 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hayward v. Jack's Pharmacy Incorporated6/15/2005
professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert testimony is addressed. . . .
I.C. § 6-1013. If there is "no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered." I.C. § 6-1012. A competent expert witness from somewhere other than the locale at issue may "adequately familiariz himself with the standards and practices of (a particular) such area. . . ." I.C. § 6-1013. An out-of-area expert witness with personal knowledge of the national standard of care may adequately familiarize himself with the applicable local standard of care by contacting a local physician who states that the local standard of care does not differ from the national standard of care. Grover v. Smith, 137 Idaho 247, 251, 46 P.3d 1105, 1109 (2002).
We have consistently held that in order to survive a motion for summary judgment in medical malpractice cases, the plaintiff must offer expert testimony indicating the health care provider negligently failed to meet the standard of care for the class of health care provider to which he belonged and in which capacity he was functioning at the time of the alleged negligence. Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002). Expert testimony introduced via affidavits must "set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify as to the matters stated therein." Rhodehouse v. Stutts, 125 Idaho 208, 212, 868 P.2d 1224, 1228 (1994). Finally, an expert must state how he or she became familiar with the standard of care about which he or she is testifying. Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000).
Because the district court distinguished Dr. Thurson's roles as medical director and physician and allowed the claim against his estate to proceed insofar as it pertained to Dr. Thurston in his role as medical director, our task is to decide to what "class of health care provider" Dr. Thurston belonged, and, in what capacity was he functioning? Having considered the record, we believe that he was not sometimes a medical director and sometimes a physician; instead, he was at all times some of each. Recall, Dr. Thurston must be judged "in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any." I.C. § 6-1012. Hayward's expert, Dr. Jay Luxenberg, a San Francisco-based physician and medical director of a nursing home, testified that the medical director and physician roles really are not separable in this case. Consider the following exchange between Dr. Luxenberg and counsel for Dr. Thurston's estate:
[Counsel for Dr. Thurston's Estate]: Regarding Dr. Thurston as potentially the Medical Director of Valley Vista, have you come to any opinions on a more probable than not basis that he breached a standard of care as Medical Director that was also a proximate cause of [Delbert's] death?
And let me say I do wish you to distinguish that from your prior testimony regarding Dr. Thurston which I assume was regarding his practice as an attending physician.
[Answer by Dr. Luxenberg:] Okay.
MR. EYMANN: I have to object to the form. If you understand the question, go ahead.
[Dr. Luxenberg]: I do understand the question, and I'll just state that it becomes a classic problem to distinguish the action of the Medical Director who also is serving
Page 1 2 3 4 5 6 7 Idaho Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|