Holtshouser et al v. United States of America,

Filing 41

ORDER granting 17 Motion for Partial Summary Judgment Signed by Judge Richard F. Cebull on 4/1/2013. (see order for specifics) (CAA, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
HAROLD HOL TSHOUSER and
KA TIIY HOL TSHOUSER,
Plaintiffs,
vs.

UNITED STATES OF AMERICA,
Defendant.

CV 11-114-BLG-RFC

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ORDER

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Defendant has filed a Motion for Partial Summary Judgment, arguing that
Plaintiffs expert witnesses are not qualified to testify as to the standard of care.
Plaintiff opposes. The matter is fully briefed and the Court is prepared to rule.

BACKGROUND
Plaintiff was born on February 9, 1922. He is a veteran and has received
medical care and treatment through the Department of Veterans' Affairs (VA).
During the time period of 2001 through 2008, Plaintiffs primary care
provider was nurse practitioner Shauna Kersten at the VA community outpatient

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clinic in Bozeman. Plaintiff suffered from a number of chronic medical conditions
and was taking up to 20 different medications for his maladies.
Plaintiff had a long history of suffering from gastroesophageal reflux
disease (GERD). His treating providers thought his symptoms were caused by
diabetic gastroparesis. There are few treatments available for gastroparesis and
Plaintiff was treated with the drug known as Metoclopramide.
Kersten began prescribing Metoclopramide for Plaintiff in 2001. He was
prescribed this medication during three different periods from 2001to2008: May
2001 to June 2002; May 2003 to January 2005; and November 2007 to May 2008.
In 2009, Holtshouser developed involuntary movements of his tongue and
these symptoms were diagnosed as tardive dyskinesia, which is an involuntary,
repetitive movement disorder.
Plaintiff brought this action against the VA, alleging that his use of
Metoclopramide caused his tardive dyskenesia, and also aggravated his
Parkinson's disease. Plaintiffs contention is that the VA was negligent in
exceeding the duration recommendations for prescribing the medication. The
Complaint includes claims of negligence directed at his primary care provider, as
well as claims of negligence directed at the VA pharmacy. The Motion for Partial

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Summary Judgment only addresses the issue of the alleged negligence of
Plaintiff's primary care provider.

STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is "genuine" only ifthere is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is "material" only if it could affect the outcome of the suit
under the governing law. Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The party moving for summary judgment has the initial burden of showing
the absence ofa genuine issue of material fact. Anderson, 477 U.S. at 256-57.
Once the moving party has done so, the burden shifts to the opposing party to set
forth specific facts showing there is a genuine issue for trial. In re Barboza, 545
F.3d 702, 707 (9th Cir. 2008). The nonmoving party "may not rely on denials in
the pleadings but must produce specific evidence, through affidavits or admissible
discovery material, to show that the dispute exists." Id.
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On summary judgment, the evidence must be viewed in the light most
favorable to the non-moving party. Id. The court should not weigh the evidence
and determine the truth of the matter, but determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249.

ANALYSIS
1.

What is the Standard of Care to be Applied?

In Montana, the threshold obligation of a plaintiff in a medical malpractice
case is twofold: first, evidence must be presented to establish the standard of
professional care in the type of case involved; second, it must be shown that the
doctor negligently departed from this recognized standard in his treatment of the
plaintiff. Gilkey v. Schweitzer, 983 P.2d 869, 871 (Mont. 1999). This is typically
established through expert testimony because the conduct complained of is usually
not readily ascertainable by a layman. See Montana Deaconess Hosp. v. Gratton
(1976), 169 Mont. 185, 189, 545 P.2d 670, 672. The Montana Supreme Court has
repeatedly recognized that a plaintiffs failure to provide this expert testimony "is
fatal to the plaintiffs claim." Beehler v. Eastern Radiological Associates, P.C.,
367 Mont. 21 (2012), citing Griffin v. Moseley, 2010 MT 132, if 31, 356 Mont.
393, 234 P.3d 869 (citing Gratton, 169 Mont. at 189).
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In Chapel v. Allison, 785 P.2d 204, 210 (Mont. 1990), the Montana
Supreme Court held: a non-board-certified general practitioner is held to the
standard of care of a "reasonably competent general practitioner acting in the same
or similar community in the United States in the same or similar circumstances."
See Shilkret v. Annapolis Emergency Hospital Association (1975), 276 Md. 187,

