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On Behalf of | Feb 25, 2021 | Firm News

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 Rhodehouse, supra. 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