JAYMIE QUIGLEY, an individual, and PAXTON QUIGLEY, an individual, Plaintiffs-Respondents,
TRAVIS KEMP, an individual, Defendant-Appellant, and SAINT ALPHONSUS REGIONAL MEDICAL CENTER, Inc., an Idaho corporation, and CHRISTOPHER TOBE, an individual, Defendants.
Opinion No. 44
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Richard Greenwood,
order of the district court is vacated, and the case
Scanlan & Hall, PLLC, Boise, for appellants. Keely E.
Rainey Hudson, Boise, for respondents. Rebecca A. Rainey
case involves a thorny discovery dispute in a medical
malpractice case. The issue to be decided is whether a
plaintiff must disclose the identity of a non-testifying
medical expert who has been consulted by a testifying expert
to familiarize the testifying expert with the applicable
local standard of care. This issue has been addressed by
district courts, but this Court has never ruled on it. The
district court held that Rule 26(b)(4)(B) of the Idaho Rules
of Civil Procedure shielded the Quigleys from disclosing the
identity of the non-testifying medical expert. Defendant Dr.
Travis Kemp was granted a permissive, interlocutory appeal to
resolve this issue.
FACTUAL AND PROCEDURAL BACKGROUND
Jaymie and Paxton Quigley brought this medical malpractice
action against Dr. Travis Kemp, a board-certified orthopedic
surgeon, Dr. Christopher Tobe, a board-certified emergency
medicine physician, and Saint Alphonsus Regional Medical
Center ("SARMC"). Dr. Kemp performed surgery on
Mrs. Quigley's right ankle and placed a temporary splint
over her right foot. Following surgery, Mrs. Quigley suffered
several acute pain episodes. Allegedly, SARMC's nursing
staff expressed reservations about Mrs. Quigley being
discharged with uncontrolled pain, but told Mrs. Quigley that
Dr. Kemp would not keep her any longer in the hospital. Mrs.
Quigley was discharged.
hours after being discharged, Mrs. Quigley went back to the
SARMC emergency room because of severe pain. Dr. Tobe
examined her and admitted her to the hospital. Once admitted,
a nurse cut the splint away from Mrs. Quigley's foot,
providing Mrs. Quigley with immediate relief. Dr. Kemp
examined Mrs. Quigley and noted that the pressure from the
postoperative splint caused permanent damage to her foot that
would require future treatment. The Quigleys later brought
this malpractice action.
after receiving the complaint, Dr. Kemp sent the Quigleys the
following interrogatory requesting the identity of any
medical providers who were called to familiarize an expert
witness with the local standard of care:
INTERROGATORY NO.5: Do you intend to call any person as an
expert witness at trial? If so, with regard to each such
(a) the name, address, telephone number, employer and job
title or ...