Maxwell v. Women's Clinic, P.A.

• Decision Date: 18 March 1981
• Docket Number: No. 13620,13620
• Citation: 102 Idaho 53,625 P.2d 407
• Parties: Marciena J. MAXWELL and Bobby E. Maxwell, husband and wife, Plaintiffs-Appellants, v. The WOMEN'S CLINIC, P.A., and Murray G. Stromberg, II, individually as a member thereof, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 407

625 P.2d 407

102 Idaho 53

Marciena J. MAXWELL and Bobby E. Maxwell, husband and wife, Plaintiffs-Appellants, v. The WOMEN'S CLINIC, P.A., and Murray G. Stromberg, II, individually as a member thereof, Defendants-Respondents.

No. 13620.

Supreme Court of Idaho.

March 18, 1981.

William F. Lee, Boise, for appellants.

Richard E. Hall, of Moffatt, Thomas, Barrett & Blanton, Boise, for respondents.

DONALDSON, Justice.

Plaintiffs-appellants Mr. and Mrs. Maxwell brought a medical malpractice suit against defendants-respondents the Women's Clinic, P.A., and Dr. Stromberg. The Maxwells alleged that the defendants improperly and negligently failed to advise Mrs. Maxwell of certain risks of a laparoscopic tubal ligation surgical procedure and improperly and negligently performed that surgical procedure by burning a hole in Mrs. Maxwell's small intestine necessitating additional surgery. Besides the pain and loss of a portion of the small intestine to Mrs. Maxwell, they alleged that the additional surgery caused Mr. Maxwell to be deprived of his wife's services, comfort, society and companionship during her surgery and extended recovery.

Mr. Maxwell's deposition describes as follows a conversation he had with Dr. Stromberg in which the appellants' allege that Dr. Stromberg admitted negligence:

"Q. And would you relay what you remember saying yourself, and what Dr. Stromberg said to you?

A. Dr. Stromberg introduced himself to me and said that they would need to do additional surgery. And I remember saying something about it. And he said, the way I remember it, he said, I obviously messed up on the first one, and another surgery has to be done to repair the damage....

. . . .

Q. In testifying here today as to what Dr. Stromberg said to you, do you recall his exact words?

A. No, not exactly. I do remember him saying, I obviously messed up. Other than that, I don't remember too much more about it." (emphasis added).

Mr. Maxwell further stated that nobody else overheard the above statement.

Additionally, Dr. Stromberg did not bill the Maxwells for his services in either the laparoscopic tubal ligation or for his assistance during in the exploratory laparotomy performed by Dr. Lung. He explained his nonbilling by stating he did not wish to contribute to the Maxwells' financial hardship since he was concerned for their circumstances.

Defendants moved for summary judgment on the grounds that there were no issues of material fact and they were entitled to judgment as a matter of law. In the defendants' memorandum supporting their motion for summary judgment, they argued that the consent form signed by Mrs. Maxwell indicates adequate notice, that a reasonable person in Mrs. Maxwell's position would have undergone the surgery notwithstanding the advice of possible complications and that plaintiffs have failed to provide expert testimony to refute defendants' experts that the operations were within required standards. The defendants also filed affidavits by Dr. Gerhard and Dr. Stromberg, physicians and surgeons practicing in the field of obstetrics and gynecology. Dr. Stromberg asserted in his affidavit that he performed the surgery in a manner consistent with the medical standards of care applicable in Boise, Idaho, at the time the operation was performed, and that the injury which Mrs. Maxwell suffered could have occurred in the absence of negligence on his part. Dr. Gerhard's affidavit stated that based on his review of the medical records that Dr. Stromberg did not deviate from the applicable medical standards and that this injury could have occurred without any negligence on the part of Dr. Stromberg.

Plaintiffs resisted the motion by arguing, among other things, that whether Mrs. Maxwell's consent was informed was still at issue and that the statement attributed to Dr. Stromberg and his nonbilling were direct expert testimony.

The district court granted defendants' motion for summary judgment on the basis that plaintiffs offered no medical or expert testimony that the defendants negligently failed to meet the applicable standard of health care practice of the community. Plaintiffs appeal arguing that Dr. Stromberg's statement and actions constitute an admission of medical malpractice and qualify as expert testimony.

