“[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.