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Shane v. Blair6/26/2003
n consulted by the out-of-area expert does not necessarily have to have practiced in the same geographic area as the defendant to become familiar with the local standard of care. See Grover v. Smith, 137 Idaho 247, 252-53, 46 P.3d 1105, 1110-11 (2002).
An expert's affidavit in a medical malpractice case is subject to the requirements set forth in Idaho Code sections 6-1012 and 6-1013. Section 6-1012 requires a plaintiff to affirmatively prove by direct expert testimony that the health care provider negligently failed to meet the community standard of health care, as it existed at the time and place of the alleged negligent act. Section 6-1013 requires that "the expert must show that he or she actually holds the opinion, that it is held with a reasonable degree of medical certainty, and that he or she is not only an expert but has actual knowledge of the applicable community standard." Kolln, 130 Idaho at 329, 940 P.2d at 1148. Section 6-1013 also provides for the admissibility of testimony from out-of-area experts who adequately familiarize themselves with the standards and practices of the relevant area. I.C. § 6-1013. Furthermore, an affidavit under Rule 56(e) of the Idaho Rules of Civil Procedure must be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify as to the matters contained in the affidavit. I.R.C.P. 56(e). In addition, when the affidavit is presented by a party opposing a motion for summary judgment, the affidavit "must set forth specific facts showing that there is a genuine issue for trial." I.R.C.P. 56(e).
B. Esses's Fourth Affidavit and Coleman's Affidavit Were Admissible.
The key to the admissibility of expert testimony is that the expert must be familiar with the standard of care in a particular locale at a particular time. The standard of care is simply the care typically provided under similar circumstances by the relevant type of health care provider in the community at the time and place of the alleged negligent act. Esses's fourth affidavit and Coleman's affidavit demonstrate sufficient personal knowledge of the standard of care in Pocatello in 1997 for the back surgery performed on Shane. For that reason, the district judge erred in striking those affidavits.
Coleman has practiced medicine and taught orthopedics at the University of Utah School of Medicine for more than forty years. During that time, Coleman has taken numerous referrals of patients from Idaho Falls and Pocatello for orthopedic treatment and has discussed lumbar-surgery cases with Pocatello surgeons. Coleman has also reviewed hundreds of medical records from orthopedic surgeons in Idaho Falls and Pocatello throughout the years, including 1997. Coleman's experience establishes that he has sufficient knowledge of the relevant standard of care, and such knowledge of the relevant standard of care in Pocatello in 1997 is demonstrated in his affidavit.
As a result of his personal knowledge, Coleman's comments on the standard of care relevant to Shane's 1997 back surgery in Pocatello are admissible. See Perry, 134 Idaho at 51, 995 P.2d at 821; see also Grover, 137 Idaho at 252-53, 46 P.3d at 1110-11 (stating physician does not necessarily have to have practiced in the same geographic area as defendant to become familiar with local standard of care). Coleman was giving an opinion no different than if he were actually practicing in Pocatello, and this satisfies the personal knowledge requirement of I.C. § 6-1013. Moreover, Esses's fourth affidavit is admissible to the extent it relies on information acquired from Coleman. See I.C. § 6-1013 (providing for admissibility of testimony fr
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