Idaho Law Blog

Was your newborn baby diagnosed with HIE in the NICU?  We may be able to help.  HIE is short for hypoxic ischemic encephalopathy.  It is a type of brain injury caused by a lack of oxygenated blood flowing to the brain.  In some cases, this happens to an infant during labor and delivery due to medical malpractice.  If medical malpractice has caused HIE to a baby, the brain injury may in some cases be permanent, and can range from very severe to somewhat milder (although there really isn’t such a thing as a mild brain injury from the victim’s and family’s perspective).  An HIE infant may be in the NICU for several days, weeks, or even months.  Sometimes babies with hypoxic ischemic brain injury are treated with hypothermic (cold) therapy which may reduce the injury (perhaps by controlling swelling).  An ultrasound or MRI may show an HIE brain injury.  The newborn may experience seizures that show up on an EEG, requiring antiseizure medications like Phenobarbital, Keppra, or Baclofen.  In certain situations, the infant may not be able to feed properly, requiring a G-tube for tube feedings.  Your baby may have had what are referred to as low APGAR scores at the time of delivery, reflecting a lack of movement, not breathing, blue color, low heart rate, no cry, and other factors relating to being born in an acute situation. A newborn may have what NICU doctors describe as acidosis, shown by low cord blood pH gas values from umbilical cord blood after delivery.  This can be due to metabolic or respiratory acidosis, either of which is dangerous and may be reflective of problems during labor and delivery.  In some tragic cases, hypoxic ischemic encephalopathy can lead to infant death after days, weeks, or months; while in other cases, the newborn goes on to lead a very long life yet with substantial disabilities from cerebral palsy requiring very expensive around the clock care pursuant to a life care plan.

  

In reviewing a potential HIE medical malpractice case, one of the things we as lawyers analyze is the prenatal period to rule out whether the injury occurred then.  As HIE medical malpractice attorneys, we also examine the fetal heart rate monitoring strips to see what baby’s heart rate was showing on the monitor during labor; certain patterns mean a cesarean section delivery should have been done.  Our newborn HIE law firm also reviews the medical records with chart entries to determine whether the baby was progressing properly down the birth canal or if it was delayed and experiencing fetal distress such that a cesarean section should have been done early on.  Another thing we consider in reviewing for HIE labor and delivery medical malpractice is the use of the contraction inducing drug Pitocin (or Oxytocin, “Pit”) to see if it was administered within the standard of care or if it was improperly used to force a vaginal delivery.  Sometimes an umbilical cord problem was not noticed and timely addressed (such as a nuchal cord, cord around the neck), or there is a problem with the placenta that is not recognized (placental abruption for example).  In some cases, cord blood is obtained from the newborn infant, but the results are later missing, and nobody can explain what happened to the sample, forcing us to consider whether the provider intentionally discarded the cord blood sample so as to cover up key evidence.  Placental pathology can be informative, but sometimes providers do not order this in cases of obvious HIE, necessitating the need to examine whether the laboratory analysis was not ordered as part of an effort to coverup labor and delivery medical malpractice.  The resuscitation process is also important to examine, including whether the proper providers were called in time, whether intubation was timely done, and whether meconium was suctioned if needed (if meconium may have been in the airway). Some hospitals and providers are repeat offenders as to newborn HIE, sometimes due to a poor culture of safety or incompetence.  These and many other factors are considered in determining whether legally your healthcare providers (the doctor, nurses, and hospital) met the standard of care for your labor and delivery process or if medical malpractice occurred leading to a diagnosis of HIE in the NICU.  Often, the defense in labor and delivery HIE medical malrpactice cases claims the hypoxic injury occured at some undertermine time before labor due to no fault of the healthcare providers, yet when pressed they cannot identify what exactly it was that they think caused the severe HIE injury if not malpractice during labor and delivery, conveniently taking the position of "we do not know really what caused it but somehow we are sure it could not be labor and delivery medical malpractice."  We evaluate and address this sort of intellectually dishonest defense on a routine bases in cases wherein a newborn has been diagnosed with HIE in the NICU. 

 

If your newborn baby was diagnosed with HIE (hypoxic ischemic encephalopathy) in the NICU, do feel free to reach out to us by phone, text, or email.  Mahoney Law, PLLC, Boise, Idaho, (208) 345-6364 (phone or text).  We handle HIE medical malpractice cases throughout all of Idaho and have a strong track record of success in helping newborns, children, and their families in these very serious, yet preventable situations.  For example, in one case, we secured a $7.2 million settlement on behalf of a young family in a case brought in federal court wherein the newborn suffered an anoxic brain injury at birth leading to HIE and cerebral palsy.  A portion of the funds is invested in trust with lifetime benefits to the child of $19 million.  We review cases to help parents understand "why did this happen," free of charge, confidentially, with no obligation or risk to you.  (208) 345-6364 (phone or text)

The Most Recent Cases

           The last four years have continued the overall willingness of the Idaho Supreme Court to reversesummary judgments in medical malpractice cases as long as the basic rules have been followed.  Consistently, the Idaho Supreme Court has continued to reiterate the well-settled rules that can be relied upon to meet the foundational requirements of Idaho Code §6-1013 without undue confusion.  This being said, the Idaho Supreme Court has, as always, been willing to uphold summary judgment in cases wherein the out-of-area completely failed to familiarize as to the standard of care for the locale in question and as to the type of defendant in question.

     

            In 2014, the Idaho Supreme Court first reversed summary judgment in Bybee v. Gorman M.D. & Fred Meyer Pharmacy, 157 Idaho 169, 335 P.3d 14 (2014).  The defendant doctor was a board-certified cardiologist in Idaho Falls who had prescribed a medication to the patient.  Id. at 171, 335 P.3d at 17.  The patient ended up having his thyroid removed due to toxicity from the mediation.  Id. at 172, 335 P.3d at 17.   The trial court granted summary judgment finding that the patient’s out-of-area expert was not from the same town as the defendant and did not identify the practitioner in that town, Idaho Falls, with whom he had spoken as to standard of care.  Id. at 173, 335 P.3d at 18. 

 

            Holding that the trial court abused its discretion in concluding that the patient’s expert’s affidavits were inadmissible, the Idaho Supreme Court restated the basic rule that the out-of-area expert must: (a) show that he or she is familiar with the standard of care for the relevant medical specialty; (b) show such familiarity for the relevant timeframe; (c) show such familiarity as to the relevant community; and (d) show how he or she became familiar with the standard of care.  Id. at 174, 335 P.3d 19, citing Delaney, 237 Idaho at 164, 45 P.3d at 820.  

 

            The Court ruled that the use of an anonymous local practitioner does not render expert testimony inadmissible on summary judgment, “[t]oday we hold that an affidavit that fails to identify an anonymous consultant does not categorically fail...”  Id. at 178, 335 P.3d at 23.  In a related footnote, the Court did, however, say that the corollary of its holding is that the defense should be permitted to conduct discovery as to the identity of the local consulting practitioners, with any credibility issues raised thereby to be determined “by the ultimate trier of fact.”  Id. at 179, 335 P.3d 24, fn. 8.  

 

            The Idaho Supreme Court went on to confirm that the out-of-area expert’s affidavits complied with the foundational requirements because, “[t]hese affidavits contain specific facts showing that [the out-of-area] expert had familiarized himself with the applicable standard of healthcare practice and held the opinion, to a reasonable degree of medical certainty, that [the defendant] violated the standard…”  Id. at 179-80, 335 P.3d at 25.  As to substance, the Idaho Supreme Court ruled that the out-of-area expert had met the foundational requirement by virtue of statements in his affidavit as follows: (a)  that the expert was the same specialty as the defendant; (b) that the expert had spoken to a local practitioner of the same specialty as the expert; (c) that the local practitioner was of the same specialty as the defendant; (d) that the local practitioner was located in the locale in question; and (e) the local practitioner was practicing there for the timeframe in question.  Id. at 179-80, 335 P.3d at 24-25.  “Accepting the truth of this affidavit, the unidentified physician practiced in the relevant community at the same time as the events that gave rise to the action and in the same specialty as Dr. Gorman. This is sufficient to demonstrate that the unidentified consultant was familiar with the relevant and applicable standard of health care practice.”  Id. at 179, 335 P.3d at 24. 

