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Franz v. Scott H. Pressman

May 25, 2011


Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Honorable Patrick H. Owen, District Judge. The judgment of the district court is affirmed.

The opinion of the court was delivered by: J. Jones, Justice.

2011 Opinion No. 58

Stephen W. Kenyon, Clerk

This is a medical malpractice case arising from a cataract operation performed by Dr. Scott Pressman on plaintiff-appellant Franz Suhadolnik. The Suhadolniks appeal the district court's summary judgment order in favor of Respondents based on its determination that the Appellants' expert, Dr. Hofbauer, failed to adequately inform himself on the local standard of care. We affirm.

I. Factual and Procedural History

Appellant Franz Suhadolnik argues that his cataract surgeon, Dr. Pressman, failed to adequately inquire about his prior use of the prescription drug Flomax,*fn1 which resulted in increased risks during surgery and a lack of informed consent. Suhadolnik further argues that, as early as 2005, there were indications in medical journals and an advisory from the Food and Drug Administration (FDA)*fn2 that prior use of Flomax puts patients at risk of greater complications during cataract surgery.*fn3

Suhadolnik met with Dr. Pressman at The Eye Associates in Boise, in October of 2005, to discuss the possibility of cataract surgery. During this visit, Dr. Pressman performed an eye exam, and informed Suhadolnik that he would need cataract surgery at some point in the future. Suhadolnik completed a medical history form during the visit, which did not list Flomax as a current medication. Suhadolnik testified that this description was accurate because he started taking the medication in December of 2005 (two months after the October visit), pursuant to a prescription from his personal care physician, Dr. Paris. After experiencing several ill side effects, Suhadolnik quit taking Flomax in approximately January of 2006, but resumed use of the prescription in a lesser dosage after the cataract surgery with Dr. Pressman.

Suhadolnik elected to forgo cataract surgery until May of 2006, when he contacted The Eye Associates and was informed he needed a clearance for surgery from his physician. Dr. Paris performed this exam on May 25, 2006, and cleared him for surgery. The first page of the document created during this exam lists "current medications" taken by Suhadolnik as:

Simvastatin, Cyclocort, Lisinopril, and "FLOMAX 0.4MG, 1 TAB QD-days, 30, Ref: 11." Flomax is also separately identified as a prescription on the second page. Dr. Pressman testified that this document was in his file, and presumably available to him prior to the surgery, but that he had no recollection of reviewing it prior to Suhadolnik's surgery.

On May 30, 2006, Suhadolnik went to The Eye Associates for a pre-operation visit. During this visit, Suhadolnik completed another medical history form, and signed consent forms. The medical history form asked the patient to "List all meds and dosages you use," and only Zocor and Lisinopril were identified in response. The additional paperwork completed during this visit included an informed consent form for the cataract surgery, which warned that: 1) the results of the surgery could not be guaranteed; 2) complications of the surgery to remove the cataract could make vision in the eye worse; and 3) lens implantation may include loss of corneal clarity, infection, an inability to dilate the pupil, and dislocation of the lens and retina. Yet another form identified the risks of anesthesia.

Dr. Pressman performed the cataract surgery on May 31, 2006. During the surgery, Suhadolnik's lens capsule came out of position allowing vitreous fluid to come into the anterior chamber of the eye. Pressman removed the fluid and placed an intraocular lens in the anterior portion of the eye; however, the preferable position for the lens is in the posterior position of the eye. After the surgery, Dr. Pressman asked Suhadolnik about prior use of Flomax, or a similar medication, that could cause a floppy iris such as was experienced during Suhadolnik's surgery. According to Dr. Pressman, this was the first time he learned of Suhadolnik's prior use of Flomax. Suhadolnik underwent additional surgery in 2007, but remains "legally blind in the affected eye."

Franz and Betty Suhadolnik filed this action in May of 2008, alleging that the defendants provided negligent care in the performance of Suhadolnik's cataract surgery. They also allege that the defendants failed to obtain Suhadolnik's informed consent as required by I.C. §§ 39- 4501 through 39-4507. The defendants moved for summary judgment arguing that: 1) Dr. Pressman's affidavit was sufficient to shift the burden to the plaintiff to demonstrate that a material fact existed regarding a breach of the local standard of care; and 2) Dr. Pressman obtained the requisite consent from Suhadolnik prior to surgery because the risks of Flomax were inconclusive at the time of the surgery. In response, the Suhadolniks submitted the affidavit of Dr. Hofbauer in support of their argument that Dr. Pressman failed to meet the local standard of care and failed to obtain Suhadolnik's informed consent. However, the district court determined that Dr. Hofbauer's affidavit was inadmissible because he failed to demonstrate actual knowledge of the local standard of care and, therefore, granted summary judgment to the defendants on both counts. The Suhadolniks appealed to this Court.

