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Janet Bell Nightengale v. Kevin Matthew Timmel

July 11, 2011


Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

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

2011 Opinion No. 83

Stephen W. Kenyon, Clerk

The verdict is affirmed. The award of discretionary costs for expert witness fees is vacated. No attorney fees or costs are awarded on appeal.


Janet Bell Nightengale brought a medical malpractice action against Dr. Kevin Timmel, an emergency room doctor who treated her in July 2007. Dr. Timmel failed to diagnose a clot in one of Nightengale's vascular arteries. That condition cut off circulation to Nightengale's left arm, eventually requiring its amputation above the elbow. At trial, the jury returned a special verdict finding that Dr. Timmel had not breached the relevant standard of care in his treatment of Nightengale.

Nightengale appeals that verdict, arguing the trial court erred in: (1) determining that two letters sent by the doctor who performed the amputation on Nightengale were not admissible for any purpose under Idaho's peer-review statutes; (2) admitting testimony regarding Nightengale's drug and alcohol use in 2009; (3) admitting expert testimony regarding Nightengale's decreased life expectancy due to her homelessness; (4) including Nightengale on the special verdict form; (5) requiring expert testimony in order to instruct the jury on recklessness; and (6) failing to strike a prospective juror for cause. She also challenges the district court's award of expert witness fees to Dr. Timmel as discretionary "exceptional" costs. We affirm the jury's verdict, but vacate the district court's award of discretionary expert witness fees.


This is a medical-malpractice action brought by Janet Bell Nightengale. In 2007, Nightengale was a homeless woman living in Boise, Idaho. She had a history of drug use and suffered from Hepatitis B and C.

On June 1, 2007, Nightengale was admitted to the Emergency Room at St. Luke's Regional Medical Center in Boise, Idaho (St. Luke's) with left-arm pain. Nightengale refused medical treatment and was discharged pursuant to the signing of a release acknowledging that she was leaving against medical advice.

On June 18, 2007, Nightengale returned to the St. Luke's Emergency Room with left-arm pain and neck pain. Dr. Jack Trainer performed some diagnostic tests, and discharged Nightengale with a diagnosis of radiculopathy (a compressed nerve in the spine), neck pain, alcohol withdrawal, and cervical degenerative disk disease. He treated her with ice packs and other anti-inflammatory and pain medication.

Nightengale was admitted to the Emergency Room at St. Alphonsus Regional Medical Center in Boise (St. Al's) on July 11, 2007, again complaining of left-arm and left-shoulder pain. She was seen by Dr. Jason Quinn. Nightengale was discharged with a diagnosis of "left arm pain" and treated with pain medication. She was also referred to the Terry Reilly Clinic in Boise to obtain a primary physician.

Five days later, on July 16, 2007, Nightengale went to the St. Luke's Emergency Room where she was seen by Dr. Kevin Timmel, the Respondent, for her left-arm pain. Nightengale told Dr. Timmel that she had been assaulted about two months earlier and had been experiencing the pain since then. Dr. Timmel performed a visual exam of Nightengale's arm but Nightengale pulled back when he attempted to perform a physical exam. Eventually Nightengale allowed Dr. Timmel to physically examine her shoulder, where the pain was not as intense, but the exam was not completed because as Dr. Timmel moved down toward the elbow Nightengale began to cry and pull away.

Dr. Timmel administered morphine to Nightengale, ordered and reviewed x-rays, and determined that a bone injury was not likely. Dr. Timmel concluded that the most likely cause of the lump of soft tissue on Nightengale's left arm was a muscle tear. Dr. Timmel did not order any vascular studies, but stated that he considered vascular issues as a potential cause of her pain. He determined that given the information he had gathered, a vascular cause was exceedingly unlikely. Before Nightengale was discharged, Dr. Timmel ordered a sling for her and instructed her to follow up with an orthopedic specialist, Dr. Shea, the same week, which she did not do. He also told her to come back to the emergency room immediately if her condition got any worse, which she also admittedly did not do.

Four days after that visit, Nightengale went to her already scheduled appointment at the Terry Reilly Clinic in Boise. The nurse practitioner and doctor there told her to go immediately to the St. Luke's Emergency Room. At St. Luke's, Nightengale was seen by Dr. Dominic Gross, who performed a physical examination of her arm and told her he would have to amputate it. Nightengale was diagnosed with a clot of the subclavian artery which had caused her to have no blood circulation to her left arm or hand. The above-elbow left-arm amputation was performed that day by Dr. Gross at St. Al's.

Nightengale filed a complaint against Dr. Timmel and Dr. Jason Quinn, as well as Idaho Emergency Physicians, P.A., an association which provides physician staffing of hospital emergency departments in Boise; and both St. Luke's and St. Al's in their corporate capacities. She alleged that Dr. Timmel and Dr. Quinn engaged in medical malpractice in their treatment of her. In her Amended Complaint Nightengale removed St. Luke's and St. Al's from the case caption and added Emergency Medicine of Idaho, P.A., as a defendant. Prior to trial, the parties stipulated to the dismissal of Dr. Quinn, Idaho Emergency Physicians, P.A., and Emergency Medicine of Idaho, P.A.

The case went to trial with Dr. Timmel as the sole defendant. The jury found on a special verdict form that Dr. Timmel did not breach the standard of care in his treatment of Nightengale. The court entered judgment to this effect and awarded Dr. Timmel $12,750.56 as costs as a matter of right and $20,973.45 as ...

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