Rhodehouse v. Stutts

Decision Date07 February 1994
Docket NumberNo. 19318,19318
Citation868 P.2d 1224,125 Idaho 208
PartiesCleon L. RHODEHOUSE and Norma R. Rhodehouse, Plaintiffs-Appellants, v. Dr. B. Shields STUTTS, Defendant-Respondent. Idaho Falls, April 1993 Term
CourtIdaho Supreme Court

Quane, Smith, Howard & Hull, Boise, for defendant-respondent. Richard L. Stubbs argued.

TROUT, Justice.

This is a medical malpractice case in which the trial court entered summary judgment in favor of the defendant doctor. The trial court found that the doctor's affidavit submitted by plaintiff was not admissible evidence under I.R.C.P. 56(e) because there was an insufficient foundation to show the doctor's familiarity with the local standard of care. We affirm the decision of the district court.


Plaintiff Cleon Rhodehouse (Rhodehouse) suffered a heart attack on August 9, 1987, and was treated by the defendant, Dr. B. Shields Stutts (Stutts), at Eastern Idaho Regional Medical Center in Idaho Falls, Idaho. Stutts performed an emergency angioplasty, a procedure in which a catheter guide wire is placed through the obstruction followed by a balloon catheter which is passed over the wire and then inflated, removing the obstruction. After the angioplasty was performed, Rhodehouse's condition improved and he remained stabilized until August 12. At that time Rhodehouse was taken off anti-coagulants in anticipation of removing his catheterization lines. Shortly after the anti-coagulant was discontinued, Rhodehouse's chest pains recurred and Stutts found that Rhodehouse's artery had again become obstructed. Stutts then attempted another angioplasty.

During this procedure the tip of the angioplasty guide wire broke in a small tributary off Rhodehouse's left anterior descending artery, where it remained after the balloon catheter was removed. At this point, Stutts had Rhodehouse flown to Salt Lake City, Utah, for cardiovascular surgery to remove a blood clot which was forming. By the time Rhodehouse arrived in Salt Lake City, the doctors there concluded that the maximum damage to his heart muscle had already occurred and there would not be enough benefit to justify surgery. Rhodehouse was returned to Idaho.

On August 10, 1989, Rhodehouse filed suit against the Eastern Idaho Regional Medical Center (Medical Center) and Advanced Cardiovascular Systems, the manufacturer of the catheter used in the angioplasty. On April 30, 1990, Rhodehouse amended his complaint, adding Stutts as a named defendant. Rhodehouse alleged that Stutts was negligent in taking him off anti-coagulants and misdirecting the catheter guide wire into a small branch of the artery during the balloon angioplasty, causing the guide wire to bend and break.

The court granted the Medical Center's motion for summary judgment on July 30, 1990, because Rhodehouse had not met his burden of showing the standard of health care breached. The complaint against Advanced Cardiovascular Systems was dismissed on March 15, 1991, due to a settlement agreement.

Stutts moved for summary judgment on August 31, 1990, supported by his own affidavit which stated that he was familiar with the standard of care in Idaho Falls based on his practice of cardiology in Idaho Falls and his association with other physicians in the area. Stutts then asserted that he had fully complied with the community standard of care in his treatment of Rhodehouse.

The trial court granted Rhodehouse a continuance of the October 1, 1990 summary judgment hearing in order to permit additional time for discovery. The court then permitted the late filing of plaintiff's expert's affidavit, which was submitted one day prior to the summary judgment hearing on January 4, 1991. The court then heard oral arguments on the summary judgment motion on January 4.

In opposition to Stutts' motion for summary judgment, Rhodehouse submitted the affidavit of Dr. Ronald D. Jenkins which asserted that: (1) he was a physician certified in cardiology in Salt Lake City, Utah; (2) he was an instructor in heart catheterization and angioplasty at Utah Medical School; and (3) he had reviewed Stutts' deposition from October 26, 1990, the 35mm cine films and the hospital records for the angioplasty operations performed on Cleon Rhodehouse. On the issue of the standard of care Dr. Jenkins' affidavit provides:

4. I state my opinion based upon the documents and films reviewed, my personal knowledge and training and with a reasonable medical certainty.

