Hoene v. Barnes

BAKES, Chief Justice,

dissenting:

The majority errs when it concludes that the class of health care provider to which Dr. Barnes belonged was “cardiovascular surgeons.” After making that determination, the majority then concludes that the only other cardiovascular surgeons in the State of Idaho were those with whom Dr. Barnes practiced in a professional association in Boise, and therefore the standard of health care practice was indeterminable. However, the board-certified category which we are dealing with in this case is thoracic surgery, not cardiovascular surgery. The plaintiff’s expert witness in this case, Dr. Effler, stated in his affidavit that he is “board-certified in thoracic surgery.” Dr. Barnes, the defendant, testified in his deposition that he is a board-certified thoracic surgeon. There is no showing in any of the affidavits or depositions that there is a separate board certification for cardiovascular surgeons. Cardiovascular surgery is apparently one type of surgery which thoracic surgeons perform.

I.C. § 6-1012 provides liability for a physician if he “negligently failed to meet the applicable standard of health care practice of the community ... with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, or she or it was functioning. Such individual providers of health care shall be judged in such cases in comparison to similarly trained and qualifled providers of the same class in the same community____” In Buck v. St. Clair, 108 Idaho 748, 702 P.2d 781 (1985), this Court construed I.C. § 6-1012, stating:

Our holding is to be construed so as to allow a board-certified physician to testify regarding the standard of care only in cases involving other doctors who are also board-certified in the same specialty....
In order to meet the requirement of I.C. § 6-1013(c) showing adequate familiarization a specialist must demonstrate two elements: first, that he is board-certified in the same specialty as that of the defendant-physician; this demonstrates knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question. Second, an out-of-the-area doctor must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained.

108 Idaho at 745-46, 702 P.2d 781, emphasis added.

Again in Strode v. Lenzi, 116 Idaho 214, 216, 775 P.2d 106, 108 (1989), we stated:

An expert from outside the state must demonstrate that he possesses knowledge of the local community standard. If he is board certified in the same specialty, he 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.

Both the defendant, Dr. Barnes, and the plaintiff’s expert witness were board-certified in thoracic surgery. Therefore, as our earlier cases have stated, for an expert physician to render an opinion, the expert must be board-certified in the same specialty as that of the defendant physician, and must establish that he is familiar with the applicable standard of care practiced by physicians with the same board certification in the local community.

Plaintiff’s Dr. Effler never made any showing that he ever attempted to contact *758any board-certified thoracic surgeon practicing in the area served by St. Luke’s Hospital to determine whether or not there was any variation from any national standard for board-certified thoracic surgeons, if indeed there is such a thing as a national standard for board-certified thoracic surgeons. Dr. Effler did testify that he contacted a board-certified thoracic surgeon in Twin Falls, Idaho, but he made no showing of an attempt to contact any board-certified thoracic surgeons in Boise, Idaho, nor did he make any showing that there were no thoracic surgeons who were not associated with Dr. Barnes.1 Accordingly, the trial court did not err in refusing to consider Dr. Effler’s affidavit because it failed to establish that Dr. Effler was familiar with the local standard of care practiced by board-certified thoracic surgeons in Boise, Idaho.

The majority errs, I believe, because it assumes that the specialty in question in this case is cardiovascular surgery, not board-certified thoracic surgery. There is nothing in the record to indicate that cardiovascular surgery is a class of health care that is board-certified. Apparently, cardiovascular surgery is one type of surgery which some board-certified thoracic surgeons perform, perhaps exclusively. Nevertheless, under our cases of Buck v. St. Clair, supra; Strode v. Lenzi, supra; and Grimes v. Green, 113 Idaho 519, 746 P.2d 978 (1987), a physician seeking to render an expert opinion of negligence of a defendant physician must “demonstrate knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question.” Buck v. St. Clair, 108 Idaho 743, 746, 702 P.2d 781, 784. Thus, the Court’s conclusion that there were no other cardiovascular surgeons in Idaho, except those associated with Dr. Barnes in Boise, Idaho, and therefore “the standard of health care practice in the community ordinarily served by St. Luke’s Hospital was indeterminable,” misses the point. Both the defendant doctor and the plaintiff’s expert were board-certified thoracic surgeons. I.C. § 6-1012 and our cases require the defendant physician to be judged by doctors board-certified in the same specialty, i.e., thoracic surgery. There was no foundation laid by Dr. Effler showing that he was familiar with the standard of health care practice in the community served by St. Luke’s Hospital for thoracic surgeons, and no showing that there were not any board-certified thoracic surgeons other than those associated with Dr. Barnes. Therefore the trial court did not abuse its discretion in rejecting Dr. Effler’s affidavit on the grounds that he failed to satisfy the requirements of I.C. § 6-1012 that he was familiar with the standard existing for board-certified thoracic surgeons in Boise, Idaho, when this surgery occurred.

Whether or not a witness has sufficient expertise to permit him to render opinion evidence is within the broad discretion of the trial court. Sidwell v. William Prym, Inc., 112 Idaho 76, 730 P.2d 996 (1986). Given the fact that plaintiffs witness, Dr. Effler, made no contact with any thoracic surgeon in Boise, Idaho, and made no showing that there were none available to contact, the trial court did not err in refusing to consider the affidavit of Dr. Effler.

. A quick review of the current Boise yellow pages indicates that there are at least four physicians practicing thoracic surgery in the Boise, Idaho, area, none of whom appear to be of the group associated with Dr. Barnes or his colleagues.