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Ballard v. Kerr

Supreme Court of Idaho

August 4, 2016

CHARLES BALLARD, Plaintiff-Respondent,
v.
BRIAN CALDER KERR, M.D., SILK TOUCH LASER, LLP, an Idaho limited liability partnership; and SILK TOUCH LASER, LLP, an Idaho limited liability partnership, dbas SILK TOUCH MED SPA and/or SILK TOUCH MED SPA AND LASER CENTER, and/or SILK TOUCH MED SPA, LASER AND LIPO OF BOISE, Defendants-Appellants.

         2016 Opinion No. 86

         Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

         The judgment of the district court is affirmed in part and vacated in part, and the case is remanded.

          Quane Jones McColl, PLLC, Boise, for appellants. Jeremiah Quane argued.

          Bailey & Glasser, LLP, Morgantown, West Virginia, and Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for respondent. Scott McKay argued.

          J. JONES, Chief Justice

         This is an appeal from a jury verdict entered in a wrongful death action. Charles Ballard ("Charles") brought suit for wrongful death and medical malpractice against Silk Touch Laser, LLP ("Silk Touch") and its owner Dr. Brian Kerr. In 2010, Charles' wife Krystal Ballard ("Krystal") underwent a liposuction and fat transfer procedure at Silk Touch in Eagle, Idaho. Krystal died less than a week later from septic shock caused by unknown bacteria in her right buttock. Charles' suit alleged that the bacteria that caused Krystal's death were introduced into her body during the procedure at Silk Touch because certain reusable medical equipment was not properly disinfected and sterilized.

         This action first went to trial in November 2013, but ended in a mistrial. The case was retried in September 2014, and the jury returned a verdict in favor of Charles. The jury additionally concluded that Dr. Kerr and Silk Touch acted recklessly and awarded Charles $2, 540, 436 in economic damages and $1, 250, 000 in non-economic damages. After the second trial, the district court awarded Charles costs and attorney fees for the mistrial.

         Silk Touch raises twenty-one issues on appeal, challenging several of the district court's evidentiary rulings, the sufficiency of the evidence supporting the verdict, several of the jury instructions, and the district court's award of costs and attorney fees. Silk Touch also alleges that the jury verdict should be overturned because the district court permitted the jurors to submit questions to witnesses and the district court made improper comments on the evidence during trial. Charles seeks attorney fees on appeal.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         Silk Touch is a medical spa in Eagle, Idaho that performs cosmetic procedures. It was opened in 1999 by Dr. Kerr and his wife Susan Kerr. Dr. Kerr is a trained anesthesiologist. Originally, Silk Touch only offered laser hair removal, Botox treatment, and dermal fillers. However, Silk Touch began offering liposuction and fat transfers in 2007, after Dr. Kerr completed training on those procedures.

         Krystal was a 27-year-old staff sergeant in the U.S. Air Force, stationed at Mountain Home, Idaho. She lived with her husband Charles, who was also a staff sergeant with the U.S. Air Force. On July 13, 2010, Krystal went to Silk Touch for a consultation for a liposuction and fat transfer procedure. Krystal sought to have liposuction on her abdomen and flanks and have some of the fat transferred to her buttocks. She met with Dr. Kerr, who explained the procedure and determined that Krystal was a good candidate for the surgery. On July 21, 2010, Dr. Kerr performed the procedure on Krystal. During the procedure, Dr. Kerr used both disposable and reusable medical equipment.

         The reusable equipment included a Vaser handpiece, suction cannulas, and a canister. The Vaser handpiece and cannulas were used during the liposuction procedure on Krystal's abdomen. The Vaser handpiece uses ultra-sound waves to break up fat into smaller pieces and then those pieces are suctioned out using the cannulas. The Vaser handpiece was not used during the liposuction on Krystal's flanks because the fat taken was to be transferred to Krystal's buttocks. The fat from Krystal's flanks was suctioned out using the same cannulas used in the abdomen liposuction. The fat taken from Krystal's flanks was then stored in a reusable canister until it was injected into Krystal's buttocks.

