Pearson v. Parsons

757 P.2d 197, 114 Idaho 334, 1988 Ida. LEXIS 52

• Court: Idaho Supreme Court
• Decided: June 9, 1988
• Docket: 16904
• Status: Published

Opinions

JOHNSON, Justice.

This is a medical malpractice case arising out of the death of a two and one-half year-old child in which the trial court granted summary judgment dismissing the complaint. The primary issue presented is whether in order to establish medical malpractice against a board-certified specialist plaintiff is required to present expert testimony from another physician who is board-certified in the same specialty. We conclude that plaintiff is not required to do so, if the expert testimony presented by plaintiff complies with the requirements contained in I.C. §§ 6-1012 and 6-1013. We reverse the summary judgment of the trial court.

I.

The Facts.

On December 21, 1984, Emily Pearson, who was two and one-half years old, complained to her parents that she had a stomach ache. The next morning Emily awoke still complaining of a stomach ache. She vomited at least twice that morning. For the next two days she continued to have a stomach ache and ran a fever. On December 24, Emily’s father brought her to the Blackfoot Medical Clinic to see Dr. Parsons, a board-certified pediatrician.

Dr. Parsons examined Emily and discussed her symptoms with her father. The doctor felt that Emily most likely had just a cold or the flu, but also believed that appendicitis should be considered. Dr. Parsons told Emily’s father that Emily’s white cell blood count was high, which could indicate appendicitis. Because of this concern Dr. Parsons asked Dr. Thueson, a board-certified surgeon practicing in the clinic, to examine Emily.

After Dr. Thueson examined Emily, he and Dr. Parsons indicated to Emily’s father that Emily probably had the flu and recommended treatment with Tylenol and clear liquids. According to Emily’s father, Dr. Thueson then told him that if Emily’s condition worsened to come and see him the next day in the emergency room of the hospital in Blackfoot. Emily’s father says he asked Dr. Thueson what he meant when he referred to Emily’s getting any worse and recalls that Dr. Thueson said, “Well, if she still maintains the high fever and she is still in pain, to check with me at the emergency room." Dr. Parsons does hot recall being present when Dr. Thueson made these statements to Emily’s father, but does remember that Dr. Thueson reported to her that he had told Emily’s father that he would like to see Emily the following day in the emergency room in order to recheck Emily, if she still felt sick.

The next day Emily appeared to be very tired, was pale and had circles under her eyes. She indicated to her parents that she was in pain, but she did not seem to them to be any worse than she had been the previous day, and they decided not to take her to the emergency room to see Dr. Thueson.

On December 26 Emily still appeared to be ill. Emily’s mother called the clinic and learned that Dr. Parsons was not on duty. Emily’s parents did not consider taking Emily to the hospital that day. When she awoke on December 27, Emily’s eyes had more color and were brighter, and she asked for food. That night, Emily began to vomit, her eyes took on a sunken look, and her breathing was unusual. The next morning she was much worse and her parents decided to make an appointment with Dr. Parsons for 3:00 o’clock that afternoon when Emily’s father would be off work. Emily’s mother took Emily with her to work so that she could watch Emily. As the afternoon progressed, Emily appeared very weak, causing her mother to become very concerned. At approximately 2:30 that afternoon, Emily stopped breathing. An ambulance was called, but Emily could not be revived. Following her death, it was determined that Emily had died as a result of acute gangrenous appendicitis.

Emily’s parents filed a complaint alleging that Dr. Parsons and Dr. Thueson had been negligent in failing properly to diagnose Emily’s condition as acute appendicitis and in failing immediately to hospitalize her and monitor her condition. Following discovery the doctors moved for summary judgment.

Emily’s parents submitted the affidavit of Dr. Weeks in opposition to the motion. Dr. Weeks’ affidavit contained the following statements:

1. That I am a practicing doctor of medicine and practice in the City of Boise, State of Idaho and possess actual knowledge of the standards of practice for physicians and surgeons in the State of Idaho, particularly, with respect to the diagnosis and treatment of appendicitis.

2. That I have reviewed the medical care and treatment rendered by Dr. Julene Parsons and Dr. John Miller Thueson to Emily Pearson on or about December 24, 1984.

3. That I am also familiar with the standards of the community regarding the diagnosis and treatment of suspected and actual appendicitis.

4. That the actual diagnosis of appendicitis is one of the most elusive and difficult diagnoses to be made by a doctor and in most cases, final determination is not made until surgery.

5. That it is the standard of the community and the medical teaching standard generally, that you not rely heavily upon the observational powers and actual observations of parents in the diagnoses of appendicitis.

6. That in a situation where a child, as the doctor’s record reflects, was examined at 10:00 o’clock in the morning with suspected appendicitis, there are actually two options available to a doctor:

a. Hospitalization and observation;

b. Re-examination and re-test of the white blood count and differential in a time span between four (4) to twelve (12) hours.