 

            Later in 2014, in its second reversal of summary judgment in the last four years, the Idaho Supreme Court again found that the trial court erred in granting summary judgment and reversed in a nursing home case, Mattox v. Life Care Centers of America, Inc., 157 Idaho 468, 337 P.3d 627 (2014).  Stating that the trial court had clearly abused its discretion, the Idaho Supreme Court started by emphasizing that the issue is not whether an expert has uttered any certain magic words, “This Court does not require that an affidavit include particular phrases or state that the expert acquainted himself or herself with the applicable standard of care in some formulaic manner in order to establish foundation under Section 6-1013.”  Id. at 473-74, 337 P.3d 632-33, citing Bybeesupra.  “Indeed, the Court has recognized that ‘governmental regulation, development of regional and national provider organizations, and greater access to the flow of medical information,’ have provided ‘various avenues by which a plaintiff may proceed to establish standard of care…”  Id. at 474, 337 P.3d 633, quoting Suhadolniksupra

 

            Applying these concepts, the Idaho Supreme Court ruled that the trial court abused its discretion in excluding the patient’s physician’s expert affidavit.  The Court found the affidavit to contain “ample” reason to believe the out-of-area expert was familiar with the standard of care for the nursing home in question, despite the fact that he was not a nursing home nurse, because: (a) he had written orders for the patient that he expected the nursing home staff to follow and there “is no reason to believe that those orders did not establish care standards”; and (b) he had numerous exchanges with the subject nursing home staff as to the patient’s care at issue.  Id. at 474-75, 337 P.3d 633-34. 

 

            The Idaho Supreme Court, likewise, ruled that the trial court had abused its discretion in excluding the patient’s nurse expert’s affidavit.  The Court held that the out-of-area nurse’s interviews with local practitioners in the locale in question, Lewiston, were themselves sufficient, “Nurse Thomason’s interviews were alone sufficient to demonstrate actual knowledge of the applicable standard of care.”  Id. at 476, 337 P.3d at 635.  The out-of-area expert had also researched applicable state and federal regulations, including regulations that were relevant to the care at issue in the case (care plans as to accident prevention).  Id. at 474-75, 478-79, 337 P.3d 634-34, 637-38.  

 

            The jury’s verdict in Ballard v. Kerr M.D. & Silk Touch Laser, LLP, 160 Idaho 674, 683-84, 378 P.3d 464, 473-74 (2016) was upheld by the Idaho Supreme Court in a wrongful death case involving septic shock from infection following liposuction treatment at a medical spa.  The standard of care at issue was disinfecting and sterilizing medical equipment.  On appeal, the Idaho Supreme Court confirmed that the plaintiff’s out-of-area expert was properly familiar with the applicable standard of care.  Id. at 687-88, 378 P.3d at 377-78.  The out-of-area expert testified that he gained familiarity with the standard of care in the locale in question as of the time in question by: (a) having worked with plastic surgeons and non-plastic surgeons who perform surgeries in the Boise area and observing how they sterilize equipment; and (b) through his role as an inspector for cosmetic facilities, including in Boise.  Id.  Although the expert and defendant were of different specialties (plastic surgery versus an anesthesiologist who performs cosmetic surgery), the Court reiterated that the two need not be of the same specialty, as long as the expert shows actual knowledge of the specialty at issue.  Id.   And, although the care was performed in Eagle, the Court found that the applicable community was the “greater Boise area” given that there was evidence in the record as to that being the patient range.  Id

 

            In its third reversal of summary judgment in a medical malpractice case in the last four years, the Idaho Supreme Court issued its 2016 decision in Lepper v. Eastern Idaho Regional Medical Center, 160 Idaho 104, 105, 369 P.3d 882, 883 (2016).  The patient in Lepper was rendered a paraplegic from complications allegedly  due to late-diagnosed, post-operative cuada equina syndrome following otherwise normal back surgery who submitted affidavits of a nurse expert and a physician expert.  Id.  The Court first addressed the issue of the timeliness of expert disclosures relative to the defense argument that all Idaho Code §6-1013 foundation must be disclosed when expert disclosure are due.  Id. at 109-10, 369 P.3d 887-88.  The Court held that the trial court erred in holding that the requirements of Idaho Code §6-1013 (and -1012) applied relative to expert witness disclosures.  Id.  “As a preliminary matter, the district court erred in assuming that Idaho Code sections 6-1012 and 6-1013 apply to disclosure requirements. There is a difference between the requirements for expert witness disclosures in the early discovery stages of a case, and the requirements for admissibility of expert witness testimony at trial or in summary judgment.  Idaho Code sections 6-1012 and 6-1013 apply to the admissibility of expert witness testimony for trial, not to disclosures in the discovery stages of a case.”  Id.  The Court instructed trial courts that, unless their pre-trial orders were specific as to explicitly requiring all “foundational facts,” that it is an abuse of discretion to hold parties to such a requirement.  Id. 112, 369 P.3d at 890.

 

            Substantively, the Court found that the nurse expert was appropriately familiar with the standard of care where the expert: (a) consulted with a local nurse who trains nurse at BYU-Idaho and who trains nurses at the subject hospital; and (b) reviewed the applicable IDAPA nursing regulations, examination standards, and interstate nursing compact standards.  Id. at 114-15, 369 P.3d at 892-93. 

 

            The Court, likewise, found that the physician expert was appropriately familiar with the standard of care where the expert: (a) could not secure a local neurosurgeon with whom to consult in the locale at issue, Idaho Falls; (b) then relied on the Hoene decision (supra) as to an indeterminable standard of care upon a showing that a concerted effort to contact like situated providers, including in other areas in the state, such that similar localities outside of Idaho could be considered (the plaintiffs stated they had attempted to obtain consultation from every neurosurgeon in Idaho to no avail); and (c) consulted with a neurosurgeon in Billings, Montana.  Id. at 115, 369 P.3d at 893, also see fn. 1.   

 

            In Morrison v. St. Luke’s Regional Medical Center, Ltd& Emergency Medicine of Idaho, et al., 160 Idaho 599, 601, 377 P.3d 1062, 1064 (2016), the Idaho Supreme Court upheld a defense jury verdict in a case of alleged failure to diagnose and/or prevent an impending heart attack.  The entity, Emergency Medicine of Idaho was granted summary judgment, which the Idaho Supreme Court upheld, because there was no foundational showing whatsoever that the out-of-area expert had familiarized himself as to the standard of care for such an entity.  Id. at 605-06, 377 P.3d at 1068-69.  The Court emphasized that there was nothing timely in the record showing that the out-of-area expert was familiar with the standard of care for entities like the defendant emergency medical provider entity and that a partnership entity is different from its providers. “An entity does not have the similar training, experience, and fields of medical specialization as its employee physicians, and an entity does not provide direct care to patients.”  Id.

 

            The fourth reversal of summary judgment by Idaho Supreme Court in Navo v. Bingham Memorial Hospital, et al., 373 P.3d 681, 683 (Idaho 2016) can be characterized as a split decision in that there was no foundational showing as to the local standard of care, yet an apparent authority claim was allowed to proceed.  In Navo, the patient had died during ankle surgery, allegedly due to mismanaged spinal anesthesia administered by a nurse anesthetist (CRNA).  Id. at 684. The hospital entity moved for summary judgment asserting that there was no entity liability and no respondeat superior liability.  Id. at 685.  In response, the patient’s out-of-area expert submitted an affidavit in which the expert asserted that the hospital in Blackfoot had violated national Joint Commission Standards as to a failure to enact anesthesia policies and procedures.  Id. at 685.  The expert had also spoken with the associate director of the Idaho State Board of Nursing to confirm that nurse anesthesia in rural parts of Idaho was the same as to which the expert was familiar.  Id. at 685.   The Court held that the conversation with the director of the Idaho State Board of Nursing was insufficient as there was no showing that she was familiar with the standard of care in Blackfoot, i.e., the relevant locale, for the time in question.  Id. at 690-91.  The Court held that the Joint Commission standards were not specific enough to replace the local standard of care, they did not provide concrete guidance with respect to activities.  Id. at 691.  The same was true as to various IDAPA regulations cited as to nurse anesthesia.  Id. at 691-92.  

 

            Addressing the apparent authority claim as to entity liability in Navo, the Idaho Supreme Court held that the apparent-authority-agency-theory was sufficiently pled.  Id. at 692-93.  The Court went on to conclude that there were genuine issues of material fact that precluded summary judgment on the theory of apparent authority.  Id., citing Jones v. Health S. Treasure Valley Hosp., 147 Idaho 109, 116, 206 P.3d 473, 480 (2009).  The Court restated the elements of apparent authority in this context: (1) conduct by the principal that would lead the patient to believe the physician is an agent; and (2) acceptance of the agent’s service by one who believes it is rendered on behalf of the principal.  Id. at 693.  

