Grover v. Smith

• Decision Date: 12 April 2002
• Docket Number: No. 26455.,26455.
• Citation: 137 Idaho 247,46 P.3d 1105
• Parties: Sharon GROVER, Plaintiff-Appellant, v. David G. SMITH, Defendant-Respondent.
• Court: Idaho Supreme Court

46 P.3d 1105

137 Idaho 247

Sharon GROVER, Plaintiff-Appellant, v. David G. SMITH, Defendant-Respondent.

No. 26455.

Supreme Court of Idaho, Boise, December 2001 Term.

April 12, 2002.

Rehearing Denied May 24, 2002.

Lojek Law Offices, Boise, for plaintiff-appellant. Donald J. Lojek argued.

Quane Smith, Boise, for defendant-respondent. Bruce R. McAllister argued.

KIDWELL, Justice.

Sharon Grover filed a complaint alleging dental malpractice against Dr. David G. Smith. Grover appeals the district court's grant of summary judgment in favor of Dr. Smith.

I. FACTS AND PROCEDURAL BACKGROUND

Sharon Grover (Grover) was a patient of Dr. David G. Smith (Dr. Smith), a general dentist practicing in Fruitland, Idaho. In addition to knowing him as her dentist, Grover also knew Dr. Smith through the leadership position he held in their church. Grover had chronic problems with her upper left teeth, particularly in 1995 and 1996. In the fall of 1996, Grover began complaining of pain on the upper right side of her head, above her temple. Without examining Grover, Dr. Smith diagnosed the pain as a continuing problem with her upper left teeth and prescribed painkillers over the telephone.

On January 4, 1997, Grover called Dr. Smith at home to complain of intense pain on the right side of her head. Dr. Smith told her that a tooth, perhaps two teeth, would need to be pulled, and that he would refer her to an oral surgeon. On January 7, 1997, she went to the oral surgeon to have one or more teeth removed. Grover suffered an intra cerebral hemorrhage (stroke) while in the oral surgeon's chair, did not wake up from the anesthesia, and had brain surgery as a result of the stroke. She is now paralyzed on her left side.

On January 7, 1998, Grover filed her complaint alleging dental malpractice by Dr. Smith because he failed to refer her to a medical doctor following her repeated complaints of severe headaches. On July 6, 1999, Dr. Smith moved for summary judgment, contending there was no genuine issue of material fact. He also argued that Grover failed to produce expert testimony regarding the local community standard of care as specified in I.C. §§ 6-1012, -1013. Dr. Smith submitted his affidavit in support of his motion, in which he asserted that he had not deviated from the community standard of care. On July 22, 1999, Grover filed a motion for continuance. Grover submitted her husband's affidavit in opposition to the motion for summary judgment on July 22, 1999, and her own affidavit for the same purpose on July 28, 1999. Both affidavits stated that Grover had informed Dr. Smith of her severe headaches and that he should have referred her to a medical doctor.

On September 29, 1999, Grover submitted the affidavit of Dr. John Thurmond (Dr. Thurmond), a dentist licensed in Nebraska. At the time of his affidavit, Dr. Thurmond was a professor at Creighton University School of Dentistry.¹ Grover selected Dr. Thurmond because Idaho State University has a dental education compact with Creighton University.² Dr. Thurmond's affidavit stated that he spoke with Idaho dentists, who under the condition on anonymity shared their opinions regarding the local standard of care. Based upon his knowledge and experience, and those discussions, he determined that there was one standard of care for Idaho, which was also the national standard for dentists, and that he was familiar with both standards. Dr. Thurmond asserted that Dr. Smith had failed to meet the minimum level of care owed to Grover.

The summary judgment hearing was continued four times, so that Dr. Thurmond could be deposed, and discovery could be completed. Dr. Thurmond was deposed on January 21, 2000, in Omaha, Nebraska. However, Dr. Smith's counsel was unable to complete his questioning within the time allotted for the deposition, and Grover's counsel was unable to ask any follow-up or clarifying questions. Dr. Thurmond filed a supplemental affidavit on February 18, 2000. In it, he states that of the Idaho dentists with whom he spoke, only one wished to be identified by name. He also reaffirmed the statements in his first affidavit, specifically his opinion that Dr. Smith had violated the minimum standard of care owed to Grover.

The hearing on the motion for summary judgment and the motion to strike were heard on March 3, 2000.³ Dr. Smith argued that Grover's out-of-state expert failed to demonstrate the requisite familiarity with the standard of care for a practicing general dentist in Fruitland, Idaho, at the time Grover received treatment. In an order dated March 24, 2000, the district court found that Dr. Thurmond's affidavits lacked adequate foundation under I.R.C.P. 56(e) and granted the motion to strike his testimony. The district court then granted the motion for summary judgment.