         Dr. Kerr and other Silk Touch staff testified as to the procedures for disinfecting and sterilizing reusable medical equipment at Silk Touch. Dr. Kerr testified that Silk Touch did not have any written policies for disinfecting and sterilizing reusable medical equipment. The standard practice at Silk Touch for cleaning the Vaser handpiece was to wipe it down with an antiseptic wipe and then put the handpiece in an autoclave. Dr. Kerr testified that other reusable equipment, including the cannulas and canisters, were soaked in a basin with Hibiclens and water and then cleaned with a brush before being placed in the autoclave. An autoclave sterilizes medical equipment by steam cleaning at a high temperature. A series of indicators may be used to ensure the autoclave is functioning correctly, including chemical and biological indicators. Silk Touch used chemical but not biological indicators.

         After the operation, Krystal was given post-operative instructions and a post-operative appointment was set for July 23, 2010. On the morning of July 23, 2010, Susan Kerr received a call from Krystal. Krystal told Susan Kerr that she was experiencing immense pain in her buttocks, and Krystal's post-operative appointment was moved to an earlier time that day. During the appointment, Dr. Kerr examined Krystal, noting that her wounds seemed to be healing normally. Dr. Kerr testified that he did not suspect that Krystal had an infection, but he started Krystal on an antibiotic and an anti-inflammatory steroid because she complained of pain.

         Krystal's husband Charles had been out of town on a temporary duty assignment in July 2010 and was unaware of Krystal's surgery. Charles testified that he returned home on the evening of July 23, 2010. Charles further testified that throughout that evening and the next day Krystal seemed to be ill and in pain. On the evening of July 24, 2010, Krystal called Dr. Kerr, who spoke with Charles on the phone. Dr. Kerr informed Charles of the liposuction and fat transfer procedure and asked Charles to take Krystal's temperature and make sure she was taking her medication. Krystal's temperature appeared normal.

         Late that evening, Krystal woke Charles up and asked him to call 911. Krystal told paramedics who arrived on the scene that she was in pain and was having trouble breathing. Krystal was transported to Elmore Medical Center in Mountain Home. At Elmore Medical Center several tests were performed on Krystal. When the results of the tests showed that Krystal had signs of an acid-base abnormality, elevated white blood cell count, and renal failure, the emergency room physician ordered that Krystal be life-flighted to St. Alphonsus Regional Medical Center in Boise. The emergency room physician also noted several possible diagnoses for Krystal's condition, including sepsis, septic shock, and acute renal failure. Sepsis occurs when an infection causes a systemic response in a person, such as shock. When a patient goes into shock his or her blood pressure lowers, which can reduce blood flow to vital organs and lead to organ failure.

         On the morning of July 25, 2010, Krystal was admitted to St. Alphonsus. The emergency room physician noted that Krystal presented with abnormally low blood pressure, elevated heart rate, and potential multi-organ failure. The emergency room physician started treating Krystal for sepsis. Despite treatment, Krystal's condition worsened, and she was transferred to the intensive care unit ("ICU"). Krystal's condition did not improve in the ICU. Krystal showed signs of respiratory and renal failure and eventually was placed on full life support. While on life support, Krystal went into cardiac arrest multiple times. The fourth time Krystal went into cardiac arrest doctors were unable to resuscitate her. She died on the evening of July 25, 2010.

         Krystal's case was referred to the Ada County Coroner's office. Dr. Groben, a forensic pathologist, performed an autopsy on Krystal. During his examination, Dr. Groben found gram-negative rod bacteria deep in the fat tissue in Krystal's right buttock, near the injection site for the fat transfer. Dr. Groben did not note any other signs of infection or bacteria in Krystal. Based on his examination, Dr. Groben concluded that the cause of Krystal's death was sepsis with probable toxic shock syndrome from the unknown gram-negative bacteria in her right buttock.