7. That it is the opinion of your Affiant, to a reasonable degree of medical certainty, that the recommendation that a child be brought back for re-examination should significant improvement not occur in the child’s condition and/or should the child become worse, is not the standard which is to be followed by a practicing physician and that under the circumstances, a recommendation to bring the child back in twenty-four (24) hours was in error since the twenty-four (24) hour waiting period in an appendicitis case in a juvenile is an excessive amount of time.

8. That it is the opinion of your Affiant, to a reasonable degree of medical certainty, that the child should have been brought back in the afternoon of the 24th of December, 1984, for a re-examination and re-test of the blood count of the minor child.

Therefore, it is the opinion of your Affiant, to a reasonable degree of medical certainty, that Dr. Parsons and Dr. Thueson did not comply with the applicable standard of practice for physicians of their specialities in Blackfoot, Idaho, in the care and treatment they rendered to Emily Pearson on or about December 24, 1984.

In support of their motion for summary judgment, Dr. Parsons and Dr. Thueson argued that the affidavit of Dr. Weeks was insufficient under Idaho law to support the allegations of Emily’s parents of medical malpractice, because Dr. Weeks was not board-certified in the specialties that Dr. Parsons and Dr. Thueson were. The trial court agreed and granted summary judgment dismissing the complaint. Emily’s parents have appealed from this summary judgment.

II.

The Testimony of a Board-Certified Specialist Is Not Necessary To Establish A Case of Medical Malpractice Against A Board-Certified Specialist.

In granting summary judgment, the trial court concluded that to establish their case against each of the defendant physicians, Emily’s parents were required to come forth with expert testimony from a physician board-certified in the same specialty as each of the defendant physicians. In doing so, the trial court relied on this Court’s decision in Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985). In ruling on the motion the trial court acknowledged that if the testimony of Dr. Weeks as to the standard of care in the community of Blackfoot were admissible, then an issue of material fact would exist, and the motion should fail. However, the trial court ruled that the affidavit of Dr. Weeks did not establish that he was board-certified in either pediatrics or surgery, that his testimony would be inadmissible at trial, that Emily’s parents had failed to provide admissible expert testimony in support of their claim of medical malpractice, that no genuine issue of material fact existed, and that the motion for summary judgment was granted.

In granting summary judgment the trial court misconstrued the holding in Buck, supra. There this Court held that “a board-certified physician can testify only against another board-certified physician practicing in the same area of medicine.” 108 Idaho at 745, 702 P.2d at 783. There was no issue in Buck concerning whether a physician without board certification could testify against one who is board-certified. The decision in Buck was not intended to reach the issue presented here.

In deciding whether the testimony of a physician without board certification is sufficient to establish a malpractice case against a board-certified physician, we must examine I.C. §§ 6-1012 and 6-1013. I.C. § 6-1012 requires that in a medical malpractice case, plaintiff must prove that the defendant physician negligently failed to meet the applicable standard of health care practice of the community in which the health care was, or should have been, provided. The statute also provides that the defendant physician "shall be judged ... in comparison with similarly trained and qualified [physicians] ... in the same community, taking into account his or her training, experience, and fields of medical specialization, if any.” “Community” is defined to mean “that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.” I.C. § 6-1012.

I.C. § 6-1013 provides that the applicable standard of practice and the failure of the defendant physician to meet this standard must be established by plaintiff by “one (1) or more knowledgeable, competent expert witnesses.” The statute also provides that this expert testimony may only be admitted in evidence if a foundation is first laid establishing (a) that the opinion is actually held by the expert witness, (b) that the opinion can be testified to with reasonable medical certainty, and (c) that the expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable community standard to which the testimony of the witness is addressed.

There is no requirement in these statutes that an expert witness whose testimony is offered to establish a case of medical malpractice against a board-certified physician must also be board-certified in the same specialty. We specifically hold that to fulfill the requirement of presenting expert testimony in a medical malpractice case against a board-certified specialist, plaintiff may offer the testimony of a physician who is not board-certified in the same speciality as the defendant physician, so long as the testimony complies with the requirements of I.C. §§ 6-1012 and 6-1013.

III.

For the Purpose of Opposing A Motion For Summary Judgment, The Affidavit of Dr. Weeks Raised Genuine Issues of Material Fact.

We first note that the affidavits of Dr. Lindsay and Dr. Montgomery offered in support of the motion for summary judgment are both devoid of statements indicating actual knowledge of the standard of practice in the Blackfoot community. Both affidavits refer only to the knowledge of the standards of practice in the state of Idaho. While I.C. §§ 6-1012 and 6-1013 address only the plaintiffs burden of proof, if a defendant seeks summary judgment in a medical malpractice case, the supporting affidavits or other evidence must show that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law. I.R.C.P. 56(c). Merely filing a motion for summary judgment is not sufficient to place the burden on the adverse party to establish that there is a genuine issue of material fact. The motion must be supported as provided in I.R.C.P. 56 in order to invoke the requirement that “an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” I.R.C.P. 56(e).

