Dulaney v. St. Alphonsus Regional Medical Center

Justice KIDWELL,

dissenting.

Anna Dulaney should have been allowed her day in the Idaho court system. A reasonable interpretation of the applicable statutes would allow the case to go forward. The district court and now the majority opinion of this Court have utilized an overly strict and parochial methodology to deter and bar a serious possible malpractice situation from being litigated. Therefore, I dissent.

The district court erred when it ruled that Drs. Mengert and Stump had not adequately familiarized themselves with the local stan*170dard of care pursuant to I.C. §§ 6-1012, - 1013. The requirements of those statutes are not intended to be overly burdensome for the plaintiff to meet. Further, the statutory language does not mandate the district court’s decision in this case.

A. Dr. Mengert

This Court, as well as the Court of Appeals, has addressed the constraints placed on the plaintiffs expert, noting that the requirements are not intended to be onerous. Frank v. East Shoshone Hosp., 114 Idaho 480, 482, 757 P.2d 1199, 1201 (1988) (noting, “Our decision today does not cast an onerous burden on plaintiffs in medical malpractice actions. It is not an overly burdensome requirement to have an expert become familiar with the standard of care in the community where alleged malpractice is committed”); Keyset v. Garner, 129 Idaho 112, 117, 922 P.2d 409, 414 (Ct.App.1996). This Court’s interpretation of the requirements created by I.C. §§ 6-1012, -1013 was further elaborated in Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988). In Clarke, this Court explained:

We take this occasion to express our disapproval of what appears to be a growing practice among the trial courts of this state dismissing medical malpractice cases at the summary judgment point on the basis that plaintiffs’ expert witnesses are not sufficiently familiar with the standard of care to be expected from defendant-physicians .... We do not view such burden as being onerous on plaintiffs in medical malpractice cases since ordinarily it only requires a positive indication that plaintiffs’ expert witnesses possess the requisite knowledge of the local standard of care which has been allegedly violated. Unfortunately, plaintiffs’ counsel too often are either unaware of the requirements of the summary judgment process, or fail to take their responsibilities seriously. On the other hand, it appears that some of our trial judges fail to recognize their obligation to construe not only the evidence before the court, but all reasonable inferences that flow therefrom, most favorably to the non-moving party.

Id. at 768, 760 P.2d at 1184.

This Court has also addressed whether or not the plaintiffs expert must be of the same specialty as the defendant physician. This Court in Clarke expressly rejected this contention:

Recognizing the complexity of knowledge required in the various medical specialties, more than a casual familiarity with the specialty of the defendant’s physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards, and not to the standards of the witness’s particular specialty if it differs from that of the defendant. It is the scope of the witness’s knowledge and not the artificial classification by title that should govern the threshold question of admissibility. Of the decisions in other jurisdictions which have discussed this issue, this appears to be the decided majority view.

Id. at 769, 760 P.2d at 1185 (quoting Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887 (1975)).

In this case, Dr. Mengert testified in his deposition that he was board certified in both Internal Medicine and Emergency Medicine. Dr. Mengert practiced as a full-time attending physician in the Emergency Department at the University of Washington. Dr. Mengert testified that in order to gain familiarity with the local standard of care, he first contacted a physician in Boise. This physician refused to cooperate because of the “small community” in Boise.

Next, Dr. Mengert contacted a personal acquaintance, Dr. Scott Smith, who practices at the Boise Veterans Administration Hospital. Although Dr. Smith is board certified in both Emergency Medicine and Internal Medicine, his current practice is in Internal Medicine. According to Dr. Mengert, he described the symptoms that Dulaney suffered and the treatment Dulaney received at SARMC. He then asked Dr. Smith if, in his opinion as a practicing Boise physician, the treatment Dulaney received was within the standard of care in that environment. Dr. *171Smith gave his opinion that she should not have been discharged from the Emergency Department if she could not walk.

Dr. Mengert stated that in his opinion, the complaints related to this ease “are applicable to any Emergency Department within the United States of America. Though I don’t have practice knowledge from those other environments, I think what took place was outside the standard of care of modern Emergency Medicine practice.” Dr. Mengert testified that in his opinion to a reasonable degree of medical certainty, Dr. Holland breached the standard of care applicable to him as an emergency room physician practicing in Boise in August of 1994 with respect to his care of Dulaney.

