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[W] Dulaney v. St. Alphonsus Regional Medicial Center8/7/2001
lly discussed the similarities in the standards of care pertaining to the time period in which Dr. Adernato practiced in Boise. Dr. Stump also indicated that he had read the depositions provided by Dr. Holland and Dr. Waters.
The district court found that Dr. Stump failed to adequately familiarize himself with the local standard of care. The court noted:
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 to an emergency room doctor in Boise in August of 1994, where all he did was speak to a fellow neurologist, Dr. Adornato.
Dr. Adornato himself was not an emergency room doctor nor was he practicing in Boise in August of - in fact, in any medicine in Boise in August of 1994.
With respect to Dr. Waters, I find the same fatal flaw, essentially Dr. Stump did not adequately familiarize himself with the standard of care applicable to an orthopedic surgeon in Boise in August of 1994, where the only consultation he had was with Dr. Adornato, again a neurologist who is not practicing orthopedic surgery or any other type of medicine in Boise at the relevant time.
We find that when viewing all facts and inferences in a light most favorable to the non-moving party, Dr. Stump's testimony and affidavit should have been considered. While it's true that Dr. Adornato was not practicing in Boise in 1994, there is no evidence or suggestion in the record that the standard of care changed in the two-year time period ranging from 1992-1994. For purposes of summary judgment, an inference exists that the 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, 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, "There 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 in order 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, we hold that the district court erred in finding that Dr. Stump's affidavit was inadmissible.
C. THE COURT NEED NOT ADDRESS WHETHER THE DISTRICT COURT ERRED WHEN IT DENIED DU
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