Kolln v. Saint Luke's Regional Medical Center

Decision Date09 July 1997
Docket NumberNo. 22685,22685
Citation940 P.2d 1142,130 Idaho 323
PartiesSharon L. KOLLN and Michael G. Kolln, wife and husband, Plaintiffs-Appellants, v. SAINT LUKE'S REGIONAL MEDICAL CENTER, an Idaho corporation, Michael L. Henbest, M.D., Anesthesia Associates of Boise, P.A., and Terry J. Keller, M.D., Defendants-Respondents. Boise, February 1997 Term
CourtIdaho Supreme Court

D. Bernard Zaleha, Boise, for appellants.

Hall, Farley, Oberrecht & Blanton, Boise, for respondent Henbest. Raymond D. Powers argued.

Cosho, Humphrey, Greener & Welsh, P.A., Boise, for respondent St. Luke's Regional Medical Center. Jack S. Gjording argued.

Quane, Smith, Howard & Hull, Boise, for respondents Anesthesia Associates of Boise, P.A. and Terry J. Keller, M.D. Bruce R. McAllister argued.

SILAK, Justice.

This is a medical malpractice case, stemming from neck surgery performed on Sharon L. Kolln (Kolln). Kolln alleges that after she had surgery on her neck, she began experiencing pain and reduced mobility in her shoulder, which was diagnosed months later as a torn rotator cuff. Kolln and her husband subsequently sued Saint Luke's Regional Medical Center (St. Luke's); the neurosurgeon, Dr. Michael L. Henbest (Henbest); and the Anesthesia Associates of Boise and Dr. Terry J. Keller (the Anesthesia Respondents) (collectively referred to as the Respondents) for medical malpractice, alleging that their negligence during surgery caused the shoulder injury. When Kolln was unable to provide a sufficient expert affidavit in response to each Respondent's motion for summary judgment, the district court dismissed the complaints, and Kolln appeals.

A. Underlying Facts.

Kolln underwent neck surgery at St. Luke's on September 14, 1992. The surgery was performed by Dr. Henbest, and the Anesthesia Respondents were in charge of the anesthesia. St. Luke's employed the nurses and surgical technicians who were present during the surgery. The day after the operation, Kolln began experiencing pain in her right shoulder and noticed reduced mobility. Eight months after the surgery, another doctor diagnosed the problem as a torn rotator cuff. Kolln alleges that because she never felt pain or experienced reduced mobility before the surgery, the injury must have happened during the surgery. However, the doctor who diagnosed and treated her rotator cuff injury expressed the opinion that the injury may have occurred before the surgery, but that Kolln's neck pain was so severe that she did not feel the pain in her shoulder until she had the neck surgery.

The parties agree that there are only two ways the rotator cuff injury could have occurred. Either Kolln's arm was hyperextended and then rotated posteriorly, or was forcefully inverted and pulled down. Such movements would have occurred during surgery if Kolln was moved incorrectly during the surgery or if her arm fell off the operating table. Everyone present during the surgery stated that to the best of their recollection, Kolln was neither moved incorrectly nor did her arm fall off the table. The medical records from that day indicate the same.


B. Procedural Background.

The lawsuit in this matter was filed on March 3, 1995, against all of the Respondents. The Anesthesia Respondents filed their motion for summary judgment on May 10, and Kolln submitted the affidavit of her expert, Edward L. Katz, M.D., a Twin Falls neurosurgeon, in response. At a hearing on their motion for summary judgment, the Anesthesia Respondents argued that Katz's affidavit did not show how he had familiarized himself with the standard of care for the Anesthesia Respondents. The district court agreed and granted summary judgment, but further granted Kolln additional time to rectify the foundational problems with the affidavit. Although Katz did submit a second affidavit, the Anesthesia Respondents maintain that it did not solve the foundational problem as to them. The Anesthesia Respondents filed a motion to certify the judgment as final under I.R.C.P. 54(b), which was granted on September 7, 1995.

In the meantime, Henbest filed a motion for summary judgment as well as a motion to strike Katz's first and second affidavits, which the court heard on August 1, 1995. Henbest argued that the affidavits should be stricken because Katz had not laid a sufficient foundation for his opinion. The court struck the affidavits on the basis that Katz had not shown that he had sufficient knowledge of the standard of care, and because there was not sufficient foundation for his opinion. However, the court did allow Kolln to attempt to remedy the deficiencies in Katz's affidavit.

On September 5, 1995, the district court heard Henbest's motion to strike Katz's third affidavit, and for summary judgment. Henbest stated that the person with whom Katz had spoken to familiarize himself with Boise's standard of care was Henbest's expert, who swore in an affidavit that he did not provide Katz with any information regarding the standard of care, because he realized that they were working on opposite sides of the same case. Therefore, Henbest argued that Katz did not have a sufficient background upon which to render an opinion.

At that hearing, there was also a great deal of discussion regarding the substantive basis for Katz's affidavit. The affidavit indicated that in addition to familiarizing himself with the local standard of care, Katz had reviewed the medical records in the case. However, Henbest's attorney and the court noted that the records of everyone present at the surgery indicate that nothing untoward happened during the surgery which would have caused a torn rotator cuff. Further, the doctor who treated Kolln's shoulder opined that the torn rotator cuff may very well have been pre-existing. Henbest argued, and the court agreed, that all of the records which Katz could have reviewed showed that nothing happened during surgery to cause the injury. In fact, the court stated that "[a] careful examination of the records [ ] doesn't leave any room for Dr. Katz to express the opinion that it did happen during surgery." Therefore, the court found that there was no basis for Katz's opinion that the injury happened during surgery.

Kolln also argued that the doctrine of res ipsa loquitur should be applied in this case, but the district court noted that there was a question whether res ipsa can be used at all in medical malpractice cases in Idaho, since Idaho Code sections 6-1012 and -1013 require direct expert testimony in such a lawsuit. Even if res ipsa were of continuing validity in Idaho medical malpractice actions the court stated Kolln had the burden of advancing evidence that excluded other possibilities, which she did not. Further, the court noted that res ipsa simply raises a presumption, and that once the Respondents provided direct evidence that the injury could not have happened in surgery, the presumption disappeared. Therefore, although the district court did find that there was an adequate showing in Katz's affidavit that he met the requirements for an expert, there was no basis for his actual opinion, and the court granted summary judgment in favor of Henbest.

On November 16, 1995, the district court held a hearing regarding St. Luke's motion for summary judgment. St. Luke's argued that Katz's affidavit did not show how he had familiarized himself with the standard of care for surgical nurses and technicians, and that Katz had done nothing to remedy that deficiency. Kolln argued, with regard to St. Luke's motion only, that she was competent to testify about her medical condition, specifically, about when exactly her injury occurred and what that injury was. While the trial court found that Kolln could testify about when she first experienced pain and loss of mobility, the court found that Kolln could not testify about when the injury occurred, nor could she render her opinion that the Respondents' negligence caused the injury.



The issues on appeal are:

1. Whether the trial court erred in certifying the judgment for the Anesthesia Respondents as final.

2. Whether the trial court erred in concluding that Kolln lacked the competence to testify regarding when her injury occurred, and whose negligence caused the injury.

3. Whether the trial court erred in ruling that the affidavits of Kolln's expert were insufficient to defeat the Respondents' respective motions for summary judgment.

4. Whether Kolln established the evidentiary foundation for the application of the doctrine of res ipsa loquitur.



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. 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).

Three of the affidavits at issue in this case are those of a potential expert witness. 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...

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