 

            The Court found that these elements were met for purposes of summary judgment because the admission consent form was on the entity’s letterhead and did not address nurse anesthetists.  Id. at 694.  “It would be equally reasonable for a jury to find that Navo believed Sayre was an agent or employee of BMH due to the fact that it was not expressly stated otherwise on the Anesthesia and Procedure Consent Form. . . . Here, drawing all reasonable inferences in Appellant's favor, genuine issues of material fact exist regarding whether BMH's conduct led Navo to reasonably believe that Sayre acted on BMH's behalf and whether Navo accepted Sayre's services under the reasonable belief that such service was rendered on behalf of BMH.”  Id.   The Idaho Supreme Court therefore reversed summary judgment on the apparent authority claim whereby the patient sought to hold the entity labile for the conduct of the nurse anesthetist.  Id.  

 

            In its fifth reversal of summary judgment in the last four years, the Idaho Supreme Court, in 2016, circled back to the days of the 1985 Buck decision by unequivocally holding that a national standard of care applies board-certified specialists in Samples v. Hanson & Bingham Memorial Hospital, et al., 161 Idaho 179, 180, 384 P.3d 943, 944 (2016).[1]  At issue in Samples was the standard of care for a board certified general surgeon in Blackfoot, Idaho.  Id. at 181, 384 P.3d 945.  In Samples, the Court approvingly reiterated and reaffirmed its holding in Buck that a nationally board-certified specialist is held to a national standard of care.  Id. at 183-84, 384 P.3d 947-48.  

 

            The Court in Samples then went on to actually broaden its ruling in Buck, eliminating any requirement that it be shown that the board-certified specialist actively held himself or herself out as board-certified.  Id. at 184, 384 P.3d at 946.  The Court made it clear that there is no “holding out” requirement.  Id

 

            The Court went on to note that the patient’s expert did not inquire of a locale physician, but the fact that the expert had actually started working in Blackfoot as the defendant’s replacement 22 months after his departure was sufficient.  Id. at 185, 384 P.3d at 949.  Further, the Court agreed with the patient’s expert that the standards of care at issue are a matter of “common sense:”

 

This is not a complicated standard of care. It merely calls for basic post-operative care to ensure that the patient does not suffer infection or complications. It is not a standard of care that requires detailed specialization, intricate treatments, expensive equipment, or detailed knowledge of drug interactions. One would hope that any surgeon, regardless of whether operating in the backwoods or a metropolitan hospital, would monitor the patient post-operatively to ensure a decent recovery without infection or complications. That didn't happen with Mr. Samples, as outlined by [the patient’s expert].

 

Id. at 186, 384 at 949.

 

            In 2017, in Quigley v. Kemp & St. Alphonsus Regional Medical Center, Inc., the Idaho Supreme Court ruled that the identities of local familiarizing consultants under Idaho Code §6-1013 must be disclosed pursuant to discovery requests and in expert disclosures. 162 Idaho 408, 410-11, 398 P.3d 141, 143-44 (2017).  The Idaho Supreme Court ruled that, while an out-of-area expert’s testimony may be admissible without identifying the local familiarizing practitioner (consistent with previous decisions), the identity of the local practitioner is discoverable and should be affirmatively disclosed in expert witness disclosures under Rule 26.  Id.  The Court concluded by iterating that privilege rules under Rule 26 as to retained confidential consultants who are not experts for trial do not protect the identity of local familiarizing consultants.  Id.  

 

            Next, in December of 2019, the Idaho Supreme Court decided the case of Eldridge v. West MD and EIRMC, 458 P.3d 172 (Idaho 2019).   The Court first held that claims for negligent and intentional infliction of emotional distress may be brought in the context of a medical malpractice case, but that the statutory expert testimony requirements of 6-1012, -1013 must be met.   The Court next held that the trial court should have struck conclusory defense affidavits in support of summary judgment which failed to identify the standard of care, and failed to explain the basis for conclusions as to claimed compliance with the standard of care.   

 

            In March of 2020, the Idaho Supreme Court issued its decision in Phillips v. EIRMC et al.  This case involved an alleged failure by healthcare providers to prevent a suicide.  The Court ruled that the plaintiffs should have been allowed to conduct a 30(b)(6) corporate representative deposition of the entity defendant as to the applicable standard of care.  The Court reasoned that the standard of healthcare practiced in a community is a factual determination, not an opinion.  

 

However, the question presented by this inquiry, i.e., what is the standard of health care in the community, is a question of fact, not opinion. While the expert must be familiar with the local standard of care in order to render an opinion that a treatment provider breached that standard of care, the underlying foundation-what constitutes the local standard of care-is fact driven…. A societal norm connotes a factual determination, not an opinion…. The scope of discovery encompasses far more than what will be considered admissible under the Idaho Rules of Evidence. I.R.C.P. 26(b)(1)(A). Accordingly, the district court abused its discretion in granting EIRMC's protective order because the facts underlying the standard of health care practice do not depend upon opinions. 

 

            The Idaho Supreme Court also concluded in Eldridge that the entity itself was required to testify as to the standard of care under Rule 30(b)(6):

 

The federal analog to I.R.C.P. 30(b)(6), found in Federal Rule of Civil Procedure 30(b)(6), was designed to "curb the 'bandying' by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it." 8A Charles Alan Wright, et al., Federal Practice and Procedure § 2103 (3d ed. 2019) (quoting Fed.R.Civ.P. 30(b)(6) advisory committee's note to 1970 amendment). Rule 30(b)(6) depositions carry with them "an implicit obligation to prepare" the corporate designee with respect to the subjects listed on the Rule 30(b)(6) notice. Id. When a responding party complains about the unfair burden of preparing such a designee, "[t]he starting point . . . is to compare the risks of 'bandying,' which Rule 30(b)(6) was designed to cure." Id. To hold that the standard of health care practice cannot, as a rule, be discovered in a Rule 30(b)(6) deposition of a corporate designee would encourage the bandying sought to be curbed by this rule. Otherwise, entities would be able to deflect requests for discovery by asserting ignorance of the procedures or policies of their employees and contractors, just as was done here. 

 

Consequently, we find the district court abused its discretion by restricting the scope of the Phillipses' 30(b)(6) deposition of EIRMC, and reverse its grant of EIRMC's motion for a protective order.

 

            Clarifying its prior decision in Quigley, the Idaho Supreme Court went on to address the issue of whether the defense could depose the plaintiffs’ local familiarization experts.  The locals had been retained as consultants pursuant to IRCP 26(b)(4)(D).  Even after Quigley, which simply requires identification of local familiarizers if asked in discovery, the Court reasoned, “exceptional circumstances” must be shown to depose such a witness in light of the trial preparation protection of the rule.   “A deposition my only occur upon a ‘showing [of] exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.’  I.R.C.P. 26(b)(4)(D)(ii).”  The Court concluded that local familiarization is widely recognized and is a “ubiquitous part of medical malpractice cases in Idaho.”   The implication being that the fact of local familiarization alone is not “exceptional circumstances.”

 

            The Idaho Supreme Court in Phillips next addressed the trial court’s exclusion of the plaintiffs’ expert testimony based on actual knowledge of the local standard of care foundational requirements of Idaho Code Sections 6-1012, -1013.  The Court reiterated the rule from Samples, that board certified physicians are held to a national standard of care, that the local standard of care is equivalent to the national standard of care.  (Citing to Buck v. St. Clair, 108 Idaho 743, 745, 702 P.2d 781, 783 (1985)).  The Court emphasized that the provider had to be board certified or held out as board certified, which was not the case in Phillips.  

 

            The Court further held that certain national practice guidelines did not establish a national standard of care in Phillips because the foundational witness deposition testimony was too vague and qualified.  The Court was, however, very careful to emphasize that the testimony and the guidelines could be helpful in informing as to, and for helping establish, the standard of care, i.e., while perhaps not establishing the standard of care they could nonetheless be part of the basis of an expert witness’s foundational knowledge.  The Court also noted that review of specific local specialist deposition testimony may be sufficient, and external materials and documents may assist in establishing the applicable standard of health care.  (Approvingly citing Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816, 821 (2000)).  The Court reached a similar holding as to certain “standards of care” as to clinical documentation contained in the patient’s clinical records as they were too vague and general; however, the Court again emphasized that an expert can rely, in part, on such publications to “inform” the expert’s opinion and can testify accordingly. 

