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Judge decides to cap the highest verdict for medical malpractice in Montana’s history



Great Falls, Montana – Zahara and her lawyer Daniel Flaherty weren’t overjoyed by the news on Monday morning, but it was to be expected following the September 2022 trial.

Shortly after the verdict, the defense asked Kutzman to apply the non-economic damages, which Flaherty claimed he was required to do by law.

“Trial courts have to toe the line of not being activists,” he said. “They put the ball in the court of the Supreme Court.”

The bright side, according to Flaherty and Zahara, is that they may now proceed with their appeal to the Supreme Court, which will get underway this week.

“I feel some relief that we at least have some direction of where to go,” Flaherty said.

“I feel like it’s the next step,” Zahara added.

Joey Zahara sued a Great Falls neurosurgeon for medical misconduct, and sixteen months later, a jury found him guilty of medical malpractice. The verdict was reduced to $250,000 by Cascade County Judge John Kutzman, who made this decision based on Montana’s non-economic damages cap. The 25-page summation was made public on Monday.

Montana’s medical professionals have won, but the battle is far from ended.

“There’s no turning back now,” Zahara said. “You’ve just got to keep going.”

Zahara has not been able to use his right arm due to multiple strokes that occurred eleven years ago. A jury found in favor of his claim that he did not obtain the necessary medical care that could have stopped the harm.

Meech v. Hillhaven West, a 1989 case concerning the validity of Montana’s Wrongful Discharge from Employment Act, was frequently cited in Kutzman’s ruling.

The plaintiff contended that Article 2, Section 16 of the Montana constitution, which provides “full legal redress” for anyone hurt by another person, rendered the act unconstitutional because it places restrictions on both economic and non-economic damages:

“Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable.”

However, according to Kutzman, the Montana Legislature was granted the power to amend common law standards by the Supreme Court in the Meech decision, thereby allowing them to enact legislation that defies the Constitution.

“Any first-year law student can tell you the Legislature cannot abrogate a Constitutional right or amend it by statute,” said former Montana Supreme Court Justice Jim Nelson.

Nelson served 20 years on the court as an associate justice. He said that Meech’s influence was extensive.

“It was the springboard for the Legislature to go in and start limiting damages,” he said.

In his opinion, the decision is incorrect as well.

“Meech said Article 2, Section 16 only applies to the judiciary, but not Legislature,” Nelson explained. “That makes no sense at all. If that is the law, the Legislature can do away with practically any constitutional right. It can do away with statutory right. It could do away with the judiciary.”

Kutzman used particular language in the Meech case as the basis for limiting Zahara’s verdict, arguing that the Supreme Court’s ruling in that instance established that the Constitution permits plaintiffs to pursue complete remedies but does not guarantee them.

However, he also critiqued the law in his conclusion.

“This Court has no illusions about $250,000 sufficiently compensating Mr. Zahara for what he has endured. It is nowhere close to enough,” Kutzman wrote. “But Meech establishes that the 1972 Constitution confides policy choices like this one to the Legislature, not the courts. The Court accordingly has no choice but to overrule Mr. Zahara’s constitutional challenge and enter judgment in the amount of $250,000.”

“The comments are very interesting,” Flaherty said of Kutzman’s decision. “It lays out the unfairness and even almost the morality of the issue.”

According to Flaherty, he believes the procedure will require a minimum of one more year, if not more. Even though they reached this stage, some others resolved their cases before the court heard the appeal. Zahara, though, has goals beyond money.

“Somebody’s gonna have to be the person who goes out in front and forges the way for new territory,” he said.

“This isn’t just for Joey, but for every other client that’s injured through the system,” Flaherty added. “It’s important to appeal it, important to get this type of rationale on the books.”

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