Dunlap By and Through Dunlap v. Garner

• Decision Date: 22 November 1994
• Docket Number: No. 18920,18920
• Citation: 903 P.2d 1296,127 Idaho 599
• Parties: Alan Lee DUNLAP, a minor, By and Through his parents and guardians, Mark DUNLAP and Nichole Charlene Dunlap, husband and wife, and Mark Dunlap and Nichole Charlene Dunlap, individually, Plaintiffs-Appellants, v. Dr. Lavonne GARNER; Family Health Services Corporation, a non-profit Idaho corporation; Intermountain Health Care, Inc., a Utah corporation doing business in the State of Idaho; Cassia Memorial Hospital and Medical Center, operated by Intermountain Health Care, Inc., and John Does I through X, Defendants-Respondents. . Twin Falls, April 1992 Term
• Court: Idaho Supreme Court

Page 1296

903 P.2d 1296

127 Idaho 599

Alan Lee DUNLAP, a minor, By and Through his parents and guardians, Mark DUNLAP and Nichole Charlene Dunlap, husband and wife, and Mark Dunlap and Nichole Charlene Dunlap, individually, Plaintiffs-Appellants, v. Dr. Lavonne GARNER; Family Health Services Corporation, a non-profit Idaho corporation; Intermountain Health Care, Inc., a Utah corporation doing business in the State of Idaho; Cassia Memorial Hospital and Medical Center, operated by Intermountain Health Care, Inc., and John Does I through X, Defendants-Respondents.

No. 18920.

Supreme Court of Idaho.

Twin Falls, April 1992 Term.

Nov. 22, 1994.

Rehearing Denied Nov. 3, 1995.

Jenkins Law Office, and Beck & Peck, Idaho Falls, for plaintiffs-appellants. David D. Peck argued.

Quane, Smith, Howard & Hull, Boise, for defendant-respondent Dr. Lavonne Garner. Bruce R. McAllister argued.

Hall, Farley, Oberrecht & Blanton, Boise, for defendant-respondent Family Health Services Corp. Raymond D. Powers argued.

St. Clair, Hiller, St. Clair & Dalling, Idaho Falls, for defendant-respondent Cassia Memorial Hosp. William R. Dalling argued.

ON DENIAL OF PETITION FOR REHEARING

BISTLINE, Justice.

In this medical malpractice case, we are called on to determine whether the trial court properly ruled in determining the admissibility of affidavits submitted in a summary judgment proceeding. This question causes us to examine the interplay between I.R.C.P. 56(e) ¹ and I.C. §§ 6-1012 and 6-1013. ² We conclude that the court erred by ruling that the affidavits were inadmissible at the summary judgment hearing. Accordingly, we reverse the court's order granting summary judgment and remand for further proceedings.

BACKGROUND

Dr. Lavonne Garner treated plaintiff Nichole Dunlap during her pregnancy in 1985 and delivered the Dunlaps' child, Alan. On October 14, 1987, plaintiffs filed a complaint alleging medical malpractice against the defendants during Nichole's labor and birth of Alan. They alleged that the drug Nisentil was improperly administered to Nichole during labor, which by passing into baby Alan's circulation system, caused respiratory depression aggravated by a nuchal cord problem, which in turn caused intrauterine hypoxia, resulting in serious injury to Alan. On December 21, 1989, respondent Family Health Services Corporation ("Family Health") moved for a summary judgment of dismissal based upon the affidavit of Anthony D. Keys, M.D., a doctor practicing in the local community. Keys stated his opinion that Garner acted within the local area standard of care.

In opposition to the motion for summary judgment, plaintiffs filed the affidavit of Elliott B. Oppenheim, M.D., a physician practicing in Redmond, Washington. Oppenheim's affidavit states in part:

I have consulted with physicians in Burley, Idaho, with respect to obstetrical issues for family practitioners such as those that arise in this particular case. Through these consultations, I have ascertained that a standard of care for family practitioners delivering obstetrical care in Burley, Idaho, in 1985 was no different than the standard of care in the other parts of Idaho; or indeed in other parts of the Northwestern United States. As such, I possess actual knowledge in the standard of care applicable to physicians who delivered babies in Burley, Idaho, during 1985. The opinions expressed by me in this affidavit are personally held by me and expressed with a reasonable degree of medical certainty.

....

Based on my training, experience, and expertise, my review of the medical records pertaining to Alan and Nichole Dunlap and my familiarity of the standard of care applicable to physicians who delivered babies in Burley, Idaho, in 1985, it is my opinion that the care and treatment provided to Nichole and Alan Dunlap by Dr. Garner and the Family Health Services Corporation fell below the applicable standard of care in Burley, Idaho, in June 1985.

R. 49-50.

After hearing oral argument, the trial court denied Garner's motion for summary judgment. The court stated that Oppenheim's affidavit was sufficient to satisfy the requirements of I.C. § 6-1013 and thus withstood Garner's motion for summary judgment, although the affidavit could have been more specific.

