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Dulaney v. St. Alphonsus Regional Medical Center3/21/2002
presently practice in Boise," but he did not state whether they were practicing in Boise in 1994. He stated that he has "maintained personal and professional relationships with physicians in Boise," but he did not state whether he did so during 1994. He likewise did not state that he had ever discussed with these orthopedic physicians the standard of care for an orthopedic physician practicing in Boise in 1994. He stated that he had taught and lectured in Boise, but did not state when he did so. Dr. Stump's affidavit does not allege any specific facts showing that the anonymous professor was familiar with the standard of care for orthopedic surgeons in Boise in August 1994. The professor's conclusory statement that he was familiar with the standard of care in Boise in 1994 is simply not sufficient. Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989). The district court correctly held that the supplemental affidavit of Dr. Stump was not sufficient to show that he had adequately familiarized himself with the standards and practices of orthopedic surgeons in Boise, Idaho, in August 1994.
IV. CONCLUSION
The district court correctly held that Dulaney had failed to lay an adequate foundation showing that her out-of-state medical experts had adequately familiarized themselves with the standard of care for either emergency room physicians or orthopedic surgeons in Boise, Idaho, as it existed in August 1994. Therefore, we affirm the district court's grant of summary judgment dismissing this action. Costs are awarded to the defendants.
Chief Justice TROUT and Justice WALTERS CONCUR.
Justice KIDWELL, DISSENTING
Anna Dulaney should have been allowed her day in the Idaho court system. A reasonable interpretation of the applicable statutes would allow the case to go forward. The district court and now the majority opinion of this Court have utilized an overly strict and parochial methodology to deter and bar a serious possible malpractice situation from being litigated. Therefore, I dissent.
The district court erred when it ruled that Drs. Mengert and Stump had not adequately familiarized themselves with the local standard of care pursuant to I.C. §§ 6-1012, -1013. The requirements of those statutes are not intended to be overly burdensome for the plaintiff to meet. Further, the statutory language does not mandate the district court's decision in this case.
A. Dr. Mengert
This Court, as well as the Court of Appeals, has addressed the constraints placed on the plaintiff's expert, noting that the requirements are not intended to be onerous. Frank v. East Shoshone Hosp., 114 Idaho 480, 482, 757 P.2d 1199, 1201 (1988) (noting, "Our decision today does not cast an onerous burden on plaintiffs in medical malpractice actions. It is not an overly burdensome requirement to have an expert become familiar with the standard of care in the community where alleged malpractice is committed"); Keyser v. Garner, 129 Idaho 112, 117, 922 P.2d 409, 414 (Ct. App. 1996). This Court's interpretation of the requirements created by I.C. §§ 6-1012, -1013 was further elaborated in Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988). In Clarke, this Court explained:
We take this occasion to express our disapproval of what appears to be a growing practice among the trial courts of this state dismissing medical malpractice cases at the summary judgment point on the basis that plaintiffs' expert witnesses are not sufficiently familiar with the standard of care to be expected from defendant-physicians . . . . We do not view such burden as being onerous on plaintiffs in medical malpractice cases since ordinarily it only requires a positive
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