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Dulaney v. St. Alphonsus Regional Medical Center3/21/2002
standard of care did not change during the relatively brief time period.
In addition, it is relevant that the record is void of evidence to suggest that a neurologist has different training and experience than an emergency room physician or an Internal Medicine doctor. This becomes particularly relevant when the testimony of the neurologist pertains to neurological tests performed by an orthopedist. This Court has noted that an expert does not need to share the same specialty as the defendant doctor; rather this is one factor to consider when determining if the expert's testimony satisfies I.C. §§ 6-1012, -1013.
Further, in Hoenes v. Barnes, 121 Idaho 752, 828 P.2d 315 (1992), this Court noted that I.C. §§ 6-1012, -1013 should not be utilized to shield physicians from suit in malpractice cases. Id. at 756, 828 P.2d at 319. This Court observed, " here is no indication in I.C. §§ 6-1012 and 6-1013 that the legislature intended to grant this immunity from suit . . . ." Id.
The record indicates that Dr. Stump contacted numerous physicians to familiarize himself with the local standard of care. According to the affidavit of Lawrence Duff, letters were sent to twenty-two orthopedic physicians licensed in Idaho. Telephone calls were made to other out-of-state orthopedic physicians licensed in Idaho, however none of the physicians contacted were practicing in Idaho in 1994. Physicians are reluctant to testify against their fellow local physicians. Consequently, too rigidly enforcing the requirements set forth in the code provisions could serve to make it impossible for out-of-state experts to familiarize themselves with the local standard of care. This could ultimately preclude plaintiffs, such as Anna Dulaney, from bringing medical malpractice claims against Boise physicians under any set of facts.
For the above-stated reasons, I would hold that the district court erred in finding that Dr. Stump's affidavit was inadmissible.
CONCLUSION
Viewing the facts and inferences in a light most favorable to Dulaney, the nonmoving party, the affidavits of Dr. Mengert and Dr. Stump should have been admitted. They were familiar with the local standard of care, and their affidavits created a genuine issue of material fact sufficient to survive summary judgment. This case should have been allowed to proceed, thus giving Anna Dulaney her day in court.
Justice SCHROEDER CONCURS.
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