Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shatto v. Syringa Surgical Center, LLC

Supreme Court of Idaho

November 1, 2016

BEATRICE L. SHATTO as Personal Representative of the ESTATE OF HARVEY A. WAINIO; BEATRICE L. SHATTO, individually; and JENNIFER LYNN VIVEROS, individually, Plaintiffs-Appellants,

         2016 Term 2016 Opinion No. 111

         Appeal 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.

         The judgment of the district court is affirmed.

          Mark D. Kamitomo, The Markam Group, Inc., P.S., Spokane, Washington, argued for appellants.

          Markus W. Louvier, Evans, Craven & Lackie P.S., Spokane, Washington, argued for respondent.

          EISMANN, Justice.

         This is 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 district court.


         Factual Background.

         Harvey 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.

         On 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 daughter.

         From 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.

         On 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.

         The 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.

         Beatrice 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.


         Did 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?

         In its 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 stated:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.