The Supreme Court of the State of Idaho (“Idaho Supreme Court”), in its opinion dated October 19, 2020, held: “Hammerman’s opinion as to the community standard of care in Coeur d’Alene was admissible on summary judgment because the Dlouhys demonstrated that he had actual knowledge of a national standard of care from which the community standard did not deviate. Therefore, the district court abused its discretion in ruling that Hammerman’s opinion as to the community standard of care was inadmissible, and erred in determining that the Dlouhys had not established the standard of care element of their medical malpractice claim.”
The Underlying Facts
In May 2015, Duane Dlouhy went to the emergency department at Kootenai Hospital District d/b/a/ Kootenai Health (“Kootenai Health”) because of rectal bleeding. Mr. Dlouhy had additional follow-up appointments related to his gastrointestinal issues on June 30, 2015, September 1, 2015, and January 26, 2016. The possibility that Mr. Dlouhy had colorectal cancer was not discussed or charted at any of the follow-up appointments. In August 2016, Mr. Dlouhy was diagnosed with stage IV colorectal cancer.
The plaintiffs filed an Idaho medical malpractice wrongful death lawsuit. Kenneth J. Hammerman, MD (“Hammerman”), a Board-certified gastroenterologist, was retained by the plaintiffs to provide an expert opinion as to the applicable standard of care. On March 20, 2019, Kootenai Health filed a motion for summary judgment arguing that the plaintiffs failed to establish an essential element of their case because they had not disclosed an expert witness with “actual knowledge” of the applicable community standard of care. On June 3, 2019, the district court granted Kootenai Health’s motion for summary judgment on the grounds that the plaintiffs failed to establish a prima facie medical malpractice claim under Idaho Code sections 6-1012 and 6-1013 because the plaintiffs had failed to show that Hammerman had actual knowledge of the applicable community standard of care because the depositions he claimed to rely upon in familiarizing himself with the community standard were not sufficient to establish any standard of care. The plaintiffs appealed.
Idaho Supreme Court Opinion
Standard Of Care Experts
For an expert to testify as to the applicable community standard of care in an Idaho medical malpractice case, he or she must have actual knowledge of the community standard as it existed at the time and place of the alleged negligence. The applicable standard of practice and a defendant’s failure to meet said standard must be established in such cases by testimony of one or more knowledgeable, competent expert witnesses, and such expert testimony may only be admitted in evidence if the foundation therefor is first laid, establishing (a) that such an opinion is actually held by the expert witness, (b) that the said opinion can be testified to with reasonable medical certainty, and (c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed. I.C. § 6-1013.
Local Expert vs. Out-of-Area Expert
Under Idaho Code sections 6-1012 and 6-1013, a medical malpractice plaintiff may establish the standard of care element of her claim with one of two types of experts: a local expert or an out-of-area expert. To establish the standard of care using a local expert, the plaintiff must simply provide expert testimony from a healthcare provider who practices in the same community as the defendant healthcare provider and has actual knowledge of the community standard of care that was applicable to the defendant. An out-of-area expert must show that he or she is familiar with the applicable community standard of care before testifying as to that standard in a medical malpractice action. The out-of-area expert must also explain how he or she became familiar with the community standard of care.
The Idaho Supreme Court recently acknowledged that for board-certified specialists, the local standard of care is equivalent to the national standard of care. However, board-certified specialists are not automatically subject to the national standard of care by virtue of their certification. For an out-of-area expert to testify that a national standard of care applied to the defendant specialist by virtue of his certification, two elements must be met: first, the out-of-area expert must be board-certified in the same specialty as that of the defendant-physician (this demonstrates that the out-of-area expert has knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question) and, second, an out-of-the-area expert must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained.
In the case it was deciding, the Idaho Supreme Court stated: “so long as … the defendant specialist and the plaintiffs’ expert are board certified in the same specialty and the out-of-area expert inquires of the local standard to insure that it does not deviate from the national standard, the out-of-area expert may testify as to the national standard of care that was applicable to the defendant specialist.”
The Idaho Supreme Court continued: “Here, the first requirement has been met [both are certified, by the same national board, in the same specialty, gastroenterology] … Hammerman did not consult with any experts from the Coeur d’Alene area to familiarize himself with the standard of care in the community. However, we conclude that Hammerman learned that the community standard of care for board-certified gastroenterologists in Coeur d’Alene did not deviate from the national standard by reviewing Dr. James’s deposition [“An expert’s review of a deposition stating that the local standard does not vary from the national standard, coupled with the expert’s personal knowledge of the national standard, is sufficient to lay a foundation for the expert’s opinion”].”
The Idaho Supreme Court held: “Because Hammerman confirmed from reviewing James’s deposition testimony that the community standard of care in Coeur d’Alene was the same as in San Francisco, and he had actual knowledge that board-certified gastroenterologists in San Francisco are held to the national standard, we conclude that Hammerman had actual knowledge that the community standard of care in Coeur d’Alene for board-certified gastroenterologists did not deviate from the national standard of care. Therefore, the district court abused its discretion in determining that Hammerman’s opinion as to the standard of care lacked the requisite foundation.”
Source Dlouhy v. Kootenai Hospital District d/b/a/ Kootenai Health, Docket No. 47165.
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