 

            Turning to the issue of local familiarizing witnesses, the Court held that the trial court erred in finding that the local providers were not able to provide adequate foundation.  The Court reiterated the long-standing rule that the local familiarizer need not be of the same specialty as long as the local is sufficiently familiar with the defendant’s field of practice.  Here, the distinction between inpatient vs. outpatient psychiatry was too fine and narrow, particularly given the admonition that this process is not intended to be “an overly burdensome requirement” and that “common sense” establishes that the local was a highly qualified and experienced psychiatrist.  The Idaho Supreme Court also found that a one month gap in practice of the local versus time of the event was not material and was negligible because the local would logically, and by common sense, have ample opportunity to become familiar with the previous standard of care.  

 

            And, the Court ruled that, as to geographic local, the trial court must look for regular or common use of a facility by a community’s residents, its patient base, and recognize that communities may overlap.  Here, zip code evidence was provided in discovery that showed that residents of Pocatello commonly sought treatment at EIRMC in Idaho Falls, which in turn was identified by the testifying expert.  The Court wrote that “all that is required is ‘some degree of frequency’ with which ‘users of the hospital’s services commonly go from one location [Pocatello] to the place where the hospital is located [Idaho Falls].’”  (Citing Bybee v. Gorman, 157 Idaho 169, 335 P.3d 14 (2014)).

 



[1] Thus, putting to rest any ambiguity created by the Grimes decision, supra.

Introduction

“[T]he question of how to qualify and out-of-area physician to render an opinion in a medical malpractice case ‘has plagued the bench and trial bar since the enactment of Idaho’s statutory structure…requiring proof [of] actual knowledge of the local standard of care.”  Grover v. Smith, 137 Idaho 247, 249, 46 P.3d 1105, 1107 (2002), quoting Keyser v. Garner, 129 Idaho 112, 117, 922 P.2d 409 (Ct. App. 1996).

 

The Early Cases

The first cases in which the Idaho Supreme Court grappled with Idaho Code §6-1013 reflect two main issues.  One, the Court worked on articulating what a sufficient affidavit must show under Idaho Code §6-1013 in order to be admissible and defeat summary judgment.  Two, the Court promptly confronted the reality that a national standard of care may apply in certain cases in light of areas of specialized, national, board-certified training, and worked to reconcile that reality with the notion of a community standard of care.  

 

In the first case to substantively address the requirements of Idaho Code §6-1013, Maxwell v. The Woman’s Clinic, P.A., et al., the Idaho Supreme Court announced that, “[I]n order to preclude summary judgment in medical malpractice cases, plaintiffs must show that expert testimony has been offered by either the plaintiff or defendant which when viewed in a light most favorable to the plaintiff indicates that the defendant has negligently failed to meet the applicable standard of health care practice of the community.  102 Idaho 53, 56, 625 P.2d 407, 410 (1981).  There, the patient had failed to produce expert affidavits, hence summary judgment was upheld.  Id.  Upon initial consideration, this is not a particularly complex or confusing inquiry: has the patient come forward with proper expert testimony on negligence?  But, as is often the case, the devil is in the details, particularly given that Idaho Code §6-1013 does not define what is means for an out-of-area expert to become adequately familiar with the applicable standard of care such that he or she has “actual knowledge” of it, whether truly local, statewide, or national in any given case. 

 

            In its next decision on Idaho Code §6-1013, the Idaho Supreme Court directly addressed the impactful issue of a national standard of care for board-certified specialists in Buck v. St. Clair, M.D., et al., 108 Idaho 743, 745, 702 P.2d 781, 783 (1985).  There, the Idaho Supreme Court held that, despite arguments as to a “community standard,” a nationally board-certified specialist is held to the national standard of care regardless of the locality in which he or she practices in Idaho. “We believe that for board-certified specialists, the local standard of care is equivalent to the national standard of care.” Id.  The Idaho Supreme Court explained that this was because board certification for doctors requires rigorous training, requires attending a nationally accredited school, residency programs are nationally accredited, and they are only certified “after passing a nationally administered exam consisting of both oral and written components.” Id.  In terms of expert testimony, the Idaho Supreme Court confirmed that, by virtue of their training, board certified specialists are familiar with the standard of care for a locally situated specialist as to the national standard of care.  Id. at 746, 702 P.2d at 784.  In terms of local familiarization, the Idaho Supreme Court expressly found an out-of-area expert must inquire of the local standard in order to insure there are no applicable local deviations from the national training.  Id.  In Buck, the Court also noted that the patient’s expert had confirmed that the local standard was the same as the national by speaking with a local board-certified specialist in the same field.  Id.  The Idaho Supreme Court concluded that the key to its decision was that the board-certified specialist was certified “through a nationally designated process” with “national training.” Id. at 747, 702 P.2d at 785.

 

Reflecting an ongoing tension on the Court, in 1987, the Idaho Supreme Court revisited the issue of a national standard of care Idaho Code §6-1013 in Grimes v. Green, M.D., 113 Idaho 519, 746 P.2d 978 (1987).  There, the Idaho Supreme Court noted that the patient’s experts were allowed to testify as to a national standard of care, but that the defense had introduced evidence of local deviations from national practices that applied in Twin Falls, Idaho as to a particular obstetrical procedure.  Id. at 521, 746 Idaho at 980. In emphasizing the fact of local deviations, the Idaho Supreme Court held that its prior decision in the Buck case did not eliminate the possibility of local deviations from national standards referring to broader language in Buck as “dicta.” [1]  Id. at 522, 746 P.2d at 981.

 

In 1988, the Idaho Supreme Court addressed Idaho Code §6-1013 in a flurry of five cases.  In Clarke v. Premier, M.D., 114 Idaho 766, 768, 760 P.2d 1182, 1184 (1987), the Idaho Supreme Court specifically expressed its “disapproval of what appears to be a growing practice of trial courts of this state dismissing medical malpractice cases on the basis that plaintiffs’ expert witnesses are not sufficiently familiar with the standard of care to be expected.”  

 

Similar to the rule set forth originally in the initial Maxwell case, supra, the Idaho Supreme Court emphasized, “We do not view such burden as being onerous on plaintiffs in medical malpractice cases since ordinarily it only requires a positive indication that plaintiffs’ expert witnesses possess the requisite knowledge of the local standard of care which has been violated.” Id.  The Court went on to say, “it appears that some of our trial judges fail to recognize their obligation to construe not only the evidence before the court, but all reasonable inferences that flow therefrom, most favorably to the non-moving party.” Id.  The Idaho Supreme Court found that even conclusory statements in affidavits as to familiarity with the local standard were not materially insufficient.  Id.

 

The decision in Clarke also emphasized that the testifying expert need not be of the same specialty as the defendant as long as sufficient expertise and knowledge are shown.  Id. at 769, 760 P.2d at 1185.  Also see, Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 766 P.2d 1213 (1988)(summary judgment upheld where affidavits submitted on behalf of patient against medical providers did not show any knowledge of standard of care for locality of Twin Falls); Frank v. East Shoshone Hospital, et al., 114 Idaho 480, 482, 757 P.2d 1200, 1201 (1988)(summary judgment upheld due to complete failure to show any knowledge of local standard by patient, but emphasizing that “Our decision today does not cast an onerous burden on plaintiffs in medical malpractice actions…I.C. §6-1013 is not a crushing burden. . .it does not take a Herculean effort for an expert to become familiar with the local standard of care.  It can be done on the telephone.”).  

 

Providing well-articulated guidance on what must be shown in affidavits under Idaho Code §6-1013, was the Idaho Supreme Court’s 1988 decision in Pearson v. Parsons, M.D., 114 Idaho 334, 757 P.2d 197 (1988).  There, the Idaho Supreme Court reversed summary judgment, holding that the patient’s expert need not be of the same board-certified specialty as the defendant healthcare provider.  The Idaho Supreme Court took the opportunity in Pearson to set forth what an appropriate affidavit opposing summary judgment should contain: (1) a statement that the expert was judging the defendant in accordance with the appropriate standard taking into account fields of medical specialization; (2) that the witness was knowledgeable, competent, with appropriate expertise; (3) that the opinions of the expert are actually held and held to a reasonable degree of medical certainty; and (4) a statement of the breach of the standard of care under the facts. [2]  Id. at 338-39, 757 P.2d 201-02.  The Idaho Supreme Court also noted that, even though the expert affidavits did not address the element of proximate cause, the issue proximate cause is a medical malpractice case is entitled to all reasonable inferences with all doubts resolved against the moving parties.  Id.  Also see Sparks v. St. Luke’s Regional Med. Cntr, Ltd., 115 Idaho 505, 515-16, 768 P.2d 768, 778-79 (defendants placed specific affidavits into the record as to following a detailed standard of care, which the patient failed to rebut with countervailing expert testimony showing that the standard was violated).