This Court has often stated:

"... (T)hat summary judgment should be granted only when the pleadings, depositions and admissions, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. The facts are to be liberally construed in favor of the party opposing the motion, who is also to be given the benefit of all favorable inferences which might be reasonably drawn from the evidence." (citations omitted). Huyck v. Heckla Mining Co., 101 Idaho 299, ---, 612 P.2d 142, 143 (1980).

Additionally, in Walker v. Distler, 78 Idaho 38, 47, 296 P.2d 452, 457-458 (1956) this Court stated that:

"Generally speaking, negligence in malpractice cases must be established by expert medical testimony. This is so because the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury. (citations omitted).

. . . .

However, the plaintiffs are entitled to the benefit of any expert testimony produced by the defense, (citations omitted), and plaintiffs have the right to cross-examine the defendant as a medical expert."

Cited in LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980); Hall v. Bacon, 93 Idaho 1, 453 P.2d 816 (1969); Schofield v. Idaho Falls Latter Day Saints Hospital, 90 Idaho 186, 409 P.2d 107 (1965); Flowerdew v. Warner, 90 Idaho 164, 409 P.2d 110 (1965).

LePelley, supra, held that plaintiffs in a medical malpractice action could not complain about the granting of summary judgment against them when no expert testimony favoring their position had been offered. This Court in LePelley, supra, reviewed the application of I.C. §§ 6-1012 and 6-1013, which were passed by the Idaho legislature as part of retroactive and prospective medical malpractice emergency legislation. 1976 Idaho Sess. Laws, ch. 277. The legislature in enacting this legislation stated its purpose as follows:

"It is the declaration of the legislature that appropriate measures are required in the public interest to assure that a liability insurance market be available to physicians, hospitals and other health care providers in this state and that the same be available at reasonable cost, thus assuring the availability of such health care providers for the provision of care to persons in the state. It is, therefore, further declared to be in the public interest that the liability exposure of such health care providers be limited and made more definable by a requirement for direct proof of departure from a community standard of practice." 1976 Idaho Sess. Laws, ch. 277, § 1, p. 951.

I.C. § 6-1012 states in part that:

"(I)n any case, claim or action for damages due to injury or death of any person, brought against any physician and surgeon or other provider of health care, including, without limitation, any ... hospital ..., such claimant or plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony ... that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community ... (1976, ch. 277, § 2, p. 951.)"

I.C. § 6-1013 sets forth requirements which the expert witness testimony must meet to be admissible including

"(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 ... (1976, ch. 277, § 3, p. 951.)"

Therefore, in order to preclude summary judgment in medical malpractice cases, plaintiffs must show that expert testimony has been offered by either the plaintiff or defendant which when viewed in a light most favorable to plaintiffs indicates that the defendant has negligently failed to meet the applicable standard of health care practice of the community. LePelley, supra; Walker, supra. In the case at bar, the alleged admission of the defendant doctor, equivocal at best, does not satisfy the standards set out in I.C. §§ 6-1012 and 6-1013. Furthermore, both of the medical experts that submitted affidavits stated that injury to the bowel is an inherent and unavoidable risk in laparoscopic tubal ligation which can and does occur in the absence of negligence on the part of the physician performing the surgery. In fact, both experts indicated in affidavits submitted on behalf of the respondents that Dr. Stromberg had performed the operation within the standard of care of the community. Nothing is offered to refute this testimony other than Mr. Maxwell's testimony regarding Dr. Stromberg's alleged statement and Dr. Stromberg's admitted nonbilling of the Maxwells. However, this evidence, ¹ even when construed in a light most favorable to the Maxwells, does not reasonably infer that Dr. Stromberg negligently failed to meet the applicable standard of health care practice of the community. Therefore, we affirm the district court's granting of summary judgment.

Costs to respondents. No attorney fees awarded.

BAKES, C. J., and SHEPARD, J., concur.

BISTLINE, Justice, dissenting.

The first question is whether admissions of medical malpractice by a defendant physician can constitute the direct expert testimony needed to show malpractice. If the answer to this question is negative, then the inquiry in this case is at an end. If the answer is affirmative, however, then a second question is whether the alleged statements in this case are sufficient to constitute admissions of medical malpractice. If sufficient, then the trial court erred in...