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[W] Dulaney v. St. Alphonsus Regional Medicial Center8/7/2001
ied when reviewing a trial court's ruling on the admissibility of an expert opinion is whether the trial court abused its discretion. Kolln v. Saint Luke's Reg'l Med. Ctr., 130 Idaho 323, 940 P.2d 1142 (1997).
Because it confuses that distinction, the majority construes the facts liberally and draws assumptions in order to fill in gaps in the foundation that must be shown in order to show that expert testimony is admissible. By doing so, the majority shifts to the opposing party the burden of showing that proffered expert testimony is not admissible, rather than requiring the proponent of the testimony to show that such testimony is admissible. Because the standard for the admissibility of evidence on a motion for summary judgment is the same as the standard for the admissibility of evidence at trial, I.R.C.P. 56(e), the new rule announced by the majority today will, presumably, also apply at trial. Thus, objections to the foundation for expert testimony must be overruled unless the party making the objection offers evidence affirmatively showing that the expert is not qualified to express the opinion.
3. In Essence, the Majority Simply Rewrites Idaho Code §§ 6-1012 and 6-1013.
The majority, in essence, simply rewrites Idaho Code §§ 6-1012 and 6-1013. All that is now required is that the party offering expert medical testimony show that the party's out-of-area physician has "consulted [with] a local physician possessing expertise in the area at issue." The required "expertise in the area at issue" is not knowledge of the applicable standard of care. Apparently, it is enough if he or she is simply a local physician who has an opinion that the care given was substandard.
In Frank v. East Shoshone Hospital, 114 Idaho 480, 482, 757 P.2d 1199, 1201 (1988), this Court stated, "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." Although it is not overly burdensome to comply with Idaho Code §§ 6-1012 and 6-1013 as written, compliance does require that counsel give guidance to the out-of-area expert as to what is necessary in order to lay the appropriate foundation. Counsel cannot simply assume that an out-of-state medical provider knows what is required to lay an adequate foundation for his or her testimony under Idaho law. Not only is the requirement of the statutes not "overly burdensome," it is now virtually non-existent. The majority's opinion proves the old saw that "hard cases make bad law." Under the law that existed prior to today, Dr. Mengert's testimony would not have been admissible.
B. DID THE DISTRICT COURT ERR IN HOLDING THAT THE PLAINTIFF HAD FAILED TO LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE TESTIMONY OF DR. STUMP?
Dr. Stump is a board-certified neurologist who practices in Redmond, Washington. His testimony was offered by the plaintiff primarily to establish negligence on the part of Dr. Stanley Waters, an orthopedic physician who was called in to consult in the emergency room with Dr. Holland. In an attempt to familiarize himself with the local standard of care, Dr. Stump consulted with Dr. Adornato, a neurologist who currently practices in Palo Alto, California, but who practiced neurology in Boise during the late 1980's and early 1990's. The district court held that the plaintiff had failed to lay the proper foundation for Dr. Stump's testimony to be admissible. In so holding, the court stated:
With respect to Dr. Stump's opinion regarding Dr. Holland's care, Dr. Stump failed to adequately familiarize himself with the standard of care applicable to - well both to emergency room doctor, certainly
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