 

Rounding out the 1980’s, the Idaho Supreme Court decided Strobe v. Lenzi, M.D., 116 Idaho 214, 775 P.2d 106 (1989).  In upholding summary judgment, the Court reaffirmed that a nationally board-certified specialist “must, at a minimum, inquire of a local specialist to determine whether the local community standard varies from the national standard for that board-certified specialty.”  Id. at 216, 775 P.2d at 108.

 

The 1990s

 Throughout the 1990s, the Idaho Supreme Court and Idaho Court of Appeals continued to address the application of Idaho Code §6-1013 on nearly a yearly basis, continuing to address what can be described as six broad categories of cases arising under the statute: (1) cases in which the out-of-area expert failed to do anything sufficient as to standard of care familiarization; (2) cases wherein the out-of-area expert did not properly familiarize as to the medical specialty at issue, and/or failed to familiarize as to the proper locale or timeframe; (3) cases wherein local practitioners disavowed speaking with the out-of-area expert or were later factually contradictory as to the out-of-area expert’s version of the familiarization conversations; (4) cases in which the standard was indeterminate due to a lack of other similar local practitioners; (5) cases wherein a national or statewide standard applied; and (6) cases wherein the out-of-area expert had properly done the foundational groundwork and had followed the rules and requirements of Idaho Code §6-1013 as interpreted and articulated by the Idaho Supreme Court. 

 

For example, in Kuntz v. Magic Valley Regional Medical Center, et al., 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990), the Idaho Court of Appeals upheld a grant of summary judgment where patient’s expert witness admitted in deposition he was not familiar with the local standard of care in Twin Falls, Idaho.  Likewise, in Gubler v. Boe, M.D., et al., 120 Idaho 294, 815 P.2d 1034 (1991), dismissal was upheld where patient’s expert did not familiarize as to the correct year and locale. 

 

In Hoene v. Barnes, M.D., 121 Idaho 752, 828 P. 2d. 315 (1992), the Idaho Supreme Court reversed a grant of summary judgment by the trial court.  Hoene involved a situation wherein there was no other specialist in Boise (or the entire state) as to a particular procedure other than the defendant doctor and his practice group: “Because these physicians all practiced together and were part of one business entity, we treat them as one provider under the statute.  Id. at 744, 828 P.2d at 318.  As such, the Idaho Supreme Court held that the standard of care was “indeterminable,” thus Idaho Code §6-1013 (and -1012) did not apply.  Id.  The Court then applied pre-statutory decisions, which allowed proof of similar localities outside of Idaho.  Id. at 756, 828 P.2d at 319.  The patient’s nationally board-certified expert demonstrated sufficient familiarity with the applicable national standards as well as in community similar to Boise, thus summary judgment was inappropriate.  Id. at 756, 828 P.2d at 320. 

 

Kozlowski v. Bannock Regional Medical Center, et al., 121 Idaho 825, 828-30, 828 P.2d 854, 857-59 (1992), involved a situation wherein the Idaho Supreme Court held that the trial court had erred in excluding the patient’s expert witness.  The patient’s expert was a nationally board-certified specialist in the same specialty as the defendant (obstetrics), he had reviewed deposition testimony confirming the local standard was the same as the national standard, and was familiar with published national standards on the care at issue.  Id

 

In Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1994), the Idaho Supreme Court reversed a grant of summary judgment, holding that the trial court had erred in holding that the patient’s expert witness affidavits were inadmissible for purposes of resisting summary judgment.  The patient’s expert had submitted affidavits attesting to conversations with local practitioners, however the local practitioners denied that the conversations had occurred as alleged.  Id. at 604-05, 903 P.2d at 1301-02.  The Idaho Supreme Court held that such gave rise to a factual issue that was sufficient to dispute summary judgment as to the liability of the physician defendant and that the allegations in the expert’s affidavit are to be taken as true.  Id., also see fn. 3.  The Idaho Supreme Court did hold that one of the patient’s experts did not show sufficient foundation in terms of personal expertise as to the hospital standard of care, but another of the patient’s experts had consulted with the State of Idaho Hospital Licensing Board and, as such, was adequately familiar with the applicable hospital standard of care.  Id. at 606, 903 P.2d at 1303. 

 

Rhodehouse v. Stutts, 125 Idaho 208, 212, 868 P.2d 1224, 1228 (1994), involved a situation wherein the patient’s expert attempted to base his familiarity with the local standard solely by reviewing the defendant doctor’s deposition and did not otherwise state how he had become familiar with the local standard of care.  The Idaho Supreme Court wrote, “While it may be possible for an expert to become familiar with the local standard of care by reviewing the defendant doctor’s deposition, we are not presented with that situation here” because, as the Court went on to find, the defendant doctor was not asked about local versus national standards in the deposition.  Id.  The Court stated, “an expert cannot become familiar with the local standard of care merely by reviewing hospital records and the actions of a local physician.” Id

 

In Watts v. Lynn, 125 Idaho 341, 346-47, 870 P. 2d 1300, 1305-06 (1994), the Idaho Supreme Court partially reversed a grant of summary judgment, again based on the issue of the sufficiency of the patient’s expert affidavits.  The problem was, again, that the local practitioner with whom the out-of-area expert had communicated submitted his own affidavit denying the substance of the familiarization telephone call.  Id.  And, the Court held, again, that trial courts are not to weigh such conflicting affidavits.  Statements as to local practitioner telephone calls in the patient’s expert’s affidavit must be taken as true for purposes of summary judgment, specifically that the expert had “familiarized himself with community standards for the relevant time period by conferring with a local dentist and was aware of no deviations from national standards.” Id.  

 

In Keyser v Garner, M.D., 129 Idaho 112, 118-19, 922 P.2d 409, 415-16 (Ct. App. 1996), the Idaho Court of Appeals found that the trial court properly allowed a defense expert witness to testify, restating yet again the basic rule that admissibility is established as to foundation under Idaho Code §6-1013 by “an out-of-area physician’s testimony that he or she has conversed about those standards with a qualified physician practicing in the community and has thereby become knowledgeable about the local standards.” 

 

The following year, in Evans v. Griswold, 129 Idaho 902, 935 P.2d 165 (1997), the Idaho Supreme Court upheld summary judgment wherein the patient’s expert, an ophthalmologist, failed to demonstrate familiarity with the standard of care as to the practice of optometry.  The Idaho Supreme Court held that in order for the expert from a different specialty to be allowed to testify, that expert must testify that he is familiar with the standard for the defendant doctor’s specialty, for the time in place in question.  Id. at 905-06, 935 Idaho 168-69.  The patient’s expert, from the different specialty area, admitted in deposition that he had not familiarized himself with the defendant-doctor’s area of specialty for the time and place in question.  Id.  

 

And, in Kolln v. St. Luke’s Regional Med. Cntr., et al., 130 Idaho 323, 940 P.2d 1142 (1997), the Idaho Supreme Court reinterred the basic rules once again, including that, as to hospital liability, the expert must show expertise in that area and familiarity with the entity standards.  Id. At 332, 940 P.2d 1151. 

 

CHECK BACK FOR PART II IN OUR NEXT POSTING: THE YEAR 2000 FORWARD



[1] The issue of board certified specialists being held to a national standard of care would not be squarely addressed, fully resurrected, and re-confirmed until 31 years later in the Samples case, infra

[2] The Court in the Pearson case also emphasized that a defendant does not meet its burden in the first instance on summary judgment by conclusory denials, rather, the defense affidavits “must show that there is no genuine issue of material fact. . .”. Id. at 338, 747 P.2d at 201. The Court held that the defense affidavits were insufficient since they did not show knowledge of the local standard, hence the burden never shifted to the patient to resist summary judgment in the first instance.  Id.

