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Morrison v. St. Luke's Regional Medical Center, Ltd.

Supreme Court of Idaho

July 22, 2016

BARBARA MORRISON, for herself, and as personal representative and as Guardian Ad Litem for her minor children, GRANT MORRISON and KATIE MORRISON, Plaintiffs-Appellants,
v.
ST. LUKE'S REGIONAL MEDICAL CENTER, LTD.; JOACHIM G. FRANKLIN, M.D.; and EMERGENCY MEDICINE OF IDAHO, P.A., Defendants-Respondents.

         2016 Opinion No. 79

         Appeal 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.

         The judgment of the district court is affirmed.

          Donald 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.

          Nicole L. Cannon, Powers Tolman Farley PLLC, Twin Falls, argued for respondents Joachim Franklin, M.D., and Emergency Medicine of Idaho, P.A.

          EISMANN, Justice.

         This is 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.

         I. Factual Background.

         On 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.

         On 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.

         On June 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.

         Mrs. 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.

         II. Did the District Court Err in Granting Emergency Medicine's Motion for Partial Summary Judgment?

         One of 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.

         Dr. 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 attack.

         On 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.[1]

         On May 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.

         In 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, "Correct."

         The 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 occurred:

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?
A. No.

         Thus, 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.

         During 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. ...

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