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Clark v. Klein3/5/2002
2002 Opinion No. 31
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
Appeal from a verdict in favor of the defendant in a medical malpractice case, reversed and remanded.
This is an appeal from a medical malpractice action by Debra A. Clark (Clark) and Allen Ayres (Ayres) (collectively "Appellants") involving the death of their son, Corey Ayres, in which a jury rendered a verdict in favor of Respondent Fredrick J. Klein, M.D. (Klein). We reverse and remand for a new trial.
I. FACTUAL AND PROCEDURAL HISTORY
During the late evening of August 3, 1997, or early morning of August 4, 1997, Corey Ayres (Corey) was injured on Pleasant Valley road, south of Boise. Corey, who was nineteen years old at the time, was apparently kneeling on the back bumper of a pickup truck one of his friends was driving on a dirt road, pretending that he was running behind the pickup, when the pickup hit a bump causing Corey to strike his abdomen on the tailgate of the pickup. After the incident, Corey complained to his friends that he was in pain and they took him to St. Alphonsus Hospital.
At the hospital, Klein examined Corey and requested a CT scan and X-rays. The tests were negative and about two hours after arriving, during the early morning of Sunday, August 4, Klein released Corey to his mother, Clark. Klein told them that Corey would be sore for a couple of days, but that he could return to work when he felt better. The discharge nurse gave Clark instructions as directed by Klein at the time of his release. Corey was given a sample packet of Tylenol with codeine for pain and the nurse told Clark to contact the hospital if Corey vomited, his fever worsened, or his pain increased.
Corey slept most of Sunday and apparently he ate and drank intermittently. On Monday, August 5, at approximately 5:00 a.m., Clark checked on Corey and found that he was still asleep. Clark went to work and called Corey about half an hour later from work and he told her that he was not feeling any better. She told him to take his medication and if that did not help, she would come home. About forty-five minutes later, Clark's daughter called Clark at work and told her Corey had collapsed on the floor and she did not know whether he was breathing. The paramedics were called but were unable to revive Corey, and he died on Monday, August 5, 1997.
An autopsy was performed following Corey's death, which revealed that he had a small tear in his intestine allowing the contents of his intestine to leak into his peritoneal cavity, resulting in an infection (peritonitis), which was the cause of his death.
On March 9, 1998, Clark and Corey's father, Ayres, filed a complaint and demand for a jury trial in the 4th Judicial district court, seeking damages for wrongful death against Klein and St. Alphonsus Medical Center. Initially, Lojek law offices represented both Clark and Ayres, but after the complaint was filed, Ayres retained separate counsel, Jim C. Harris. The claim against St. Alphonsus was subsequently settled and the claim against Klein was tried before a jury, commencing on May 9, 2000.
At trial, Dr. Renee Bourquard (Bourquard) was allowed to testify as an expert, over Clark's objection. Clark objected that Bourquard, and the substance of her testimony was not properly disclosed, despite the fact that Clark had asked Klein in one of her interrogatories to identify any expert witnesses he planned to call at trial and the substance of their testimony. The trial judge also refused to allow Ayres' counsel to cross-examine Klein's witnesses
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