Two weeks later, the other defendants, Cassia Memorial Hospital ("Cassia") and Intermountain Health Care ("Intermountain"), jointly moved for summary judgment of dismissal. Their motion argued that Oppenheim was not qualified to testify as to the local standard of care, and accordingly contended that because Oppenheim was not so qualified, then there was no dispute as to any issue of material fact, given that Cassia/Intermountain's expert had asserted in his affidavit that Cassia did not breach the local area standard of care.

In opposition to the Cassia/Intermountain motion for summary judgment, plaintiffs filed a second Oppenheim affidavit, which stated in part:

I have consulted with health care practitioners in Burley, Idaho, with respect to the delivery of obstetrical care in acute care hospitals, such as those in this particular case. In addition, I have reviewed the deposition of Dr. Walter R. Peterson, a physician practicing in Burley, Idaho, and specifically practicing at Cassia Memorial Hospital and Medical Center in 1985, the time period relevant to this case.

....

I have ascertained that the standard of care for acute care hospitals delivering obstetrical care in Burley, Idaho, in 1985 was no different than the standard of care in other parts of Idaho; or indeed, of other parts of the North Western United States for similar communities. As such, I possess actual knowledge of the standard of care applicable to acute care hospitals delivering babies in Burley, Idaho, in 1985. The opinions expressed by me in this affidavit are personally held by me and expressed with a reasonable degree of medical certainty.

....

[I]t is my opinion that the care and treatment provided to Nichole and Alan Dunlap

[127 Idaho 602] by Cassia Memorial Hospital and Medical Center and Intermountain Health Care, Inc. fell below the applicable standard of care in Burley, Idaho, in June, 1985.

R. 65-66.

The trial court then, acting on its own motion, notified involved counsel that it would reconsider its prior denial of Garner and Family Health's motion for summary judgment. The trial court scheduled its motion for the same time as the hearing on the Cassia/Intermountain motion.

Plaintiffs submitted a third Oppenheim affidavit responsive to the court's order. That affidavit stated that Oppenheim had consulted with two physicians in Burley, Dr. Eugene Holm and Dr. Walt Petersen, and discussed obstetric care in Burley, Idaho, in 1985. According to Oppenheim, these doctors informed him that the standard of care applicable for obstetric practice in Burley is the same as anywhere else in the United States.

The affidavit of Edgar A. Reed, M.D., also submitted by plaintiffs, stated he was familiar with the standard of care pertaining to "the operations of hospitals together with the associated activities of overseeing hospital functions such as the developing or operating of a medical staff and the granting of privileges to doctors associated with hospitals." Reed stated that he had consulted with the State of Idaho Hospital Licensing Board for the specific purpose of learning the applicable standard relative to hospitals in operating their medical staffs and granting hospital privileges to doctors. Reed concluded that in his opinion Cassia Memorial Hospital's performance fell below the appropriate standard of care for hospitals.

After plaintiffs had submitted the affidavits of Oppenheim and Reed in opposition to defendants' motions for summary judgment, defendants submitted three rebuttal affidavits. The affidavit of Richard Packer contested Reed's affidavit.

As above noted, Oppenheim had stated in his affidavit that these were the two physicians in Burley, Idaho, with whom he contacted by phone to gain actual knowledge of the standard of care in Burley in 1985. These two doctors state in their affidavits that they "do not recall" speaking with Oppenheim and further dispute specific statements attributed to them by Oppenheim.

The district court's order on the motions for summary judgment provides the content of Oppenheim's third affidavit, which the court saw as applicable, and also the applicable content of the opposing defense counter-affidavits of Petersen and Holm:

In Dr. Oppenheim's third affidavit, filed on April 19, 1990, he states, in part, as follows:

2. Through my years of training and practice, I have become familiar with the standard of care in the Northwestern United States including the State of Idaho, as it relates to family practitioners providing obstetrical care. I am also familiar specifically with the standard of care throughout the State of Idaho in this regard. In addition, I have consulted with two physicians in Burley, Idaho with respect to obstetrical issues for family practitioners such as those that arose in this particular case as it would apply to the standard of care in Burley, Idaho. These contacts occurred on January 2, 1990 in which I talked with Dr. Eugene Holm at (208) 678-9432 and Dr. Walt Peterson [sic] at (208) 678-2271. With Dr. Holm I specifically discussed obstetrical care in Burley, Idaho. Dr. Holm described the Opinion and Order obstetrics care at Cassia Memorial Hospital as "real sophisticated" and says that they are doing excellent O.B. work for many years, which would include 1985. We discussed the standard of care applicable to the diagnosis and treatment of pregnancy and he assured me that the availability is as good in Burley as anywhere else. Furthermore, he states that the State of Washington and Idaho jointly train doctors at the University of Washington and that they all use the same procedures. The second doctor I spoke with, namely Dr Affidavit of Elliott B. Oppenheim,...