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Eldridge v. West

Supreme Court of Idaho

December 20, 2019

PHILLIP ELDRIDGE and MARCIA ELDRIDGE, husband and wife, Plaintiffs-Appellants,

          Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Richard T. St. Clair, Senior District Judge.

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

          Cooper & Larsen, Chartered, Pocatello, for appellants. Javier Gabiola argued.

          Hawley Troxell Ennis & Hawley, LLP, Pocatello, for respondents. Julian E. Gabiola argued.


         This is a permissive appeal brought by Phillip and Marcia Eldridge[1] in a medical malpractice action brought by them against Dr. Gregory West (West), Lance Turpin, PA-C (Turpin), and Summit Orthopaedics Specialists, PLLC (Summit). The Eldridges allege that Phillip became infected with Methicillin-Resistant Staphylococcus Aureus (MRSA) as a result of malpractice committed by West, Turpin, and agents of Summit. The Eldridges claim West and Turpin breached the standard of care that was due them and as a result, sustained damages. The district court granted various motions, including a motion to dismiss certain causes of action against West, Turpin, and Summit, as well as a motion for summary judgment brought by Turpin and Summit, and a motion for partial summary judgment brought by West.

         In their appeal, the Eldridges contend that the district court erred in (1) dismissing their claims for negligent and intentional infliction of emotional distress, gross negligence, and reckless, willful, and wanton conduct; (2) denying their motion to strike the affidavits of West and Turpin; (3) limiting their claim for damages; and (4) concluding that the Eldridges could only present evidence of damages, specifically medical bills, after the Medicare write-offs had been calculated. For the reasons set out in this opinion, we vacate the district court's decisions and remand.

         I. Factual and Procedural Background

         A. Phillip's hip replacement surgery and subsequent complications.

         Phillip began complaining of hip problems in the summer of 2009, which resulted in West performing hip replacement surgery on Phillip's right hip in October 2009. In the fall of 2011, Phillip began experiencing pain in that hip. In April 2012, Phillip underwent another surgery to loosen a tendon to relieve some of the on-going pain. Following the April surgery, Phillip underwent aspirations of his hip to determine whether he was suffering from bacterial growth. When the fluid samples were cultured, there was no infection evident. Phillip continued to complain of pain. In October of 2012, he underwent a CT scan to determine whether there were loose components in his artificial hip. The results of the CT scan indicated an absence of loose components. Phillip underwent additional aspirations of the hip twice in October 2012, neither of which showed any bacterial growth. Despite the negative tests, Phillip was placed on antibiotics.

         On October 29, 2012, West performed what he later described as exploratory surgery on Phillip's hip. West's putative goal was to determine the source of Phillip's pain, as well as the potential replacement of components if an infection were found. All of the test results from the samples sent to the pathology department indicated there was no infection in the hip. (Because Phillip was receiving antibiotics at the time, the likelihood of the test being positive was greatly diminished.) Rather than explant the hip in its entirety, West replaced only the metal ball at the head of the femur with a ceramic ball. Following the October 29 surgery, Phillip experienced numerous adverse complications. He dislocated his hip three separate times between November 4 and November 6, 2012. As a result, West performed another revision surgery on December 3, 2012.

         On December 18, 2012, Phillip arrived at the emergency room at Eastern Idaho Regional Medical Center in an "altered mental state." The following day, West again performed surgery on the hip and discovered a large pocket of blood near, but not in, the hip joint. West cleaned the region, placed antibiotic beads in the area, and began administering intravenous antibiotics to Phillip.

         Phillip was diagnosed with MRSA on December 20, 2012. During December 2012 and January 2013, Phillip underwent multiple procedures in an effort to eradicate the MRSA from the hip joint. These procedures included surgeries and aspirations. The treatment Phillip received did not resolve his MRSA. Consequently, on March 2, 2013, West recommended explantation of the entire hip, in an effort to eradicate the MRSA. Phillip sought to delay this procedure. However, as his condition deteriorated over the next few days, West again recommended the full explant, which was ultimately performed on March 13, 2013. According to West, the explant surgery took additional time because the hip was "really in there" and was complicated to remove. On April 24, 2013, Phillip had another surgery to remove the antibiotic spacer and other metal components that had been placed during the explant surgery. At around this time, Phillip transferred his care to providers in the Salt Lake City area. In July of 2013, Phillip had two additional procedures performed at the University of Utah Hospital to clean the area where the hip replacement had been removed.

         Phillip began seeing Dr. Aaron Altenburg (Altenburg) in August of 2013. After a MRSA screening prior to surgery came back negative, Phillip received another full right hip replacement in October 2013. Phillip again developed MRSA in his right hip in February of 2014. That hip had to be removed as well. On February 23, 2016, Phillip underwent another hip replacement which was also performed at the University of Utah. Due to his many procedures and infections, Phillip's quality of life has dramatically worsened. He is unable to walk and will be required to be on antibiotics for the remainder of his life. He has also suffered impaired kidney function, which has required him to be on dialysis.