The Year 2000 Forward

 From 2000 through 2010, the Idaho Supreme Court addressed the application of Idaho Code §6-1013 on no less than twelve separate occasions, with cases in all six of the general categories outlined above.  Throughout this timeframe, the Court reemphasized that there is more than one manner in which an out-of-area expert can become appropriately familiar with the standard of care under Idaho Code §6-1013.   

 

Starting in 2000, in the case of Perry v. Magic Valley Regional Medical Center, which was a unanimous decision, the Idaho Supreme Court set forth a comprehensive review and summary of the admissibility of expert testimony under the statute in upholding a jury verdict in favor of the patient.  134 Idaho 46, 995 P.2d 816 (2000).  The Court held that the patient’s nursing expert had demonstrated proper foundation under §6-1013 in order to have been allowed to testify.  The out-of-area nursing expert had not spoken with a nurse from the locale in question, Twin Falls.  Id. at 51, 995 P.2d at 821.  

 

What the out-of-area nursing expert had done was: reviewed the depositions of three hospital nurses; reviewed the nursing text that the hospital nurses identified as their standard for nursing procedures; spoken with the executive director of the Idaho Board of Nursing; and spoken with nursing faculty members at two Idaho nursing schools.  Id.   The Idaho Supreme Court again emphasized that speaking with a local practitioner is but one means of obtaining familiarization, but it is not the only means.  Id.  The Court stated that review of deposition testimony can be sufficient: “An expert’s review of a deposition stating that the local standard of care does not vary from the national standard, coupled with the expert’s personal knowledge of the national standard, is sufficient to lay a foundation for the expert’s opinion.”  Id., citing Kozlowski and Rhodehousesupra.  The Court held that, given the specificity of the deposition, that review of the deposition in addition to review of the texts relied upon at the hospital gave the expert sufficient foundation.  Id. at 52, 995 P.2d at 822.

 

The 2002 decision in Delaney v. St. Alphonsus Reg. Med. Cntr., 137 Idaho 160, 165-69, 45 P.3d 816, 821-25 (2002) was relatively straightforward and involved as case wherein the out-of-area expert contacted local practitioners of the wrong specialty, different from that of the defendant.  There was nothing in the record to show that the local practitioners knew the standard of care for the defendant’s specialty.  Id. Nonetheless, the Court did emphasize that the experts need not be of the same specialty as that of the defendant, but, again, they still must familiarize as to the standard of care for defendant’s specialty.  Id.

 

Reversing summary judgment in Grover v. Smith, 137 Idaho 247, 248-89, 251, 46 P.3d 1105, 1106-07, 1110 (2002), the Idaho Supreme Court, in a unanimous decision, addressed a situation wherein an out-of-area expert determined that there was one standard of care in Idaho for dentists, that he was familiar with Idaho’s dental licensing examination and the level of skill required to pass it, which was also the national standard of care for dentists, and that he was familiar with both standards.  In Grover, the expert’s testimony focused on very basic principles of dentistry that do not vary from town to town, and the Court observed that the town at issue, Fruitland, was no longer remote given the free exchange of scientific information via the internet.  Id. at 249, 46 P.3d at 1107.  The expert also determined that Idaho’s State Dental Practice Act adopted national standards.  Id.  

 

Reiterating the basic foundational rule, the Idaho Supreme Court reminded readers that, the “cases demonstrate that this Court has been willing to affirm a district court’s grant of summary judgment…when the plaintiff’s expert failed to contact any local physician.  Likewise, this Court has been reluctant to grant a defendant’s motion for summary judgment when the plaintiff’s expert did consult a local physician possessing expertise on the area at issue.”  Id.   The Idaho Supreme Court emphasized that what was “[a]t issue in this case is a minimum statewide standard of care, not a lack of advanced technology, conditions unique to the area, or particular specializations with which the expert is unfamiliar…Respondent’s contention that professionals in a community could decide to adopt a local standard of care that is inferior to the bare minimum statewide standards is without merit.”  Id. at 252, 46 P.3d 1110.  

 

It is notable that the Idaho Supreme Court found the out-of-area expert’s testimony admissible even though the expert had not spoken with a dentist in the particular locale at issue, Fruitland.  Id.  The Court emphasized that speaking with a local practitioner is one acceptable method, but is not necessarily required, and that an out-of-area expert is not precluded from “relying on a statewide standard of care that has been adopted by the profession’s governing board” and that the “standard of care anywhere in Idaho cannot be below the standard required to have fitness to be licensed.”  Id. at 253, 46 P.3d at 1111.

 

Again, reversing summary judgment, the Idaho Supreme Court issued its decision in Shane v. Blair, M.D., 139 Idaho 126, 75 P.3d 180 (2003).  In finding that a Utah-based expert had shown proper foundation for admissibility under Idaho Code §6-1013, the Court noted that the out-of-area expert had: taken numerous patient referrals from the locale in question (Pocatello); discussed the particular surgery type (lumbar surgery) with Pocatello surgeons over the years; and reviewed hundreds of medical records from Pocatello surgeons over the years, including for the year in question.  As such, the Court determined that the out-of-area expert’s years of experience in dealing with Pocatello orthopedic surgeons “establishes that he has sufficient knowledge of the relevant standard of care” such that he had personal knowledge of the standard of care.  Id. at 130-31, 75 P.3d at 184-85. 

 

Reversing summary judgment for the third time in four years, Hayward v. Jack’s Pharmacy, Inc., 141 Idaho 622, 115 P.3d 714 (2005), the Idaho Supreme Court addressed both a nursing home liability allegation and a pharmacy liability allegation.  As to nursing home care, the Court applied the rationale from Grover, i.e., that nursing homes are required to follow federal and state guidelines relating to patient care and that they are responsible when those standards are not met.  Id. at 628, 115 P.3d 719.  The Court stated this as a fundamental rule: “hence our rule that in cases where state or federal laws or regulations set forth minimum requirements for licensure of health care providers local communities are not free to adopt lower standards.”  Id.  As to pharmacy liability, the Idaho Supreme Court held that the patient’s out-of-area expert had sufficient foundation for admissibility under Idaho Code §6-1013 given that he spoke with a local pharmacist, reviewed the patient’s medical records, and reviewed the depositions of the pharmacists in the case.  Id. at 628-29, 115 P.3d 719-720.  The out-of-area expert also relied on statewide pharmacy regulations.  Id.  In conclusion, the Court reminded the reader that: “While there is disagreement about what the standard of care is and whether it has been breached, Hayward’s only obstacle to surviving summary judgment is offering competent evidence and admissible testimony to show the standard of care and the breach thereof.”  Id. at 630, 115 P.3d 721. 

 

Affirming a judgment on a jury verdict in favor of the patient, the Idaho Supreme Court, in Newberry v. Martins, 142 Idaho 284, 291-92, 127 P.3d 187, 194-95 (2005), addressed a situation wherein a local ophthalmologist testified as to the standard of care for a local family practice physician.  Both expert and defendant practiced in the same town, Twin Falls, but were of different specialties.  The Idaho Supreme Court held that the ophthalmologist did not need to have explicitly asked a family practice physician as to the standard of care, because such is not the only method for obtaining actual knowledge of the applicable standard of care.  Id.  “Inquiring with a local specialist is ‘[o]ne method’ an expert witness may obtain such knowledge, but it is not the only method…§6-1013 does not dictate that such actual knowledge in all cases be obtain by explicitly asking a specialist in the relevant field to explain the local standard of care.”  Id.  (emphasis in the original). 

 

In Newberry, the different specialist, the ophthalmologist, was sufficiently familiar with family practitioner standards by virtue of him practicing alongside them, taking referrals from them, and discussing care over the years with them.  Id.  These interactions were held to be sufficient for purposes of Idaho Code §6-1013.  Id.

 

Following its clear pattern, the Idaho Supreme Court once again reversed summary judgment in Edmunds v. Kraner, M.D. & St. Alphonsus Regional Medical Cntr., 142 Idaho 867, 136 P.3d 338 (2006).  In Kraner, the Court found the patient’s out-of-area expert had shown proper foundation for admissibility under Idaho Code §6-1013 given that the expert had: (a) contacted a local pharmacist as to the standards of care; and (b) the local pharmacist had advised that the local standard was the same as the national standard.  Id. at 876-77, 136 P.3d at 347-48.  Specifically: “Statements indicating that [the out-of-area expert] had familiarized himself with the local standard of care by contacting a local pharmacist and statements that there is a national standard of care are sufficient to lay the foundation for [the out-of-area expert’s] testimony.”  Id.  The Idaho Supreme Court also noted the defendant was also contesting what the local standard was, and, as such, a dispute over what the local standard is necessarily gives rise to a factual dispute rendering summary judgment inappropriate.  Id. at 877, 136 P.3d at 348.   

