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Bybee v. Gorman

Supreme Court of Idaho

September 19, 2014

SCOTT and MERI BYBEE, husband and wife, Plaintiffs-Appellants,
v.
PATRICK D. GORMAN, M.D., Defendant-Respondent, and FRED MEYER PHARMACY, FRED MEYER STORES, INC., and JOHN DOE PERSONS I through V, Defendants

2014 Opinion No. 96.

Page 15

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Darren B. Simpson, District Judge.

The judgment of the district court is vacated and the case is remanded for further proceedings.

Nalder Law Office, P.C., Idaho Falls, for appellants. G. Lance Nalder argued.

Quane Jones McColl, PLLC, Boise, for respondent. Terrence S. Jones argued.

HORTON, Justice. Chief Justice BURDICK and Justices EISMANN and W. JONES, CONCUR. JONES, Justice, specially concurring.

OPINION

Page 16

[157 Idaho 171] HORTON, Justice.

This appeal arises from a medical malpractice claim brought by Scott and Meri Bybee against Dr. Patrick Gorman. The district court granted Dr. Gorman's motion for summary judgment after concluding that the Bybees' medical expert had failed to show adequate familiarity with the applicable standard of health care practice in the relevant community as required by Idaho Code sections 6-1012 and 6-1013, rendering his opinion inadmissible. We vacate the judgment of the district court and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dr. Gorman is a board-certified cardiologist practicing in Idaho Falls. Scott Bybee sought treatment for atrial fibrillation from Dr. Gorman at Eastern Idaho Cardiology Associates in Idaho Falls in May and August of 2007. Dr. Gorman prescribed Bybee 200 mg tabs of amiodarone, a heart rhythm medication, and instructed him to take two tablets twice daily for one week and then to reduce the dose to one tablet twice daily. Dr. Gorman wrote a prescription for sixty, 200 mg tabs, with refills lasting one year.

Page 17

[157 Idaho 172] After a catheterization procedure in the fall of 2007, Dr. Gorman diagnosed Bybee with borderline two-vessel coronary artery disease. Dr. Gorman recommended continued medical therapy, including taking amiodarone, but reduced the dose to one 200 mg tab per day, unless Bybee experienced any " breakthrough symptoms," in which case he was to resume taking two 200 mg tabs per day. Bybee was instructed to return to the clinic for follow-up care in six months, or as needed, with routine lab work to be completed prior to Bybee's visit.

Bybee did not return to Dr. Gorman for a follow-up appointment, but continued taking amiodarone from August of 2007, through early 2010. Fred Meyer Pharmacy twice received Dr. Gorman's authorization to refill the amiodarone prescription at Bybee's request.

In December of 2009, Bybee began suffering from a severe cough and shortness of breath. Bybee sought treatment from Dr. Reed Ward. Analysis of Bybee's blood showed abnormally high thyroid levels. Based on the results, Dr. Ward recommended Bybee return to Dr. Gorman. Bybee made an appointment with Dr. Gorman for January 19, 2010, but that appointment was rescheduled to February 1, 2010. The February 1, 2010 appointment was canceled because Dr. Gorman was unavailable and was never rescheduled.

Thereafter, Bybee sought treatment from Dr. David Liljenquist who concluded that amiodarone was causing Bybee's thyroid problems. Dr. Liljenquist instructed Bybee to stop taking amiodarone and Bybee complied. Bybee had his thyroid surgically removed on March 9, 2010. A pathology exam revealed degenerative changes of the thyroid gland characteristic of amiodarone toxicity.

The Bybees filed their complaint on April 11, 2011, alleging that Dr. Gorman was negligent in his care and treatment of Bybee due to Dr. Gorman's failure to monitor and periodically test Bybee for adverse side effects attributable to amiodarone.[1]

Dr. Gorman filed a motion for summary judgment on August 13, 2012. The Bybees' response of October 24, 2012, was supported by the affidavit of Dr. Jeffery Osborn. In Dr. Gorman's reply, he argued that Dr. Osborn's affidavit was inadmissible as it failed to comply with the foundation requirements of Idaho Code sections 6-1012 and 6-1013, and I.R.C.P. 56(e). The Bybees moved to continue the summary judgment hearing or to supplement Dr. Osborn's affidavit on November 5, 2012. At the beginning of the hearing for summary judgment on November 7, 2012, the presiding judge disqualified himself and the motion hearing was reset to November 28, 2012.

