PHILLIP ELDRIDGE and MARCIA ELDRIDGE, husband and wife, Plaintiffs-Appellants,
GREGORY WEST, M.D., LANCE TURPIN, PA-C, and SUMMIT ORTHOPAEDICS SPECIALISTS, PLLC, Defendants-Respondents, and EASTERN IDAHO HEALTH SERVICES, INC., dba EASTERN IDAHO REGIONAL MEDICAL CENTER, Defendant.
from the District Court of the Seventh Judicial District,
State of Idaho, Bonneville County. Richard T. St. Clair,
Senior District Judge.
decision of the district court is vacated and the
case is remanded.
& Larsen, Chartered, Pocatello, for appellants. Javier
Troxell Ennis & Hawley, LLP, Pocatello, for respondents.
Julian E. Gabiola argued.
a permissive appeal brought by Phillip and Marcia
Eldridge 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.
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
Factual and Procedural Background
Phillip's hip replacement surgery and subsequent
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.
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.
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.
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.
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.
Course of Proceedings.
October 15, 2013, the Eldridges filed a verified complaint
against West, Turpin, Summit, and others. 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
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
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.
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
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.
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.
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.
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),
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.
Standard of Review
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).
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 ...