 

Yet again reversing summary judgment, the Idaho Supreme Court, in Mains v. Cach, M.D., 143 Idaho 221, 223-24, 141 P.3d 1090, 1092-93 (2006), dealt with the issue of a contradiction between what an out-of-are expert testified to in deposition he did for purposes of familiarizing himself with the local standard of care versus what he later said in his affidavit opposing summary judgment.  In deposition, the expert indicated he had not spoken with the local practitioner about standards of care for the timeframe in question, whilst in his affidavit he did attest to a conversation with the same local practitioner as to the standard of care, that it was the same as the national standard, and that such discussion was for the timeframe at issue in the case.  Id.  In finding that the expert had demonstrated adequate familiarity with the standard under Idaho Code §6-1013, the Court again affirmed the local contact method of familiarization.  Id. at 225, 141 P.3d at 1094.  More importantly, the Court ruled that the apparent contradiction could be reconciled by reasonable inference and, regardless, weighing of the evidence as to changed testimony is not appropriate for summary judgment, but rather is an issue for the trier of fact.  Id. at 226, 141 P.3d at 1095.

 

McDaniel v. Inland Northwest Renal Care Group-Idaho, LLC, 144 Idaho 219, 159 P.3d 856 (2007) involved an out-of-area expert attempting to testify about a dialysis procedure.  The patient’s expert had taken the position that a national standard of care applied by virtue of federal regulations.  Id. at 222, 159 P.3d at 859.  However, the regulations were reimbursement related rules that did not govern the actual provision of the healthcare service at issue, administration of pharmaceuticals in a nursing home setting.  Id. at 223, 159 P.3d at 860.   It was undisputed that the out-of-area expert had not contacted a local physician to inquire as to the standard of care in the locale at issue, Coeur d’Alene.  Id.  Accordingly, the Court held that summary judgment was properly granted.  The Court did go on to write that there may well have been certain internal standards developed as part of compliance with federal regulations, and that those standards may have set the standard of care, but there was no discovery done as to this issue.  The Court was critical of plaintiff’s counsel for failing to obtain the internal standards:

 

“It is hard to conceive that in the current medial/legal environment, such a facility would not have internal rules or standards relating to the administration of such care.  Being the only facility in North Idaho, any such rules or standards would likely set the local standard of care for this facility.  However, we will never know because there appears to have been no effort to obtain any such standards or practices or even to determine whether they might exist.  The point is that in the present medical care environment, there are a variety of ways that a medical malpractice plaintiff may be able to establish a local standard of care as being synonymous with a regional or national standard.”  

 

Id. at 225, 159 P.3d at 862.

 

Ramos v. Dixon, D.O., et al., 144 Idaho 32, 156 P.3d 533 (2007), addressed a situation where the patient’s out-of-area expert contacted a specialist in Idaho Falls while the care at issue had occurred 40 miles away, in Blackfoot.  Id. at 36, 156 P.3d at 537.  While Idaho Falls may well have been in the geographic area served by the hospital in Blackfoot, there was no factual evidence in the record to that effect, thus the Idaho Supreme Court upheld the trial court’s grant of summary judgment to the defense.  Id.  The Court emphasized the need for patient’s counsel to be involved in the familiarization process: “The attorney must be directly involved in advising the expert as to how to learn the applicable standard of care and in determining whether the expert has done so.” Id. at 37-38, 156 P.3d at 538-39. 

 

Schmechel v. Dille, M.D., et al., 148 Idaho 176, 219 P.3d 1192 (2009) was a case wherein the Idaho Supreme Court upheld a defense verdict in a wrongful death case involving alleged methadone overdose.  The plaintiffs alleged that their expert was improperly precluded from testifying as to the standard of care under a certain “delegation of services agreement” (DoS) as between a physician and physician’s assistant (an agreement that outlines the working relationship between doctor and physician’s assistant).  Id. at 180-84, 219 P.3d at 1196-2000.  The Court held that a DoS agreement does not itself establish the standard of care in a negligence per se manner, as it a document drafted in general terms, such that a breach of it is not is not enough, by itself, to establish negligence.  Id.  The Court emphasized that negligence per se does not apply in medical malpractice cases.  Id.   

 

The Idaho Supreme Court did, however, hold that a breach of a DoS type agreement may be relevant in a given case: “At most [the expert’s] testimony regarding a breach of the 2003 DoS Agreement may have been relevant evidence bearing on whether the conduct of [the defendants] was negligent.”  Id. at 184, 219 P.3d at 1200.  

 

The Court made a similar ruling with respect to Idaho Board of Medicine regulations, holding that negligence per se does not apply as to regulations (IDAPAs) in a medical malpractice case.  Id. at 184-85, 219 P.3d at 1200-01.  But, the Court did, as with the DoS agreement, hold that regulations (IDAPAs), may still be relevant evidence on whether defendants were negligent in their treatment of the patient.  Id. at 185-86, 219 P.3d at 1201-02.  The Court observed that the trial court below did take judicial notice of IDAPAs and actually instructed the jury as such, relevant portions of the regulations were read, witnesses were questioned on them, and the plaintiffs were allowed to publish the IDAPAs to the jury on during closing argument.  Id.

  

In Thomson v. Olsen, M.D., 147 Idaho 99, 205 P.3d 1235 (2009), the Idaho Supreme Court upheld a defense jury verdict.  Although the patient’s expert was allowed to testify, the defense submitted an affidavit from the local physician with whom he spoke for familiarization purposes.  Id. at 101, 205 P.3d at 1237.  The local doctor’s affidavit stated that the local doctor was of a different specialty and that he had not discussed standard of with the out-of-area expert.  Id.  Refusing to dismiss the case, the trial court ruled that it was up to the jury to decide as to the truthfulness of the out-of-area expert, but the defense was also allowed to call the local doctor at trial.  Id. at 101-02, 205 P.3d at 1237-38.  The Court noted that it was permissible for the local doctor to testify as an impeachment witness, and that impeachment witnesses did not need to be disclosed prior to trial pursuant to IRCP 16 unless the trial court’s schedule order so provided.  Id. at 103-04, 205 P.3d at 1239-40. 

 

            In Hoover v. Hunter, M.D., 150 Idaho 658, 662-63, 249 P.3d 851, 855-56 (2011), dismissal of the patient’s case was upheld wherein there was no showing as to familiarity with local standard by a pro se plaintiff.  

 

            Now on into the second decade of the 2000’s, the Idaho Supreme Court issued another comprehensive overview of what is required under Idaho Code §6-1013 in Suhadolnik v. Pressman M.D., 151 Idaho 110 (2011) wherein an out of state expert sought to rely solely on deposition of defendant doctor for purposes of local familiarization.  The problem the patient faced, however, was that the deposition of the defendant doctor did not cover the standards of care for the specific drug at issue.  Id. at 115, 254 P.3d at 16.  In holding this insufficient under Idaho Code §6-1013, the Court reiterated that, to satisfy Idaho Code §6-1013: (a) inquiry of a local specialist is sufficient, in additional to reviewing deposition testimony (including deposition testimony to the effect that the local standard is no different from the national); (b) that the two do not need to be of the same specialty; (c) a second out-of-area specialist may serve as the local familiarizing contact point as long has he is sufficiently knowledgeable as to the subject locale; and (d) foundation is met where the out-of-area expert shows a statewide or national standard as replaced a local standard and he is familiar with that.  Id. at 116-18, 254 P.3d at 17-19.  The Court also indicated that only reviewing the defendant’s deposition testimony may be sufficient in certain cases as a method of familiarization, if the deposition is sufficiently specific as to the local standard for the time, place, and specialty at issue.  Id.  

