Strode v. Lenzi

BAKES, Justice.

Plaintiffs Donald and Viola Strode appeal a summary judgment for defendant William D. Lenzi, M.D., in a medical malpractice case. The Strodes sued Dr. Lenzi and others alleging, inter alia, that Dr. Lenzi was negligent in the medical care provided Donald Strode (Strode) in relation to a shoulder operation. On May 4, 1984, Dr. Lenzi, a board certified orthopedic surgeon, performed rotator cuff repair surgery on Strode at St. Alphonsus Regional Medical Center in Boise. Following surgery, Strode suffered a stroke allegedly resulting in permanent speech loss, partial paralysis and brain damage.

Strode alleges that Dr. Lenzi negligently failed to detect carotid artery disease prior to the surgery. As a result of this disease *215the arteries carrying blood to Strode’s brain were nearly blocked. A drop in his blood pressure during the surgery was alleged to have caused the stroke due to insufficient pressure to force sufficient blood to his brain. Strode alleges that Dr. Lenzi negligently failed to conduct a proper pre-operative physical examination, failed to detect Strode’s occluded carotid arteries, and negligently recommended and performed surgery under general anesthesia without adequately considering Strode’s underlying vascular disease. According to Strode, if Dr. Lenzi had listened to his carotid arteries, the doctor would have detected bruits (the sound of blood movement in the occluded arteries) and concluded that Strode had carotid artery disease.

Dr. Lenzi moved for summary judgment supported by an affidavit in which he stated that, based upon his personal knowledge to a reasonable medical certainty, he had complied with the medical procedures utilized by orthopedic surgeons who practice in Boise, Idaho. The affidavit further states that Dr. Lenzi holds staff privileges at both St. Alphonsus Regional Medical Center and St. Luke’s Regional Medical Center and that he was “familiar with the standard of health care practice applicable to physicians engaged in the medical practice of orthopedic surgery in Boise, Idaho, in 1984.”

The plaintiffs attempted to counter the defendant’s motion for summary judgment with the affidavit of Robert Hall, M.D., an orthopedic surgeon who practices in Chicago, Illinois. The district court reviewed the affidavit and concluded that the affidavit of Dr. Hall did not demonstrate that he was qualified to testify concerning the community standard of health care practiced by orthopedic surgeons in Boise, Idaho. However, the trial court gave the Strodes additional time to supplement the affidavit of Dr. Hall to remedy the deficiency which the trial court perceived in that affidavit. As a result the Strodes filed a supplemental affidavit of Dr. Hall. In his supplemental affidavit Dr. Hall stated:

“The standard of care for a board certified orthopedic surgeon in Boise is that set by the American Academy of Orthopedic Surgeons and is the same standard under which I practice in Chicago, Illinois. I am, therefore, familiar with what is expected of a board certified orthopedic surgeon in Boise.”

The trial court concluded that Dr. Hall still had not demonstrated that he was familiar with the applicable community standard of health care practiced by orthopedic surgeons in Boise, Idaho, as is required by I.C. § 6-1012. The trial court further concluded that Dr. Hall’s supplemental affidavit did not demonstrate that he had any actual personal knowledge of the community standard. The trial court therefore held that under I.C. § 6-1012, Grimes v. Green, 113 Idaho 519, 746 P.2d 978 (1987), and Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), Dr. Lenzi was entitled to summary judgment.

The Strodes frame only one issue for appeal: whether an out-of-state board-certified orthopedic surgeon is competent to testify concerning the standard of care applicable to a board-certified orthopedic surgeon practicing in Boise, Idaho, without first demonstrating that he possesses actual knowledge of the applicable community standard.

The Strodes argue that, in order to testify in a medical malpractice case, a nationally certified orthopedic surgeon from Chicago, Illinois, should not have to inquire to determine the standard of care practiced by local orthopedic surgeons in Boise, Idaho. Because Dr. Hall and Dr. Lenzi are both certified by the American Academy of Orthopedic Surgeons, Strodes’ argument concludes, both are obliged to follow a national standard of care which does not vary between communities.

I.C. § 6-1012 requires that in medical malpractice cases, a “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 *216provided____” (Emphasis added.) Further, I.C. § 6-1013 sets out what an expert witness must show to establish that he is familiar with the local community standard:

6-1013. Testimony of expert witness on community standard. — The applicable standard of practice and such a defendant’s failure to meet said standard must be established in such cases by such a plaintiff by testimony of one (1) or more knowledgeable, competent expert witnesses, and such expert testimony may only be admitted in evidence if the foundation therefor is first laid, establishing (a) that such an opinion is actually held by the expert witness, (b) that the said opinion can be testified to with reasonable medical certainty, and (c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed; provided, this 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.

Strode’s argument that Dr. Hall did not have to establish that he possessed “actual knowledge of the applicable ... community standard” for orthopedic surgeons in Boise, Idaho, because both he and Dr. Lenzi were certified by the American Academy of Orthopedic Surgeons, contradicts both I.C. §§ 6-1012 and 6-1013, and the decisions of this Court which have consistently applied those statutes. Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988); Grimes v. Green, 113 Idaho 519, 746 P.2d 978 (1987); and Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985).1

In order for a plaintiff to recover in a medical malpractice case, he or she must produce testimony from a competent expert who “possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed____” I.C. § 6-1013. I.C. § 6-1013 further provides that, in order to testify, a competent expert residing outside the applicable community must “adequately familiariz[e] himself with the standards and practices of (a particular) such area____” Thus, 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. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985). Totally insufficient are statements such as Dr. Hall’s naked assertion that because he is familiar with the national standard of care he is also “familiar with what is expected of a board certified orthopedic surgeon in Boise.” Dr. Hall’s affidavits show no effort to obtain information regarding the local standard of care and, as the trial court noted, are “eonclusory statements which are incapable of objective evaluation by anyone____” Consequently, there was no showing of a genuine issue of fact which must be tried. The trial court did not err in entering summary judgment for Dr. Lenzi.

Affirmed. Costs to respondent. No attorney fees.

SHEPARD, C.J., and JOHNSON, J., concur.

. Even prior to the enactment of I.C. § 6-1012 in 1976, this Court had held that medical doctors were to be held to the same standard of care and skill ordinarily exercised by competent doctors in the same or like locality. See Davis v. Potter, 51 Idaho 81, 2 P.2d 318 (1931); Swanson v. Wasson, 45 Idaho 309, 262 P. 147 (1927).