5. I am familiar with the professional standard of care applicable to the physician Dr. B. Shields Stutts engaged in the treatment of Cleon Rhodehouse in Idaho Falls, Idaho in 1987. Based upon my review of the medical records and treatment of Mr. Rhodehouse by Dr. Stutts, I am of the opinion Dr. Stutts breached the standard of care applicable to a physician engaged in the treatment of cases such as Cleon Rhodehouse in Idaho Falls, Idaho, including but not necessarily limited to the following particulars ...

At the close of the argument on the summary judgment motion, Rhodehouse's counsel stated:

[B]ecause we chose that language [in Jenkins' affidavit] expressly from a case that the Court approved [Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988) ], in the event that the Court finds that insufficient we would like to have leave to amend the affidavit.

In response, the court advised counsel that he would have to make "an appropriate motion" and that the court was "more than inclined" to grant the summary judgment motion if the standard had not been met by plaintiff's affidavit.

The parties submitted briefs on the summary judgment motion and the court again heard arguments on February 6, 1991. The trial court found that Jenkins' affidavit was not sufficient to create a question of fact as to an alleged breach of the standard of care by Stutts. Accordingly, the court granted summary judgment in favor of Stutts and denied Rhodehouse time to cure the deficiency.

Rhodehouse moved for reconsideration on March 25, 1991, arguing that Jenkins' affidavit was sufficient and that the court had not given him an opportunity to supplement the affidavit. The trial court denied Rhodehouse's motion to reconsider, stating that Rhodehouse had had considerable time since the first argument on the summary judgment to file a motion and supplement his affidavit, and yet Rhodehouse continued to rely on the affidavit in its original form. The court found that Jenkins' statements about the local standard of care were not admissible under I.R.C.P. 56(e), and thus the court refused to reconsider the earlier ruling granting respondent's motion for summary judgment.

On appeal, Rhodehouse argues that Jenkins' affidavit shows sufficient familiarity with the local standard of care to withstand a motion for summary judgment and that the trial court abused its discretion by not granting him additional time to supplement Jenkins' affidavit.


It is axiomatic that on summary judgment, the Court views all facts and inferences from the record in favor of the nonmoving party and the moving party has the burden of proving the absence of genuine issues of material fact. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 681, 837 P.2d 805, 806 (1992). These standards apply to motions for summary judgment in medical malpractice cases. Pearson v. Parsons, 114 Idaho 334, 338, 757 P.2d 197, 201 (1988); see also Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988). I.R.C.P. 56(e) provides that the adverse party may not rest upon mere allegations in the pleadings, but must set forth by affidavit specific facts showing there is a genuine issue for trial. East Lizard Butte, 122 Idaho at 681, 837 P.2d at 806. Furthermore, the affidavits supporting or opposing the motion "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." I.R.C.P. 56(e).

Some form of objection is ordinarily necessary to preserve the right to challenge the admissibility of evidence under Rule 56(e). Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 783, 839 P.2d 1192, 1197 (1992). However, "[t]here is no authority in this state that requires a motion to strike or an objection before a trial court may exclude or not consider evidence offered by a party." Id., at 782-83, 839 P.2d at 1196-97.

In the case at bar, the trial court indicated that it was excluding evidence in Dr. Jenkins' affidavit based on Rule 56(e). In ruling on Rhodehouse's motion for reconsideration, the court stated:

Now, Rule 56(e) and Rule 56 itself talked about the affidavits. Their affidavits must be of the type that the evidence set forth therein is admissible at trial, it has to be based on actual knowledge.

As I read Dr. Jenkins' affidavit ... it appear to me at best the doctor is telling us that, the legal conclusion, that he knows the standard of care. He doesn't say how he gets it or really what it is. He infers it's the same as the Board Certified standard. And all along I have thought that that's not sufficient....

Based on Dr. Jenkins' affidavit, even when I consider the inferences most favorable to the non-moving party, I'm still at a point that at best that's a legal conclusion and would not be admissible at trial, there is nothing there to support it, and we're right back in the catch twenty-two situation where we started.

I appreciate the equities involved and I just have to decide this based on the Rule as I interpret the Rule and apply it to what I have in front of me. I must deny the motion to reconsider.

Accordingly, although Stutts only objected to the admissibility of Jenkins' affidavit under I.C. §§ 6-1012 and -1013, the trial court excluded evidence of the local standard of care in Jenkins'...

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