Hayward v. Jack's Pharmacy Inc.

• Decision Date: 15 June 2005
• Docket Number: No. 30455.,30455.
• Citation: 115 P.3d 713,141 Idaho 622
• Parties: Alfred S. HAYWARD, Personal Representative of the Estate of Delbert Lewis Hayward, deceased, Plaintiff-Appellant, v. JACK'S PHARMACY INCORPORATED; Jack Botts; Chad Brown; Herrold E. Park and Richard K. Thurston, M.D., Co-Personal Representatives of the Estate of W. Dyce Thurston, M.D., Defendants-Respondents, and Valley Vista Care Corporation, a non-profit corporation, d/b/a Valley Vista Care Center, Scott F. Burpee, Jan Burpee and Nancy Renfrew, Defendants.
• Court: Idaho Supreme Court

115 P.3d 713

141 Idaho 622

Alfred S. HAYWARD, Personal Representative of the Estate of Delbert Lewis Hayward, deceased, Plaintiff-Appellant, v. JACK'S PHARMACY INCORPORATED; Jack Botts; Chad Brown; Herrold E. Park and Richard K. Thurston, M.D., Co-Personal Representatives of the Estate of W. Dyce Thurston, M.D., Defendants-Respondents, and Valley Vista Care Corporation, a non-profit corporation, d/b/a Valley Vista Care Center, Scott F. Burpee, Jan Burpee and Nancy Renfrew, Defendants.

No. 30455.

Supreme Court of Idaho, Boise, April 2005 Term.

June 15, 2005.

COPYRIGHT MATERIAL OMITTED

Cody Law Office, Coeur d'Alene, and Eymann, Allison, Fennessey, Hunter & Jones, P.S., Spokane, Washington, for appellant. Debra L. Stephens argued.

Paine, Hamblen, Coffin, Brooke & Miller, Coeur d'Alene, for respondents Jack's Pharmacy, Inc., Chad Brown and Jack Botts. Eugene L. Miller argued.

Andrew C. Smythe, Spokane, Washington, argued for Respondent Thurston.

JONES, Justice.

Appellant Alfred Hayward appeals the district court's order of summary judgment, in which the court ruled that his experts did not establish the requisite standards of care to proceed with his professional malpractice claims against his deceased father's physician and pharmacists. We vacate the order and remand the case for further proceedings.

I. BACKGROUND

The background facts are taken from the decision produced from these parties' previous visit to this Court, Hayward v. Valley Vista Care Corp., 136 Idaho 342, 33 P.3d 816 (2001), and they are as follows. Eighty-five-year-old Delbert Hayward (Delbert) had been living in Valley Vista Care Center (Valley Vista), a nursing home facility in St. Maries, Idaho, for nearly a year when he died on February 16, 1995. Prior to taking residence at Valley Vista, Delbert lived at home with the assistance of home health care providers. In order to receive home health care services, the Idaho Department of Health and Welfare required Delbert to submit to periodic medical evaluations. Delbert was admitted to the Kootenai Medical Center on February 22, 1994 for one such evaluation. He was released to a personal care home in Hayden Lake on March 4, 1994. When he refused to eat and expressed a desire to return home, he was again admitted to Kootenai Medical Center on March 10, 1994. This time he was discharged to Valley Vista, where he lived until his death.

Alfred Hayward (Hayward), Delbert's son and the personal representative of his estate, sued Valley Vista, Jack's Pharmacy (which had filled prescriptions for Delbert), and Dr W. Dyce Thurston,¹ Valley Vista's medical director. Hayward claimed false imprisonment and breach of contract, and later moved to amend his complaint to add a claim for wrongful death stemming from allegedly negligent injection of the drug Haldol. The district court refused to allow Hayward to amend his complaint and granted Valley Vista's motion for summary judgment on Hayward's breach of contract claims. On appeal, we affirmed the district court's order regarding the breach of contract claims but reversed the district court's order refusing to allow Hayward to amend his complaint.

