Hollingsworth v. United States

928 F. Supp. 1023, 1996 U.S. Dist. LEXIS 11868, 1996 WL 351535
CourtDistrict Court, D. Idaho
DecidedJanuary 17, 1996
DocketCiv. No. 94-0242-S
StatusPublished

This text of 928 F. Supp. 1023 (Hollingsworth v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Idaho primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hollingsworth v. United States, 928 F. Supp. 1023, 1996 U.S. Dist. LEXIS 11868, 1996 WL 351535 (D. Idaho 1996).

Opinion

MEMORANDUM DECISION AND ORDER

WINMILL, District Judge.

INTRODUCTION

The Court has before it the Government’s Motion for Summary Judgment (Docket No. 31). The Court heard oral argument on the Motion on January 11, 1996, and the Motion is now at issue. The Court indicated to counsel at the conclusion of oral argument that the Court wanted to read the entire deposition of Dr. Breitman and review his affidavit. The Court has now conducted that review and is prepared to resolve the Motion.

ANALYSIS

In this medical malpractice action, the Defendant United States seeks to exclude the testimony of Plaintiffs’ medical expert, Dr. Les Breitman, on the ground that he is unqualified to render an opinion on the standard of care. The Government asserts that if Dr. Breitman is precluded from testifying, this suit must be dismissed since Idaho Code §§ 6-1012 and 6-1013 require an expert’s testimony.

[1024]*1024It is undisputed that Idaho law is applicable and requires the testimony of a medical expert. The sole issue is whether Dr. Breitman is qualified to render an opinion on the standard of care in this particular case. To resolve this issue, the Court must first examine the issues in this case, and then determine whether Dr. Breitman is qualified to speak to those issues.

In December, 1991, Plaintiff Charles Hollingsworth underwent surgery at the Veterans Administration Medical Center in Boise to repair an abdominal aortic aneurysm. Hollingsworth claims that malpractice by Government physicians during and after that surgery caused him brain damage leading to decreased mental capacity and blindness in one eye.

Hollingsworth retained Dr. Breitman to render an expert opinion on whether the Government physicians complied with the applicable standard of care. After reviewing the records, Dr. Breitman concluded that the Government was negligent. Dr. Breitman agreed with the Government’s own expert that the applicable standard of care was a national standard rather than a local standard. Dr. Breitman found eight specific areas where the Government physicians departed from this national standard of care.

In response to the Government’s Motion for Summary Judgment, Dr. Breitman filed his affidavit setting forth the eight areas where the Government physicians

“were negligent and breached the standard of care by:
A. Failing to insure that, prior to using it during the surgery, the recycling system required for the autotransfusion of the patient’s blood was in proper working order.
B. Failing to seek the opinions and consultations of appropriate specialists upon the determination that Charles Hollingsworth’s blood had hemolyzed as a result of excess pressure from the recycling system, and failing to institute on a timely basis the proper emergent care of the patient when the hemolysis was discovered during surgery.
C. Failure to properly monitor the patient’s condition in the post-operative period, specifically failure to sufficiently monitor his arterial blood gases in order to determine the effect of the hemolysis on his ability to oxygenate tissues.
D. Attempting to extubate the patient from the respirator without an appropriate evaluation of the patient’s respiratory status and his arterial blood gases.
E. Taking the patient off the respirator too early in view of his general condition and in view of the fact that he had so recently suffered a major hemolytic event.
F. Concealing the fact that a major hemolytic event occurred during surgery, avoiding it entirely in the Operative Note, and stating in the Discharge Summary that the gross hemoglobinuria occurred over the several days succeeding the surgery, when in fact the major hemolytic event (and gross hemoglobinuria) occurred during the surgery itself. Further, although the doctor stated that the patient did well immediately postoperatively, the facts are that the patient did not do well at that time, was not properly tested to determine his status, and no hematology consultation was arranged to determine his status and the proper course for his management.
G. Concealing the fact that the patient suffered a cardio-pulmonary arrest, as well as the fact that the patient complained of blindness in one eye after these events, but before he was discharged.”

See, Affidavit of Breitman at pp. 3-4 (Docket No. 41).

During oral argument, counsel for Plaintiff stated that the only issue in this case was whether the Plaintiff was taken off the respirator improperly. This created some confusion, because Plaintiffs’ counsel had submitted the affidavit of Dr. Breitman in support of the assertion that during surgery the Government physicians were negligent for failing to realize that the blood recycling system was working improperly. Counsel’s statement during oral argument appeared to [1025]*1025waive some of the eight areas of negligence discussed by Dr. Breitman in his affidavit.

This confusion was cleared up at the end of oral argument when the Court asked Plaintiffs’ counsel to identify which of the eight areas Plaintiff was waiving. Plaintiffs counsel declined to waive any. The Court shall therefore conclude that Plaintiff intends to offer Dr. Breitman’s expert testimony on all eight areas set out in his affidavit.

The issue then is whether Dr. Breitman is qualified to testily to those eight areas of negligence. The standard for qualification is set forth in I.C. § 6-1013 which requires that the expert possess “professional knowledge and expertise coupled with actual knowledge of the applicable ... community standard to which his or her expert opinion is addressed____”

The Idaho case law has interpreted this statutory language to allow a Plaintiffs’ expert to adopt the testimony of a Defense expert that the applicable standard of care is a national, rather than a local, standard. See, Kozlowski v. Rush, 121 Idaho 825, 828 P.2d 854 (1992). The case law has added the further gloss that the expert need not be board certified, Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988), and need not practice in the same specialty as the Defendant physicians. Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988).

When this ease law is examined, it is apparent that the experts approved under I.C. § 6-1013 have a combination of learning and actual experience. Thus, in Clarke v. Prenger, supra, the expert was an obstetrician-gynecologist testifying about the improper placement of an IUD. In Watts v. Lynn, 125 Idaho 341, 870 P.2d 1300 (1994), the expert was an endodontist testifying about root canal procedures. In Pearson v. Parsons, supra, the expert was a practicing family physician testifying about a failure to diagnose appendicitis in a three-year-old girl.

This reading of the cases accords with the language of I.C.

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Related

Kozlowski v. Rush
828 P.2d 854 (Idaho Supreme Court, 1992)
Clarke v. Prenger
760 P.2d 1182 (Idaho Supreme Court, 1988)
Sweitzer v. Dean
798 P.2d 27 (Idaho Supreme Court, 1990)
Watts v. Lynn
870 P.2d 1300 (Idaho Supreme Court, 1994)
Pearson v. Parsons
757 P.2d 197 (Idaho Supreme Court, 1988)

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Bluebook (online)
928 F. Supp. 1023, 1996 U.S. Dist. LEXIS 11868, 1996 WL 351535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollingsworth-v-united-states-idd-1996.