Dunlap v. CASSIA MEMORIAL HOSPITAL

• Decision Date: 27 April 2000
• Docket Number: No. 25186.,25186.
• Citation: 999 P.2d 888,134 Idaho 233
• Parties: Mark DUNLAP and Nicole (Dunlap) Whitlock, on behalf of the Estate of Alan Lee Dunlap, and Mark Dunlap, as an individual, and Nicole (Dunlap) Whitlock, as an individual, Plaintiffs-Appellants, v. CASSIA MEMORIAL HOSPITAL and MEDICAL CENTER, operated by Intermountain Health Care, Inc., Intermountain Care, Inc., a Utah Corporation doing business in the State of Idaho, Defendants-Respondents, and Dr. Lavonne Garner; Family Health Service Corporation, a non-profit Idaho corporation; and John Does I through X, Defendants.
• Court: Idaho Supreme Court

999 P.2d 888

134 Idaho 233

Mark DUNLAP and Nicole (Dunlap) Whitlock, on behalf of the Estate of Alan Lee Dunlap, and Mark Dunlap, as an individual, and Nicole (Dunlap) Whitlock, as an individual, Plaintiffs-Appellants, v. CASSIA MEMORIAL HOSPITAL and MEDICAL CENTER, operated by Intermountain Health Care, Inc., Intermountain Care, Inc., a Utah Corporation doing business in the State of Idaho, Defendants-Respondents, and Dr. Lavonne Garner; Family Health Service Corporation, a non-profit Idaho corporation; and John Does I through X, Defendants.

No. 25186.

Supreme Court of Idaho, Twin Falls, March 2000 Term.

April 27, 2000.

Jenkins Law Offices, Chartered, Idaho Falls, for appellants. Alan E. Barber argued.

Dalling & Dalling, Idaho Falls, for respondents. William R. Dalling argued.

WALTERS, Justice.

This is a wrongful death action brought by the parents of Alan Lee Dunlap. Alan died on July 19, 1997, due to the alleged negligence of the named defendants at the time of Alan's birth on June 17, 1985. In this appeal, the parents contend that the district court erred in granting a partial summary judgment dismissing their claim against two of the defendants, Cassia Memorial Hospital and Medical Center and Intermountain Health Care, Inc. This Court concludes that the partial summary judgment, which was certified as final by the district court, cannot be disturbed because the appeal is untimely with respect to that judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Within months of the birth of their son, Alan, Mark and Nicole Dunlap filed a complaint, alleging medical malpractice during Nicole's labor and Alan's birth, against Lavonne Garner, M.D., Family Health Services Corporation, Intermountain Health Care, Inc., and Cassia Memorial Hospital and Medical Center which was operated by Inter-mountain Health Care, Inc. (IHC, Inc.) The complaint alleged that the drug Nisentil was improperly administered to Nicole during labor, which by passing into the baby's circulation system, caused respiratory depression complicated by a tight nuchal cord problem, which in turn caused intrauterine hypoxia, resulting in serious injury to the baby, Alan, at the time he was born.

In July 1990, the district court granted the defendants' motions for summary judgment and dismissed the action. The decision was timely appealed. By a substitute opinion upon the denial of the Dunlaps' petition for rehearing, this Court reversed the order granting summary judgment, vacated the judgments of dismissal and remanded the case for further proceedings. Dunlap By and Through Dunlap v. Garner, 127 Idaho 599, 605, 903 P.2d 1296, 1302 (1995).

In May of 1998, the Dunlaps filed a second amended complaint. They asserted therein a wrongful death claim against the defendants, alleging that Alan had died in July 1997 as a result of the disabling conditions which were caused by the negligence of the defendants at the time of Alan's birth.

The defendants Cassia Memorial Hospital and Medical Center and IHC, Inc., answered the amended complaint and moved for summary judgment. They asserted (1) that there was a lack of any proof with respect to the causation element of a prima facie case against the nurses employed by the hospital and IHC, Inc., and (2) that the plaintiffs' expert, Nurse Clark, did not meet the standards of I.C. § 6-1012 to have her testimony admitted by the court.

After a hearing on the summary judgment motion, the district court issued an opinion and order on July 30, 1998. The court determined that some expert witness testimony was required to establish proximate causation in a summary judgment setting. Finding that such testimony was lacking in the plaintiffs' response to the summary judgment motion, the district court granted summary judgment to Cassia Memorial Hospital and Medical Center and IHC, Inc.

