S. Muscle v. A. Santin

2024 MT 34N

Opinion

02/20/2024

DA 22-0600 Case Number: DA 22-0600

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 34N

SALVATRICE MUSCLE,

Plaintiff and Appellant,

v.

ANTONIO SANTIN, M.D.,

Defendant and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV-17-728 Honorable David J. Grubich, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Allen P. Lanning, Law Office of Allen P. Lanning, PC, Great Falls, Montana

For Appellee:

Gary Kalkstein, Joe Newman, Hall Booth Smith, P.C., Missoula, Montana

Submitted on Briefs: January 3, 2024

Decided: February 20, 2024

Filed: ir,-6L-.--if __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Salvatrice Muscle filed this medical malpractice action against Antonio Santin,

M.D., alleging negligence in his cosmetic surgical treatment for Muscle’s significant

weight loss. Muscle appeals the Montana Eighth Judicial District Court’s judgment on a

Cascade County defense jury verdict and the court’s order foreclosing part of her claims

against Santin. We affirm.

¶3 After Muscle lost a significant amount of weight, she consulted with Santin in

March 2015 regarding cosmetic surgical options to remove excess skin. Santin advised

Muscle that she could undergo two procedures: bilateral medial thighplasty to remove

excess skin on her thighs and abdominoplasty to remove excess skin on her mid-section.

At that time, neither Muscle nor Santin noted any concerns with excess skin on Muscle’s

buttocks or discussed any plastic surgery options for Muscle’s buttocks. Muscle agreed to

undergo the bilateral medial thighplasty, and Santin performed the procedure in April 2015.

¶4 Following the bilateral medial thighplasty surgery, Muscle expressed concerns in

follow-up appointments with Santin about her residual buttocks skin.1 Santin’s note from

1 Muscle’s brief uses the term “buttock ptosis,” and Santin’s brief uses the term “buttock laxity” to describe this condition. 2 Muscle’s June 3, 2015 appointment stated that he “d[id] not see any easy solutions” for

Muscle’s residual buttocks skin. His note from Muscle’s June 17, 2015 appointment said,

“I stated that I do not know if it can be ‘fixed’ since it is the bottom-most aspect of her

buttocks, which hangs asymmetrically for the entire buttocks. Nevertheless, there is

swelling that will continue to improve. At this point, she started to inconsolably

cry . . . . Her reaction is out of proportion and it is impossible to discuss the issues with

her at this point.” Muscle contends that during the June 17 appointment Santin told her

that neither he nor anyone else could fix her residual buttocks skin and she would have to

live with it and that he assailed her emotional response as being unwarranted.

¶5 After leaving the appointment, Muscle decided to obtain a second opinion from Dr.

Emilia Ploplys. Muscle had an initial consultation with Dr. Ploplys on August 24, 2015.

Dr. Ploplys later performed multiple procedures on Muscle, including a posterior thigh lift2

to resolve the residual buttocks skin.

¶6 Muscle filed suit against Santin in November 2017, alleging that Santin negligently

performed the thighplasty instead of first proceeding with a lower body lift. Because of

Santin’s failure to diagnose and sequence the surgery appropriately, Muscle alleged, she

had painful scar tissue and disfigurement. Muscle obtained an expert, Dr. Scott Sattler,

who opined in expert disclosure that Santin breached the professional standard of care in

failing to address Muscle’s buttocks ptosis and in failing to properly sequence the surgeries

necessary to give Muscle her desired result.

2 Both parties use the term “lower body lift” to describe this procedure. 3 ¶7 Santin moved for summary judgment, claiming, in relevant part, that Muscle failed

to establish from Dr. Sattler’s testimony that Santin departed from the standard of care and

that departure more likely than not caused Muscle’s injury. The District Court granted the

motion in part and denied it in part. The court found a genuine issue of material fact

regarding Santin’s failure to diagnose Muscle’s buttocks ptosis. It granted summary

judgment on the thighplasty and sequencing allegations, finding no genuine issues of

material fact whether Santin’s choice to perform the medial thighplasty or his sequencing

of procedures departed from the standard of care.

¶8 At trial, Santin’s counsel asked Dr. Sattler about stock images on his website that

did not disclose that the people in the photos were not his patients. Santin’s counsel also

asked Dr. Sattler about whether publishing such images ran afoul of the American Society

of Plastic Surgeons (ASPS) Code of Ethics advertising rules regarding stock images. When

Santin’s counsel pressed Dr. Sattler for an answer on whether he included a disclaimer in

recognition of the ethical rule, Muscle’s counsel objected. The court overruled the

objection. Muscle further objected to the admission through Dr. Sattler of Santin’s Exhibit

505—the ASPS Code of Ethics advertising rules—which the District Court sustained.

Later, defense expert witness Dr. Robert Grant testified to the ASPS Code of Ethics

advertising rules. During Dr. Grant’s testimony, the court admitted Exhibit 505 over

Muscle’s objection.