349 A.2d 245. "Similar circumstances" permits consideration by the trier of fact
of legitimate local factors affecting the ordinary standard of care including the
knowledge and experience of the general practitioner, commensurate with the skill
of other competent physicians of similar training and experience, with respect to
the type of illness or injury he confronts and the resources, facilities and options
available to him at the time. Chapel at 210.
The Montana Supreme Court has deviated from the locality rule in
Asasheim v. Humberger, 215 Mont. 127 (1985). The Court found that with a

nationally board certified orthopedic surgeon, the better standard was, "the skill
and learning possessed by other doctors in good standing, practicing in the same
specialty and who hold the same national board certification." Id. "The locality
rule was an outgrowth of disparity in the quality of community medical practice.
To the credit of the medical profession, including its excellent training and
certification program, the disparity has largely been eliminated." Id. The
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circumstances in this case are easily distinguishable fromAsaheim v. Humberger.
This case does not involve a nationally board certified orthopedic surgeon, but
instead involves a board certified nurse practitioner.
It would not be appropriate to hold a nurse practitioner in one state to the

same standard of care as that of a nurse practitioner in another state, simply for the
reason that the type of treatment nurse practitioners provide varies from state to
state. A nurse practitioner in Montana must pass a standardized national test
before being licensed. However, the scope of their practice is different from other
parts of the country. In Montana, a nurse practitioner is regulated by the Montana
Board of Nursing, and can practice without the supervision of a physician.
Kersten Depa. 12: 12-20. The same cannot be said for other parts of the United

States. The American Association of Nurse Practitioners (AANP) has a website
which provides the licensure and regulatory requirements for nurse practitioners in
all 50 states. 1 Some states require nurse practitioners to pass a national
standardized test, some do not. Some states permit an autonomous practice, but
some states require collaboration with a physician or direct physician supervision
or delegation.

1

http://www.aanp.org/legislation-regulation/state-practice-environment
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Similarly, while the scope of practice of a nurse practitioner may overlap
with that of a physician, a nurse practitioner may not be as knowledgeable or
skilled as a physician because of the advanced education and training of a
physician.
The Montana Supreme Court has not addressed the application of the
Chapel rule to a nurse practitioner, but for purposes of this case, I intend to adopt

the Chapel rule and modify it slightly so that it is applicable for nurse
practitioners, i.e., the standard of care of a reasonably competent nurse practitioner
acting in the same or similar community in the United States in the same or similar
circumstances.

2.

Plaintiff's Experts

The Montana legislature has passed a statute which specifies the
requirements for testimony on negligence and standard of care under Montana
law, which provides as follows:
( 1) A person may not testify as an expert witness on issues
relating to negligence and standards of care and practice in an
action on a malpractice claim, as defined in 27-6-103, for or
against a health care provider, as defined in 27-6-103, unless
the person:
(a) is licensed as a health care provider in at least one
state and routinely treats or has routinely treated within
the previous 5 years the diagnosis or condition or
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provides the type of treatment that is the subject matter
of the malpractice claim or is or was within the previous
5 years an instructor of students in an accredited health
professional school or accredited residency or clinical
research program relating to the diagnosis or condition
or the type of treatment that is the subject matter of the
malpractice claim; and
(b) shows by competent evidence that, as a result of
education, training, knowledge, and experience in the
evaluation, diagnosis, or treatment of the disease or
injury that is the subject matter of the malpractice claim
against the health care provider, the person is thoroughly
familiar with the standards of care and practice as they
related to the act or omission that is the subject matter of
the malpractice claim on the date of the incident upon
which the malpractice claim is based.
(2) If the malpractice claim involves treatment that is
recommended or provided by a physician as defined in
37-3-102, a person may not testify as an expert witness with
respect to issues of negligence or standards of care and practice
concerning the treatment unless the person is also a physician.
(3) A person qualified as an expert in one medical specialty or
subspecialty is not qualified to testify with respect to a
malpractice claim against a health care provider in another
medical specialty or subspecialty unless there is a showing that
the standards of care and practice in the two specialty or
subspecialty fields are substantially similar. This subsection (3)
does not apply ifthe subject matter of the malpractice claim
against the health care provider is unrelated to the relevant
specialty or subspecialty.
Mont. Code Ann.§ 26-2-601.

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Plaintiff's first expert is a psychiatrist by the name of Peter Breggin, M.D.
Dr. Breggin is licensed to practice medicine in the state of New York, where he
treats patients suffering from the adverse side effects of medications in his clinical
pharmacology practice. Plaintiff's Statement of Genuine Issues (SGI)

iii! 11, 17.

