Nield v. Pocatello Health Servs., Inc., 38823–2011.

• Court: United States State Supreme Court of Idaho
• Writing for the Court: Justice W. JONES
• Citation: 332 P.3d 714
• Parties: Judy NIELD, Plaintiff–Appellant, v. POCATELLO HEALTH SERVICES, INC., a Nevada corporation, d/b/a Pocatello Care and Rehabilitation Center, Defendant–Respondent.
• Docket Number: No. 38823–2011.,38823–2011.
• Decision Date: 14 February 2014

332 P.3d 714

Judy NIELD, Plaintiff–Appellant,
v.
POCATELLO HEALTH SERVICES, INC., a Nevada corporation, d/b/a Pocatello Care and Rehabilitation Center, Defendant–Respondent.

No. 38823–2011.

Supreme Court of Idaho,
Idaho Falls, November 2012 Term.

Feb. 14, 2014.

[332 P.3d 716]

Cooper & Larsen, Chartered, Pocatello, for appellant. Javier L. Gabiola argued.

Duke Scanlan & Hall, PLLC, Boise, for respondent. Keely E. Duke argued.

SUBSTITUTE OPINION THE ORIGINAL OPINION ISSUED ON THIS DATE IS HEREBY WITHDRAWN.
BURDICK, Chief Justice.

This is an appeal from a judgment dismissing an action wherein the plaintiff sought damages for injuries sustained as a result of contracting certain infections. The district court employed a differential diagnosis analysis and held that plaintiff's medical experts were required to rule out possible sources of the infections, other than the defendant's care. The district court determined that plaintiff's medical experts' opinions were inadmissible because they did not address the other possible sources of the infections that were suggested by defendant's medical expert. We vacate the judgment and remand for further proceedings.

I. FACTUAL BACKGROUND

This action was filed by Judy Nield to recover damages from Pocatello Health Services, Inc., d/b/a Pocatello Care and Rehabilitation Center (PCRC), due to its alleged negligence in providing her with wound care, which allegedly caused her to become infected with methicillin-resistant staphylococcus aureus (MRSA) and pseudomonas aeruginosa (pseudomonas), ultimately necessitating the

[332 P.3d 717]

amputation of her lower left leg and surgery to repair her right hip implant.

On August 21, 2007, sixty-five-year-old Nield was taken to the emergency room at Portneuf Medical Center (PMC) for pain and swelling in her left leg and pain in her right hip. She had had a bilateral hip replacement in 1994, and since then she had a lack of feeling in her left leg below the knee. In 2005, she dislocated her left hip in a fall, but it went undiagnosed and she continued ambulating by using a cane or walker. In April 2007, her pain increased to the point that she began using a wheelchair. She developed open sores on her lower left leg, and a nurse visited her home to assist with dressing changes. By August 21, Nield's pain was so severe that she could not get out of bed, resulting in her trip to the emergency room. It was noted that she presented “with worsening oozing and redness of her left lower extremity.” Upon admission, she was “placed on contact isolation in case she had MRSA.” She was administered intravenous antibiotics and wound and blood samples were collected. A laboratory report of a sample collected on August 21, 2007, from “WOUND, LEFT LEG” did not reveal either MRSA or pseudomonas.

On August 23, 2007, a physician was consulted regarding Nield's cellulitis and right hip pain. He noted that “[s]he has a fair amount of cellulitis and open blistering of her left lower extremity” and “[s]he has much less cellulitis and open areas on the right leg but has fair amount of pain both laterally and anteriorly with range of motion of her hip.” The physician ordered an aspiration of her right hip to check for infection, but noted: “Unfortunately the results of this aspiration are going to be compromised because of starting the antibiotics. However, if we obtain a considerable amount of white blood cells we can assume that the hip is infected.” An aspiration of her right hip was done on August 23, 2007. The laboratory report stated that no organisms were seen after 48 hours. Nield was discharged from the hospital on August 25, and the discharge summary stated that “an aspiration of the right hip showed only white blood cells but did not grow any bacteria.” The discharge summary ends with a handwritten note by Dr. Ryan Zimmerman—“MRSA screen negative.”

That same day, Nield was admitted to PCRC for the purpose of healing the sores on her left leg so that she could undergo surgery to repair her hip implants. She had four open wounds on her lower left leg that were to be treated. The wounds were on her left ankle, her left shin, the top of her left foot, and the back of her left calf. Upon her admission, she was not screened for either MRSA or pseudomonas.

A laboratory report of a sample collected on November 9, 2007, from “WOUND, LEFT LEG” revealed both moderate MRSA and moderate pseudomonas. She was placed on intravenous antibiotics and completed that treatment on November 25, 2007. A laboratory report of a sample collected on November 27, 2007, from “WOUND, LEFT LEG” revealed light MRSA and did not reveal pseudomonas. She was then placed on another antibiotic. On December 3, 2007, she left PCRC because her Medicare coverage was expiring.

