DAVID SAMPLES and JAYME SAMPLES, husband and wife, Plaintiffs-Appellants,
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.
Opinion No. 113
from the District Court of the Seventh Judicial District of
the State of Idaho, Bingham County. Hon. David C. Nye,
judgment of the district court is vacated and the case is
Featherston Law Firm, Chtd., Sandpoint, for appellants. Brent
Tolman Farley, PLLC, Twin Falls, for respondents. Jennifer K.
JONES, Chief Justice.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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
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
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)
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
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
STANDARD OF REVIEW
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).
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,
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).
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.
The district court erred in concluding that Dr.
Birkenhagen failed to familiarize himself
with the applicable standard of care.
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."
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