         B. Course of Proceedings

         On March 16, 2012, Charles filed a wrongful death and medical malpractice suit against Dr. Kerr and Silk Touch (collectively "Silk Touch"). Charles alleged that reusable medical equipment used in Krystal's procedure was not properly disinfected and sterilized. Charles further alleged that because the equipment was not properly sterilized, bacteria were introduced into Krystal's right buttock during the fat transfer procedure, which caused the infection that ultimately led to Krystal's death.

         The case proceeded to a jury trial on November 5, 2013. Before trial, the district court had ruled on the parties' motions in limine. As relevant here, the district court ruled that Silk Touch could not present evidence of the absence of infection in other patients. On November 14, 2013, Silk Touch presented testimony from Dr. Stiller, its standard of care expert. During Dr. Stiller's testimony, he stated that there were no pertinent or persistent infections at Silk Touch. The court declared a mistrial, concluding that Silk Touch violated the court's order and that the violation caused substantial prejudice to Charles that could not be rectified. Charles asked the district court to award him costs and attorney fees for the mistrial. At the hearing on Charles' motion, the court awarded Charles expert-witness costs but reserved ruling on attorney fees.

         The case was retried from September 16, 2014 through October 2, 2014. The jury returned a special verdict, concluding that Silk Touch breached the standard of care for disinfecting and sterilizing medical equipment and that such breach was the proximate case of Krystal's death. The jury also concluded that Silk Touch acted recklessly and awarded Charles $2, 540, 436 in economic damages and $1, 250, 000 in non-economic damages. Judgment was entered against Silk Touch on October 15, 2014, and Silk Touch timely appealed the judgment. Charles filed a memorandum for costs and attorney fees. On February 5, 2015, the district court issued an order awarding Charles $19, 018.91 in costs as a matter of right, $54, 110.80 in discretionary costs, and $70, 566.50 in attorney fees for the mistrial. The court entered a supplemental judgment on February 13, 2015, and Silk Touch timely filed an amended notice of appeal.

         II. ISSUES ON APPEAL

         A. Whether there was sufficient evidence to support the jury's verdict:

1. Whether there was sufficient evidence to support the jury's conclusion that Silk Touch breached the applicable standard of care.
2. Whether there was sufficient evidence to support the jury's conclusion that Silk Touch's breach of the standard of care was the proximate cause of Krystal's death.
B. Whether the district court erred in its evidentiary rulings:
1. Whether the district court erred in ruling that Charles' expert, Dr. Sorensen, did not have to familiarize himself with the local standard of care.
2. Whether the district court erred in excluding Dr. Kerr's testimony on who establishes the standard of care.
3. Whether the district court erred in ruling that testimony from Silk Touch's expert, Dr. Stiller, was unnecessarily cumulative.
4. Whether the district court erred in sustaining Charles' objection to Silk Touch cross-examining Dr. Sorensen about E. coli.
5. Whether the district court erred in allowing Charles to present Dr. Kerr's answer to interrogatory no. 22 to the jury.
6. Whether the district court erred in allowing Dr. Sorensen to compare Dr. Kerr's interrogatory and deposition answers.
7. Whether the district court erred in excluding Silk Touch's Exhibits MM and NN.
8. Whether the district court erred in admitting Charles' Exhibit 5 and excluding Silk Touch's Exhibit H.
9. Whether the district court erred in excluding evidence of the absence of infection in other Silk Touch patients.
C. Whether the district court erred in its jury instructions:
1. Whether the district court improperly instructed the jury on the applicable standard of care.
2. Whether the district court gave an erroneous instruction on circumstantial evidence.
3. Whether the district court gave an erroneous instruction on negligence.
4. Whether the district court erred in submitting the issue of recklessness to the jury.
D. Whether the district court's judgment should be reversed because the court made improper comments on the evidence.
E. Whether the district court abused its discretion in permitting juror questions.
F. Whether the district court's judgment should be reversed under the doctrine of cumulative error.
G. Whether the district court abused its discretion by awarding Charles attorney fees and costs for the mistrial.
H. Whether Charles is entitled to attorney fees on appeal.

