BARBARA MORRISON, for herself, and as personal representative and as Guardian Ad Litem for her minor children, GRANT MORRISON and KATIE MORRISON, Plaintiffs-Appellants,
ST. LUKE'S REGIONAL MEDICAL CENTER, LTD.; JOACHIM G. FRANKLIN, M.D.; and EMERGENCY MEDICINE OF IDAHO, P.A., Defendants-Respondents.
Opinion No. 79
from the District Court of the Fourth Judicial District of
the State of Idaho, in and for Ada County. Hon. Richard D.
Greenwood, District Judge.
judgment of the district court is affirmed.
W. Lojek, Lojek Law Offices, Boise, argued for appellants.
Randall L. Schmitz, Gjording Fouser PLLC, Boise argued for
respondent St. Luke's Regional Medical Center, Ltd.
L. Cannon, Powers Tolman Farley PLLC, Twin Falls, argued for
respondents Joachim Franklin, M.D., and Emergency Medicine of
an appeal out of Ada County from a judgment in favor of the
defense in a medical malpractice case following a jury trial.
We affirm the judgment.
December 26, 2011, Mitchell Morrison arrived at the emergency
department of St. Luke's Regional Medical Center, Ltd.
("St. Luke's"), in Meridian, complaining of
chest pains. He was seen by Joachim G. Franklin, M.D.
("Dr. Franklin"), who took a history, conducted a
thorough physical examination, and ordered the appropriate
tests. Based upon the results, he correctly determined that
Mr. Morrison was not having a heart attack and was safe and
stable for discharge from the emergency department. However,
Dr. Franklin recommended that Mr. Morrison contact a
cardiologist the next morning to schedule an appointment and
provided him with the cardiologist's name and contact
information. Dr. Franklin also recommended that Mr. Morrison
contact his primary care physician, and the emergency
department faxed its documentation to that physician the
following day. That physician's medical assistant called
Mr. Morrison's telephone number and left a message to
schedule an appointment, but he did not do so.
December 27, 2011, Barbara Morrison, Mr. Morrison's wife,
called for an appointment with the cardiologist, and the
telephone was answered by a scheduler for St. Luke's. The
scheduler stated that the first available appointment for the
cardiologist was in four weeks. Mrs. Morrison requested an
earlier appointment, and she was given an appointment in
three weeks with another St. Luke's cardiologist. On
January 11, 2012, Mr. Morrison died from a heart attack.
10, 2013, Mrs. Morrison, on her behalf and on behalf of her
minor children, filed a wrongful death action against St.
Luke's and Dr. Franklin. On December 23, 2013, Mrs.
Morrison filed a separate wrongful death action against
Emergency Medicine of Idaho, P.A. ("Emergency
Medicine"), Dr. Franklin's employer. On February 5,
2014, the district court entered an order consolidating the
second lawsuit with the first.
Morrison contended that St. Luke's and Emergency Medicine
were liable based upon their own negligence and the imputed
negligence of Dr. Franklin. St. Luke's and Emergency
Medicine both filed motions for partial summary judgment
seeking dismissal of the claims that they were negligent, and
the district court granted those motions. The case was tried
to a jury, which found that Dr. Franklin had not failed to
meet the applicable standard of health care practice. Mrs.
Morrison then timely appealed.
Did the District Court Err in Granting Emergency
Medicine's Motion for Partial Summary Judgment?
the issues to be tried was whether Dr. Franklin had violated
the local standard of care by failing to properly indicate on
an emergency-room record that he wanted Mr. Morrison to be
seen promptly by a cardiologist. The schedulers were trained
to look at a place on the record under the heading
"Disposition" to see whether the referring
physician specified a time frame within which the patient was
to be seen by a cardiologist. The cardiologists set aside two
30-minute slots per day for urgent appointments. If there was
a time frame specified, the schedulers would look for a time
slot for urgent appointments that was within the specified
time frame. If there was no time frame specified, the
schedulers would schedule the appointment at the next
available opening for non-urgent appointments.
Franklin did not specify in the emergency-room record a time
frame within which he wanted Mr. Morrison to be seen by the
cardiologist. He wrote that Mr. Morrison should contact the
cardiologist the following day. Dr. Franklin testified that
in his experience, a referral from an emergency-room
physician received an expedited appointment. Because Dr.
