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[W] Dulaney v. St. Alphonsus Regional Medicial Center8/7/2001
fessional, a nurse, or a surgical technician. The affidavit does not state that the standard of care for the Anesthesia Respondents and St. Luke's was the same as that for neurosurgeons, nor does it state what the standard of care is for any of the Respondents. It simply states that Katz knew what the standard of care was for the Respondents, and that the Respondents breached the standard of care. This is insufficient to meet the requirements of I.R.C.P. 56(e) and I.C. ยงยง 6-1012 and 6-1013. Id. at 332, 940 P.2d at 1151.
Likewise, in Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1994), the out-of-area physician expressed an opinion regarding the standard of care of the defendant hospital, stating that he had consulted with health care practitioners in the town in which the hospital was located. This Court held that the physician's affidavit did not show he was qualified to express an expert opinion about the hospital's standard of care. In so holding, this Court stated as follows:
While it is theoretically possible that Dr. Oppenheim [the out-of-area physician] possesses that requisite training or experience and that the standard of care is the same for both hospitals and physicians, Dr. Oppenheim's affidavits do not affirmatively show that to be the case. Therefore, Dr. Oppenheim's affidavits do not comply with I.R.C.P. 56(e) because they do not affirmatively show that he possesses the professional knowledge and expertise to testify to the hospital's standard of care. Id. at 605, 903 P.2d at 1302.
In Evans v. Griswold, 129 Idaho 902, 935 P.2d 165 (1997), this Court upheld the dismissal of a malpractice claim against a Boise optometrist where the plaintiff's expert was a Boise ophthalmologist who had not made any inquiry into the local standard of care for an optometrist. This Court would not assume that the standard of care for an optometrist prescribing medication was the same as that for an ophthalmologist prescribing the same medication.
It is certainly theoretically possible, with respect to the care given the plaintiff in this case, that the standard of care for an emergency room physician is the same as the standard of care for a physician practicing internal medicine. It is also theoretically possible that although Dr. Smith has only practiced internal medicine in Boise, he may have become familiar with the standard of care for emergency room physicians in Boise. What is lacking, however, is anything in the record supporting either of those two theoretical possibilities.
2. The Majority Fails to Recognize the Distinction Between Laying the Foundation for the Admissibility of Evidence and Liberally Construing Evidence Once it is Deemed Admitted.
Rule 56(e) of the Idaho Rules of Civil Procedure provides that affidavits supporting or opposing a motion for summary judgment "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Although the majority cites Rule 56(e), it then proceeds to ignore it. That rule requires that the proponent of the expert testimony "show affirmatively" that the expert is competent to testify. In its decision, the majority relies heavily upon Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988). That case did not deal with the admissibility of expert testimony. It dealt solely with the sufficiency of expert testimony to withstand a motion for summary judgment. As this Court explained in Rhodehouse v. Stutts, 125 Idaho 208, 213, 868 P.2d 1224, 1229 (1994):
The issue in Clarke was whether an affidavit containing only the bare statement of an expert witness that he was familiar with the loc
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