Here, since the affidavits of Dr. Lindsay and Dr. Montgomery did not indicate actual knowledge of the standard of practice in the Blackfoot community, the burden never shifted to Emily’s parents to show that there was a genuine issue for trial. However, even if Emily’s parents had been required to set forth specific facts showing that there was a genuine issue for trial, the affidavit of Dr. Weeks was sufficient for that purpose. Since the trial court did not address the insufficiency of the defense affidavits, and since this issue has not been raised on appeal, we will proceed to address the issue framed by this appeal.

This Court has held that “in order to preclude summary judgment in medical malpractice cases, plaintiffs must show that expert testimony has been offered by either the plaintiff or defendant which when viewed in a light most favorable to plaintiffs indicates that the defendant has negligently failed to meet the applicable standard of health care practice of the community.” Maxwell v. Women’s Clinic, P.A., 102 Idaho 53, 56, 625 P.2d 407, 410 (1981).

In other types of cases where we have reviewed the standards applicable to summary judgment motions we have held:

Those standards require the district court, and this Court upon review, to liberally construe the facts in the existing record in favor of -the nonmoving party, and to draw all reasonable inferences from the record in favor of the nonmoving party. Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982).... “[A]ll doubts are to be resolved against the moving party.” Ashby v. Hubbard, 100 Idaho 67, 69, 593 P.2d 402, 404 (1979). The motion must be denied “if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable [people] might reach different conclusions.” Id.

Doe v. Durtschi, 110 Idaho 466, 469-70, 716 P.2d 1238, 1241-42 (1986).

These standards are applicable to motions for summary judgment in medical malpractice cases as well.

When viewed in light of the standards set forth in Maxwell and Durtschi, the affidavit of Dr. Weeks was sufficient to raise a genuine issue of material fact and to defeat the motion for summary judgment of Dr. Parsons and Dr. Thueson. A review reveals that when measured by these standards the affidavit fulfilled the requirements of I.C. §§ 6-1012 and 6-1013 and should have been considered by the trial court, even though Dr. Weeks was not board-certified in either pediatrics or surgery.

1. Dr. Weeks demonstrated that he was judging Dr. Parsons and Dr. Thueson “in comparison with similarly trained and qualified [physicians] in the same community, taking into account his or her training, experience, and fields of medical specialization.” I.C. § 6-1012. (“Dr. Parsons and Dr. Thueson did not comply with the applicable standard of practice for physicians of their specialties in Blackfoot, Idaho.” Weeks’ affidavit, final paragraph, supra.)

2. He was a “knowledgeable, competent expert witness.” I.C. § 6-1013.

(“I am a practicing doctor of medicine.” Weeks’ affidavit, paragraph 1, supra.)

3. He actually held an opinion about the “applicable standard of practice” and the failure of Dr. Parsons and Dr. Thueson to meet the standard. I.C. § 6-1013(a).

(“[I]t is the opinion of your Affiant ... that the recommendation that a child be brought back for re-examination should significant improvement not occur in the child’s condition and/or should the child become worse, is not the standard which is to be followed by a practicing physician and that under the circumstances, a recommendation to bring the child back in twenty-four (24) hours was in error since the twenty-four (24) hour waiting period in an appendicitis case in a juvenile is an excessive amount of time ... that the child should have been brought back in the afternoon of the 24th of December, 1984, for a re-examination and re-test of the blood count of the minor child ... [and] that Dr. Parsons and Dr. Thueson did not comply with the applicable standardfs] ... in the care and treatment they rendered to Emily Pearson on or about December 24, 1984.” Weeks’ affidavit, paragraphs 7 and 8 and final paragraph, supra.)

4. His opinion was rendered “with reasonable medical certainty.” I.C. § 6-1013(b).

(“[I]t is the opinion of your Affiant, to a reasonable degree of medical certainty____” Weeks’ affidavit, paragraphs 7 and 8 and final paragraph, supra)

5. He possessed “professional knowledge and expertise coupled with actual knowledge of the applicable ... community standard to which his ... expert opinion testimony is addressed.” I.C. § 6-1013(c).

(“I am also familiar with the standards of the community regarding the diagnosis and treatment of suspected and actual appendicitis.” Weeks’ affidavit, paragraph 3, supra.)

Dr. Parsons and Dr. Thueson also contend that the affidavit of Dr. Weeks failed to present any proof of proximate cause and that summary judgment was properly granted for that reason also, although not mentioned by the trial court in its decision. In a medical malpractice case “a plaintiff has the burden of proving not only that a defendant failed to use ordinary care, but also that the defendant’s failure to use ordinary care was the proximate cause of damage to the plaintiff.” Hall v. Bacon, 93 Idaho 1, 3, 453 P.2d 816, 818 (1969). Here there is no dispute that Emily died from acute gangrenous appendicitis. Drawing all reasonable inferences from the affidavit of Dr. Weeks and resolving all doubts against the moving parties, we conclude that there was a genuine issue of material fact as to whether the alleged negligence of Dr. Parsons and Dr. Thueson was the proximate causation of Emily’s death, and that the motion should have been denied on that ground also.

IV.

Conclusion.

The summary judgment of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion.

Costs to appellants.

No attorney fees were requested.

SHEPARD, C.J., and BISTLINE and HUNTLEY, JJ., concur.