         III. ANALYSIS

         A. Whether there was sufficient evidence to support the jury's verdict.

         "This Court will not set aside a jury verdict on appeal if it is supported by substantial and competent evidence." Van v. Portneuf Med. Ctr., Inc., 156 Idaho 696, 700, 330 P.3d 1054, 1058 (2014). "[W]hen reviewing a jury verdict on appeal the evidence adduced at trial is construed in a light most favorable to the party who prevailed at trial." Id. (quoting Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 726, 735 P.2d 1033, 1037 (1987)). "The evidence supporting the jury's verdict may be contradicted, but the verdict will be upheld if it is 'of such sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper.'" Mackay v. Four Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755, 758 (2011) (quoting Mann v. Safeway Stores, Inc., 95 Idaho 732, 736, 518 P.2d 1194, 1198 (1974)). "This Court will not second guess the jury's determinations as to the weight of the evidence and witness credibility." Id.

         1. There was substantial evidence to support the jury's conclusion that Silk Touch breached the applicable standard of care.

         Idaho Code section 6-1012 requires a plaintiff bringing a medical malpractice claim to prove, by direct, competent expert testimony and by a preponderance of the evidence, that the defendant negligently failed to meet the applicable standard of health care practice. "That standard is specific to 'the time and place of the alleged negligence' and 'the class of health care provider that such defendant then and there belonged to. . . .'" Mattox v. Life Care Ctrs. of Am., Inc., 157 Idaho 468, 473, 337 P.3d 627, 632 (2014) (quoting I.C. § 6-1012). "The defendant's care is judged against 'similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any.'" Id. (quoting I.C. § 6-1012). The term "community" refers to "that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided." I.C. § 6-1012. To be considered competent, the medical expert must show that "he or she is familiar with the standard of health care practice for the relevant medical specialty, during the relevant timeframe, and in the community where the care was provided" and "must explain how he or she became familiar with that standard of care." Bybee v. Gorman, 157 Idaho 169, 174, 335 P.3d 14, 19 (2014) (internal quotation marks omitted); see also I.C. § 6-1013.

         a. There was substantial evidence to support a finding that Dr. Sorensen was familiar with the applicable standard of care.

         As a preliminary matter, Silk Touch argues extensively on appeal that the district court should have excluded testimony from Charles' standard of care expert Dr. Sorensen because he did not establish that Dr. Sorensen was familiar with the applicable standard of care. However, Silk Touch has not pointed to any instance where it asked the court to exclude the testimony of Dr. Sorensen on this basis. Silk Touch did not challenge the admissibility of Dr. Sorensen's testimony in its motions in limine. Additionally, Silk Touch does not point to any instance prior to or during trial that it raised an objection to Dr. Sorensen's testimony on the applicable standard of care because it failed to meet the foundational requirements provided in Idaho Code section 6-1013. Under Idaho Rule of Evidence 103(a), error may not be predicated on a ruling admitting evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context." Silk Touch has failed to point to a timely objection or motion to strike on the record. Therefore, we decline to address Silk Touch's arguments that the district court erred in admitting Dr. Sorenson's testimony on the standard of care.

         Additionally, there is substantial evidence in the record supporting that Dr. Sorenson was familiar with the applicable standard of care. Dr. Sorensen testified that he was familiar with the standard of care for sterilizing and disinfecting reusable medical equipment that applied to non-plastic surgeons who performed cosmetic surgeries in the Boise area in 2010. Dr. Sorensen is a cosmetic surgeon who practiced in the Boise area in 2010 and is certified in both plastic surgery and general surgery. Dr. Sorensen testified that he gained familiarity with the applicable standard of care by: (1) having worked with both plastic surgeons and non-plastic surgeons who perform cosmetic surgeries in the Boise area and observing how they sterilize equipment and (2) through his role as an inspector for the American Academy of Accrediting Surgery Centers, where he observed practices for disinfecting and sterilizing equipment in facilities performing cosmetic surgery in the Boise area when inspecting those facilities for accreditation. Although Silk Touch was not an accredited facility, Dr. Sorensen testified that based on his experience working in the Boise area, the standard of care for disinfecting and sterilizing equipment is the same for accredited and non-accredited facilities.[1] Silk Touch alleges that Dr. Sorensen lacked actual knowledge of the standard of care that applied to Dr. Kerr because Dr. Kerr was not a cosmetic surgeon and worked in Eagle rather than Boise.

