This is the first of a five-part series focused on Montana's medical malpractice cap.
GREAT FALLS - Montana Code Annotated 25-9-411: "In a malpractice claim…against one or more health care providers…an award…for non-economic loss may not exceed $250,000." In layman's terms, this is referred to as 'The Cap.' It means if someone sues a medical provider for a mistake that provider made - one as serious as even wrongful death - the most money that person can get for the pain and suffering caused is $250,000. Of the 50 U.S. states, that number ranks 50th. In the nearly 30 years since the cap was enacted, it’s never been challenged at the Montana Supreme Court, but the largest ruling in state history could be about to change that and bring with it a massive shakeup to the industry.
Joey Zahara has all the hallmarks of a great golf swing: a square setup, good tempo on the back swing and a crisp follow-through to finish. It's all the more impressive when you see he's doing it with just his left arm.
"I tell (my friends), 'Joey’s joining us today,'" said Joey's dad Rockie, "and they say, ‘Oh great. We get to get our butts whipped by a one-armed man.’”
The talent has always been there. Zahara won the Class AA state title in 2003 as a senior at Great Falls CMR, beating a who’s who of names like Kelbi Lee and Josh Hedge. He even played professionally in California for a while. But home - and a new career - called him back.
"I was hired on as fire chief in Teton County," Zahara said. "I was actually the youngest paid fire chief in the state, at 24 years old."
Zahara then reconnected with his high school sweetheart, and the two were expecting a child when Zahara took the field test to become a Great Falls city firefighter on June 5, 2013. He’ll never forget the date.
"I passed the test, then went home and later that evening I collapsed," Zahara said. "That’s when I suffered my first stroke."
Zahara was rushed to Benefis Health System hospital, but then sat - and waited - for treatment.
"I had my second stroke in the ER," he said. "That’s when the massive damage happened in my brain."
He was initially completely paralyzed on his right side. After a month in the hospital, Zahara began to regain feeling but to this day has no use of his right hand.
"It changed my life 100%," he said. "I had to change everything I did in my life, how I did daily tasks. Every day is a struggle - it’s always something new."
Zahara was a 27-year-old athletic, healthy man when he suffered the strokes, making him a seemingly perfect candidate for tPa, a clot-busting drug shown to reduce permanent damages associated with strokes. tPa must be administered within a couple of hours and usually only by a specialized stroke physician. Dr. William Henning was the neurologist on-call that night, but Henning did not come in. Thus, Zahara did not receive tPa.
"The doctors that were taking care of me were very educated, but they weren't experts in what was going on," Zahara said. "The expert just didn't show up. To be on call and not show up, the outcome could have been completely different."
"We witnessed what happened throughout that night," Rockie added. "We’re lucky to have him even the way he is because nobody else helped him."
The Zahara’s believe Dr. Henning’s failure to care for their son caused irreparable damage that could have been prevented. So they contacted the law firm Flaherty Gallardo, and met with attorney Daniel Flaherty.
"I was always really passionate about healthcare," Flaherty said of his initial foray into law.
He is one of only a handful of attorneys in the state who takes on medical malpractice cases. Because of the $250,000 cap, most believe the risk isn’t worth the reward.
"Trial costs for med mal cases easily are $100,000," Flaherty said. "It's a state requirement that plaintiffs have to hire expert witnesses to prove their case, which is very expensive.
"I don’t know how many lawyers are wanting to donate time and money to bad cases."
Luckily for Zahara, Flaherty is one of them. He took Joey’s case, and the two opted to sue for non-economic damages only. That means they didn’t sue for Joey’s medical costs and potential loss of income, which are termed 'economic damages.' They only wanted a jury to consider the pain, suffering and change to Joey’s way of life.
"If there’s money in healthcare bills, it pales in comparison to what the human being has experienced as a loss," Flaherty said.
Zahara vs. Advanced Neurology Specialists was filed on November 21, 2016. Six years later, on Sept. 12, 2022, the case went to trial, and four days later, a jury awarded Joey Zahara $6 million, the largest medical malpractice verdict in Montana history.
But what about the $250,000 cap? Jurors aren't allowed to know the law exists.
"The first time I ever heard anything about the cap was when you mentioned it to me," said T.J. Reifer, the jury foreman in the Zahara case. "I had no idea there was any such thing.
"The possibility of it being a fraction, it feels like we wasted our time."
It’s been 15 months since that verdict, and Cascade County judge John Kutzman has still not made a ruling on whether to cap Joey’s award or not.
Coming up next in 'Malpractice in Montana,' we’ll hear more from Reifer who is far from the only person frustrated.
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