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Shane v. Blair6/26/2003
2003 Opinion No. 81
District court's summary judgment order striking expert affidavits and dismissing medical malpractice lawsuit, vacated and remanded.
E. Lee Schlender Chartered, Mountain Home, for appellants. E. Lee Schlender argued. Quane, Smith, Boise, for respondents. Hans A. Mitchell argued.
This is a medical malpractice case resulting from back surgery performed by Dr. Benjamin Blair (Blair) on Karen Shane (Shane) in Pocatello in January, 1997. Shane appeals the district judge's grant of summary judgment in favor of Blair.
I. FACTUAL AND PROCEDURAL BACKGROUND
Shane filed suit against Blair in July, 1999, alleging that Blair negligently breached the applicable standard of care in operating on Shane's spine. Blair moved for summary judgment, attaching his own affidavit indicating that he had complied with the applicable standard of care in every respect in his treatment of Shane. Shane filed a memorandum in opposition, attaching an affidavit from Dr. Stephen Ivor Esses (Esses), an orthopedic surgeon and professor of clinical orthopedic surgery at Baylor College of Medicine in Houston, Texas. Esses averred that Blair failed to meet the applicable standard of care while performing the surgery on Shane. Esses claimed he had familiarized himself with the standard of care in Pocatello in 1997 by consulting with an unnamed orthopedic surgeon in Idaho Falls. Shane filed a second affidavit from Esses in which Esses indicated he had read the depositions of Blair, Esses, Dr. William Goodman and Shane.
Blair filed a motion to strike Esses's affidavits, asserting that Esses had not sufficiently familiarized himself with the applicable standard of care. Blair filed a second affidavit, in which he claimed that he and his partner are not the only orthopedic surgeons in Pocatello having knowledge of the applicable standard of care, and named Dr. Goodman as at least one other such person. Shane responded by filing an affidavit from Patty Phillipp, office manager for her attorney, which asserted essentially that no one outside of Blair's office did lower back/spinal surgeries in Pocatello in 1997.
Shane filed a third affidavit from Esses on September 18, 2001, in which Esses asserted that he had further familiarized himself with the applicable standard of care by consulting with Dr. Charles Boge, an orthopedic surgeon in Idaho Falls. Blair moved to strike this affidavit on the basis that it failed to demonstrate Esses had actual knowledge of the applicable standard of care and because his consultation with Dr. Boge, who served on the pre-litigation screening panel for the case, was impermissible.
The district judge granted Blair's motion for summary judgment and motions to strike Esses's affidavits, finding that Esses's affidavits did not evidence that he had familiarized himself with the relevant standard of care in Pocatello in 1997. The district judge additionally struck Dr. Boge's affidavit, concluding that it was impermissible to consult with a member of the pre-litigation screening panel. The district judge further found that the standard of care in Pocatello was determinable -- that there are other orthopedic surgeons in Pocatello with whom Shane could establish the relevant standard of care -- and that, in any event, the record did not demonstrate that Idaho Falls is a similar community to Pocatello.
Shane filed a motion for reconsideration, and submitted a supplemental fourth affidavit from Esses. The supplemental affidavit declared that Esses had further obtained actual knowledge of the applicable standard of care by consulting with Dr. Sherman Coleman (Coleman), an orthopedic surgeon in Utah, wh
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