         Although Dr. Sorensen is arguably of a different specialty, as he is a certified plastic surgeon and Dr. Kerr is an anesthesiologist who performs cosmetic surgery, this would not preclude Dr. Sorensen from testifying on the applicable standard of care.[2] "[I]t is unnecessary for an expert witness to be of the same specialty as the defendant so long as the expert establishes he possesses actual knowledge of the standard of care to be applied." Newberry v. Martens, 142 Idaho 284, 292, 127 P.3d 187, 195 (2005). An expert of a different specialty may obtain actual knowledge of the standard of care through interacting and practicing with physicians of the applicable specialty. Id. Dr. Sorensen stated that he was familiar with the applicable standard of care through practicing in the Boise area in 2010, interacting with both plastic surgeons and non-plastic surgeons who perform cosmetic surgery, and through inspecting facilities in the Boise area that perform cosmetic surgery.

         Additionally, Dr. Sorensen testified that he practiced at St. Luke's in Meridian, Idaho, which frequently saw patients from Eagle. Dr. Kerr also testified that Silk Touch advertised to patients throughout Boise, Nampa, Caldwell and surrounding areas. Silk Touch argues on appeal that St. Alphonsus has a hospital in Eagle, and Dr. Sorenson had not testified that he was familiar with the standard of care applied specifically in Eagle. This Court recently clarified the standard for determining the applicable community:

Rather than choosing to define community by means of distance from the nearest licensed general hospital, the legislature chose to define community by reference to the locations from which the patient base of the hospital is derived. If users of the hospital's services commonly go from one location to the place where the hospital is located, then that location falls within the geographical area which constitutes the community. As we implicitly recognized in Ramos, it is because people residing at one location may commonly use the services provided by more than one hospital, communities may overlap one another.

Bybee, 157 Idaho at 176, 335 P.3d at 21 (citing Ramos v. Dixon, 144 Idaho 32, 35, 156 P.3d 533, 536 (2007)). Evidence was presented that patients from Eagle go to hospitals in neighboring areas and Silk Touch solicited patients throughout the Boise area. Therefore, there was substantial evidence in the record to support that the applicable community included the greater Boise area.

         Based on the foregoing, there was substantial evidence to support that Dr. Sorensen was familiar with the standard of care for disinfecting and sterilizing medical equipment that applied to similarly trained and qualified providers of the same class and in the same community as Dr. Kerr.

         b. There was substantial evidence to support a finding that Silk Touch breached the applicable standard of care.

         Dr. Sorensen opined that Silk Touch breached the applicable standard of care for disinfecting and sterilizing medical equipment. Specifically, Dr. Sorensen testified that in order to meet the applicable standard of care, Silk Touch needed to follow the guidelines for disinfecting and sterilizing medical equipment provided by the Center for Disease Control ("CDC"), the Idaho Department of Health and Welfare, and the manufacturers of equipment Silk Touch used such as the Vaser handpiece. On appeal, Silk Touch argues that under Idaho Code section 6-1014, guidelines or standards established by the state or federal government cannot be used or considered as a basis for establishing an applicable community standard of care. This is inaccurate.

         Idaho Code section 6-1014(1) provides in relevant part:

In determining whether a health care practitioner has met a standard of care under this chapter or under any other Idaho statute, no criteria, guideline, standard or other metric established or imposed by the patient protection and affordable care act (PPACA), P.L. 111-148, established or imposed by or pursuant to any other law or regulation of the United States or any entity or agency thereof and used for the purpose of determining reimbursement or a rate of reimbursement for the care provided, or established or imposed by another state or by a third party payor, shall be used as a basis for establishing an applicable community standard of care.

