Mortensen v. Baker, 48492

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBEVAN, CHIEF JUSTICE
PartiesJANA MORTENSEN Plaintiff-Appellant, v. JEFFREY B. BAKER, M.D., an Individual, and THE HEALING SANCTUARY, LLC, and Idaho Limited Liability Company, Defendants-Respondents.
Docket Number48492
Decision Date30 August 2022

JANA MORTENSEN Plaintiff-Appellant,

JEFFREY B. BAKER, M.D., an Individual, and THE HEALING SANCTUARY, LLC, and Idaho Limited Liability Company, Defendants-Respondents.

No. 48492

Supreme Court of Idaho

August 30, 2022

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Joel E. Tingey, District Judge.

The district court's opinion on summary judgment is reversed and the judgment is vacated.

Points Law, PLLC, Boise, attorneys for Appellant. Michelle Points argued.

Quane McColl, PLLC, Boise, attorneys for Respondent. Vala L. Metz argued.


This appeal arises from an allegation of medical malpractice. Jana Mortensen sought treatment from Dr. Jeffrey Baker at The Healing Sanctuary, LLC, after a hysterectomy failed to resolve symptoms for ongoing pelvic pain. Mortensen alleges that Dr. Baker prescribed Mortensen a 14-day course of "ozone treatment" to be self-administered intravaginally at home. Mortensen allegedly breathed in ozone gas while administering the treatment, which she alleges caused her permanent pulmonary and cardiac injuries. Mortensen filed a complaint against Dr. Baker and The Healing Sanctuary (collectively "Dr. Baker"), claiming medical malpractice. Dr. Baker moved for summary judgment, arguing that Mortensen could not prove causation. The district court conditionally granted Dr. Baker's motion for summary judgment after finding Mortensen had not raised a genuine issue of material fact; however, the court gave Mortensen a specified time to


secure expert testimony on causation. Mortensen did not comply with the deadline. The district court entered summary judgment, denying Mortensen's second request for additional time. The district court also denied her motion to reconsider. Mortensen timely appeals. For the reasons below, we reverse the district court's decision granting summary judgment to Dr. Baker.

I. Factual and Procedural Background

A. Factual Background [1]

In December 2018, Mortensen was seen by Dr. Baker at The Healing Sanctuary for pain related to what she believed was a urinary tract infection or pain resulting from her hysterectomy. Dr. Baker ordered a urine culture, which came back negative for a urinary tract infection. Even so, Dr. Baker diagnosed Mortensen with a suspected urinary tract infection, and he prescribed Macrobid antibiotics for 30 days.

The antibiotics did not resolve her symptoms, so Mortensen made another appointment with Dr. Baker in January 2019. At this appointment, Dr. Baker prescribed ozone gas as a treatment.[2] According to Mortensen, Dr. Baker claimed that ozone would "blast" any bacteria causing her infection. Dr. Baker told Mortensen to get the supplies for the ozone treatment "upstairs." Based on Mortensen's account, Dr. Baker did not write an order for the ozone, but he reviewed and electronically signed her medical record. Mortensen went upstairs at The Healing Sanctuary to obtain the ozone treatment supplies.

Once she arrived, Mortensen told the staff that Dr. Baker sent her for ozone treatment. Staff explained she could administer the treatment at home and provided her with an "insufflation bag" that connected to a tube. Mortensen could reuse the same bag and tube throughout her treatment. Staff told her to come into the office daily and refill the bag with ozone. Once filled, Mortensen was to go home, lie down, insert the tube two to three inches into her vagina, and squeeze the gas into her vaginal canal after releasing the stopper. Staff told Mortensen to remain laying down for


fifteen minutes and then "go about her day." Neither Dr. Baker nor the staff gave Mortensen any warnings about possible side effects from the gas.

Mortensen soon noticed, because of the distinct odor of ozone, that once she began treatment at home, the gas leaked from her vaginal canal into the air in the room. As a result, Mortensen claims she inhaled the escaped gas. She also alleges the odor of ozone was detectable for several hours after treatment each day. Even so, Mortensen continued returning to The Healing Sanctuary every morning to get the bag refilled with ozone.