The district court then entered a judgment dismissing the action as against the hospital and IHC, Inc. The judgment was entered, and certified by the district court as final under I.R.C.P. 54(b), on August 5, 1998.¹

The Dunlaps filed a motion for reconsideration within fourteen days of the entry of the certified judgment. An opinion and order denying the reconsideration motion was entered by the district court on October 1, 1998.

The plaintiffs filed a successive motion for reconsideration of the certified judgment on October 15, 1998. In response, the defendants Cassia Memorial Hospital and Medical Center and IHC, Inc., filed a motion to strike the Dunlaps' renewed motion for reconsideration, asserting that such a successive motion was not authorized by rule or statute. Following a hearing on the motion to strike, the district court ruled in favor of the hospital and IHC, Inc., and on November 2, 1998, granted the motion to strike the new reconsideration motion.

On December 14, 1998, the Dunlaps filed a notice of appeal. The notice recited that the appeal was being taken from the November 2, 1998, opinion and order of the district court granting the defendants' motion to strike the plaintiffs' second motion for reconsideration of the certified partial summary judgment.

ISSUE ON APPEAL

The Dunlaps raise but one issue on appeal. They ask this Court to decide whether the district court erred in granting the partial summary judgment dismissing the defendants, Cassia Memorial Hospital and Medical Center and IHC, Inc., on the ground that the plaintiffs' expert testimony was lacking in regard to proximate causation.

STANDARD OF REVIEW

A timely appeal is necessary to vest jurisdiction in this Court in order to review issues raised with respect to the action taken by the district court. I.A.R. 14; Large v. Mayes, 100 Idaho 450, 600 P.2d 126 (1979); Carr v. Carr, 116 Idaho 754, 779 P.2d 429 (Ct.App.1989). A question of jurisdiction is fundamental; it cannot be ignored when brought to our attention and should be addressed prior to considering the merits of an appeal. H & V Engineering, Inc., v. Idaho St. Board of Prof. Engineers and Land Surveyors, 113 Idaho 646, 747 P.2d 55 (1988). Even if jurisdictional questions are not raised by the parties, this Court is obligated to address them, when applicable, on our own initiative. Id.

DISCUSSION

As noted, the partial summary judgment of August 5, 1998, dismissing the plaintiffs' claims against Cassia Memorial Hospital and Medical Center and IHC, Inc., was certified by the district court as a final and appealable order pursuant to I.R.C.P. 54(b). Under Idaho Appellate Rule 14 (I.A.R.14), an appeal as a matter of right from the district court may be made by filing a notice of appeal within forty-two days from the date of entry of a final judgment, order or decree of the district court. Rule 14 also provides that the time for an appeal is terminated by the filing of a timely motion which, if granted, could affect the findings of fact, conclusions of law or judgment in the action, in which case the appeal period commences to run upon the entry date of the order deciding said motion.

The Dunlaps did not immediately appeal from the certified judgment entered on August 5 but instead filed a motion requesting the district court to reconsider the judgment. The reconsideration motion relied upon I.R.C.P. 11(a)(2)(B)², and was filed within fourteen days after the entry of the judgment. Idaho Rule of Civil Procedure 11(a)(2)(B) provides the authority for a district court to reconsider and vacate interlocutory orders so long as final judgment has not yet been entered. Telford v. Mart Produce, Inc., 130 Idaho 932, 934, 950 P.2d 1271, 1273 (1998),citing Sammis v. Magnetek, Inc., 130 Idaho 342, 346, 941 P.2d 314, 318 (1997)

; and Farmers Nat'l Bank v. Shirey, 126 Idaho 63, 68, 878 P.2d 762, 767 (1994). Although the reconsideration motion properly would not apply to the partial summary judgment entered by the district court under the terms of Rule 11(a)(2)(B) because that judgment no longer was an interlocutory order but had become a final judgment as a result of the Rule 54(b) certificate entered by the district court, the motion was subject to consideration by the district court as a timely filed motion under I.R.C.P. 59(e) to alter or amend the judgment. Obray v. Mitchell, 98 Idaho 533, 567 P.2d 1284 (1977). A timely motion under Rule 59(e) would effectively extend the time for filing an appeal from the judgment. J.P. Stravens Planning Associates, Inc., v. City of Wallace, 129 Idaho 542, 928 P.2d 46 (Ct.App.1996),

citing First Security Bank v. Neibaur, 98 Idaho 598, 570 P.2d 276 (1977). The Dunlaps, therefore, had forty-two days following the entry of the order denying the motion for reconsideration, treated as a Rule 59(e) motion, or until November 11, 1998, to file their appeal to challenge the certified, final judgment....