Gubler v. Boe

815 P.2d 1034, 120 Idaho 294, 1991 Ida. LEXIS 116

• Court: Idaho Supreme Court
• Decided: July 26, 1991
• Docket: 18262
• Status: Published

Opinions

BAKES, Chief Justice.

The plaintiff-appellants, John and Kellie Gubler, brought a medical malpractice action against the defendant-respondents, Dr. Roger Boe and the Pocatello Children and Adolescent Clinic, P.A., a professional association, for failure to detect and treat a urinary tract infection and urinary tract obstruction in their newborn child, Jake Gubler. The district court ruled that the Gublers’ expert witness, Dr. Tune, had not familiarized himself with the standard of care in the Pocatello “community” during 1983 and therefore, under I.C. § 6-1012, he was unqualified to testify as to Dr. Boe’s alleged breach of that standard of care. The district court, after once delaying the trial, refused a request for an additional continuance for Dr. Tune to further try to qualify himself and, on defendants’ motion, the court entered an order of dismissal. The district court also denied the Gublers’ motion for a new trial. Plaintiffs appealed. We affirm the judgment of the district court.

The child, Jake, was treated during 1983 by Dr. Boe in Pocatello, Idaho. Jake was hospitalized for pneumonia and was being treated by Dr. Boe. He apparently was also suffering from a urinary tract infection and obstruction which went undetected for six months, leading to severe, acute renal failure and a loss of the kidney function. On April 22,1986, the Gublers filed a complaint against Dr. Boe alleging medical malpractice.

At trial the Gublers called Dr. Bruce Tune as their expert witness on the question of liability. Dr. Tune was questioned on both direct and cross examination to determine whether he had adequately familiarized himself with the applicable standard of health care practice m existence at the time and place of the alleged negligence of the defendant. Dr. Tune testified that in late 1988 he spoke to Dr. Groberg, a board-certified obstetrician practicing in Idaho Falls, Idaho, who informed him that there was no local deviation from the national standard of care in treating urinary tract infections and obstructions.¹ However, Dr. Tune's testimony indicates the discussion between the doctors did not make reference to the standard of care in 1983 when Jake Gubler was treated by Dr. Boe. Therefore, the district court excluded the testimony of Dr. Tune regarding standard of care because he failed to meet the time specificity requirement of I.C. § 6-1012. The court further noted that the Gublers failed to make any showing to the court as to Dr. Groberg’s familiarity with the standard of care in the Pocatello, Idaho, “community” in 1983 or whether Dr. Groberg was even practicing in Idaho at that time.

Having failed to qualify Dr. Tune, the Gublers’ counsel requested leave to recall the defendant Dr. Boe, whom they had earlier called as a witness, in an attempt to establish the applicable standard of care and breach of that standard through the defendant’s own testimony. The court denied the request because the Gublers had previously examined Dr. Boe at length earlier in the trial and did not reserve the right to recall him. The Gublers then requested a continuance of the trial to make a second attempt to recontact Dr. Groberg or some other doctor who could familiarize Dr. Tune with the standard of care in 1983. The court also denied this request for continuance.

The defendants then moved for summary judgment or an order of dismissal based on the Gublers’ failure to present the statutorily required evidence that Dr. Boe’s conduct violated the Pocatello “community” standard of care. The trial court granted the motion to dismiss, because the Gublers were not prepared to put on any other evidence to establish that Dr. Boe had violated the community standard of care. The Gublers’ remaining witnesses were only prepared to testify as to damages or causation, and the court reasoned that it would be an exercise in futility to allow the plaintiffs to present damages evidence when they had not made out a prima facie case of liability.

The Gublers filed a motion for a new trial, which the district court denied finding that neither Rule 59(a) nor (e) entitled them to a new trial. The Gublers appeal from this order.

On appeal the Gubler’s assert that the trial court erred (1) by failing to grant them a continuance to allow Dr. Tune more time to recontact Dr. Groberg; (2) by concluding that the combined testimony of Dr. Tune and Dr. Boe did not establish the local standard of care; (3) by not allowing Dr. Tune to testify on fact issues relating to Jake’s palpable bladder and urinalysis; and (4) by not allowing them to recall Dr. Boe.

