The Supreme Court of the State of Montana (“Montana Supreme Court”) published an opinion on October 11, 2016 in which it affirmed the Montana Medical Malpractice jury’s verdict for compensatory damages in favor of the Plaintiff in a Montana medical malpractice case filed against a licensed naturopathic physician.

However, the Montana Supreme Court also affirmed the trial court’s exclusion of evidence that the black slave that the defendant used on the plaintiff was not approved by the FDA and affirmed the trial court allowing the defendant’s medical expert to testify during the trial , thereby affirming the jury’s failure to award punitive damages.

The Underlying Facts

In January 2012, the plaintiff saw the defendant naturopathic physician for a thyroid issue and also discussed an eruption or blemish on her nose that she wanted to be removed. In February 2012, the defendant applied black salve (an escharotic agent) to the plaintiff’s nose. A few days later, the plaintiff returned to the defendant Montana physician at which time the defendant reapplied black salve to her nose.

On February 16, 2012, the plaintiff went to an urgent care facility complaining of facial swelling and burning. The facility’s physician diagnosed the plaintiff with an infected third-degree burn on her nose, which was 4 mm deep and dime-sized. The plaintiff was treated at the urgent care facility until she healed.

The plaintiff went to a plastic surgeon on April 4, 2012 because she was unhappy with the appearance of her nose. The plastic surgeon repaired the indent with a rotational flap repair. The plaintiff requires surgical injections twice a year to prevent scarring.

The plaintiff filed her Montana medical malpractice lawsuit against the defendant naturopathic physician, alleging that the black salve that he used on her was an unapproved new drug, the marketing of which violated the FDCA, and that as early as 2008, the FDA identified black salve as a fake cancer cure, warning consumers not to use it. In response to the defendant’s motion before trial to exclude such evidence from being introduced during trial, the trial court excluded the evidence as being irrelevant and overly prejudicial (the defendant alleged that his use of the black salve on the plaintiff was not used to treat cancer).

The plaintiff moved to preclude the defendant’s naturopathic medicine expert from testifying during the trial, contending that the defendant’s medical expert was not an expert regarding the use or discharge of black salve. The trial court denied the plaintiff’s motion to exclude the expert’s testimony.

The Montana medical malpractice jury determined that the defendant departed from the standard of care applicable to a naturopathic physician in his treatment of the plaintiff that resulted in the plaintiff suffering damages. The jury awarded the plaintiff $139,500.00 in compensatory damages plus costs of $5,847.08, for a total of $145,347.08. However, the jury determined that the plaintiff failed to prove by clear and convincing evidence that the defendant acted with actual malice and therefore denied awarding punitive damages.

The plaintiff appealed, arguing that the trial court’s exclusion of evidence regarding the alleged unapproved use of the black salve and the trial court’s allowance of the defendant’s medical expert’s testimony at trial were abuses of discretion that led to the jury’s unanimous rejection of a punitive damages award.

Substantial Evidence Rule

The Montana Supreme Court stated that a jury verdict not to award punitive damages is reviewed under the substantial evidence rule, and under the substantial evidence rule, a jury’s verdict will not be disturbed unless it is inherently impossible to believe or there is an absence of probative facts to support the verdict. The appellate court’s only task is to determine whether the verdict is supported by substantial credible evidence, which is defined as evidence that a reasonable mind might accept as adequate to support a conclusion. When making this determination, the appellate court views the evidence in the light most favorable to the prevailing party, who is entitled to any reasonable inference that can be drawn from the facts.

The Montana Supreme Court stated that an award of punitive damages requires that the defendant act with actual malice or actual fraud. A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff. The plaintiff must prove all such elements by clear and convincing evidence.

The Montana Supreme Court stated that in the present case, the defendant did not sell, market, or manufacture black salve to the plaintiff in violation of the FDCA prohibition outlined in 21 U.S.C. § 355(a) FDCA; the plaintiff does not allege that the defendant treated her for cancer; and, the use of black salve was an act undertaken in the defendant’s role as a naturopathic physician. Therefore, the FDCA prohibition and the FDA warning letters regarding black salve were properly excluded as they were irrelevant to the issues in this case and were overly prejudicial.

With regard to the trial court’s refusal to exclude the defendant’s medical expert’s testimony at trial, the Montana Supreme Court held that while the expert does not consider himself an expert on the use of black salve as an escharotic, he was qualified to testify regarding the standard of care required in this case and therefore the trial court did not abuse its discretion when it allowed the defendant’s expert to testify at trial.

Source McColl v. Lang, 2016 MT 255.

If you or  loved one may have been harmed due to medical negligence that occurred in Montana or in another U.S. state, you should promptly seek the advice of a medical malpractice lawyer in Montana or in your U.S. state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to be connected with medical malpractice attorneys in your state who may assist you, or call us toll-free in the United States at 800-295-3959.

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