After our decision, Hayward filed a third amended complaint alleging that Delbert's death resulted from the negligence of Valley Vista, Dr. Thurston, and Jack's Pharmacy (including pharmacists Jack Botts and Chad Brown). All of the defendants moved for summary judgment. The district court denied Valley Vista's motion. Dr. Thurston's estate was partially successful. The court ruled that the claim against Dr. Thurston, in his capacity as Delbert's physician, must be dismissed since Hayward presented no expert testimony about the standard of care of physicians in St. Maries. However, the court allowed Hayward to proceed against Dr. Thurston's estate in the doctor's capacity as Valley Vista's medical director. It also granted Jack's Pharmacy's motion, finding that Hayward's pharmacy expert did not testify to the standard of care for dispensing (as opposed to in-house or consulting) pharmacies in St. Maries. The court also ruled that Hayward's pharmacy expert did not adequately familiarize himself with the local standard of care. Hayward filed a motion to reconsider and more information was submitted to the court. The court denied the motion and this appeal timely followed.

II. STANDARD OF REVIEW

The claims at issue in this appeal were disposed of via summary judgment. When we consider appeals of orders on such motions, our standard of review is the same as that of the district court in considering the motion. Thomson v. City of Lewiston, 137 Idaho 473, 475, 50 P.3d 488, 491 (2002). Summary judgment is appropriate only when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c). The burden of establishing the absence of an issue of material fact is on the moving party. Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 (1994). To meet this burden, the moving party must "challenge in its motion and establish through evidence the absence of any genuine issue of material fact on an element of the nonmoving party's case." Smith v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 714, 719, 918 P.2d 583, 588 (1996). Courts must liberally construe the record, and draw all reasonable inferences therefrom in the nonmoving party's favor. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994). If the facts, when so construed, are such that reasonable persons could reach differing conclusions, summary judgment is not available. Harris v. Department of Health & Welfare, 123 Idaho 295, 298, 847 P.2d 1156, 1159 (1992).

III. DISCUSSION

This appeal requires us to decide whether (1) Hayward's medical expert submitted competent testimony regarding the standard of care for the class of health care provider to which Dr. Thurston belonged and in which capacity he was functioning at the time of the alleged negligence and (2) Hayward's pharmacy expert submitted competent testimony regarding the standard of care applicable to Jack's Pharmacy and the breach thereof.

A. The District Court Erred in Distinguishing Dr. Thurston's Roles as Medical Director and Physician.

Hayward contends the district court erred when it distinguished between Dr. Thurston's roles as Valley Vista's medical director and Delbert's treating physician, and then went on to rule that Hayward presented no expert testimony relating to the standard of care applicable to physicians in St. Maries. We agree.

In medical malpractice cases:

plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning.

I.C. § 6-1012. Section 6-1012 also provides the criteria by which a health care provider shall be judged: "Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any."

The applicable standard of care and the defendant's failure to meet it must be established by:

testimony of one (1) or more knowledgeable, competent expert witnesses, and such expert testimony may only be admitted in evidence if the foundation therefor is first laid, establishing (a) that such opinion is actually held by the expert witness, (b) that the said opinion can be testified to with reasonable medical certainty, and (c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert testimony is addressed. . . .

I.C. § 6-1013. If there is "no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered." I.C. § 6-1012. A competent expert witness from somewhere other than the locale at issue may "adequately familiariz[e] himself with the standards and practices of (a particular) such area. . . ." I.C. § 6-1013. An out-of-area expert witness with personal knowledge of the national standard of care may adequately familiarize himself with the applicable local standard of care by contacting a local physician who states that the local standard of care does not differ from the national standard of care. Grover v. Smith, 137 Idaho 247, 251, 46 P.3d 1105, 1109 (2002).

We have consistently held that in order to survive a motion for summary judgment in medical malpractice cases, the plaintiff must offer expert testimony indicating the health care provider negligently failed to meet the standard of care for the class of health care provider to which he belonged and in which capacity he was functioning at the time of the alleged negligence. Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002). Expert testimony introduced via affidavits must "set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify as to the matters stated therein." Rhodehouse v. Stutts, 125 Idaho 208, 212, 868 P.2d 1224, 1228 (1994). Finally, an expert must state how he or she became...