After a short number of self-applied treatments, Mortensen began suffering a sore throat and severe cough. She reported these symptoms to The Healing Sanctuary's staff. She asked if the gas could cause these symptoms, but was told "no," and that it was more likely she caught a cold. At a later visit, when Mortensen was having the bag refilled, she reported that a lot of gas was leaking into the air. A nurse remarked, Mortensen "must have a 'tiny canal,'" but did not otherwise comment on the potential toxicity of ozone. Another nurse told Mortensen it was fine to breathe the gas, saying it would "be good for [her] lungs." Even still, a staff member commented that she noticed a small hole in the bag while refilling it and noted the gas made her cough for a while.

By February 2019-twenty days after Mortensen began her ozone treatment-Mortensen felt like her lungs were collapsing. She was having severe shortness of breath and a persistent sore throat. In mid-February, she went to Community Care Clinic, an urgent care medical facility, and was prescribed an inhaler and steroid.

At Mortensen's next visit to The Healing Sanctuary, she told the nurses she had been to Community Care because of her trouble breathing. The staff insisted inhaling ozone did not cause her breathing symptoms. As a result, Mortensen continued treatment for a few more days but stopped after she felt her lung function was declining and she experienced "severe heart and lower body function issues." Mortensen and her fiancé then researched using ozone in a clinical setting, and Mortensen suspected the gas-not a cold-was causing her health issues.

Following her exposure, Mortensen went to the emergency room for asthma and heart issues several times and has remained under the regular care of Idaho Falls Pulmonary/Sleep and Critical Care Specialists. She was also treated by a pulmonologist in Boise, Idaho, and claims she has persistent chest pain, shortness of breath, a chronic cough, and occasional bloody sputum.

B. Procedural Background


Mortensen filed a complaint against Dr. Baker and The Healing Sanctuary alleging medical malpractice on November 13, 2019. In April 2020, Dr. Baker moved for summary judgment contending there was no genuine issue of material fact because Mortensen had provided no experts who could establish: (1) a violation of the community standard of healthcare practice under Idaho Code section 6-1012[3]; and (2) causation or damages.

On May 1, 2020, Mortensen responded to Dr. Baker's motion for summary judgment and moved for more time, under I.R.C.P. 56(d). The next month, on June 9, 2020, Mortensen filed sworn declarations from: (1) Jana Mortensen, (2) Dr. Amy Baruch, and (3) Dr. Edmund Schoeffler. Later, on June 16, 2020, Mortensen submitted a second declaration from Dr. Baruch.

On June 22, 2020, the district court entered its memorandum decision and order conditionally granting Dr. Baker's motion for summary judgment, but the court granted Mortensen another 90 days to provide evidence of causation between Dr. Baker's alleged negligent conduct and Mortensen's purported injuries. Within the 90 days, on September 21, 2020, Mortensen filed a supplemental declaration and supplemental response to Dr. Baker's motion for summary judgment. Dr. Baker then filed a supplemental brief responding to Mortensen's filings.

On October 2, 2020, the district court entered an order and judgment granting Dr. Baker's motion for summary judgment and dismissing Mortensen's claim. Mortensen moved for reconsideration and filed additional declarations from Dr. Jess Mandel and Dr. Ronald Balkissoon on October 16. The district court denied her motion for reconsideration. Mortensen timely appealed.

II. Standards of Review

This Court reviews a challenge to the district court's evidentiary rulings, including whether to exclude expert testimony, under an abuse of discretion standard. Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 50-51, 995 P.2d 816, 820-21 (2000). When reviewing a lower court's decision for an abuse of discretion, this Court must analyze "[w]hether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4)


reached its decision by the exercise of reason." Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

"This Court employs the same standard as the district court when reviewing rulings on summary judgment motions." Owen v. Smith, 168 Idaho 633, 640, 485 P.3d 129, 136 (2021) (citing Trumble v. Farm Bureau Mut. Ins. Co. of Idaho, 166 Idaho 132, 140-41, 456 P.3d 201, 209-10 (2019)). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." I.R.C.P. 56(a). A moving party must support its assertion by citing particular materials in the record or by showing the "materials cited do not establish the. . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact[s]." I.R.C.P. 56(c)(1)(B). "Summary judgment is improper 'if reasonable persons could reach differing conclusions or draw conflicting inferences from the evidence presented.'" Owen, 168 Idaho at 641, 485 P.3d at 137 (quoting Trumble, 166 Idaho at 141, 456 P.3d at 210). A "mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment." Id.

"[W]hen reviewing the grant or denial of a motion for reconsideration following the grant of summary...

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