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On Behalf of | Mar 8, 2021 | Firm News

The last four years have continued the overall willingness of the Idaho Supreme Court to reverse summary 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 Bybee, supra. “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 Suhadolnik, supra.

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.