II. Issues on Appeal

I. Whether the district court abused its discretion in excluding Dr.Hofbauer's affidavit on the ground that he did not demonstrate actual knowledge of the local standard of care?

II. Whether the Suhadolniks waived any arguments concerning their informed consent claims because they failed to separately address them in briefing?

III. Whether the Respondents are entitled to attorney fees on appeal?


A. Standard of Review

Before determining whether there is sufficient evidence to raise a genuine issue of material fact to preclude summary judgment, this Court must first address the admissibility of expert testimony. Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 163, 45 P.3d 816, 819 (2002).

The admissibility of the expert testimony is an issue that is separate and distinct from whether that testimony is sufficient to raise genuine issues of material fact sufficient to preclude summary judgment. . The liberal construction and reasonable inferences standard does not apply, however, when deciding whether or not testimony offered in connection with a motion for summary judgment is admissible.

Id. (internal citations omitted).

When analyzing whether testimony offered in connection with a motion for summary judgment is admissible, this Court applies an abuse of discretion standard. An abuse of discretion review requires a three-part inquiry: (1) whether the lower court rightly perceived the issue as one of discretion; (2) whether the court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason. A district court's evidentiary rulings will not be disturbed by this Court unless there has been a clear abuse of discretion.

McDaniel v. Inland Northwest Renal Care Group-Idaho, LLC, 144 Idaho 219, 221-22, 159 P.3d 856, 858-59 (2007) (internal citations omitted).

B. The district court did not abuse its discretion in holding that Dr. Hofbauer failed to demonstrate actual knowledge of the local standard of care.

A precondition to the admission of testimony by a medical expert in a malpractice case is that the expert familiarize himself with the local standard of practice or care for the medical practice field at issue in the case. I.C. § 6-1013. The Suhadolniks contend that their medical expert, Dr. Hofbauer, adequately familiarized himself with the standard of care for ophthalmologists practicing in Boise by reviewing the deposition of Dr. Pressman. They point out that Dr. Pressman testified in his deposition that the standard of care requires the taking of an adequate patient history, keeping current with medical literature and FDA advisories and advising patients of the risks and complications of the surgical procedure at issue so that they may make an informed decision as to whether to proceed. They contend that Dr. Hofbauer based his testimony on these standards and that the district court erred in concluding otherwise. Furthermore, they point to inconsistencies between Dr. Pressman's deposition testimony and statements in his affidavit, contending that the district court erred in failing to take the inconsistencies into account in determining the inferences to be drawn from his testimony.

Respondents argue that Dr. Hofbauer failed to demonstrate how he familiarized himself with the local standard of care, pointing out that Dr. Pressman's deposition did not provide sufficient information regarding any relevant standard of care. Respondents also argue that there is no evidence that a local standard has been replaced by state or federal regulatory standards such that Dr. Hofbauer's knowledge of the national standards would be sufficient to define the local standard of care. Finally, Respondents argue that resolution of the question of the admissibility of expert testimony is a precursor to applying the liberal construction rules pertaining to a summary judgment motion, and that the district court did not improperly weigh conflicting evidence.

The district court determined that the defendants met their initial summary judgment burden by providing Dr. Pressman's affidavit, wherein he testified that he was familiar with the local standard of care for ophthalmology and cataract surgery in May of 2006 and that he did not breach that standard.*fn4 However, the court determined that the Suhadolniks' affidavit, submittedby Dr. Hofbauer, was inadmissible because Dr. Pressman's deposition did not contain information regarding the local standard of care "concerning precautions due to past use of the medication Flomax." The court specifically noted that Dr. Pressman testified in his deposition that he was not aware of a standard of practice regarding Flomax and was not aware of a standard requiring disclosure of increased risks for prior use of Flomax. Therefore, Dr. Hofbauer's reliance on Dr. Pressman's deposition was insufficient to familiarize himself with the local standard of care and his affidavit was inadmissible. Because no other evidence had been submitted, the court granted the Respondents' motion for summary judgment on the medical malpractice claim. For the same reasons, the court also granted summary judgment to the Respondents on the informed consent claim.*fn5

In order to avoid summary judgment in a medical malpractice case, a plaintiff must provide expert testimony that the defendant doctor, or other health care provider, "negligently failed to meet the applicable standard of health care practice." Dulaney, 137 Idaho at 164, 45 P.3d at 820. In order for expert testimony to be admissible in a medical malpractice claim, the party must demonstrate:

(a) that such opinion is actually held by the expert witness; (b) that the expert witness can testify to the opinion with a reasonable degree of medical certainty;

(c) that the expert witness possesses professional knowledge and expertise; and

(d) that the expert witness has actual knowledge of the applicable community standard of care to which his expert ...

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