BEATRICE L. SHATTO as Personal Representative of the ESTATE OF HARVEY A. WAINIO; BEATRICE L. SHATTO, individually; and JENNIFER LYNN VIVEROS, individually, Plaintiffs-Appellants,
SYRINGA SURGICAL CENTER, LLC d/b/a SYRINGA MEDICAL CENTER, Defendant-Respondent, and RICHARD M. ALLEN, D.P.M., Defendant.
Term 2016 Opinion No. 111
from the District Court of the Second Judicial District of
the State of Idaho, in and for Nez Perce County. Hon. Jeff M.
Brudie, District Judge.
judgment of the district court is affirmed.
D. Kamitomo, The Markam Group, Inc., P.S., Spokane,
Washington, argued for appellants.
W. Louvier, Evans, Craven & Lackie P.S., Spokane,
Washington, argued for respondent.
an appeal out of Nez Perce County from a summary judgment in
favor of the Defendant, Syringa Surgical Center, LLC, in a
medical malpractice action. We affirm the judgment of the
Wainio's primary care physician referred him to Dr.
Richard M. Allen, a podiatrist, because of a bunion on his
right foot. Mr. Wainio first met with Dr. Allen at his office
on January 4, 2010, and during that meeting Dr. Allen
recommended surgery. Mr. Wainio agreed to have the surgery,
and he again met with Dr. Allen at his office on January 18,
2010, for a preoperative visit. Dr. Allen performed the
surgery on January 21, 2010, at Syringa Surgical Center, LLC
("the Surgical Center"). Three days later, Mr.
Wainio began having symptoms that caused him to seek
emergency medical treatment. Due to insufficient blood flow
to his right foot and an infection, his foot became necrotic,
requiring amputation of the foot on February 3, 2010.
March 9, 2011, Mr. Wainio and Beatrice Shatto, his wife,
filed this action against Dr. Allen and the Surgical Center
seeking to recover damages. Mr. Wainio passed away on July 9,
2012. On January 15, 2013, an amended complaint was filed
substituting his estate as a party and adding a wrongful
death claim on behalf of Ms. Shatto and Jennifer Viveros, his
February or March until the first part of August in 2009, Dr.
Allen was admittedly addicted to prescription drugs. In
September, he was admitted into an inpatient treatment
program. He also signed a stipulation with the Idaho Board of
Podiatry which set forth disciplinary terms that included
treatment requirements and drug testing. Based upon that
stipulation, the Board of Podiatry issued an order effective
October 1, 2010, which set forth the agreed-upon disciplinary
terms. Dr. Allen successfully completed inpatient treatment
on November 17, 2009, and the treatment provider recommended
that he resume normal working duties on November 30, 2009. He
complied with all of the disciplinary terms ordered by the
Board of Podiatry.
September 10, 2014, the Surgical Center moved for summary
judgment. It contended that it was not liable for Dr.
Allen's alleged negligence and that no expert witness had
testified that the Surgical Center was negligent. In
response, the Plaintiffs contended that the Center was liable
for Dr. Allen's alleged negligence under the doctrines of
actual and apparent authority and that it was negligent in
failing to detect that he had, in prior years, diverted and
misused prescription drugs. The Plaintiffs also filed a
motion seeking to introduce their expert's opinion that
Dr. Allen had relapsed in January 2010.
motions were briefed and argued, and on November 26, 2014,
the district court issued its decision and order granting the
Surgical Center's motion for summary judgment. The court
stated that the only alleged negligence of Dr. Allen was the
assertion that during his two examinations of Mr. Wainio
conducted in Dr. Allen's office prior to the surgery, he
had negligently determined that Mr. Wainio had a pedal
pulse in his right foot, which is pulse of the dorsalis
pedis artery that supplies the portion of the foot on which
the surgery was performed. The court held that at the time of
the alleged negligence, Dr. Allen was not acting in the
capacity of an agent of the Surgical Center or as a member of
its medical staff.
Shatto and Dr. Allen later resolved the claims between them.
On January 26, 2015, they filed a stipulation stating that
they had resolved Ms. Shatto's claim against Dr. Allen
and that Jennifer Viveros's claims had expired as a
matter of law because she had died. On January 20, 2015, the
district court dismissed the claims against Dr. Allen, and on
January 30, 2015, it entered a judgment dismissing the claims
against the Surgical Center. Ms. Shatto then timely appealed.
the District Court Err in Concluding that Ms. Shatto's
Vicarious Liability Claim Against the Surgical Center Was
Based Solely Upon Dr. Allen's Presurgical
Examination of Mr. Wainio?
decision granting the Surgical Center's motion for
summary judgment, the district court stated that the
"Plaintiffs have alleged no negligent conduct by Dr.
Allen at any time on the day of, or during, the surgical
procedure itself." On appeal, Ms. Shatto contends that
the district court erred because she "also alleged Dr.
Allen's negligence in conducting the surgery on January
21, 2010, in the first instance" and that such
negligence "is imputed to Respondent because Dr. Allen
was either an actual or apparent agent of Respondent at the
time he performed the surgery." In her trial brief filed
on February 24, 2014, Ms. Shatto had stated under the heading
Legal Argument, "Plaintiff has the burden of proving
that Dr. Richard Allen breached the standard of care for a
podiatrist in Lewiston, Idaho on January 4, 2010, or more
specifically, during the preoperative evaluation during which
Dr. Allen purported to palpate or otherwise feel pedal pulses
in Mr. Wainio's right foot." In her pretrial
statement of claims filed on February 20, 2014, Ms. Shatto
In January 21, 2010, Dr. Allen performed surgery on Mr.
Wainio's right foot at Syringa Surgical Center to treat a
bunion. Prior to performing surgery, Dr. Allen failed to
evaluate whether Mr. Wainio had adequate blood flow or
arterial circulation to his foot to promote healing following
the bunion surgery. The failure to evaluate Mr. Wainio's
circulation was a ...