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Eisenmenger v. Ethicon3/24/1994
ce claim with the panel and when she filed her second complaint against Ethicon. Also, all emphasis in the cited statutes has been supplied by the author.
Section 27-6-102, MCA, defines the purpose of the Act as follows:
The purpose of this chapter is to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well founded.
Section 27-6-103, MCA, defines various terms used in the Act. Of importance here are the following:
(2) "Health care facility" means a facility . . . licensed as a health care facility under Title 50, chapter 5.
(3) "Health care provider" means a physician, a dentist, or a health care facility.
(4) "Hospital" means a hospital as defined in 50-5-101.
(5) "Malpractice claim" means any claim or potential claim of a claimant against a health care provider for medical or dental treatment, lack of medical or dental treatment, or other alleged departure from accepted standards of health care which proximately results in damage to the claimant, whether the claimant's claim or potential claim sounds in tort or contract, and includes but is not limited to allegations of battery or wrongful death.
(7) "Physician" means: [in pertinent part] (a) . . . an individual licensed to practice medicine under the provisions of Title 37, chapter 3, . . .
Section 27-6-105, MCA, provides, in pertinent part, that:
The [Montana Medical legal] panel shall review all malpractice claims or potential claims against health care providers . . . .
Section 27-6-302, MCA, provides, in pertinent part, that:
The application [to the panel] shall contain the following: (1) a statement in reasonable detail of the elements of the health care provider's conduct which are believed to constitute a malpractice claim, the dates the conduct occurred, and the names and addresses of all physicians, dentists, and hospitals having contact with the claimant and all witnesses; . . .
Section 27-6-304, MCA, provides, in pertinent part, that:
In instances where applications are received employing a theory of respondeat superior or some other derivative theory of recovery, the director shall forward the application to the state professional societies, associations, or licensing boards of both the individual health care provider whose alleged malpractice caused the application to be filed and the health care provider named a respondent as employer, master, or principal.
Section 27-6-502, MCA, provides, in pertinent part, that:
(1) At the time set for hearing, the claimant submitting the case for review shall be present and shall make a brief introduction of his case, including a resume of the facts constituting the alleged professional malpractice which he is prepared to prove. The health care provider against whom the claim is brought and his attorney may be present and may make an introductory statement of his case.
Section 27-6-602, MCA, provides, in pertinent part, that:
Upon consideration of all the relevant material, the panel shall decide whether there is: (1) substantial evidence that the acts complained of occurred and that they constitute malpractice;
Section 27-6-701, MCA, provides that:
No malpractice claim may be filed in any court against
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