         B. Course of Proceedings.

         On October 15, 2013, the Eldridges filed a verified complaint against West, Turpin, Summit, and others.[2] The complaint alleged that West and Turpin breached the applicable standard of care when caring for Phillip. In their original complaint, the Eldridges alleged claims for medical malpractice, loss of consortium, negligent infliction of emotional distress, intentional infliction of emotional distress, and gross negligence, reckless, willful and wanton conduct.[3]

         On March 5, 2014, after filing their answer, West, Turpin, and Summit joined in their codefendants' partial motion to dismiss the claims of intentional infliction of emotional distress, negligent infliction of emotional distress, and gross negligence, reckless, and willful and wanton conduct on the ground that those claims had all been subsumed by the Idaho Medical Malpractice Act, Idaho Code sections 6-1001 to 6-1014. The district court agreed and granted the motions to dismiss.

         West, Turpin, and Summit filed their first motion for summary judgment on September 18, 2014, alleging that the Eldridges had failed to produce admissible evidence that showed that they had breached the applicable standard of care. In support of their motion, West, Turpin, and Summit submitted affidavits from Turpin and West. Both affidavits generally asserted that each practitioner had been practicing in Idaho Falls for a number of years and stated that they had both acted consistently with the standard of care without describing the standard of care or how the treatment they provided had conformed with it. On May 1, 2015, West, Turpin, and Summit filed a second motion for summary judgment, reasserting the arguments made in their first motion.

         On June 11, 2015, the Eldridges filed a memorandum in opposition to the motion for summary judgment, including a detailed description of the treatment provided to Phillip by West and Turpin, which was supported by an affidavit from the Eldridges' medical expert, Dr. Mauro Giordani (Giordani). On the same day, the Eldridges also moved to strike paragraphs 3 through 6 of West's first affidavit and paragraphs 3 through 6 of Turpin's affidavit. The district court denied the Eldridges' motion to strike the affidavits, finding that their years of practice in Idaho Falls were sufficient to establish a foundation of personal knowledge of the standard of care for that community. Instead, the district court struck portions of Giordani's affidavit concluding a lack of foundation as to Giordani's knowledge regarding the standard of care in Idaho Falls.

         The Eldridges filed a motion for reconsideration, along with a new declaration from Giordani. West, Turpin, and Summit opposed the motion. On September 11, 2015, the district court denied the Eldridges' motion for reconsideration and affirmed its decision that the affidavits from West and Turpin would be allowed to stand as written. In addition, it affirmed its previous order that portions of Giordani's declaration lacked adequate foundation. The district court did, however, reconsider Giordani's declaration concerning West because the doctor who had consulted with Giordani (Dr. Selznick) was aware of West's practices in Idaho Falls. The district court granted summary judgment to Turpin due to a lack of evidence that demonstrated how Turpin, a physician's assistant, had violated the standard of care in Idaho Falls.

         On April 18, 2016, West and Summit filed a third motion for summary judgment, supported by West's second affidavit. In response, the Eldridges filed another declaration from Giordani. On June 10, 2016, West filed another affidavit addressing additional issues and attaching additional medical records. The Eldridges again objected to both affidavits filed by West.

         On July 22, 2016, the district court made several rulings. First, the district court excluded Giordani's opinion that Phillip's hip had been infected with MRSA on October 29, 2012, concluding there was no admissible evidence that the hip was, in fact, infected on that date. As a result, the district court denied the Eldridges' motion for summary judgment on their claim regarding the treatment provided by West once MRSA was found, because it was possible that a jury could determine, based on the evidence admitted, that the surgeries from December 3, 2012, to March 13, 2013, could have been avoided. Following the decision dated July 22, 2016, the only remaining claim was whether West had breached the standard of care by failing to remove the hip as soon as MRSA was diagnosed on December 20, 2012.

         West and Summit filed a fourth motion for summary judgment alleging there was no admissible evidence that conservative treatment of the MRSA, instead of an immediate explant, had caused damages. In the alternative, they argued that damages incurred after the explant had been performed on March 13, 2013, should be precluded. The reason proffered for limiting the damages was West's contention that Giordani had not reviewed any of the medical records after April 24, 2013. Following briefing and a hearing, the district court granted summary judgment and limited damages to those sustained between December 20, 2012, and April 24, 2013. The district court found that the declaration of Giordani did not satisfy the disclosure requirements set out in Rule 26(b)(4)(A), I.R.C.P.

         Finally, the district court granted West's motion in limine to admit only evidence of the medical expenses that the Eldridges had actually paid, rather than the amounts billed prior to the application of the Medicare write-offs. The Eldridges then sought to have the district court's rulings reviewed via a permissive appeal. This Court accepted the application for permissive appeal.

         II. Standard of Review

         "When this Court reviews an order dismissing an action pursuant to I.R.C.P. 12(b)(6), we apply the same standard of review we apply to a motion for summary judgment" in so far as all reasonable inferences will be drawn in favor of the non-moving party. Losser v. Bradstreet, 145 Idaho 670, 672-73, 183 P.3d 758, 760-61 (2008) (citation omitted). "A 12(b)(6) motion looks only at the pleadings to determine whether a claim for relief has been stated." Hammer v. Ribi, 162 Idaho 570, 573, 401 P.3d 148, 151 (2017) (citation omitted).

         This Court employs the same standard as the district court when reviewing rulings on summary judgment motions. La Bella Vita, LLC v. Shuler, 158 Idaho 799, 804-05, 353 P.3d 420, 425-26 (2015) (citing Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 890, 243 P.3d 1069, 1078 (2010)). "The court must grant summary judgment if the movant shows that there is no genuine dispute as ...

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