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[W] Dulaney v. St. Alphonsus Regional Medicial Center8/7/2001
LANEY'S MOTION FOR RECONSIDERATION.
In this case, Dulaney filed a motion for reconsideration, arguing that Dr. Stump had sufficiently familiarized himself with the local standard of care as further evidenced by the fact that Dr. Stump consulted with an anonymous medical professor. The question of whether an out-of-state expert can familiarize himself with the local standard of care through consultation with an anonymous physician appears to be a question of first impression for this Court. However, in light of the fact that the district court's decision is reversed on other grounds, it is not necessary to resolve this interesting question in order to conclude this appeal.
D. RESPONDENT HOLLAND IS NOT ENTITLED TO ATTORNEY FEES.
Idaho Code § 12-121 provides, "In any civil action, the judge may award reasonable attorney's fees to the prevailing party or parties . . . ." Id. "Idaho Code § 12-121 authorizes this Court to award reasonable attorney fees to the prevailing party on appeal, not as a matter of right, but only where the Court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably, or without foundation." Thompson v. Pike, 125 Idaho 897, 901, 876 P.2d 595, 599 (1994). Dr. Holland is not the prevailing party in this case. Additionally, Dulaney's appeal does not meet this criteria, as she raises valid points and arguments. Consequently, Dr. Holland is not entitled to attorney fees.
VI. CONCLUSION
Viewing the facts and inferences in a light most favorable to Dulaney, the non-moving party, we find that the affidavits of Dr. Mengert and Dr. Stump were admissible. The decision of the district court is reversed and remanded for action consistent with this opinion. Attorney fees are not awarded. Costs to appellant.
Justices SCHROEDER and WALTERS, CONCUR.
Chief Justice Trout, DISSENTING.
Because I disagree with the Court's conclusion that the district judge abused his discretion by finding the testimony of Dr. Mengert and Dr. Stump inadmissible for failure to demonstrate the requisite familiarity with the local standard of care, I respectfully dissent.
Although the Court is correct that we are reluctant to place overly burdensome requirements on experts testifying in medical malpractice cases, we cannot lower the standard below that which is set by the statute itself. Idaho Code § 6-1012 specifically requires the plaintiff to "affirmatively prove by direct expert testimony ... that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence." (emphasis added). Although the Court goes to great lengths to distinguish Gubler v. Boe and argue the site and time specificity requirement under I.C. § 6-1012 has not been addressed by this Court, the language of I.C. § 6-1012 is undoubtedly site and time specific.
Dr. Stump, an orthopedists, consulted with Dr. Adernato, a neurologist, to establish the medical standards of health care in Boise, Idaho in August 1994 regarding the defendants, an emergency room doctor and an orthopedic surgeon. Dr. Adernato was not practicing in Boise, or in Idaho, during the time of time of the alleged negligence. Attempting to distinguish our precedent to allow Stump's testimony, the Court determines "there is no evidence or suggestion in the record that the standard of care changed in the two-year period ranging from 1992-1994. For purposes of summary judgment, an inference exists that the standard of care did not change
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