 

            Arregui v. Gallegos-Main & Full Life Chiropractic, P.A., 153 Idaho 801, 802-04, 291 P.3d 1000, 1001-03 (2012), involved situation wherein summary judgment was granted after the plaintiff’s lawyer filed an untimely affidavit of an out-of-area expert, the out-of-area expert did not identify at all the local practitioner with whom he allegedly and belatedly spoke or anything about the local practitioner, did not discuss the specific chiropractic procedures at issue, and there were no particulars as to the standard of care set forth in the affidavit beyond bare conclusions.  Id. at 805-09, 291 P.3d at 1004-08.  Worse, the affidavit contradicted the expert’s deposition testimony, wherein the expert demonstrated no familiarity with the standard of care, so much so that the trial court ruled it was a sham affidavit.  Id.  The plaintiff had also missed the deadline for responding to the motion for summary judgment and the affidavit was also struck as untimely.  Id. at 805, 291 P.3d at 1004.  The defendant chiropractor denied he ever performed a neck adjustment on the patient and the records showed that he had only used muscle stimulator devices.  Id. at 803, 291 P.3d at 1002.  There was no record of a chiropractic neck adjustment from the chiropractor.  Id.  As the Idaho Supreme Court observed: “Here, the Patient merely asked the district court to believe Dr. Tamai's conclusory statements that the local unidentified chiropractor was familiar with the standard of care and because Dr. Tamai spoke with him, she was also now familiar with the local standard of care. Such meager information is insufficient.”  Id. at 805, 291 P.3d 1008.  

 

            It is important to recognize that the Arregui decision was actually a plurality decision whereby the main decision was written by Justice W. Jones.  Justice J. Jones concurred without decision.  However, Justice Horton wrote a specially concurring opinion that was joined by two others, to form a majority, Justices Burdick and Eismann.  In the majority concurring opinion, the justices agreed that the trial court had not actually addressed foundational issues and that the real issue below was the “sham” nature of the affidavit.  Id at. 810-11, 291 P.3d 1009-1010.  Justice Horton wrote that he “would be inclined to find that the district court erred in determining that the affidavit was a sham…”  Id. at 814, 291 P.3d at 1013.  Justice Horton, again joined by Justices Burdick and Eismann, wrote, “I have grave misgivings as to whether the Court has elevated the requirements for an expert’s affidavit beyond the requirements of I.C. §6-1013. . .”  

 

            The situation in Hall v. Rocky Mountain Emergency Physicians, LLC & Jeff Johnson, et al., 155 Idaho 322, 312 P.3d 313 (2013), involved alleged inappropriate touching or fondling during an emergency room exam by a physician’s assistant.   Summary judgment was upheld given that the out-of-area expert did not actually inquire of a local emergency room practitioner in the locale in question, Pocatello.  The affidavit of the out-of-area expert, who was from Idaho Falls, stated that he was familiar with Pocatello standards because he had hired a Pocatello doctor with emergency room privileges, he had personally observed the emergency room at a hospital in Pocatello, and that he had consulted with two unidentified Pocatello emergency room physicians.  Id. at 324, 312 P.3d at 316.   The expert also asserted that Idaho statutes made patient exploitation and fondling illegal.   

 

            Although the Court in Hall emphasized that the two need not be of the same specialty, the patient’s out-of-area expert did not disclose, in his own affidavit, his own specialty such that the Court could not conclude that he was sufficiently familiar with the defendant’s specialty. 155 Idaho at 328-29, 312 P.2d at 319-20.  “Without knowing what kind of physician [the out-of-area expert] is, the Court is unable to determine if he is competent to testify concerning the emergency room care provided by a physician’s assistant.”  Id.   The Court went on to find that the affidavit was also not specific as to timeframe in question.  Id

 

            As to the statutory claim, the Court held that the particular statute relied upon by the patient did not create a statewide standard, but another statute, not raised on appeal, the sexual exploitation statute, did.  The Court suggested the outcome would have been different if the patient had relied on the specific statute.  Id. at 330-31, 312 P.3d 321-322.  

 

            Finally, in the Hall decision, the Idaho Supreme Court provided clear guidance by approving quoting from prior decision in Mains v. Cach, 143 Idaho 221, 141 P.3d 1090 (2006), outlining the requirements for foundational admissibility under Idaho Code §6-1013, and describing what a proper affidavit contains:

 

In Mains v. Cach, 143 Idaho 221, 141 P.3d 1090 (2006), this Court reversed a grant of summary judgment, holding that an affidavit sufficiently set forth how an expert became familiar with the applicable standard of health care practice by stating:


I have acquainted myself with the local standard of care for surgeons and neurosurgeons who perform the same surgery as that performed upon Mrs. Mains by discussing those standards of care with Brent H. Greenwald, M.D., 3200 Channing Way, Idaho Falls, Idaho 83404. Dr. Greenwald advised me that the standard of care for evaluating a patient such as Mrs. Mains and determining whether or not particular types of surgeries including fusion surgery should be performed, during the calendar year 2000 in Idaho Falls, Idaho. It was and is my understanding that Dr. Greenwald during all relevant times including 2000 was a neurosurgeon licensed to practice in the State of Idaho with an active practice in Idaho Falls. Dr. Greenwald advised me as to the local standard of care for such patients with low back pain and whether or not spinal fusion surgery is or is not required. Dr. Greenwald specifically advised me as to the local standard of care that existed in Idaho Falls during the relevant time period of the treatment of Mrs. Mains by Dr. Cach.  Id. at 223, 141 P.3d at 1092. 

This affidavit made it perfectly clear that the expert had consulted with a local physician familiar with the standard of care for the proper class of medical provider during the relevant time period.

 

Id. at 322, 328, 312 P.3d at 319 (emphasis added).  

 

 

Join us next week here at Mahoney Law's Idaho Law Blog for Part III

Personal injury law in 2021 will experience several important trends.  One key trend is that defendants and insurance companies in personal injury cases will continue to be motivated to settle cases out of court during the current Covid pandemic situation.  This is because, all else being equal, personal injury jury trials are being delayed for months given that in person jury trials cannot take place.  Insurance companies and their insureds, as well as large self-insured entities, do not simply want unresolved cases sitting on their books for an indefinite amount of time, especially large cases that force them to carry a potentially significant amount of financial risk on their books indefinitely.   Moreover, insured defendants in personal injury cases do not want to live with the unknown in terms of claims exposure; they would rather amicably resolve the matter than live with it indefinitely.

 

A second key trend in personal injury law in 2021 is the continued use of remote technology, such as the popular video conferencing software, Zoom.  This type of technology is now being routinely used by judges in Courts to conduct various hearings, scheduling conferences, and other pre-trial motions in personal injury cases.  This also includes using remote video conferencing technology for depositions in pending personal injury cases.  Personal injury attorneys have adapted well to the use of Zoom for depositions in personal injury cases and 2021 should see this trend continue. This makes sense in that it reduces potential virus exposure, saves money in terms of travel expenses, and provides a relatively simple and reliable platform for taking testimony.

 

A third key trend in personal injury law in 2021 that we predict is a recognition by insurance companies in personal injury cases that claims for pain, suffering, and loss of enjoyment of life damages are increasing in monetary settlement value.  This is because, through the Covid pandemic, our collective awareness of, and appreciation for, the value of a normal day-to-day life has increased exponentially.  Any injury that imposes limits or barriers on normal day-to-day living will be recognized for the very serious imposition that it is.  People now do not take normalcy as much for granted, including as to things such as mobility, the ability to work, the ability to travel, the ability to go out and to recreation and leisure activities, and the ability to engage in human interaction.  Any personal injury that limits or impairs these things will be recognized as all the more significant and thus worth more in terms of money damages to achieve fairness on any given personal injury insurance claim or personal injury lawsuit. 

  

A fourth personal injury law trend for 2021 is the types of personal injury cases, or categories of personal injury cases.  Our personal injury lawyer anticipates an increase in distracted driving cases as the increase in use of cell phone technology continues to increase.  As we slowly begin to return to normal, our personal injury attorney sees an increase in business related personal injury cases, including slip and fall cases, falling merchandise injury claims, negligent security cases, and dram shop liability cases.  Product liability injury cases should hold relatively steady, as should medical device cases and prescription drug lawsuits.  Medical malpractice is somewhat unpredictable, as is nursing home litigation.  Covid related claims certainly do exist, however state and federal law immunity protections may blunt such cases; it is too early to tell.  More straightforward medical malpractice related claims will most likely hold steady.  A more interesting question is societal attitudes towards healthcare providers and how the current pandemic has shaped views, both positive and negative at the individual and system level.  Mahoney Law, PLLC handles all these types of personal injury cases, as well as many more types of personal injury claims.

 

Contact Mahoney Law, PLLC for your personal injury claim attorney.  If you, a family member, loved one, friend, or acquaintance is in need of personal injury lawyer services, do reach out to Mahoney Law, PLLC.  We are a full service personal injury law firm. 

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