Dr. Breggin has authored medical literature setting guidelines for prescriptions
and dispensing of medication. Plaintiff's SGI iJ 21. Dr. Breggin has investigated
cases dealing with adverse drug effects from Metoclopramide and treats patients in
his clinical pharmacology practice for movement disorders, such as tardive
dyskinesia and Parkinson's disease. Plaintiff's SGJ iJ 65. Dr. Breggin has no
training or experience in primary care or geriatric medicine. Dr. Breggin is not
board certified in any specialty. All of Dr. Breggin's training and experience are
in the area of psychiatry. Defendant's Statement of Undisputed Facts (SOUF)

iii!

11-12. Dr. Breggin also has no experience working with nurse practitioners. He
has no knowledge of the training received by nurse practitioners in Montana, nor
does he have an understanding of the scope of practice for a nurse practitioner in
Montana. Defendant's SOUF iJ 15. Dr. Breggin is unfamiliar with the scope of
practice at the VA Outpatient clinic in Bozemen. Defendant's SOUF iJ 16.
Furthermore, Dr. Breggin is unfamiliar with the care and treatment of the
condition for which Plaintiff was being treated. He does not treat patients with
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GERD; he does not prescribe medications for the treatment of GERD; and he does
not hold himself out as an expert in the treatment of GERD. Defendant's SOUP 1
25. He also does not treat patients with diabetic gastroparesis. Defendant's SOUP
123. He does not know what medications are available for the treatment of the

condition; he only knows that available treatments are limited. Defendant's SOUP
116, 24. Dr. Breggin is aware that Metoclopramide was one of the medications

available for the treatment of gastroparesis, but he does not know how it was
commonly prescribed for treatment of the conditions from 2001 to 2008.
Defendant's SOUP 1 23. He only has knowledge that some physicians were

prescribing the medication, and that they were prescribing for periods longer than
recommended by the manufacturer's label. Defendant's SOUP 1 23. Breggin's
proposed testimony regarding the standard of care is based on what he personally
considers to be the minimum knowledge necessary. Defendant's SOUP 121. His
standard of care does not take into consideration similarity of location or
circumstances, or whether the treatment provider is a nurse practitioner or a
physician. Defendant's SOUP 1 21-22.
Plaintiffs second expert is Benzi Kluger, M.D. Dr. Kluger is licensed to
practice in Colorado and has a clinical neurology practice treating patients
suffering from movement disorders one day a week. Defendant's SOUP 128. Dr.
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Kluger is an associate professor of neurology at the University of Colorado. His
clinical practice involves patients suffering from medication induced movement
disorders, including those caused by Metoclopramide. Plaintiff's SGI ~~ 27, 28,

and 29.
With the exception of a three month rotation in an outpatient clinic during
his internship, Dr. Kluger does not have any experience in primary care.

Defendant's SOUF ~ 30. While he does treat elderly patients with Parkinson's
disease and other movement disorders, he does not provide treatment as a primary
care geriatrician. Defendant's SOUF ~ 29. Dr. Kluger does not treat patients for
GERD and does not prescribe medication for that condition. Defendant's SOUF ~

31. Dr. Kluger does not know whether any available GERD medications have
restrictions or recommendations for duration of use. Defendant's SOUF ~ 31.
Dr. Kluger does not treat patients with diabetes, nor does he treat patients
with diabetic gastroparesis. Defendant's SOUF ~ 32. He does not know whether
there are medications that are effective for the treatment of the condition, and he
does not have any knowledge regarding how Metoclopramide was being
prescribed by primary care physicians for the treatment of gastroparesis during
2001-2008. Defendant's SOUF~~ 32, 33.

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Dr. Kluger is not familiar with the scope of practice for nurse practitioners
in Montana. Defendant's SOUF if 37. His experience with primary care nurse
practitioners is limited to time spent working with a nurse practitioner while a
medical student. Defendant's SOUF if 37. Dr. Kluger does not know what
resources are available at the Bozeman VA Clinic. Defendant's SOUF if 37. Dr.
Kluger' s standard of care does not take into consideration similarity of location or
circumstances, or whether the treatment provider is a nurse practitioner or a
physician. Defendant's SOUF if 38.
Plaintiff argues that these two medical doctors are experts in the safe
administration of medication and drug-related movement disorders and they are
expected to testify that the standard of care required Defendant to apprise Plaintiff
of the risks ofMetoclopramide and obtain informed consent, monitor Plaintiff for
adverse reactions, and follow reasonable dosing guidelines. Plaintiff relies heavily
on Beehler v. Eastern Radiological Associates, P.C., 367 Mont. 21 (2012), to
support an argument that the treatment that is the subject matter of this claim is
Plaintiffs movement disorder, not the treatment of his gastroparesis or GERD
with Metoclopramide. In this case, the relevant treatment which is the subject
matter of the malpractice claim is the VA's treatment of Plaintiffs gastroparesis or