We first consider whether the district court erred in denying the Gubler’s motion for a continuance. This Court has previously stated that a motion for a continuance is within the discretion of the trial court, and that the trial court’s ruling on such a motion will not be overruled absent an abuse of discretion. Pauley v. Salmon River Lumber Co., 74 Idaho 483, 264 P.2d 466 (1953).

After several months of discovery, and three days of trial, it became apparent to the trial court that plaintiffs’ only designated expert witness, Dr. Tune, had not familiarized himself with the local community standard of practice in Pocatello, Idaho, in 1983, as required by I.C. § 6-1012² and our prior cases. Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989) (out-of-state orthopedic surgeon was not competent to testify concerning applicable standard of care to orthopedic surgeon practicing in-state without first demonstrating that he possessed actual knowledge of applicable community standard); Dekker v. Magic Valley Reg. Medical Center, 115 Idaho 332, 766 P.2d 1213 (1988); Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985). The statute is both site and time specific. The court excluded Dr. Tune’s testimony based on his “total failure” to establish the standard of care not only at the time of his conversation with Dr. Groberg in 1988, but also five years earlier at the time of Dr. Boe’s care and treatment of Jake Gubler.

At the request of plaintiffs, the trial court delayed the proceedings to allow Dr. Tune an opportunity to re-contact Dr. Groberg, or any other doctor, in an attempt to familiarize Dr. Tune with the local community standard of care. However, Dr. Tune was unable to reach Dr. Groberg. Plaintiffs made another attempt to contact Dr. Groberg during a subsequent recess and again failed and were unable to qualify Dr. Tune as an expert witness.

Subsequently, plaintiffs’ counsel requested a continuance of the trial to attempt to qualify Dr. Tune by contacting Dr. Groberg or some other unspecified doctor. The trial court denied this motion because (1) the motion and supporting affidavit of plaintiffs’ counsel did not provide any assurances that Dr. Tune could even contact Dr. Groberg; (2) plaintiffs’ counsel did not demonstrate that Dr. Groberg was familiar with the standard of care in Pocatello in 1983 or that he was even practicing in Idaho at the time; and (3) of the probability that defense counsel would need to redepose Dr. Tune prior to resumption of trial. With these factors in mind, the district court stated, “From the Court’s perspective, plaintiffs’ counsel failed to adequately prepare Dr. Tune to testify as to the appropriate standard of care,” and consequently denied the motion for a continuance. The district court observed that the plaintiffs’ motion for a continuance did not demonstrate that, even given the continuance, they would be able to qualify their expert to testify. There was no showing that Dr. Groberg was available for further consultation about the standard of care or that he was even familiar with the standard of care as it existed in 1983. Subsequent affidavits indicate he was not practicing in Pocatello, Idaho in 1983.

The plaintiffs had ample time prior to trial to prepare their witness regarding the local community standard of care. The trial court allowed one limited continuance, and plaintiffs had additional opportunity during recesses to contact other doctors to qualify Dr. Tune during the course of the trial. Under these circumstances, there is no basis for a claim that the district court abused its discretion in denying the plaintiffs’ motion for a continuance.

We next consider the Gublers’ argument that the combined testimony of the defendant Dr. Boe and the testimony of Dr. Tune established the local standard of care. Plaintiffs called Dr. Boe on the second day of trial and examined him extensively. Dr. Boe testified that his handling of Jake Gutter’s case had not violated the local standard of care. Jake Gubler had been in and out of the clinic and the hospital since his birth with a variety of complaints. During a portion of the period of time in question, Jake was hospitalized with pneumonia. According to his testimony, Dr. Boe was not aware of any bladder infection. Dr. Boe testified that if he had observed certain conditions he would have made a further investigation into those conditions. However, Dr. Boe testified he was unaware of any such condition at the time he provided medical care for the Gubler child.

