GREAT FALLS — Sixteen months after a jury awarded Joey Zahara $6 million in his medical malpractice suit against a Great Falls neurosurgeon, Cascade County Judge John Kutzman released a 25-page summation Monday citing his decision to reduce the verdict to $250,000 based on Montana's non-economic damages cap.
It’s a win for Montana’s medical practitioners, but the fight is far from over.
"There’s no turning back now," Zahara said. "You've just got to keep going."
- Five-part series on Montana's medical malpractice cap
It’s been 11 years since Zahara sustained several strokes, causing him to lose function of his right arm. He said he didn’t receive critical treatment that could have prevented the damage, and a jury agreed.
Monday morning’s news didn’t thrill Zahara and attorney Daniel Flaherty, but it’s what they expected after the September 2022 trial. The defense asked Kutzman to apply the non-economic damages shortly after the verdict, an action Flaherty said he was bound by law to do.
"Trial courts have to toe the line of not being activists," he said. "They put the ball in the court of the Supreme Court."
Flaherty and Zahara say the silver lining is that they can now move forward with an appeal to the Supreme Court, which will start 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.
Kutzman’s decision consistently cited Meech vs. Hillhaven West, a 1989 case about the constitutionality of Montana’s Wrongful Discharge from Employment Act. The plaintiff argued the act, which sets limits on both economic and non-economic damages, was unconstitutional based on Article 2, Section 16 of Montana’s constitution that guarantees "full legal redress" for anyone injured by another person:
"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."
But Kutzman said the Supreme Court made it abundantly clear in the Meech decision that it would not deny the Montana Legislature the authority to modify common law rules, giving them the ability to essentially pass a law in the face of 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.
Our five-part series on medical malpractice in Montana:
- Will the largest medical malpractice verdict be capped?
- Is the cap on damages constitutional?
- Is the Montana Medical Legal Panel working?
- Woman sues after being blinded by surgery
- The future of 'The Cap'
Nelson was an associate justice on the court for 20 years. He said Meech has had a wide-sweeping impact.
"It was the springboard for the Legislature to go in and start limiting damages," he said.
He also believes the decision is flawed.
"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 in fact 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 pointed to specific language in the Meech case as the reason for capping Zahara’s verdict, saying the Supreme Court has held that the Constitution allows plaintiffs to seek full legal redress but not to necessarily to receive a full legal remedy.
But in his conclusion, he also criticized the law.
"This Court has no illusions about $250,000 sufficiently compensating Mr. Zahara for what he has endured. Plainly 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.”
Flaherty says he expects the process to take at least another year, if not longer. Others have gotten to this point but have settled their case before the appeal reached the court. But Zahara is in it for more than the 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."