Kozlowski v. Rush, 18718

CourtUnited States State Supreme Court of Idaho
Citation828 P.2d 854,121 Idaho 825
Docket NumberNo. 18718,18718
PartiesKrzysztof KOZLOWSKI, as personal representative of the Estate of Zofia M. Skiba and Piotr Skiba as the natural father and next friend of Stephanie Skiba, a minor, Plaintiffs-Appellants-Cross Respondents, v. Dr. Robert RUSH, Defendant-Respondent, and Bannock Regional Medical Center and Bannock County d/b/a Bannock Regional Medical Center, Defendants-Respondents-Cross Appellants. Boise, September 1991 Term
Decision Date20 March 1992

Page 854

828 P.2d 854
121 Idaho 825
Krzysztof KOZLOWSKI, as personal representative of the Estate of Zofia M. Skiba and Piotr Skiba as the natural father and next friend of Stephanie Skiba, a minor, Plaintiffs-Appellants-Cross Respondents,
Dr. Robert RUSH, Defendant-Respondent,
Bannock Regional Medical Center and Bannock County d/b/a Bannock Regional Medical Center, Defendants-Respondents-Cross Appellants.
No. 18718.
Supreme Court of Idaho,
Boise, September 1991 Term.
March 20, 1992.

Page 855

[121 Idaho 826] Kenneth S. Cohen, Jackson, Wyo., Gaucahy, Simpson & Gardner, Idaho Falls, and Meyer & Williams, Jackson, Wyo., for plaintiffs-appellants-cross respondents. P. Richard Meyer, argued.

Hall, Farley, Oberrecht and Blanton, Boise, for defendant-respondent Robert Rush, M.D. Richard E. Hall, argued.

Moffatt, Thomas, Barrett, Rock and Fields, Idaho Falls, for defendants-respondents-cross appellants Bannock Regional Medical Center and Bannock County. Gary T. Dance, argued.

BISTLINE, Justice.

This case involves an allegation of medical malpractice against Dr. Robert Rush, M.D. ("Rush"), Bannock Regional Medical Center and Bannock County ("Bannock"). The plaintiffs allege that Rush's and Bannock's negligence prior to and during the delivery of Stephanie Skiba resulted in brain damage to Stephanie. The plaintiffs in the actions are Stephanie Skiba, Piotr Skiba, the father and next friend of Stephanie, and Krzysztof Kozlowski, the personal representative of the estate of Zofia Skiba (Stephanie's mother) ("the Skibas").

When Zofia M. Skiba became pregnant she was forty, overweight, and had been fighting cancer for many years. When she was admitted to the hospital prior to delivery she was seen by Rush. Two weeks prior, Rush had undergone surgery on his right shoulder. Rush was advised to avoid active abduction and flexion for six weeks. He appeared at the hospital with his arm in a sling and had to take the arm out of the sling before he could use the forceps which were required to deliver Stephanie.

Rush failed to detect that Stephanie would be an extraordinarily large (macrosomic) baby. Macrosomic babies are at a high risk for injury during the birth process. A problem known as shoulder dystocia occurred during the delivery. Shoulder dystocia occurs when the baby's head is delivered, but its shoulders are too big to come out. Stephanie was born "dusky" or "blue" in color and required "bagging" with oxygen. Shortly after birth, she developed tremors in the left hand, respiratory neurosis, and left facial palsy. Nevertheless, Stephanie was allowed to go home with her mother.

Later Stephanie had a seizure and was admitted to the hospital. Thereafter, she was diagnosed as having permanent and irreversible brain damage.

The plaintiffs presented evidence that the brain damage was caused by the birth trauma. The plaintiffs' expert testified that Rush's actions fell below the local area standard of care by failing to follow Zofia's pregnancy more carefully. In particular, Rush failed to assess the fetal condition prior to labor by means of a biophysical profile and failed to determine the size of the fetus by using ultrasound technology. If he had done so, he would have known Stephanie was macrosomic and could have taken steps to avoid the shoulder dystocia, possibly by delivering Stephanie by cesarean section. The opinion of the plaintiffs' expert was that Rush was not capable of performing a cesarean section himself because of his recent shoulder surgery.

Rush and Bannock presented evidence that the damage occurred prior to birth, probably sometime between the 24th to 35th weeks of gestation. Moreover, Rush testified that his shoulder injury did not affect his ability to delivery Stephanie. Both Rush and a nurse who was present during the delivery testified that there were no signs which called for the administration of oxygen to the mother.

After a three and one half week trial, a jury returned a verdict in favor of Rush and Bannock, finding no negligence on the part of either party. The Skibas filed a motion for judgment n.o.v., or in the alternative, for a new trial. The trial judge issued a memorandum ruling denying the motions.

The Skibas appeal from the judgment and the denial of the motion for a new trial.

Page 856

[121 Idaho 827] Bannock appeals from the trial court's refusal to award it costs and from the order awarding costs to the Skibas.


The Skibas argue that the district court erred by striking their expert's testimony that the local standard of care was violated when Rush failed to determine that Stephanie was a macrosomic baby which could have been accomplished by the use of ultrasound or biophysical testing. We review challenges to evidentiary rulings under the abuse of discretion standard. State v. Terry, 98 Idaho 285, 287, 561 P.2d 1318, 1320 (1977).

The court struck the testimony because it found that the Skibas' expert had not familiarized himself with and did not establish what the local standard of care was in Pocatello at the time of Stephanie's birth. We are not persuaded.

The relevant statutes are I.C. § 6-1012 and § 6-1013 which 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

Page 857

[121 Idaho 828] thereafter giving opinion testimony in such a trial.

Since the passage of these statutes in 1976, this Court has had several occasions to construe their meanings, of which Buck v. St. Clair, 108 Idaho 743, 746-47, 702 P.2d 781, 784-85 (1985), was a forerunner. Therein we said:

I.C. § 6-1013 also provides that a competent expert witness who resides elsewhere can testify if he has adequately familiarized himself with the local standard of care. The trial court ruled that Dr. Broms had not adequately familiarized himself with the local standard of care for Boise. We believe this was incorrect. By virtue of their training, board-certified specialists are familiar with the local standard of care which is equivalent to the national standard of care. In order to meet the requirement of I.C. § 6-1013(c) showing adequate familiarization a specialist must demonstrate two elements: first, that he is board-certified in the same specialty as that of the defendant-physician; this demonstrates knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question. Second, an out-of-the-area doctor must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained. In the instant case, Dr. Broms testified that he was a board-certified obstetrician-gynecologist, that he was familiar with the standard of care through regular reading of regional and national medical journals, and that he was familiar with the local standard of...

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