Grover filed this timely appeal. She argues that Dr. Thurmond's affidavits meet the requirements of I.R.C.P. 56(e), and that he was adequately familiar with the community standard of care for a practicing general dentist in Fruitland, Idaho. Because she provided expert testimony that contradicted the information provided by Dr. Smith in his affidavit, a genuine issue of material fact existed; therefore, the grant of summary judgment was improper.

II. STANDARD OF REVIEW

In Kolln v. Saint Luke's Reg'l Med. Ctr., 130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997), this Court set forth the following standard of review:

When this Court reviews a district court's decision on summary judgment, it employs the same standard as that properly employed by the trial court when originally ruling on the motion. Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 529, 887 P.2d 1034, 1036 (1994). Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c). Finally, this Court liberally construes all disputed facts and will draw all reasonable inferences and conclusions supported by the record in favor of the party opposing the motion. Thomson, 126 Idaho at 529, 887 P.2d at 1036. This is the proper standard to be applied in medical malpractice actions as well.... Rhodehouse v. Stutts, 125 Idaho 208, 210-11, 868 P.2d 1224, 1226-27 (1994).

Our standard of review for a decision whether to admit expert testimony is clear: that decision is within the sound discretion of the trial court, and will not be overturned except upon a showing of abuse of discretion. State v. Rubbermaid Inc., 129 Idaho 353, 357, 924 P.2d 615, 619 (1996).

Kolln, 130 Idaho at 327, 940 P.2d at 1146.

III. ANALYSIS

A. The District Court Erred In Finding That Dr. Thurmond Had Not Adequately Familiarized Himself With The Local Standard Of Care Pursuant To I.C. §§ 6-1012, -1013.

Grover argues that Dr. Thurmond's affidavits meet the requirements set forth in I.R.C.P. 56(e), and that they were sufficient to withstand summary judgment under I.C. §§ 6-1012, -1013. We agree.

Appellant suggests that Idaho Code sections 6-1012 and 6-1013 do not preclude using a statewide standard of care for general dentists in Idaho. Grover states that Dr. Thurmond's testimony demonstrates that he spoke with dentists practicing in Idaho, possessed knowledge about the national and Idaho standards for dentists, taught Idaho dentistry students at Creighton University, and observed the Idaho State Dental Board Examination being administered to future Idaho dentists at Creighton University. Grover argues that Dr. Thurmond has more than familiarized himself with the community standard of care. Dr. Thurmond's testimony focuses on very basic principles of dentistry that do not vary from town to town in Idaho. Grover points out that Fruitland is no longer a remote town in western Idaho; since the passage of the statutes in question twenty-five years ago, we now have the free exchange of scientific information and instant access to other dentists through the Internet. There has also been the adoption of national standards in the State Dental Practice Act. I.C. §§ 54-901 to -934. Grover contends that Dr. Smith did not establish that the Fruitland standard of care differs from the statewide standards that encompass elementary principles of dentistry like taking a patient's medical history.

"[T]he question of how to qualify an out-of-area physician to render an opinion in a medical malpractice case `has plagued the bench and trial bar since the enactment of Idaho's statutory structure ... requiring proof [of] actual knowledge of the local standard of care.'" Keyser v. Garner, 129 Idaho 112, 117, 922 P.2d 409, 414 (Ct.App.1996).

This Court has examined a number of cases where a defendant moved for summary judgment based on the allegation that the plaintiff's out-of-state expert insufficiently familiarized himself with the local standard of care. Although these cases do not provide a clear-cut set of rules on what an out-of-state expert must do to become familiar with the local standard of care, these cases demonstrate that this Court has been willing to affirm a district court's grant of summary judgment on this basis when the plaintiff's expert failed to contact any local physician. Likewise, this Court has been reluctant to grant a defendant's motion for summary judgment when the plaintiff's expert did consult a local physician possessing expertise on the area at issue. Dekker v. Magic Valley Reg'l Med. Ctr., 115 Idaho 332, 334, 766 P.2d 1213, 1215 (1988) (affirming grant of summary judgment when out-of-state experts did nothing to establish familiarity with the local standard of care); Evans v. Griswold, 129 Idaho 902, 905, 935 P.2d 165, 168 (1997) (affirming grant of summary judgment because plaintiff's expert, an ophthalmologist, was a physician, and thus the standard of care he was familiar with differed significantly from that of the defendant, an optometrist, who...