without prejudice against refiling, is issued from the panel chairman, or from the director upon the consent of the parties to the claim, or the panel's final decision, whichever occurs first, is entered in the permanent files of the panel and a copy is served upon the complainant or his attorney if he is represented by counsel, by certified mail.
Reading the plain language in the Act, without referring to any past or recent legislative history, and using the terms of art as those are defined in the Act, several conclusions follow:
First, the purpose of the Act is to screen and prevent the filing in court of ill-founded claims for professional acts or omissions against health care providers, which are defined to include only (i) physicians, (ii) dentists and (iii) licensed facilities. Sections 27-6-102, 27-6-103(2), (3) and (7), MCA. Ethicon, being none of those, is not an entity subject to the protection of the Act.
Second, the professional act or omission (regardless of whether the theory is tort or contract) which is to be screened is "malpractice" — a term of art, defined in the Act as a claim or potential claim for medical treatment or other alleged departure from accepted standards of health care. Section 27-6-103(5), MCA.
The act or omission alleged to have been committed by Ethicon does not involve providing medical treatment or health care. Ethicon is alleged to have improperly manufactured a product — specifically, a surgical suture.
Third, the panel can only consider, hear and rule upon malpractice claims filed against health care providers. Sections 27-6-105, 27-6-302, 27-6-304, 27-6-502, 27-6-602, MCA. Ethicon is neither an entity subject to the jurisdiction of the panel, nor are its alleged acts or omissions subject to panel review, as defined in the Act.
Fourth, claimants are required to submit their claim or potential claim for "malpractice" against a "health care provider" to the panel before filing the claim in court. Sections 27-6-301, 27-6-302 and 27-6-701, MCA. There is nothing in the Act, however, to preclude a claimant from filing a related products liability suit in court at any time within the applicable statute of limitations, since the panel has no jurisdiction or review authority over any sorts of claims, except malpractice claims.
Fifth, the tolling of the statute of limitations under § 27-6-702, MCA, obviously applies to a ". . . malpractice claim . . . as to all [named] health care providers. . .". Moreover, under the 1985 amendment, the statute of limitations is also tolled as to ". . . all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application." Section 27-6-702, MCA. The critical question is, however, "for what claim is the statute of limitations tolled?"
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