Fisk v. McDonald
| Decision Date | 23 October 2020 |
| Docket Number | Docket No. 46639 |
| Citation | 167 Idaho 870,477 P.3d 924 |
| Court | Idaho Supreme Court |
| Parties | David FISK and Margaret Fisk, Husband and Wife, Plaintiffs-Appellants, v. Jeffery D. MCDONALD, M.D., an individual; North Idaho Day Surgery, LLC., dba Northwest Speciality Hospital, Defendants-Respondents, and John L. Pennings, M.D., an individual, Defendant. |
Gary L. Shockey, PC, Jackson, Wyoming, and Smith, Woolf, Anderson & Wilkinson, PLLC, Idaho Falls, for Appellants. Gary L. Shockey argued.
Ramsden, Marfice, Ealy & De Smet, LLP, Coeur d'Alene, for Respondent. Jeffery D. McDonald. Michael E. Ramsden argued.
Garrett Richardson, PLLC, Eagle, for Respondent North Idaho Day Surgery, LLC. Nancy Jo Garrett argued.
This is a medical malpractice case arising out of treatment received by Margaret Fisk at North Idaho Day Surgery, LLC, d/b/a Northwest Specialty Hospital ("the Hospital"). David and Margaret Fisk appeal from an order of the Kootenai County district court granting summary judgment in favor of Jeffery D. McDonald, M.D., and the Hospital. The district court granted summary judgment on the Fisks’ single cause of action for medical malpractice after determining the Fisks had failed to provide expert testimony demonstrating actual knowledge of the community standard of care. The Fisks also appeal the district court's order denying their subsequent motion for reconsideration.
McDonald is a board-certified neurological surgeon who practiced medicine at the Hospital in March of 2015. The Hospital is a specialty acute-care hospital in Post Falls, Idaho.
On March 10, 2015, McDonald performed an outpatient cervical spinal fusion surgery on Mrs. Fisk at the Hospital's facility. The Hospital provided nursing care before, during, and after Mrs. Fisk's surgery. Jessica Sholtz, a nurse practitioner, assisted McDonald. Mrs. Fisk's surgery had no obvious complications.
The next day, the Hospital's nurses prepared to discharge Mrs. Fisk. However, at approximately 12:45 p.m., before she could be discharged, Mrs. Fisk began suffering abdominal pain and nausea. Shortly thereafter, the nurses administered a suppository for constipation. At about 3:00 p.m., Mrs. Fisk experienced a large emesis (vomiting), which was reported to Sholtz. At that point, Sholtz decided to postpone Mrs. Fisk's discharge from the Hospital. Mrs. Fisk's symptoms continued to worsen throughout the day and into the evening. From 7:45 p.m. to 9:00 p.m., Mrs. Fisk experienced nausea with intermittent retching emesis and severe abdominal pain. The Hospital nursing staff remained in communication with Sholtz, periodically notifying her about Mrs. Fisk's condition and receiving additional orders throughout the late evening.
During the night, at 1:26 a.m., Mrs. Fisk told nursing staff that her stomach hurt and that she felt like she was dying. Around the same time, she vomited what was described as "coffee-ground emesis" (coagulated blood in the vomit). Mrs. Fisk was still experiencing coffee-ground emesis an hour later. After Hospital nursing staff relayed information about Mrs. Fisk's condition to Sholtz, she ordered them to consult with an on-call intensivist. After consultation, the intensivist recommended Mrs. Fisk be transferred to Kootenai Medical Center for a gastrointestinal consult and a possible endoscopy.
The Hospital's nursing staff communicated the intensivist's recommendation to Sholtz, who directed them not to transfer Mrs. Fisk and to prepare her for a possible "scope" later that morning. Throughout the next several hours, Mrs. Fisk described her abdominal pain as "a ten-out-of-ten."
At 6:00 a.m., Sholtz returned to the Hospital "to round on" Mrs. Fisk. Around 6:45 a.m., Sholtz was attempting to coordinate a gastrointestinal consult. An hour later, around 7:45 a.m., the nursing staff noted that Mrs. Fisk's pain remained at a ten-out-of-ten, her bowels were not making any sounds, and her abdomen was firm and distended. About the same time, John L. Pennings, M.D., arrived at the Hospital for the gastrointestinal consult. Pennings believed Mrs. Fisk was in "terminal phase shock" and ordered that she be prepared for surgery. After performing an exploratory laparotomy, Pennings discovered that Mrs. Fisk had developed mesenteric artery ischemia, which is "a loss of blood supply to the small intestines [sic] leading to end-organ loss." This required Pennings to remove a significant amount of Mrs. Fisk's small intestine to save her life. Because Mrs. Fisk's colon also suffered from a loss of blood supply, Pennings performed a "total abdominal colectomy with an end ileostomy" (removal of the large intestine and part of the small intestine). At about 12:18 p.m., after the surgery, Mrs. Fisk was in critical condition and transferred to the Intensive Care Unit at Kootenai Medical Center, where she received treatment and eventually recovered, but with serious ongoing repercussions.
