Keyser v. Garner

• Decision Date: 17 July 1996
• Docket Number: No. 21454,21454
• Citation: 129 Idaho 112,922 P.2d 409
• Parties: Michael and Emma KEYSER, husband and wife, individually and as parents and guardians of Matthew Keyser, a minor, Plaintiffs-Respondents, v. Eric T. GARNER, M.D., Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 409

922 P.2d 409

129 Idaho 112

Michael and Emma KEYSER, husband and wife, individually and as parents and guardians of Matthew Keyser, a minor, Plaintiffs-Respondents, v. Eric T. GARNER, M.D., Defendant-Appellant.

No. 21454.

Court of Appeals of Idaho.

July 17, 1996.

Rehearing Denied July 17, 1996.

Hall, Farley, Oberrecht & Blanton, Boise, for defendant-appellant. Raymond D. Powers, argued.

Comstock & Bush, and Byron V. Foster (argued), Boise, for plaintiffs-respondents.

LANSING, Judge.

This is a medical malpractice action in which the plaintiffs allege negligence in the post-surgical care of a young child. The appeal is taken from the district court's order granting the plaintiffs' motion for a new trial after the jury returned a verdict in favor of the defendant physician. For the reasons that follow, we vacate the order allowing a new trial and remand the matter to the district court.

I. FACTS

Matthew Keyser was born with a congenital anomaly involving defects in the structure of the mouth and jaw. This condition, known as Pierre Robin syndrome, results in a cleft palate and a compromise of the individual's airway. Matthew also suffered from abnormalities of his heart and lungs. As an infant, Matthew underwent a number of surgeries to repair his heart and improve his breathing. One of those surgeries was a tracheostomy performed by Dr. Eric Garner, an ear, nose and throat specialist (ENT), practicing in Boise. A tracheostomy is a surgical procedure in which an opening is made in the trachea and a plastic tube is inserted to provide an artificial airway through which the patient can breathe.

By the time Matthew was 18 months old, his physical condition had stabilized such that The Keysers sued the hospital and Dr. Garner for negligence. As to the hospital, the Keysers alleged that the hospital's staff had been negligent in the tracheostomy care and in responding to Matthew's respiratory arrest. The evening before trial, however, the Keysers settled with the hospital, and the trial proceeded against Dr. Garner as the sole defendant. The Keysers alleged that Dr. Garner had not complied with the local standard of medical care, which required that a patient in Matthew's circumstances either be placed in the pediatric intensive care unit (PICU) of the hospital, where he would have received twenty-four-hour post-operative monitoring by a nurse, or be attached to a pulse oximeter, a device that monitors a patient's oxygen saturation levels and emits a signal when the patient's breathing is interrupted. The primary issue at trial, therefore, was whether Dr. Garner's decision to place Matthew on the general pediatric floor without a pulse oximeter constituted a violation of the local standard of practice and was, in addition to the negligent conduct of the hospital's nursing staff, a proximate cause of the child's respiratory arrest and resulting injuries. The jury returned a verdict finding that Dr. Garner was not negligent.

Dr. Garner and Matthew's parents, Emma and Michael Keyser, agreed that Matthew should undergo surgery to repair his cleft palate. Matthew was admitted to St. Luke's Regional Medical Center in Boise (the hospital), where Dr. Garner performed this surgery without incident. Once it was determined that Matthew was stable following surgery, Dr. Garner ordered that Matthew be transferred from the post-operative recovery room to a bed on the pediatric floor of the hospital. Dr. Garner's orders for Matthew's care included an order that nursing staff suction Matthew's tracheostomy tube every two hours and as needed. The purpose of such suctioning is to remove blood and other secretions that may accumulate in the tube and close the airway. Trial evidence indicated that a nurse and respiratory therapist attending Matthew during the night after the surgery did not follow Dr. Garner's order to suction the tube at least every two hours and as needed. As a result, secretions accumulated in the tracheostomy tube and occluded the airway. At approximately 5 o'clock the next morning, Matthew suffered a prolonged respiratory arrest which caused irreversible brain damage with spastic quadriplegia.

