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LITZ v. ROBINSON12/4/1997
led to meet the applicable standard of health care practice of the community. This requirement includes the provided care, the failure to provide care and "any matter incidental or related thereto." Idaho Code Section 6-1013 provides, in part:
xpert 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.
Therefore, when the doctors submitted affidavits sufficient to support their motions for summary judgment, which Litz has not challenged in this appeal, the burden was shifted to Litz to support his claim with direct expert testimony that satisfied the requirements of I.C. §§ 6-1012 and 6-1013. See Maxwell, 102 Idaho at 56, 625 P.2d at 410.
Litz provided his own affidavit and Warden's affidavit in which she identified herself as an "Emergency Medical Technician Ambulance" and "CNA home healthcare professional." Neither Litz nor Warden would be considered an expert witness for the purposes of I.C. §§ 6-1012 and 6-1013 in this case. Thus, Litz did not provide expert testimony which met the requirements of I.C. §§ 6-1012 and 6-1013 as to the applicable standard of health care practice in the community. Additionally, Litz does not assert that the doctors provided expert testimony which would have satisfied Litz's burden to prove that either of the doctors negligently failed to meet the applicable standard of health care practice in the community.
Thus, we conclude that, under the facts as pled in this particular case, Litz cannot avoid the requirements of I.C. §§ 6-1012 and 6-1013 by claiming his action is based on an intentional tort rather than negligence. Accordingly, the district court's order granting summary judgment is affirmed. Based on our decision, we do not need to address whether I.C. § 39-4303 immunized the doctors from liability. Costs are awarded to respondents, Robinson and Coffman. No attorney fees are awarded as none were requested.
LANSING, C.J., and SCHWARTZMAN, J., concur.
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