¶9 After the jury returned a verdict finding that Santin was not negligent, Muscle

moved for a new trial under § 25-11-102(1), (7), MCA. Muscle argued that testimony

4 regarding Dr. Sattler’s use of stock photos on his website and evidence of the ASPS Code

of Ethics advertising rules were not properly admitted under the Rules of Evidence. The

court denied Muscle’s motion. Muscle appeals the District Court’s award of summary

judgment to Santin regarding the medial thighplasty and sequencing issues and its denial

of her motion for a new trial.

¶10 We review a district court’s summary judgment ruling de novo, applying the

standards of M. R. Civ. P. 56. Howlett v. Chiropractic Ctr., P.C., 2020 MT 74, ¶ 14, 399

Mont. 401, 460 P.3d 942 (citation omitted). Evidentiary determinations underlying a

summary judgment decision, however, are reviewed for an abuse of discretion, with the

understanding that the district court has broad discretion in determining the admissibility

of evidence. Howlett, ¶ 15 (citing Daley v. BNSF Ry., 2018 MT 197, ¶ 3, 392 Mont. 311,

425 P.3d 669). If an appellant demonstrates a district court abused its discretion in

rendering an evidentiary ruling, we then determine whether the abuse constitutes reversible

error. Howlett, ¶ 15 (citing Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d

561). Reversible error occurs only when “a substantial right of the party is affected.” In

re Estate of Edwards, 2017 MT 93, ¶ 50, 387 Mont. 274, 393 P.3d 639 (quoting Reese v.

Stanton, 2015 MT 293, ¶ 25, 381 Mont. 241, 358 P.3d 208 (citing M. R. Evid. 103)). “[A]

substantial right of a party is not affected unless the challenged evidence is of such

character to have affected the result of the case.” Estate of Edwards, ¶ 50 (internal

quotations and citation omitted).

5 ¶11 We review a district court’s decision on a motion for a new trial under

§ 25-11-102(1), (7), MCA, for a manifest abuse of discretion. Armstrong v. Gondeiro,

2000 MT 326, ¶ 17, 303 Mont. 37, 15 P.3d 386 (citing Benson v. Heritage Inn, Inc., 1998

MT 330, ¶ 13, 292 Mont. 268, 971 P.2d 1227). “The decision to grant or deny a new trial

is within the sound discretion of the trial judge and will not be disturbed absent a showing

of manifest abuse of that discretion.” Armstrong, ¶ 17 (quoting Baxter v. Archie Cochrane

Motors, Inc., 271 Mont. 286, 287-88, 895 P.2d 631, 632 (1995)).

¶12 Muscle challenges the District Court’s pretrial summary judgment ruling that

Santin’s sequencing of medical procedures and choice to perform a medial thighplasty

were not departures from the standard of care. Muscle alleges that the court erred in

interpreting Dr. Sattler’s deposition testimony when it determined that, although “[Dr.

Sattler] stated multiple times that the appropriate procedure, in both his practice and with

other surgeons in his field, is to perform a circumferential lower body lift prior to a medial

thighplasty . . . . Dr. Sattler ultimately agreed that the standard of care does not require

performing a circumferential lower lift first, prior to a medial thighplasty.” Under this

Court’s precedent in Kipfinger v. Great Falls Obstetrical & Gynecological Assocs., 2023

MT 44, 411 Mont. 269, 525 P.3d 1183, Muscle argues that the court failed to liberally

construe Dr. Sattler’s deposition testimony and to view it in the light most favorable to the

nonmoving party.

¶13 Santin responds that Dr. Sattler expressed a personal preference for sequencing lift

procedures before thighplasties but did not opine that Santin’s alternative choice in

6 Muscle’s case was a departure from a national standard of care. Accordingly, Santin

asserts that the court correctly concluded that Dr. Sattler’s opinions were insufficient to

prima facie establish the standard-of-care or breach elements of Muscle’s

sequencing-related claims.

¶14 A plaintiff in a medical malpractice action in Montana must establish the following

elements with expert testimony: (1) the applicable standard of care, (2) the defendant

departed from the standard of care, and (3) the departure proximately caused the plaintiff’s

injury. Howlett, ¶ 18 (citations omitted). In establishing a departure from the standard of

care, the plaintiff also must establish that a physician’s conduct breached a national

standard of care. Howlett, ¶ 18 (citing Norris v. Fritz, 2012 MT 27, ¶ 44, 364 Mont. 63,

270 P.3d 79).

¶15 Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Howlett, ¶ 14 (citing M. R. Civ. P. 56(c)(3)). The initial burden is on

the moving party to establish that no genuine issue of material fact exists. Howlett, ¶ 14

(citing Estate of Willson v. Addison, 2011 MT 179, ¶ 13, 361 Mont. 269, 258 P.3d 410).

The burden then shifts to the nonmoving party, who must set forth specific facts

demonstrating a genuine issue for trial. Howlett, ¶ 14 (citing Estate of Willson, ¶ 13).