         The plain language of this statute states that no criteria, guideline, standard or other metric shall be used to establish an applicable standard of care if the standard is: (1) established or imposed by the PPACA or any other law or regulation of the United States or an entity thereof and used for the purpose of determining reimbursement or a rate of reimbursement for the care provided or (2) established or imposed by another state or by a third party payor.[3] Section 6-1014 was expressly enacted to prevent quality metrics adopted in the Affordable Care Act or by insurers from being used to establish the standard of health care practice in Idaho. Statement of Purpose, S.B. 1355, 2014 Leg., RS Doc. No. 22854C1.[4] This statute does not apply to guidelines established by the CDC, the Idaho Department of Health and Welfare, or manufacturers of medical equipment.

         Dr. Sorensen opined that these guidelines require reusable medical equipment, such as the Vaser handpiece, cannulas, and reusable canisters used in Krystal's procedure, to be soaked in an enzymatic cleaner before such equipment is placed in the autoclave for steam sterilization. Additionally, Dr. Sorensen testified that the CDC guidelines suggest the use of biological indicators in the autoclave to ensure that the steam sterilization process is killing bacteria and that using biological indicators was the standard of practice in the Boise area in 2010.

         Throughout trial, Charles published deposition testimony from Dr. Kerr that described the procedures used at Silk Touch for disinfecting and sterilizing medical equipment. That testimony went as follows:

Question: I think you wipe down the handpiece because it can't be submerged with an aseptic wipe.
Answer: Correct.
Question: Okay. Now, what's the next step in the cleaning, disinfecting, and sterilizing the handpiece from the Vaser system?
Answer: To autoclave it, V-a-s-e-r.
Question: Okay. Is there anything between wiping down with aseptic wipes and autoclaving?
Answer: With the handpiece, no.
Question: Okay. What about the rod and cap, the wrench, the suction cannulas, and the handles and collar? Are all of those -- after you wipe them down with Hibiclens, are those cleaned, disinfected, and sterilized in the same manner?
Answer: Are they all cleaned? No.
Question: Okay. Let's separate them out. For instance, once you use the Hibiclens, as you've described with the rod, the cap, wrench, cannulas, handles, and collars, what's the next step in the cleaning, disinfecting, and sterilization process?
Answer: They are washed in a bath of Hibiclens and hot water.
. . . .
Question: Okay. Do you use any -- anything else other than Hibiclens and water to soak those particular pieces of equipment?
Answer: No.
. . . .
Question: Okay. Let me get to that. After you soak them in this water Hibiclens, you use the brush to kind of scrub off any additional debris that may be there?
Answer: Correct.
Question: All right. And then where do you go after you use a brush to scrub them off?
Answer: They are rinsed off and placed in the autoclave.
Question: Okay. Rinsed off with tap water?
Answer: Correct.
Question: All right. After you rinse them off with tap water, are they then immediately placed in the autoclave?
Answer: They are placed in the autoclave cassette, then placed in the autoclave.
. . . .
Question: Okay. Now, going back a couple of steps. As far as the Hibiclens and water, is there any type of other cleaner that is used in that process before those pieces of equipment get into the autoclave?
Answer: No.
Question: All right. Do you use any type of enzymatic cleaner in the process?
Answer: No.

         Dr. Sorensen testified that the procedures described by Dr. Kerr during his deposition do not meet the standard of care. Dr. Sorensen stated that Hibiclens is not an appropriate solution to disinfect and sterilize reusable medical equipment and that it is not approved by the CDC for such use. He further testified that the use of Hibiclens is inappropriate because it is not designed to clean or sterilize instruments, but rather is designed to remove bacteria from a person's skin before a minor surgery. Dr. Sorensen also testified that Dr. Kerr did not mention soaking reusable medical equipment in an enzymatic cleaner or other detergent.[5] Dr. Sorensen testified that the use of an enzymatic cleaner is important because its purpose is to dissolve material from the human body, known as proteinaceous debris, which cannot be removed by cleaning the equipment with a brush. Dr. Sorensen further stated that if proteinaceous debris is not removed it insulates bacteria from being killed during the steam sterilization process in the autoclave.