The district court found Dr. Mengert’s testimony to be inadmissible because:

[H]e failed to adequately familiarize himself with the standards and practices of emergency room physicians in Boise in August of 1994. Dr. Mengert consulted with Dr. Smith, an internist at a Boise hospital, at the VA hospital. There was no evidence that Dr. Smith was himself familiar with the local standard of care for ER physicians practicing in Boise at the relevant time. Dr. Smith is a board certified ER physician, at least he was in April of 1999 when he gave his deposition. There is no evidence in the record that Dr. Smith was a practicing emergency room physician, nor a board certified emergency room physician in August of 1994.

The standard to be applied in this Court’s review of a grant of summary judgment compels this Court to construe all facts liberally in favor of the nonmoving party. This, together with our examination of I.C. §§ 6-1012, -1013, in the recent case of Grover v. Smith, 37 Idaho 247, 46 P.3d 1105 (2002) does not mandate the conclusion reached by this Court.

In this case, Dr. Mengert contacted a physician, Dr. Smith, who shared the same board certification, Emergency Medicine, as the defendant doctor. This indicates that Dr. Smith was “a similarly trained and qualified provider of the same class in the same community,” with similar training and field of medical specialization as required by statute. Neither I.C. § 6-1012, nor case law, requires that the local physician practice in the same field.

Additionally, this Court has recognized at least since 1988 that experts do not need to share the exact same specialty as that of the defendant physician. As noted by the Clarke court, “[t]he witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards.” Dr. Smith’s board certification in Emergency Medicine indicates that his training rises to the level of training contemplated in Clarke.

The record does not contain any evidence that the local standards applicable to a physician practicing in emergency room medicine would differ significantly from the standards applicable to a physician practicing in internal medicine. This is especially true in this ease, where emergency measures were not taken in regard to the treatment of Dulaney. Consequently, Dr. Mengert’s affidavit should have been considered as to the standard of care pertaining to emergency room physicians, such as Dr. Holland, in Boise in 1994.

Further, Dr. Mengert’s affidavit was also sufficient to help establish the standard of care applicable to Dr. Waters, an orthopedic physician called in to consult in the emergency room. Although Dr. Waters is an orthopedic physician, the standard of care for emergency room practice became relevant when he, after being appraised of the emergency, rendered professional services in the emergency room setting. Therefore, Dr. Mengert’s testimony should have been considered as to the standard of care applicable to Dr. Waters.

This Court noted in Clarke that the applicable statutes were not intended to be overly burdensome. I would find the affidavit of Dr. Mengert admissible and sufficient to create genuine issues of material fact as to whether Dr. Holland and Dr. Waters breached the local standard of care.

*172B. Dr. Stump

This Court has not addressed previously the issue of whether an expert must consult a local physician who practiced in the community during the exact date of the alleged negligence, to survive a motion for summary judgment. At a glance, the ease of Gubler v. Boe, 120 Idaho 294, 815 P.2d 1034 (1991), appears to address this issue. In that case, this Court examined an appeal from a medical malpractice case invoking the provisions of I.C. § 6-1012. Id. at 296, 815 P.2d at 1036. During trial, the district court considered the testimony of Dr. Tune, an expert witness who claimed that he had familiarized himself with the local standard of care in existence in Pocatello, Idaho, at the time of the alleged negligence of the defendant. Id. at 295, 815 P.2d at 1035. The district court found that the expert failed to meet the time and place requirements of I.C. § 6-1012. Id. The court pointed to the fact that the expert consulted an Idaho Palls physician, as opposed to a Pocatello physician, and that the standard discussed was that in existence in 1988, as opposed to that in 1983, the time of the alleged negligence. Id. In reaching its decision, the district court indicated that a local physician who consults with an out-of-state expert must establish that the information provided about the local standard pertains specifically to the time period in which the alleged negligence occurred. Id.

However, an in-depth examination of Gubler reveals that this Court did not reach the time specificity issue on appeal. Rather, in Gubler, the relevant issues on appeal concerned whether the district court erred in denying the Gubler’s motion for a continuance and whether the combined testimony of Dr. Tune and Dr. Boe, the defendant physician, sufficed to familiarize the expert with the local standard of cai'e. Id. at 296, 815 P.2d at 1036. The language discussing the time specificity requirement found in Gubler pertains only to the district court’s interpretation of the requirements of I.C. § 6-1012. Id. Consequently, the time specificity issue remains unaddressed by this Court.