On November 16, 2012, the Bybees submitted a Supplemental Affidavit of Dr. Osborn (the Supplemental Affidavit). On November 19, 2012, the Bybees filed a motion to shorten time so that their motion for leave to supplement Dr. Osborn's affidavit could be heard at the November 28, 2012, hearing. The district court granted this motion. At the November 28, 2012, hearing, the Bybees moved to disqualify the judge, the judge agreed, and the hearing was reset for January 2, 2013.

On December 4, 2012, the Bybees moved for the district court's consideration of additional affidavits, or in the alternative, a continuance of the summary judgment proceedings pursuant to I.R.C.P. 56(f). In this motion, the Bybees asked the district court to consider all additional affidavits filed prior to December 19, 2012, when deciding Dr. Gorman's motion for summary judgment. On December 14, 2012, the Bybees filed the affidavit of Dr. Matt Tannenbaum, who opined that Bybee's thyroid gland tissue showed changes commonly associated with amiodarone toxicity. On December 19, 2012, the Bybees filed an additional supplemental affidavit of Dr. Osborn (the Second Supplemental Affidavit). On December 20, 2012, Dr. Gorman moved to strike Dr. Tannenbaum's Affidavit, and Dr. Osborn's Supplemental and Second Supplemental Affidavits as untimely.

Page 18

[157 Idaho 173] On January 2, 2013, the district court heard Dr. Gorman's motion for summary judgment and motion to strike, along with the Bybees' motions regarding the supplemental affidavits. The district court denied Dr. Gorman's motion to strike, reasoning that despite the untimeliness of the Bybees' motion to supplement, the purpose of the time limitations established by I.R.C.P. 56(c) was fulfilled because Dr. Gorman had ample time to respond.

However, the district court concluded that Dr. Osborn's affidavits were inadmissible because they failed to demonstrate that he was familiar with the applicable standard of health care practice for the relevant community as required by Idaho Code section 6-1012. The district court found that the relevant community was Idaho Falls, and because Dr. Osborn practiced in Pocatello, not Idaho Falls, he was not qualified to testify as to the applicable standard of health care practice in Idaho Falls. Further, the district court concluded that Dr. Osborn failed to meet the foundation requirements for an out-of-area expert because Dr. Osborn failed to identify the cardiologist with whom he conferred regarding the applicable standard of health care practice in Idaho Falls. Having found Dr. Osborn's testimony to be inadmissible, the district court granted Dr. Gorman's motion for summary judgment. The district court entered a final judgment on March 5, 2013. The Bybees timely appealed.

II. STANDARD OF REVIEW

" On appeal from the grant of a motion for summary judgment, this Court utilizes the same standard of review used by the district court originally ruling on the motion." Arregui v. Gallegos-Main, 153 Idaho 801, 804, 291 P.3d 1000, 1003 (2012). Summary judgment is proper " if 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). " 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." Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 163, 45 P.3d 816, 819 (2002).

The admissibility of expert testimony offered in connection with a motion for summary judgment " is a threshold matter that is distinct from whether the testimony raises genuine issues of material fact sufficient to preclude summary judgment." Arregui, 153 Idaho at 804, 291 P.3d at 1003. When deciding whether expert testimony is admissible, " [t]he liberal construction and reasonable inferences standard does not apply." Hall v. Rocky Mountain Emergency Physicians, LLC, 155 Idaho 322, 325, 312 P.3d 313, 316 (2013) (quoting Dulaney, 137 Idaho at 163, 45 P.3d at 819). The trial court must look at the affidavit " testimony and determine whether it alleges facts which, if taken as true, would render the testimony of that witness admissible." Id. at 325-26, 312 P.3d at 316-17.

" This Court reviews challenges to the trial court's evidentiary rulings under the abuse of discretion standard." Id. at 326, 312 P.3d at 317. This Court engages in a three-part inquiry when reviewing a lower court's decision for an abuse of discretion: " (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." McDaniel v. Inland Nw. Renal Care Grp.-Idaho, LLC, 144 Idaho 219, 221-22, 159 P.3d 856, 858-59 (2007).

III. ANALYSIS

This case requires this Court to once again address the admissibility requirements for expert testimony under Idaho Code sections 6-1012 and 6-1013. The Bybees raise two main issues on appeal: First, whether the district court improperly defined the relevant community; and second, whether the district court erred in concluding that ...


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