Plaintiffs attempted to prove through Dr. Tune as an expert witness that Dr. Boe violated the standard of care because he should have been aware that the child had a palpable bladder or a urinalysis test indicating a bladder infection. Dr. Tune made a conclusion solely by reviewing the doctor and hospital records and the testimony of Dr. Boe, not from any examination that he made of Jake Gubler during the time in question in 1983. The record further reflects that Dr. Boe was not the sole physician treating the child, and during one week that the child was in the hospital he was under the care of another physician. The trial court addressed this argument, stating:

In essence, the plaintiffs argue that Dr. Boe testified that if the child’s bladder was palpable and the urinalysis indicated the existence of a bladder infection, a different course of treatment should have been followed. However, from the Court’s notes from trial, it appears that there was no testimony that Dr. Boe was aware of the palpable bladder or a bladder infection. Equally significant, there was no expert testimony that it was a violation of the standard of care for Dr. Boe not to be aware of these facts under the circumstances of this case. In essence, the plaintiffs did not provide a necessary predicate to their argument.³

We find no error in the trial court’s conclusion that the combined testimony of Dr. Tune and Dr. Boe did not establish that Dr. Boe had violated the standard of care set out in I.C. § 6-1012. Even combining the testimony of Dr. Tune and Dr. Boe, there was no showing by direct expert testimony that, from the information which Dr. Boe had, his treatment of Jake Gubler violated the local standard of care. Nor was there any direct expert testimony that “it was a violation of the standard of care for Dr. Boe not to be aware of these facts under the circumstances of this case,” as the trial court noted. Accordingly, the trial court did not err in concluding that the plaintiffs had failed to comply with I.C. § 6-1012.

The plaintiff’s third and fourth arguments are also without merit. Plaintiffs assert that they were denied a fair trial since Dr. Tune was not allowed to testify on fact issues relating to Jake’s palpable bladder and urinalysis. However, Dr. Tune had no personal knowledge of that condition. We further agree with the district court that this evidentiary ruling had nothing to do with the determination that Dr. Tune was not qualified to testify on the issue of the standard of care. We likewise reject their fourth argument that they were denied a fair trial because they were not allowed to recall Dr. Boe to the stand. The trial court stated that the plaintiffs had already had a chance to examine Dr. Boe at length and did not reserve the right to recall him. Further, Dr. Boe had already testified that he had not violated the standard of care and the inability of Dr. Tune to testify as to the standard of care could not be remedied by the plaintiffs’ recalling Dr. Boe.

The order of dismissal is affirmed. Costs to respondents. No attorney fees.

JOHNSON and McDEVITT, JJ., concur.

1 . Idaho Falls, Idaho, is approximately fifty miles northeast of Pocatello, and is served by its own general hospital. Thus, Idaho Falls would be a separate "community” from Pocatello as the term "community" is defined in I.C. § 6-1012.

2 . Idaho Code § 6-1012 reads in part: "[C]laimant or plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon____ [T]he term ‘community’ refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.”

3 . Dr. Boe saw the results of a urinalysis conducted while Jake was hospitalized for pneumonia. He testified that the elevated levels of protein and white blood cells were not abnormal for a child suffering acute pneumonia and that it did not necessarily indicate a kidney disorder/bladder infection.

On October 30, 1983, the day before Jake was released from the hospital, Dr. Boe, who had just resumed care of Jake, ordered a blood test (SMAC) to check for a chronic component of lung disease that would be shown in the level of serum iron. The SMAC test also provides additional information, including the liver and kidney function. The results of the SMAC test were sent by the testing lab to the hospital after Jake’s release, not to Dr. Boe’s office. Approximately nine or ten days after Jake had been released from the hospital, his parents brought him back to Dr. Boe’s office for further examination. When Dr. Boe did not find the SMAC test report in his office file, he telephoned the hospital records department and asked for the serum iron reading which would have advised him of the condition of Jake’s chronic lung disease, the condition for which the SMAC test had been ordered. According to Dr. Boe, the hospital reported that the level of serum iron was in the medically acceptable range. Having received the information for which he had ordered the test, he testified that he did not ask for any other findings which might have been on the test. The record is unclear whether he requested the hospital to forward him a copy of the SMAC test report from the lab. He testified that the first time he saw the actual written report was in preparation for trial. His testimony at trial was that, had he been aware of other findings in the test, or had he received the lab report and noticed that the creatinine and the BUN levels were elevated, he would have taken steps to find out why.