Hoene v. Barnes

• Citation: 121 Idaho 752,828 P.2d 315
• Decision Date: 20 March 1992
• Docket Number: No. 18859,18859
• Parties: Monica Louise HOENE, Plaintiff-Appellant, v. Robert P. BARNES, M.D. Defendant-Respondent. Boise, January 1991 Term
• Court: Idaho Supreme Court

Page 315

828 P.2d 315

121 Idaho 752

Monica Louise HOENE, Plaintiff-Appellant, v. Robert P. BARNES, M.D. Defendant-Respondent.

No. 18859.

Supreme Court of Idaho,

Boise, January 1991 Term.

March 20, 1992.

Cantrill, Skinner, Sullivan & King, Boise, for plaintiff-appellant. Gardner W. Skinner, Jr., argued.

Moffatt, Thomas, Barrett, Rock & Fields, Chtd., Boise, for defendant-respondent. Gary T. Dance, argued.

JOHNSON, Justice.

This is a medical malpractice case. The only issue presented is whether the trial court was correct in granting summary judgment on the ground that the claimant's out-of-state medical expert was not competent to testify. We conclude that under the unique circumstances of this case, the trial court should not have granted summary judgment.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Dr. Robert P. Barnes, a cardiovascular surgeon, operated on Monica Louise Hoene to correct a congenital heart defect known as patent ductus arteriosus (PDA). Barnes performed the surgery at St. Luke's Regional Medical Center in Boise, Idaho in December 1985. Following surgery, Monica suffered paralysis of her lower body.

Monica sued Dr. Barnes, claiming that Dr. Barnes was negligent during the surgery, causing Monica's paralysis. Dr. Barnes moved for summary judgment on the ground that Monica could not establish essential elements of a medical malpractice claim.

The trial court granted summary judgment dismissing the lawsuit on the ground that Dr. Donald B. Effler, the expert witness on whom Monica relied to establish Dr. Barnes' negligence, did not have actual knowledge of the relevant community standard of health care practice as is required by I.C. §§ 6-1012 and 6-1013. The trial court subsequently awarded costs to Dr. Barnes. Monica appealed.

II.

THE TRIAL COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT.

Monica asserts that under the unique circumstances of this case, Dr. Effler was qualified to testify. We agree.

I.C. §§ 6-1012 and 6-1013 provide:

6-1012. Proof of community standard of health care practice in malpractice case.--In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care, including, without limitation, any dentist, physicians' assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant or 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. 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. If there be 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. As used in this act, the term "community" refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.

6-1013. Testimony of expert witness on community standard.--The applicable standard of practice and such a defendant's failure to meet said standard must be established in such cases by such a plaintiff 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 an 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 opinion testimony is addressed; provided, this section shall not be construed to prohibit or otherwise preclude a competent expert witness who resides elsewhere from adequately familiarizing himself with the standards and practices of (a particular) such area and thereafter giving opinion testimony in such a trial.

At the time of Monica's PDA surgery, Dr. Barnes was one of only six cardiovascular surgeons in the state of Idaho. All six of these cardiovascular surgeons practiced together in Boise as a professional association.

These circumstances cause us to examine and construe the following portions of I.C. § 6-1012:

If there be 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. As used in this act, the term "community" refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.

Under the unique circumstances of this case, there was no provider of PDA surgery by a cardiovascular surgeon in Idaho other than Dr. Barnes and his colleagues who practiced as a professional association. Because these physicians all practiced together and were part of one business entity, we treat them as one provider under the statute. Therefore, we conclude under I.C. § 6-1012 that the standard of health care practice in the community ordinarily served by St. Luke's was indeterminable.

We also conclude that no "similar Idaho communities" existed about which Monica could have presented evidence of the standard of practice for a cardiovascular surgeon performing PDA surgery. Therefore, I.C. §§ 6-1012 and 6-1013 do not provide a means of establishing the applicable standard of practice in this case.

In resolving whether Dr. Effler qualified as an expert witness to testify on Monica's behalf, we turn to decisions of this Court that predate the enactment of I.C. §§ 6-1012 and 6-1013. These decisions constituted the common law of this state concerning the proof of medical malpractice actions before the legislature modified the common law by enacting these statutes. To the extent I.C. §§ 6-1012 and 6-1013 do not apply, these earlier decisions state the common law of this state. See I.C. § 73-116; Evans v. Twin Falls County, 118 Idaho 210, 215, 796 P.2d 87, 92 (1990), cert. denied, 498 U.S. 1086, 111 S.Ct. 960, 112 L.Ed.2d 1048 (1991).

In State v. Smith, 25 Idaho 541, 138 P. 1107 (1914), a case in which a physician was convicted of manslaughter, the Court said:

[A] physician or surgeon is bound to exercise such reasonable care and skill as is possessed and exercised by physicians and surgeons generally in good standing of the same system or school of practice or treatment in the locality and community of his practice, having due regard to the advanced state of the school or science of treatment at the time of such treatment.

Id. at 550, 138 P. at 1109 (emphasis added).

The Court's reference in Smith to "the locality and community" of the physician's practice was dicta, since the Court did not premise its decision on the locality and community of the defendant's practice, but rather stated:

It was clearly erroneous for the court to permit physicians of a different school to testify as experts in a case of this kind as to the correctness and professional skill of the treatment administered.

Id.

Within a few years, the Court addressed the question of locality of practice again. In McAlinden v. St. Maries Hospital Ass'n, 28 Idaho 657, 156 P. 115 (1916), the Court stated:

The degree of skill and care required of a physician or surgeon in the treatment of any given case has been frequently stated in decisions involving liability of such physicians or surgeons in cases of malpractice. The general rule is laid down in 30 Cyc. 1570, as follows:

"A physician or surgeon undertaking the treatment of a patient is not required to exercise the highest degree of skill possible. He is only required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing, practicing in similar localities, and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning, and to act according to his best judgment."

28 Idaho at 675, 156 P. at 120 (emphasis added).

A few years later, the Court appeared to take a different tack. In Swanson v. Wasson, 45 Idaho 309, 262 P. 147 (1927) the Court stated:

[A] physician is bound to bestow such reasonable and ordinary care, skill and diligence as physicians and surgeons in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. (21 R.C.L., p. 381, sec. 27.)

45 Idaho at 311, 262 P. at 147 (emphasis added).

This statement appears to shift the focus of the standards of practice from "similar localities," as stated in McAlinden to "the same neighborhood." A closer examination of the source from which the Court took its statement in Swanson, however, reveals that there was no shift. The following clarification appears in 21 R.C.L., the...