In this case, Dr. Stump, a board-certified neurologist, testified in his deposition that he consulted with Dr. Adornato about the medical standards of health care in Boise, Idaho. Dr. Adornato, also a neurologist, practiced in Boise “in the late '80’s, early '90’s.” Dr. Adornato, who has since moved to California, told Dr. Stump that “based on the broad spread of medical knowledge and the availability of, basically, national meetings, that he felt it would be unlikely that there would be any variations in the medical care standards.” Dr. Stump testified that he and Dr. Adornato specifically discussed the similarities in the standards of care pertaining to the time period in which Dr. Adornato practiced in Boise. Dr. Stump also indicated that he had read the depositions provided by Dr. Holland and Dr. Waters.

The district court found that Dr. Stump failed to adequately familiarize himself with the local standard of care. The court noted:

With respect to Dr. Stump’s opinion regarding Dr. Holland’s care, Dr. Stump failed to adequately familiarize himself with the standard of care applicable to— well both to [an] emergency room doctor, certainly to an emergency room doctor in Boise in August of 1994, where all he did was speak to a fellow neurologist, Dr. Adornato.
Dr. Adornato himself was not an emergency room doctor nor was he practicing in Boise in August of — in fact, in any medicine in Boise in August of 1994.
With respect to Dr. Waters, I find the same fatal flaw, essentially Dr. Stump did not adequately familiarize himself with the standard of care applicable to an orthopedic surgeon in Boise in August of 1994, where the only consultation he had was with Dr. Adornato, again a neurologist who is not practicing orthopedic surgery or any other type of medicine in Boise at the relevant time.

I would find that Dr. Stump’s testimony and affidavit should have been considered. While it is true that Dr. Adornato was not practicing in Boise in 1994, there is no evidence or suggestion in the record that the standard of care changed in the two-year time period ranging from 1992-1994. For purposes of summary judgment, an inference exists that the standard of care did not *173change during the relatively brief time period.

In addition, it is relevant that the record is void of evidence to suggest that a neurologist has different training and experience than an emergency room physician or an Internal Medicine doctor. This becomes particularly relevant when the testimony of the neurologist pertains to neurological tests performed by an orthopedist. This Court has noted that an expert does not need to share the same specialty as the defendant doctor; rather this is one factor to consider when determining if the expert’s testimony satisfies I.C. §§ 6-1012, -1013.

Further, in Hoene v. Barnes, 121 Idaho 752, 828 P.2d 315 (1992), this Court noted that I.C. §§ 6-1012, -1013 should not be utilized to shield physicians from suit in malpractice cases. Id. at 756, 828 P.2d at 319. This Court observed, “[tjhere is no indication in I.C. §§ 6-1012 and 6-1013 that the legislature intended to grant this immunity from suit....” Id.

The record indicates that Dr. Stump contacted numerous physicians to familiarize himself with the local standard of care. According to the affidavit of Lawrence Duff, letters were sent to twenty-two orthopedic physicians licensed in Idaho. Telephone calls were made to other out-of-state orthopedic physicians licensed in Idaho, however none of the physicians contacted were practicing in Idaho in 1994. Physicians are reluctant to testify against their fellow local physicians. Consequently, too rigidly enforcing the requirements set forth in the code provisions could serve to make it impossible for out-of-state experts to familiarize themselves with the local standard of care. This could ultimately preclude plaintiffs, such as Anna Dulaney, from bringing medical malpractice claims against Boise physicians under any set of facts.

For the above-stated reasons, I would hold that the district court erred in finding that Dr. Stump’s affidavit was inadmissible.

CONCLUSION

Viewing the facts and inferences in a light most favorable to Dulaney, the nonmoving party, the affidavits of Dr. Mengert and Dr. Stump should have been admitted. They were familiar with the local standard of care, and their affidavits created a genuine issue of material fact sufficient to survive summary judgment. This case should have been allowed to proceed, thus giving Anna Dulaney her day in court.

Justice SCHROEDER concurs.