The Fisks filed their Complaint against Pennings, McDonald, and the Hospital on March 1, 2017, alleging each defendant was negligent in their medical treatment of Mrs. Fisk. Each defendant filed separate answers to the Complaint, generally denying liability. Pursuant to a stipulation of the parties, the district court entered an order dismissing the Fisks’ claims against Pennings on January 26, 2018.
Pursuant to the district court's scheduling order, the Fisks disclosed thirteen non-retained experts and six retained expert witnesses. On April 3, 2018, shortly after filing its own expert witness disclosures, the Hospital filed a motion to strike the Fisks’ expert witness disclosures and to exclude the Fisks’ retained experts. Along with its motion to strike and exclude experts, the Hospital filed a motion for summary judgment. The Hospital's primary arguments in favor of summary judgment were (1) that the Fisks failed to provide admissible evidence of the applicable standard of care or breach of the applicable standard of care; and (2) that the Fisks failed to present admissible evidence to establish proximate cause. On April 24, 2018, McDonald filed a similar motion for summary judgment.
The Fisks responded to both motions for summary judgment on May 9, 2018. In support, the Fisks submitted the declarations of four expert witnesses: Suzanne Nebeker, BSA, RN, BSN, MSN, FNB-BC; Vernon R. Kubiak, DNP, CNP, CNS, CNS-BC, PMHNP-BC, RN; Timothy F. Hawkins, FACHE CHSP; and Robert Y. Uyeda, MD. On May 23, 2018, the district court held a hearing on both motions for summary judgment and the Hospital's motion to strike and exclude the Fisks’ experts.
On May 31, 2018, the district court entered a memorandum decision and order addressing all the motions. At the outset, the district court denied the Hospital's motion to strike with respect to all but one of the Fisks’ disclosed experts, holding that the Fisks were not required to disclose the foundation for their experts’ community standard of care testimony as part of their disclosures.1 The court granted both McDonald's and the Hospital's motions for summary judgment, explaining that none of the four expert declarations submitted by the Fisks in opposition to summary judgment demonstrated that any of the four expert witnesses had "actual knowledge" of the community standard of care applicable to McDonald or the Hospital. Specific to the Fisks’ claim against McDonald, the district court explained that the Fisks had not "adequately pled" that McDonald was vicariously liable for Sholtz's acts and omissions under a theory of "express authority, implied authority, or apparent authority." Finally, the district court rejected an argument made by the Fisks that the burden of proof on summary judgment never shifted to them because McDonald and the Hospital had failed to state what the applicable community standard of care was.
The Fisks filed a motion to amend their complaint on June 7, 2018, to add a claim that McDonald was liable for the acts and omissions of Sholtz. The district court entered judgments dismissing the Fisks’ claims against the Hospital and McDonald with prejudice on June 7, 2018, and June 8, 2018, respectively. The Fisks subsequently filed two motions for reconsideration, one corresponding to each judgment. In support of their motions for reconsideration, the Fisks provided additional declarations from Vernon R. Kubiak, Suzanne Nebeker, and Timothy Hawkins.
The district court held a hearing on the Fisks’ motions on October 10, 2018. At the hearing, counsel for the Fisks communicated his inability to procure local experts to testify as to the community standard of care, describing it as "virtually impossible in smaller communities in Idaho." After the hearing, the district court denied the Fisks’ motion to amend and the motions for reconsideration. On December 3, 2018, the district court entered an amended judgment with respect to each defendant, dismissing the Fisks’ claims against McDonald and the Hospital with prejudice. The Fisks timely appealed.
1. Did the district court err in granting McDonald's and the Hospital's motions for summary judgment on the grounds that the Fisks failed to provide sufficient expert testimony as to the community standard of care?
2. Did the district court err by holding that the burden was on the Fisks to establish the essential elements of their case on summary judgment?
3. Did the district court err in denying the Fisks’ motions for reconsideration?
4. Did the district court err in holding that the Fisks failed to properly plead that McDonald is liable for the acts or omissions of Sholtz under an agency theory of liability?
"On appeal from the grant of a motion for summary judgment, this Court utilizes the same standard of review used by the district court originally ruling on the motion." Mattox v. Life Care Ctrs. of Am., Inc., 157 Idaho 468, 472, 337 P.3d 627,...
To continue reading
Request your trial