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GERD with Metoclopramide, not his movement disorder. Plaintiffs reliance on
Beehler is misplaced.
It is apparent to the Court that none of Plaintiffs proposed experts have any

experience in the practice of primary care or geriatric medicine. None of them
have ever treated a patient like the Plaintiff in a location or setting similar to
Bozeman's VA Clinic. Most importantly, Plaintiffs proposed experts have no
knowledge as to the training and scope of practice of a nurse practitioner in
Montana. None of them have any experience in treating GERD, gastroparesis, or
managing the complex primary care of an elderly, infirm patient.
The testimony of Plaintiffs standard of care experts is barred by the
provisions of Mont. Code Ann. § 26-2-601. Plaintiffs experts do not treat the
condition or provide the type of treatment that is the subject of this malpractice
claim, as required by Mont. Code Ann.§ 26-2-601(1)(a). Plaintiffs experts are
not familiar with the standards of care and practice that is the subject matter of the
claim, as required by Mont. Code Ann.§ 26-2-601(1)(b). There is no showing
that the standards of care and practice in the specialty or subspecialty fields are
substantially similar, as required by Mont. Code Ann. § 26-2-601(3). The
treatment ofGERD and gastroparesis and the prescription ofMetoclopramide for
the treatment of the condition are not within the scope of practice for a psychiatrist
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or neurologist. Plaintiffs experts are not qualified to testify as to the standard of
care in treating patients like Plaintiff for the condition which he was receiving
treatment.

3.

Defendant's Testimony and the Standard of Care

Plaintiff argues that the sworn testimony of Kersten establishes the standard
of care and a deviation therefrom.
The Montana Supreme Court has recognized that third party expert
testimony is unnecessary if a defendant doctor's own testimony establishes the
standard of care and departure from it. See Hunter v. Missoula Cmty. Hospital,
750 P.2d 106 (1988); Hill v. Squibb and Sons, E.R., 592 P.2d 1383 (1979).
With respect to the duty to advise of risks, Kersten agreed with a statement
that "[w]hen a chosen therapy has serious risks, those risks must be thoroughly
explained to the patient so that the patient can be involved with the treatment
plan." This statement is subject to interpretation. It does not establish that a
patient should be advised of all risks of medication, no matter how remote. It also
does not establish that the risk of developing a movement disorder from the use of
Metoclopramide was sufficiently serious or likely to warrant special counseling.

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With respect to monitoring Plaintiff for a movement disorder, Defendant
asserts that Plaintiff was monitored for movement disorders prior to the time he
was taken off ofMetoclopramide in 2008. Kersten Dep. 44: 12-23.
With respect to an alleged admission that Kersten said she would never use
Metoclopramidefor longer than 12 weeks again, Kersten acknowledged that there
was a recommendation that the medication not be used for longer than 12 weeks,
but also made clear that this was a recommendation and not a restriction on the use
of the medication. Kersten Dep. 256: 17-20. Kersten was not aware of any
duration restrictions on prescribing Metoclopramide prior to 2007. Kersten Dep.
257:2-10.
Kersten also testified at her deposition that, even with the benefit of
hindsight, she would not have prescribed the medication different. Kersten Dep.
255:9-11. She also stated that her current practice of not prescribing
Metoclopramide beyond 12 weeks is to avoid being dragged into another lawsuit,
not because of medical considerations.
The standard of care cannot be established from Kersten's testimony. The
personal practices of a health care provider, without knowledge of the general
custom and practice among the profession, is not sufficient to establish a general

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standard of care. Collins v. Itoh, 503 P.2d 36, 41 (Mont. 1972); Montana

Deaconess Hosp. v. Gratton, 545 P.2d 670, 673 (Mont. 1976).

CONCLUSION
Plaintiff cannot satisfy the threshold proof requirements to sustain a medical
malpractice claim. He cannot establish the applicable standard of care and breach
thereof by the nurse practitioner who was his primary care provider. Defendant's
Motion for Partial Sum17±udgment is GRANTED.
DATED this / D-ciay of April, 20

~~/,/~---=----------­
RICHARD F. CEBULL
SENIOR U.S. DISTRICT COURT JUDGE

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