Franklin did not specify a time frame, the scheduler did not
give Mrs. Morrison an expedited appointment for her husband.
Mrs. Morrison contended that Emergency Medicine was negligent
for failing to ensure that Dr. Franklin knew of the proper
way to specify in the emergency-room record that he wanted
Mr. Morrison to be seen promptly. Her assertion was that had
Dr. Franklin made the proper notation on the record, the
scheduler to whom Mrs. Morrison talked would have given Mr.
Morrison an expedited appointment with the cardiologist in
time for the cardiologist to have diagnosed Mr.
Morrison's condition and taken steps to prevent the heart
October 3, 2013, the parties filed a Stipulation for
Scheduling and Planning, which set forth deadlines for
various actions in the litigation. With respect to Mrs.
Morrison's expert witnesses, one of the deadlines was
that 200 days before trial she was to "disclose all
information required by Rule 26(b)(4), " which would
have included "[a] complete statement of all opinions to
be expressed and the basis and reasons therefore; [and] the
data or other information considered by the witness in
forming the opinions, " I.R.C.P. 26(b)(4)(A)(i) (2013).
On February 4, 2014, Mrs. Morrison provided her disclosure,
which included a statement that an out-of-state expert would
testify that it was the duty of Emergency Medicine "to
ensure that the process [used by St. Luke's for referring
patients to cardiologists] was being followed by its
physician employees rather than to allow mere assumptions to
control the expected continuum of care." However, the
disclosure did not state that the expert's opinion was
based upon the applicable standard of care as defined in
Idaho Code sections 6-1012 and 6-1013 or how the expert
became familiar with that standard of care.
14, 2014, months after Mrs. Morrison's deadline for
disclosing the information about her experts, Emergency
Medicine filed a motion for partial summary judgment seeking
to dismiss the claim that it was negligent on three grounds:
(1) there was no showing that Emergency Medicine owed Mr.
Morrison any direct duty; (2) there was no evidence that
Emergency Medicine breached the applicable standard of health
care practice; and (3) there was no evidence that any alleged
negligence of Emergency Medicine caused Mr. Morrison's
death. With respect to the alleged breach of the applicable
standard of health care, Emergency Medicine argued that Mrs.
Morrison could not present any admissible testimony that
Emergency Medicine breached any standard of health care
applicable to it as an entity.
response to the motion for partial summary judgment, Mrs.
Morrison presented the deposition testimony of her
out-of-state expert. In his deposition, he was asked,
"It's my understanding it's your opinion that
Dr. Franklin and EMI [Emergency Medicine] should have ensured
there was a referral process in place that was understood by
everyone in their group; correct?" The expert responded,
expert also testified that he had consulted with a Dr. Kim, a
local emergency-room physician, about the applicable standard
of care for emergency-room physicians. The expert testified
that Dr. Kim told him that the standard of care for
emergency-room physicians was the national standard and that
the local standard of care did not deviate from the national
standard. The expert stated that he did not discuss the
specifics of the case with Dr. Kim, but only discussed
generalities about the care provided by Dr. Franklin. The
expert's deposition testimony indicated that he had not
talked with Dr. Kim about the standard of care of entities
such as Emergency Medicine. The following exchange then
Q. Did you talk with Dr. Kim about referrals to specialists
during this conversation?
A. I didn't get into the specifics of this case.
Q. Did you get into any specifics such as the medical records
or a physician's duty as far as what information should
be included in the medical records, for example?
A. I did not get into that kind of detail at all.
Q. So other than the completion of a chest pain workup, do
you recall if you had any other specific discussions with Dr.
Kim relative to this case?
the expert had not testified to any facts showing that he had
knowledge of an applicable standard of care for entities such
as Emergency Medicine with respect to training their employee
physicians. Emergency Medicine filed a motion to strike the
expert's opinion regarding Emergency Medicine's
alleged negligence because there was no showing of the
foundation required by Idaho Code section 6-1013.
the oral argument, the district court took up the motion to
strike before hearing argument on the motion for partial
summary judgment. Mrs. Morrison's counsel admitted that
there was nothing in the expert's deposition regarding
his knowledge of the applicable standard of care with respect
to Emergency Medicine. The following dialogue occurred
between the court and Mrs. Morrison's counsel, Mr. Lojek:
MR. LOJEK: And he [the out-of-state expert] addresses EMI
[Emergency Medicine] and he says that both EMI and Dr.