Buck v. St. Clair

DONALDSON, Chief Justice,

dissenting.

I dissent. The majority’s analysis of I.C. §§ 6-1012 and 6-1013 is flawed in several important respects. First, the opinion itself is internally inconsistent. The majority’s holding is that the local standard of care for board-certified specialists is equivalent to the national standard of care, and, thus, that any board-certified specialist has automatic knowledge of the applicable community standard. However, the opinion also states that before a specialist can testify he or she “must inquire of the local standard in order to insure that there are no local deviations from the national standard____” If the local standard is held to be equivalent to the national standard, then, a fortiori, there can be no local deviations. The majority’s entire discussion of I.C. § 6-1013(c) and of Dr. Brom’s questioning of a local physician as to whether the local standard was the same as the national standard is totally inconsistent with its holding.

Second, the majority’s actual holding is in direct contravention of the legislative intent evidenced by the enactment of I.C. §§ 6-1012 and 6-1013, and does not even give lip service to the previous decisions of this Court. In 1976, the Idaho Legislature was faced with an emergency: the escalating costs of medical liability insurance threatened to push the cost of health care beyond the reach of the citizens of the state of Idaho. In an attempt to limit and define the liability of health care providers, and, thus, to control the rising costs of health care, the legislature enacted I.C. §§ 6-1012 and 6-1013.1 The effect of *748these sections is to limit a physician’s liability to instances where he or she has violated the local community standard of practice. •

“In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care ... plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning. Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any____” I.C. § 6-1012 (1979) (emphasis added).

In Le Pelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980), McFadden, J., writing for a unanimous Court (including Bistline, J.), considered the statutes at issue in the present ease, validated the local community standard of care as being constitutional, and held that there was no retroactive application because the legislature had codified already existing case law, and under prior case law the local community had been the area wherein a practitioner standard of care had always been determined. Hale v. Heninger, 87 Idaho 414, 420, 393 P.2d 718, 721. (1964). In Le Pelley, 101 Idaho at 427, 614 P.2d at 967, McFadden, J., citing Willis v. Western Hospital Association, 67 Idaho 435, 182 P.2d 950 (1947), stated that, to prove malpractice, evidence was required “that the care and attention given to deceased was not such as would have been given by other physicians in good standing in that neighborhood.” McFadden, J. also quoted from Davis v. Potter, 51 Idaho 81, 2 P.2d 318 (1931): “He ‘is bound to bestow such reasonable and ordinary care, skill, and diligence as physicians and surgeons in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases.’ ” Id. at 427, 2 P.2d at 967.

In Maxwell v. Women’s Clinic, P.A., 102 Idaho 53, 625 P.2d 407 (1981), I stated for the majority that:

“in 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 plaintiffs indicates that the defendant has negligently failed to meet the applicable standard of health care practice of the community,” citing Le Pelley. Id. at 56, 625 P.2d at 410. (Emphasis in original.)

The Court went on to hold that the alleged admission of the defendant doctor did not satisfy the standards set forth in I.C. §§ 6-1012 and 6-1013. Bistline, J., with whom McFadden, J. agreed, dissented from the Maxwell decision, deeming that the statements of the doctor satisfied the standards set forth in the statutes. Bistline, J. stated:

“As for the requirements for direct expert testimony set out in I.C. § 6-1013, these do no more than set forth the foundation for expert testimony. To testify for a plaintiff as an expert one must have an opinion to a reasonable medical certainty and one must have the required expertise and knowledge of the community standard. Again, this does no more than codify existing case law.” 102 Idaho at 57, 625 P.2d at 411.

Today’s majority (which includes Bistline and McFadden, JJ.) chooses to ignore these *749decisions and the legislature’s express intent in enacting I.C. §§ 6-1012 and 6-1013, holding that any board-certified physician is competent to testify to the local standard of health care practice in any Idaho community. The majority recognizes that the legislature chose to measure a physician’s actions against the local community standard because of its concern with the disparity in health care resources available throughout the United States. However, the majority summarily disposes of this concern by concluding that as to board-certified physicians “there can be no doubt that any disparity between rural and urban areas has been erased by the standardized training these doctors receive.”

The problem with the majority’s reasoning is that it focuses solely on a physician’s training to the exclusion of another extremely relevant factor, namely: the availability of medical resources. It is the availability of medical resources — access to modern hospitals and laboratories, opportunities for continuing medical education and training, etc. — that enables a physician to maintain a particular standard of practice. A physician who practices in a rural Idaho community does not have the same opportunities and resources for keeping abreast with medical advances as does a physician practicing in a large, metropolitan area. For this reason, the legislature has chosen to measure a physician’s actions against those of similarly trained professionals in the community in which he or she resides. I cannot join in the majority’s decision to abrogate what I perceive to be the legislature’s express intent in enacting I.C. §§ 6-1012 and 6-1013.

Finally, the majority’s distortion of the express language of I.C. §§ 6-1012 and 6-1013 is completely uncalled for under the circumstances of this case. The Idaho statutes in no way prohibited appellant’s expert from testifying at trial. “[T]his section shall not be construed to prohibit or otherwise preclude a competent expert witness who resides elsewhere from adequately familiarizing himself with the standards and practices of (a particular) such area and thereafter giving opinion testimony in such a trial.” I.C. § 6-1013. In order to qualify her witness as an expert at trial, appellant had only to ensure that he familiarized himself with the standards and practices of the Boise medical community. It was appellant’s failure to adequately prepare her case for trial, not the Idaho statutes, that precluded her witness from testifying. Thus, I am unable to perceive any justification for the judicial tinkering in which the majority today engages.

SHEPARD, J., concurs.

. "It is the declaration of the legislature that appropriate measures are required in the public interest to assure that a liability insurance market be available to physicians, hospitals and other health care providers in this state and that the same be available at reasonable cost, thus assuring the availability of such health care providers for the provision of care to persons in the state. It is, therefore, further declared to be in the public interest that the liability exposure of such health care providers be limited and made more definable by a requirement for direct proof of departure from a community standard of practice.” 1976 Idaho Sess.Laws ch. 277, § 1, p. 951.