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Samples v. Hanson

Supreme Court of Idaho

November 1, 2016

DAVID SAMPLES and JAYME SAMPLES, husband and wife, Plaintiffs-Appellants,
v.
DR. RAY W. HANSON, individually, and BMH, INC., dba BINGHAM MEMORIAL HOSPITAL, Defendants-Respondents, and JOHN DOES I-X, individuals and entities presently unknown, Defendants.

         2016 Opinion No. 113

         Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bingham County. Hon. David C. Nye, District Judge.

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

          Featherston Law Firm, Chtd., Sandpoint, for appellants. Brent Featherston argued.

          Powers Tolman Farley, PLLC, Twin Falls, for respondents. Jennifer K. Brizee argued.

          J. JONES, Chief Justice.

         David and Jayme Samples ("the Samples") appeal a grant of summary judgment in favor of Dr. Ray Hanson and Bingham Memorial Hospital in a medical malpractice action. The district court granted summary judgment after it determined that the Samples failed to establish the necessary foundation under Idaho Code sections 6-1012 and 6-1013 to admit testimony from the Samples' only medical expert. We vacate and remand.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 30, 2009, Mr. Samples was admitted to Bingham Memorial Hospital ("BMH") in Blackfoot with abdominal pain and was found to have acute cholecystitis. On October 2, Dr. Hanson performed a laparoscopic cholecystectomy on Mr. Samples. Dr. Hanson was a member of the American College of Surgeons at the time and board certified as a general surgeon from 1977 until 2008, the year prior to the surgery. During the surgery, Mr. Samples' colon was torn and repaired by Dr. Hanson. Mr. Samples later became hypoxic and experienced respiratory distress. On October 4, Mr. Samples was transferred from BMH to Portneuf Medical Center ("PMC") in Pocatello, Idaho, for a pulmonary consultation.

         Dr. Birkenhagen was a practicing surgeon at PMC in 2009 when Dr. Hanson performed the laparoscopic cholecystectomy on Mr. Samples. Dr. Birkenhagen was a member of the American College of Surgeons and board certified at the time. At PMC, Dr. Birkenhagen reopened the surgical site and discovered sepsis. Dr. Birkenhagen removed significant amounts of pus and later operated in order to repair a hole in the colon, which had allowed stool to leak out of the incision at the surgical site. The sepsis had caused Mr. Samples' respiratory distress.

         On September 27, 2011, Samples filed suit against BMH and Dr. Hanson for medical malpractice. The district court issued a scheduling order on January 30, 2013, setting the case for trial in January of 2014 and establishing a deadline of September 16, 2013 for the disclosure of the Samples' experts. The Samples retained Dr. Birkenhagen to testify that Dr. Hanson had breached the local standard of care and caused Mr. Samples' injuries. The names of the Samples' experts, including Dr. Birkenhagen, were not formally disclosed until September 20 and additional information required by the scheduling order was not provided until September 30.

         Dr. Hanson filed a motion to strike the late-disclosed experts on September 20. On October 18, Dr. Hanson filed a motion for summary judgment, contending that the Samples had no expert witness testimony to support their claims of negligence and causation. On October 24, the district court sanctioned the Samples pursuant to Idaho Rules of Civil Procedure 16(i) and 37(b)(2)(B) for failure to comply with the scheduling order. The district court limited the Samples to testimony from one expert, Dr. Birkenhagen, and only to opinions that had been disclosed by September 30, 2013, as a sanction for the Samples' failure to comply with the scheduling order and deadlines for Idaho Rule of Civil Procedure 26(b)(4) disclosures.

         Dr. Hanson deposed Dr. Birkenhagen on October 29 and shortly thereafter filed a motion to strike, arguing that the requirements of Idaho Code section 6-1013 did not permit Dr. Birkenhagen to testify as to the applicable community standard of health care practice. The district court conducted a hearing on Dr. Hanson's motions to strike and for summary judgment on November 21. The district court noted that because the Samples had only one medical expert and the statute of limitations had already run, granting Dr. Hanson's motion to strike Dr. Birkenhagen would effectively dismiss the Samples' case with prejudice. The district court and the parties agreed to treat the motion to strike as a motion for summary judgment and to continue the matter for two weeks, allowing the Samples adequate time to respond.

         On January 3, 2014, the district court granted summary judgment in favor of Dr. Hanson after concluding that the Samples could not establish the necessary foundation required by Idaho Code sections 6-1012 and 6-1013 to admit Dr. Birkenhagen's testimony. Because the district court dismissed the case on the standard of care issue, it did not reach Dr. Hanson's earlier motion for summary judgment on the issue of causation and denied that motion without deciding the issue on the merits. The Samples 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." Id. "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.'" Bybee v. Gorman, 157 Idaho 169, 173, 335 P.3d 14, 18 (2014) (quoting Arregui, 153 Idaho at 804, 291 P.3d at 1003). "When deciding whether expert testimony is admissible, the liberal construction and reasonable inferences standard does not apply." Id. (internal quotations omitted). "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. (quoting Hall v. Rocky Mountain Emergency Physicians, LLC, 155 Idaho 322, 325-26, 312 P.3d 313, 316-17 (2013)).

         "This Court reviews challenges to the trial court's evidentiary rulings under the abuse of discretion standard." Hall, 155 Idaho at 326, 312 P.3d at 317. This Court engages in a three-part inquiry when reviewing 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

         The Samples raise three issues on appeal. The first is whether the district court erred in finding that Dr. Birkenhagen was an out-of-area expert. The second is whether the district court erred in concluding that Dr. Birkenhagen failed to familiarize himself with the applicable community standard of health care practice. The third is whether the district court erred in denying the Samples' motion for relief from the pretrial order. We need address only the second issue, as the first issue has been rendered moot by our decision on the second issue and the third issue can be sorted out on remand.

         A. The district court erred in concluding that Dr. Birkenhagen failed to familiarize himself with the applicable standard of care.

         "To avoid summary judgment for the defense in a medical malpractice case, the plaintiff must offer expert testimony indicating that the defendant health care provider negligently failed to meet the applicable standard of health care practice." Dulaney, 137 Idaho at 164, 45 P.3d at 820. In medical malpractice cases, Idaho Code section 6-1012 requires a plaintiff to "prove by direct expert testimony that the defendant negligently failed to meet the applicable community standard of health care practice." Mattox v. Life Care Ctrs. of Am., ...


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