         During trial, Dr. Kerr and Briana Dumas testified that Silk Touch used chemical indicators in the autoclave system but not biological indicators. Dr. Sorensen opined that this fell below the standard of care. Dr. Sorensen testified that an autoclave sterilizes medical equipment by steam cleaning at a high temperature. Dr. Sorensen also stated that a series of indicators may be used to ensure the autoclave is functioning correctly, including chemical and biological indicators. Chemical indicators are used to determine whether the autoclave is reaching the required temperature for sterilization. Biological indicators are small tubes with resistant bacteria that are placed in the autoclave. If the bacteria in the tube are killed during the autoclave cycle, it indicates that the sterilization process is killing any bacteria on the equipment. Dr. Sorensen opined that the use of a biological indicator was particularly important because it was the only indicator that tested whether the autoclave was actually killing bacteria.

         The foregoing testimony provided substantial evidence to support the jury's finding that Silk Touch breached the applicable standard of care by not using an enzymatic cleaner and by not using biological indicators in its autoclave.

         2. There was substantial evidence to support the jury's finding that Silk Touch's breach of the standard of care was a proximate cause of Krystal's death.

         "In a medical malpractice case, a 'plaintiff has the burden of proving not only that a defendant failed to use ordinary care, but also that the defendant's failure to use ordinary care was the proximate cause of damage to the plaintiff.'" Easterling v. Kendall, 159 Idaho 902, 914, 367 P.3d 1214, 1226 (2016) (quoting Pearson v. Parsons, 114 Idaho 334, 339, 757 P.2d 197, 202 (1988)).

To establish proximate cause, a plaintiff must demonstrate that the provider's negligence was both the actual and legal (proximate) cause of his or her injury. Actual cause is a factual question focusing on the antecedent factors producing a particular consequence. Legal cause exists when it is reasonably foreseeable that such harm would flow from the negligent conduct.

Id. (citations and internal quotation marks omitted). Proximate cause may be proved by direct evidence or a "chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable." Weeks v. E. Idaho Health Servs., 143 Idaho 834, 839, 153 P.3d 1180, 1185 (2007) (quoting Sheridan v. St. Luke's Reg'l Med. Ctr., 135 Idaho 775, 785, 25 P.3d 88, 98 (2001)).

         At trial, Dr. Sorensen opined that Silk Touch breached the applicable standard of care for disinfecting and sterilizing medical equipment by failing to soak reusable medical equipment in an enzymatic cleaner and by not using biological indicators to ensure that the autoclave was killing bacteria. Dr. Kerr testified that reusable medical equipment was used in Krystal's procedure, including a Vaser handpiece, suction cannulas, and canisters. Dr. Kerr testified that he used the Vaser handpiece during the liposuction on Krystal's abdomen to break up fat into smaller pieces, which were then suctioned out using the cannulas. The same cannulas were used to suction fat from Krystal's flanks and that fat was stored in a canister until it was injected into Krystal's right and left buttocks.

         Dr. Sorensen stated that he reviewed Krystal's medical records from Elmore Medical Center and St. Alphonsus Regional Medical Center where treating physicians recorded that Krystal presented with extremely low blood pressure and potential organ failure and recorded sepsis and septic shock as possible diagnoses. Dr. Sorensen explained that sepsis is an infection that causes a systemic response. Dr. Sorensen further explained that septic shock is a continuation of sepsis where an infection causes the body to go into shock which causes extremely low blood pressure and decreased blood flow to vital organs. Dr. Sorensen also reviewed the autopsy report prepared by Dr. Groben, which concluded that Krystal died from septic shock and organ failure caused by gram-negative rod bacteria found in Krystal's right buttock, near the injection site for the fat transfer. Based on this information, Dr. Sorensen opined that bacteria were introduced into Krystal's buttock during the fat transfer procedure because Silk Touch failed to properly sterilize its reusable medical equipment and that bacteria caused the infection that led to Krystal's death.