Following the jury's verdict, the Keysers moved for judgment notwithstanding the verdict pursuant to I.R.C.P. 50(b) or, in the alternative, for a new trial, pursuant to I.R.C.P. 59(a). The district court denied the motion for judgment notwithstanding the verdict, but granted the motion for a new trial on two grounds: (1) that the court had committed error by admitting the expert testimony of a defense witness, Dr. Harlan Muntz, without adequate foundation, requiring a new trial under I.R.C.P. 59(a)(7); and (2) that the clear weight of the evidence supported a finding that Dr. Garner had breached the local standard of care by failing to place Matthew in PICU or on a pulse oximeter, entitling the Keysers to a new trial pursuant to I.R.C.P. 59(a)(6).

Dr. Garner appeals, asserting that the trial court abused its discretion in granting a new trial. After thoroughly reviewing the record, we hold that the trial court erred in concluding that Dr. Muntz's testimony should have been excluded. With respect to the trial court's ruling that a new trial should be granted because the jury's verdict was against the clear weight of the evidence, we find no error, assuming that the court took Dr. Muntz's testimony into consideration when evaluating the weight of the evidence. However, because we cannot ascertain whether the district court's decision to grant a new trial based on the weight of the evidence was influenced by the court's erroneous determination that Dr. Muntz's testimony was inadmissible, we vacate the order granting a new trial and remand for reconsideration of the plaintiffs' motion for a new trial in light of this appellate decision.

II. ANALYSIS

A. Foundation for Testimony of Out-of-Area Medical Experts

The grounds for which a new trial may be granted are set forth in I.R.C.P. 59(a). Subsection Requirements for expert testimony on the standard of care in medical malpractice cases are established by I.C. §§ 6-1012 and 6-1013. Section 6-1012 specifies that, in order to prevail in a malpractice action, the plaintiff must show that the defendant health care provider "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...." The statute further states that "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." ¹

(7) of that rule allows a new trial to correct an error of law occurring at the trial. The district court ordered a new trial pursuant to this subsection based upon the court's conclusion that testimony of a defense expert was admitted in error. The district court concluded that an adequate foundation had not been laid to establish the qualifications of an out-of-state physician to testify to the standard of care in Boise.

Section 6-1013 states that the applicable standard of practice and the defendant health care provider's failure to meet that standard must be established by the testimony of at least one expert witness and that such expert witness must possess "professional knowledge and expertise coupled with actual knowledge of the applicable said community standard...." The statute further provides that, "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." ² Under these statutory standards, if the expert is not from the community where the alleged malpractice occurred, in order to present opinion testimony the expert must first demonstrate an adequate familiarity with local standards of At trial, one of Dr. Garner's standard of care experts was Dr. Harlan Muntz, who was a board-certified pediatric ENT practicing at Children's Hospital in St. Louis, Missouri, and also a faculty member of Washington University Medical School. Dr. Muntz worked in the cleft palate and craniofacial institute at Children's Hospital. Dr. Muntz testified that he was the chairman of the hospital's tracheostomy and airway communication team, which reviewed the care of all of the hospital's child patients with tracheostomies. Dr. Muntz stated that, in order to familiarize himself with the Boise standard of practice for the post-operative management of pediatric tracheostomy patients undergoing cleft palate surgery, he had spoken with a board-certified ENT practicing in Boise, reviewed Matthew's medical records and reviewed depositions, taken in this case, of other physicians who have practiced in Boise. In his conversation with the local ENT, Dr. Muntz obtained information about the hospital, the anesthesia service that is available to surgeons who admit patients to the hospital for surgery, the facilities and monitoring available at the hospital's PICU, the type of nursing and respiratory therapy services available on the general pediatric floor, the overall quality and interaction between ear, nose and throat surgeons in Boise, and the way other Boise surgeons had managed cases similar to Matthew's case prior to August 1991. Based upon this information, Dr. Muntz opined that the local standard of care at the time of the alleged negligence did not require that Matthew be placed in the PICU or be monitored by a pulse oximeter.

                care. 3  Watts v. Lynn, 125 Idaho 341, 345, 870 P.2d 1300, 1304 (1994);  Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989);  Frank v. East Shoshone Hospital, 114 Idaho 480, 757 P.2d 1199 (1988);  Kunz v. Miciak, 118 Idaho 130, 131, 795 P.2d 24, 25

...