Nield returned home where she remained until March 20, 2008, when she was admitted to PMC because of a MRSA infection in her left foot that had spread to her ankle bone. She was transferred to a hospital in Utah. On April 2, 2008, Nield's left leg was amputated below the knee due to the infection.

Nield filed suit against PCRC on October 1, 2009, claiming that negligent wound care and unsanitary conditions at its facility violated its duty of care, resulting in the amputation of her leg, impairment of her mobility, and attendant physical pain and suffering. On October 8, 2010, PCRC moved for summary judgment on the ground that Nield could not prove that the MRSA and pseudomonas infections she contracted were caused by its negligence. PCRC supported this motion with the affidavit of Dr. Thomas Coffman, a physician who was board certified in both internal medicine and infectious disease.

Among other things, Dr. Coffman stated:

(a) MRSA is not more virulent than other strains of staphylococcus.

[332 P.3d 718]

(b) A person may be colonized with MRSA but not show signs or symptoms of infection.

(c) MRSA can be found in health care facilities and outside of health care facilities. MRSA is ubiquitous within skilled nursing facilities and long term facilities.

(d) MRSA can be transmitted in many ways, including contact with someone who has an active infection, contact with someone who is MRSA colonized but not infected, contact with an object that has been contaminated with MRSA, or breathing in droplets expelled by a MRSA carrier or infected person expelled during breathing, coughing or sneezing.

(e) A resident at a skilled nursing facility such as [PCRC] can become MRSA colonized or infected despite strict adherence to an appropriate infection control policy.

(f) Wound and fluid cultures are one way to determine if a person is infected with MRSA or pseudomonas.

(g) People may also be screened for MRSA to identify individuals who are MRSA colonized.... I have not seen any records of MRSA screening for Ms. Nield prior to her admission to [PCRC]. I note that the August 25, 2007 discharge summary from [PMC] includes a handwritten note that a MRSA screen was negative.... However, there are no records of any MRSA screen.... Based upon the records, it appears Dr. Zimmerman's reference to a negative MRSA screen is referring to the culture taken of Ms. Nield's wound on August 21, 2007, and not an actual MRSA screening. Based on the lack of any MRSA screen report, it is fair to assume that a MRSA screen was not performed. If Ms. Nield was not screened for MRSA, it is not possible to determine if she was MRSA colonized at the time she was admitted to Pocatello Care and Rehab on August 25, 2007.

(h) Like MRSA, people may be carriers of pseudomonas aeruginosa without showing any signs or symptoms of infection.

(i) Based on the records available, it is not possible to determine with a reasonable degree of medical certainty, whether or not Ms. Nield was MRSA or pseudomonas colonized as of the date she was admitted to [PCRC].

(j) The August 21, 2007 wound culture does not rule out the possibility Ms. Nield was colonized or infected with MRSA or pseudomonas.... It is possible Ms. Nield had MRSA and/or pseudomonas in her swabbed leg wound, but that the culture did not grow out and identify these bacteria, resulting in a false negative.

(k) Based upon the records available, my knowledge experience and training, it is not possible to determine whether or not Ms. Nield was MRSA or pseudomonas colonized as of the time she was admitted to [PCRC] on August 25, 2007. As such, it is not possible to determine when, where or how Ms. Nield became infected with MRSA or pseudomonas.

Dr. Coffman offered no opinion as to whether the amputation of Nield's leg was necessitated by MRSA or pseudomonas infections.

Nield moved to strike portions of Dr. Coffman's affidavit on a number of grounds, particularly asserting that critical opinions were based on speculation. In her memorandum submitted in support of the motion to strike, Nield stated:

Dr. Coffman again asserts supposition in concluding ... “it appears” that Dr. Zimmerman's reference in his discharge summary ... to a negative MRSA screen refers to the culture taken, “and not an actual MRSA screening based on the lack of any MRSA screen report.” Dr. Coffman goes on to speculate, “it is fair to assume that a MRSA screen was not performed.” Again, Dr. Coffman speculates, and does not endeavor to produce any facts to ascertain whether a screen and culture were done.

Dr. Coffman goes on to conclude: “If Ms. Nield was not screened for MRSA, it is not

[332 P.3d 719]

possible to determine if she was MRSA colonized at the time she was admitted to [PCRC] on August 25, 2007.” This is again supposition and conclusory speculation. Dr. Coffman's speculation is evident by his use of “If” indicative of his conclusory speculations.

Nield also responded to PCRC's summary judgment motion with the affidavits of three experts: Sidney Gerber, a nursing facility expert; Suzanne Frederick, a nursing care expert; and Dr. Hugh Selznick, a medical expert. Each of Nield's experts attributed her infections to poor infection control...