         Testimony was also presented from Dr. Groben, the forensic pathologist who performed Krystal's autopsy, and Dr. Nichols, another forensic pathologist retained by Charles for this proceeding. Dr. Groben testified that he found large numbers of gram-negative rod bacteria in the subcutaneous fat in Krystal's right buttock, near the injection site of the fat transfer. Dr. Groben also testified that he found large numbers of white blood cells in that area indicating an infection. Dr. Groben further testified that there were no other signs of infection or other gram-negative rod bacteria in Krystal's body except early neutrophils in her lungs, which is common in someone who has been recently hospitalized. Dr. Groben ultimately concluded that the cause of Krystal's death was sepsis with probable toxic shock syndrome from unknown gram-negative rod bacteria.

         Dr. Nichols testified that the tissue sample taken from Krystal's right buttock during the autopsy showed evidence of a bacterial process associated with infection and that the bacteria were placed horizontally, parallel to the skin surface. Dr. Nichols found this to be significant because the bacteria did not show a vertical path from the skin, but rather, looked like they had been introduced deep into the fat tissue, parallel to the skin. Dr. Nichols opined that if the bacteria were introduced through Krystal's skin there would be signs of bacteria traveling in a vertical line from the skin to the subcutaneous tissue. Dr. Nichols further opined that the types of white blood cells in the sample showed that the infectious process had been ongoing for two to three days before Krystal died. Based on this information, Dr. Nichols concluded that the only plausible way the bacteria could have been introduced into Krystal's buttock was through the injection of contaminated fat during the fat transfer procedure performed at Silk Touch. Dr. Nichols also stated that the localized bacteria found in Krystal's buttock likely contained a toxin that caused her body to go into shock which led to the progressive failure of her vital organs. Dr. Nichols testified that these localized bacteria could cause a lethal reaction because the toxin could be diffused throughout the body without the bacteria spreading.

         As a preliminary matter, Silk Touch alleges that Dr. Sorensen's and Dr. Nichols' testimony should have been excluded because their opinions are unreliable and speculative. There is no indication in the record that Silk Touch objected to the admission to Dr. Nichols' testimony. Therefore, we affirm the district court's admission of his testimony. See I.R.E. 103(a). Silk Touch did object to the admission of Dr. Sorenson's causation opinions, but only on the basis of "lack of foundation." As we recently stated in Hansen v. Roberts, "[f]or an objection to be preserved for appellate review, either the specific ground for the objection must be clearly stated, or the basis of the objection must be apparent from the context." 154 Idaho 469, 473, 299 P.3d 781, 785 (2013) (internal quotation marks omitted). This Court has previously held "that an objection that 'no proper foundation has been laid, ' was not sufficiently specific because it failed to state 'wherein the foundation for the opinion was insufficient.'" Id. (quoting Hobbs v. Union Pac. R.R. Co., 62 Idaho 58, 74, 108 P.2d 841, 849 (1940)). Silk Touch's objection to Dr. Sorensen's causation opinions based on "lack of foundation" is not sufficient to preserve its argument on appeal that Dr. Sorensen's testimony should have been excluded because it was unreliable and speculative.

         On appeal, Silk Touch alleges that there was insufficient evidence to establish proximate cause because Dr. Sorensen's testimony did not establish that bacteria was actually on the reusable medical equipment used in Krystal's procedure. Additionally, Silk Touch argues that the evidence presented by Charles fails to establish how the bacteria actually got into Krystal's right buttock or to address why the bacteria was not also found in Krystal's left buttock if the bacteria were introduced during the fat transfer.

         Charles contends that Dr. Sorensen's testimony was sufficient to show a chain of circumstances that allowed a jury to reasonably conclude that the reusable equipment used in Krystal's procedure was contaminated because Silk Touch did not soak the equipment in an enzymatic cleaner and did not ensure bacteria were being killed in the autoclave by using biological indicators. Additionally, Charles argues that testimony from Dr. Groben and Dr. Nichols was sufficient to establish that the bacteria found in Krystal's right buttock were injected during the fat transfer because the bacteria were found deep in the fat tissue near the injection site and ran parallel to the skin.

         As this Court stated in F ...


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