Rehearing Denied Nov. 19, 2013.
[Copyrighted Material Omitted]
Browning Law, Idaho Falls, for appellant. Alan Browning argued.
Quane Jones McColl, PLLC, Boise, for respondents. Terrence S. Jones argued.
This appeal arises from a medical malpractice claim brought against a physician's assistant, two supervising physicians, and Rocky Mountain Emergency Physicians, L.L.C. (collectively Rocky Mountain). Heather Hall presented at the emergency room complaining of headache, blurry vision, and sensitivity to light. Jeff Johnson, a physician's assistant, examined Hall. As part of his examination, he took Hall's pulse and listened to her heart through a stethoscope. Hall alleges that Johnson removed her bra without her consent and touched her inappropriately while claiming to listen to her heart. Hall's medical expert submitted an affidavit stating this conduct fell below the standard of care for a physician's assistant working in an emergency room in Pocatello. Rocky Mountain moved for summary judgment, arguing that Hall's expert's affidavit lacked proper foundation. After finding that the affidavit failed to satisfy the requirements of I.C. §§ 6-1012 and 6-1013 and was therefore inadmissible, the district court granted Rocky Mountain's motion and dismissed the action. Hall timely appealed. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2009, Heather Hall sought treatment for severe headache pain at the Portneuf Medical Center emergency room in Pocatello, Idaho. Jeff Johnson, a physician's assistant, was assigned to examine and treat her. According to Hall, Johnson informed her that she would need to undress from the waist up. She removed her shirt and put on a hospital gown but left her bra on. Johnson told her that he needed to check her heartbeat and that her bra wire was in his way. Hall's affidavit described the events that followed:
Without consent, Johnson then completely lifted my bra up and over, exposing my left breast, looked under my gown and brushed his hand over my left nipple, the [sic] continued with the stethoscope while resting his hand on my left breast for approximately 15-20 seconds, while claiming to check my heartbeat.
Based upon this conduct, Hall brought claims against Johnson, his supervising physicians Kurtis Holt and Randall Fowler, and Rocky Mountain Emergency Physicians, L.L.C. Hall's complaint asserted claims of battery, intentional infliction of emotional distress, and invasion of privacy. Rocky Mountain moved for summary judgment, arguing that Johnson had immunity from civil liability based upon I.C. § 39-1391c and that Hall's claim was governed by the expert testimony requirements of I.C. §§ 6-1012 and 6-1013. Rocky Mountain's motion for summary judgment was supported by the affidavits of Johnson, Dr. Fowler and Dr. Holt, in which they each stated that their conduct during Hall's visit to the emergency room met the applicable standard of health care practice.
In response, Hall submitted the affidavit of Dr. David Bowman, an Idaho Falls physician. In his affidavit, Dr. Bowman stated that he was familiar with the standard of care for physicians and physician's assistants working in emergency rooms in Pocatello. He explained that he had come by that knowledge by hiring a doctor from Pocatello who had emergency room privileges, personally observing the emergency room at Portneuf Medical Center, and consulting with a Pocatello emergency room physician regarding Hall's case.
Dr. Bowman also asserted that I.C. § 54-1814(22) established a statewide standard of care that Johnson violated. This statute is part of the Medical Practice Act and provides that physician assistants are subject to discipline for " [e]ngaging in any conduct which constitutes an abuse or exploitation of a patient arising out of the trust and confidence placed in the physician by the patient." I.C. § 54-1814(22). Dr. Bowman opined that every doctor in Idaho " knows that fondling a patient in the course of medical examination or treatment violates this section of the Idaho Code and subjects him or his physician assistant to discipline if he engages in it."
The district court rejected Johnson's claim of immunity based upon I.C. § 39-1391c. This ruling is not an issue in this appeal. The district court then determined that Hall's claims were governed by the requirements of I.C. §§ 6-1012 and 6-1013. Hall does not challenge this determination. The district court then held that Dr. Bowman's affidavit did not establish his familiarity with the standard of care for Pocatello emergency rooms at the time of the incident, thus rendering it inadmissible. The district court did not address Dr. Bowman's claim that I.C. § 54-1814(22) established a statewide standard of care. The district court determined that Hall had failed to demonstrate the existence of a genuine issue of material fact and that Rocky Mountain was entitled to a grant of summary judgment and dismissed Hall's complaint.
On appeal, Hall argues that Dr. Bowman's affidavit was adequate to demonstrate his familiarity with the standard of care for Pocatello physicians and physician's assistants working in emergency rooms in June of 2009. She further argues that groping a patient during a medical exam violates the statewide standard of care established by I.C. § 54-1814(22).
II. STANDARD OF REVIEW
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. Kolln v. Saint Luke's Reg'l Med. Ctr., 130 Idaho 323, 940 P.2d 1142 (1997); Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994). When considering whether the evidence in the record shows that there is no genuine issue of material fact, the trial court must liberally construe the facts, and draw all reasonable inferences, in favor of the nonmoving party. Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 942 P.2d 544 (1997). 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. Kolln v. Saint Luke's Reg'l Med. Ctr., 130 Idaho 323, 940 P.2d 1142 (1997); Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994). The trial court must look at the witness' affidavit or deposition testimony and determine whether it alleges facts which, if taken as
true, would render the testimony of that witness admissible. Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994). This Court reviews challenges to the trial court's evidentiary rulings under the abuse of discretion standard. Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000).
Dulaney v. St. Alphonsus Reg'l Med. Ctr.,
137 Idaho 160
45 P.3d 816
A. The district court did not abuse its discretion by holding that Dr. Bowman's affidavit lacked ...