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Peter Hoover, Individually and A Personal Representative of the Estate v. Ellen B. Hunter

March 18, 2011

PETER HOOVER, INDIVIDUALLY AND A PERSONAL REPRESENTATIVE OF THE ESTATE OF SHEILA MARIE HOOVER, PLAINTIFF-APPELLANT, AND JAMES T. HOOVER, INDIVIDUALLY AND JACOB P. HOOVER, A MINOR, PLAINTIFFS,
v.
ELLEN B. HUNTER, M.D.; ELLEN HUNTER, PLLC, AN IDAHO PROFESSIONAL LIMITED LIABILITY CORPORATION; SAINT LUKE'S REGIONAL MEDICAL CENTER; JOHN T. WITTE, M.D., DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County, Hon. Richard D. Greenwood, District Judge.

The opinion of the court was delivered by: Horton, Justice

2011 Opinion No. 37

Stephen Kenyon, Clerk

The district court order granting summary judgment is affirmed. Peter

This case arises from the death of Mrs. Sheila Hoover (Mrs. Hoover) following complications of an esophagogastroduodenoscopy (EGD) procedure performed at St. Luke's Regional Medical Center (St. Luke's) in Boise. H. Peter Hoover (Mr. Hoover), individually and as the personal representative of the Estate of Sheila Hoover, James Hoover, and Jacob Hoover (collectively the Hoovers) filed suit against Dr. Ellen Hunter, Ellen Hunter, PLLC, Dr. John Witte, and St. Luke's for medical malpractice. The Hoovers also raised a fraud claim. The district court granted summary judgment in favor of Dr. Hunter, Dr. Witte, and St. Luke's, finding that the Hoovers had failed to comply with the requirements of I.C. §§ 6-1012 and 6- 1013 which lay out requirements of expert testimony and the burden of proof in medical malpractice cases. The court further found that the Hoovers' fraud claim was a restatement of their medical malpractice claim and was, therefore, barred. The Hoovers now appeal, arguing that the district court erred in dismissing their claims and that the procedure regarding the filing of the case's disposition and the defendants' Motion for Costs was in error. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 2005, Dr. Ellen Hunter performed an EGD on Sheila Hoover at the Endoscopy Lab at St. Luke's in Boise. Dr. Hunter had discussed risks of the EGD and obtained Mrs. Hoover's consent to the procedure. During the procedure, Mrs. Hoover experienced bleeding and suffered a decrease in oxygen levels. Following the procedure, Mrs. Hoover was admitted to St. Luke's Critical Care Unit for monitoring. Dr. John Witte, who had not been involved in the EGD, assumed care of Mrs. Hoover. Over the next four days, Mrs. Hoover did not respond to verbal stimuli and she was transferred to Sunbridge Nursing Facility in McCall, Idaho. Mrs. Hoover died on April 19, 2005.

The Hoovers filed suit on March 27, 2007, alleging medical malpractice that led to Mrs. Hoover's death. The Hoovers also raised a fraud claim, alleging that the defendants failed to accurately disclose Mrs. Hoover's oxygen levels and destroyed records of Mrs. Hoover's medical treatment. On February 21, 2008, the district court entered its Order Governing Proceedings and Setting Trial. That Order required the Hoovers to disclose experts by October 1, 2008. In their Plaintiff Witness Disclosures filing of September 30, 2008, the Hoovers put forward three names of expert witnesses to testify to the defendants' alleged breach of the local standard of care, including one physician in internal medicine (who was also Mrs. Hoover's primary care physician) and two emergency medical technicians (EMTs). Neither this disclosure, nor any of the Hoovers' later disclosures, included any opinions held by these proposed experts. Following an order compelling the Hoovers to fully respond to Drs. Hunter and Witte's discovery requests by February 11, 2009, the Hoovers stated, via letter, that they had been unable to contact Mrs. Hoover's primary care physician but stated that all of the Hoovers' proposed experts were qualified to testify to emergency medical care. On April, 1, 2009, the Hoovers provided a statement of the proposed experts' educational backgrounds "to the best of my knowledge . . . ." On April 15, 2009, the Hoovers named Mr. Hoover as an additional expert.

The Hoovers provided an affidavit from Mr. Hoover asserting that he is an expert based on his EMT training and stating that to the best of his knowledge the standard of care for emergency medicine had not changed and that in Ada County the standard of care mandated basic first aid.

Drs. Witte and Hunter moved for summary judgment and the district court found that the Hoovers had failed to comply with I.C. §§ 6-1012 and 6-1013. The district court further found that the Hoovers' fraud claim was barred as it was a restatement of their original malpractice claim. On June 25, 2009, the district court granted summary judgment and entered judgment. On July 7, Drs. Hunter and Witte filed a Motion for Costs and a Memorandum of Costs. As of the date of the Hoovers' appeal, the district court had not ruled on the Motion for Costs. Following a Motion for Reconsideration, the district court again heard oral argument and denied the motion. The Hoovers now appeal.

II. STANDARD OF REVIEW

"When reviewing a district court's grant of summary judgment, this Court uses the same standard a district court uses when it rules on a summary judgment motion." Arreguin v. Farmers Ins. Co. of Idaho, 145 Idaho 459, 461, 180 P.3d 498, 500 (2008) (citing Jordan v. Beeks, 135 Idaho 586, 589, 21 P.3d 908, 911 (2001)). Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the 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." I.R.C.P. 56(c). "If the moving party has demonstrated the absence of a question of material fact, the burden shifts to the nonmoving party to demonstrate an issue of material fact that will preclude summary judgment." Wattenbarger v. A.G. Edwards & Sons, Inc., No. 36245, 2010 WL 5186735 at *5 (Idaho Dec. 23, 2010) (citing I.R.C.P. 56(e)).

"Pro se litigants are held to the same standards and rules as those represented by an attorney." Twin Falls Cnty. v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003). "Furthermore, this Court has held that issues on appeal that are not supported by propositions of law or authority are deemed waived and will not be considered." Wheeler v. Idaho Dep't of Health & Welfare, 147 Idaho 257, 266, 207 P.3d 988, ...


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