¶16 In its summary judgment order, the District Court referenced Dr. Sattler’s response

to Muscle’s attorney regarding the standard of care on sequencing:

7 Q. But the standard of care doesn’t require that one [particular procedure] be performed first. You still want to – if you believe that a patient’s been informed, has a procedure that you believe is indicated, will improve the quality of their life as information’s provided to you by the patient, and they say this is what I would like to do with the understanding I have global ptosis, you’re not saying the standard of care requires you to say, no, I’m only going to do this?

A. No. But I think it’s my responsibility to tell the patient that their result will be better if they do a circumferential lower body lift prior to a medial thighplasty. That’s why we sequence these operation[s] this way.

Later in the deposition, Dr. Sattler stated, “I wouldn’t call it an industry standard because

clearly not everyone in the industry is doing it this way, but there is plenty of literature to

support staging trunk lower body lift procedures prior to operating on the thighs.” Our

review of Dr. Sattler’s deposition leads us to agree that the testimony did not establish a

breach of the applicable standard of care for proper sequencing of treatment or that Santin

departed from that standard of care. Without expert testimony establishing the standard of

care and Santin’s breach, Muscle did not meet her burden to establish a genuine issue of

material fact that Santin was negligent. We accordingly affirm the District Court’s grant

of partial summary judgment on this issue.

¶17 Muscle also takes issue with the District Court’s admission for impeachment

purposes of what she claims was character evidence regarding Dr. Sattler’s advertising

practices, which materially affected her right to a fair trial. Muscle alleges that under M. R.

Evid. 402 and 608, the evidence was irrelevant, impermissible evidence of a specific

instance of conduct of a witness for which its probative value was substantially outweighed

by the danger of unfair prejudice under Rule 403.

8 ¶18 Santin responds that even if admission was error, it must be deemed harmless

because Muscle failed to supply a transcript sufficient to facilitate this Court’s review for

relative prejudice. Santin points to Muscle’s request for transcripts on appeal, which

requested the following documents: oral argument on Santin’s motion for summary

judgment; opening statements; Dr. Sattler’s testimony; Dr. Grant’s testimony; the

finalization of exhibits before submission to the jury between court and counsel; and final

arguments.3 Santin contends that Muscle erred in failing to request the trial testimony of

herself, Santin, Dr. Ploplys, James Muscle, and Nurse Pollington, and absent that

testimony, this Court cannot undertake a relative review for prejudice.

¶19 In reply, Muscle contends that the portions of the transcripts she provided, as well

as the documentary record, are sufficient for this Court to rule on appeal. Further, if Santin

believed additional records of the proceedings were important to this Court’s review, then

he should have requested a reconstituted record.

¶20 “Error may not be predicated upon a ruling which admits . . . evidence unless a

substantial right of the party is affected[.]” M. R. Evid. 103(a). Because of the deference

accorded a jury’s verdict, we will not reverse a district court for improperly admitting

3 The transcript submitted by the court reporter on appeal includes only oral arguments on Santin’s motion for summary judgment, opening statements of the parties, Dr. Sattler’s testimony, and Dr. Grant’s testimony. In response to this Court’s May 5, 2023 order regarding the briefing schedule on appeal, Muscle’s counsel advised that, following retirement of the court reporter, another reporter was transcribing the trial, but “[t]he final day of audio for the trial remains missing/unavailable.” It appears, however, that all of the transcripts Muscle designated as necessary for appeal were prepared and submitted by the court reporter, with the exception of the final arguments. Muscle stated in her opening brief only that “[t]he rest of the Trial Transcript is unavailable due to a technical problem.” She did not submit anything further under M. R. App. P. 8(7) regarding unavailability of the transcript. 9 evidence unless a party demonstrates substantial prejudice. See Estate of Edwards, ¶ 50.

Contrary to Muscle’s assertion, the appellant—Muscle—has the duty to present this Court

with a record sufficient to enable us to rule upon the issues raised. M. R. App. P. 8(2).

This duty includes requesting the transcript of proceedings. M. R. App. P. 8(3). Failure to

present this Court with a sufficient record on appeal may result in dismissal of the appeal

or affirmance of the district court on the basis that appellant has presented an insufficient

record. M. R. App. P. 8(2). We presume a trial court’s decision is correct, and the appellant

bears the burden to establish error. See State v. Buck, 2006 MT 81, ¶ 30, 331 Mont. 517,

134 P.3d 53 (citations omitted). Because Muscle did not request or provide this Court with

the entire trial record, it is impossible for the Court to determine the complete picture of

the evidence presented to review the alleged evidentiary error for substantial prejudice.

See Howlett, ¶ 30 n.5. See also Wenger v. State Farm Mut. Auto. Ins. Co., 2021 MT 37,

¶ 29, 403 Mont. 210, 483 P.3d 480 (reviewing the trial record to determine whether

improper admission of evidence “unfairly could have affected the jury’s decision”). We

therefore decline to consider this argument further.

¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. The District Court’s rulings granting summary judgment on

the sequencing-related issues and denying Muscle’s motion for a new trial are affirmed.

10 /S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH /S/ INGRID GUSTAFSON /S/ JIM RICE

Justice Laurie McKinnon recused herself and did not participate in this matter.