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Conway v. Sonntag2/7/2005
that Dr. Sonntag committed malpractice when he punctured the lens capsule during the cataract surgery on October 5, 1999. In his affidavit, Dr. Sonntag stated, "My care and operative treatment of Lynda Conway complied in all respects with the standard of health care practice applicable to physicians engaged in the medical specialty of ophthalmology and ophthalmological surgery in Boise, Idaho in 1999." The opinions expressed by the Conways' expert focused solely upon Dr. Sonntag's post-operative treatment. Thus, the only issue of negligence presented concerned the post-operative care. We therefore need not address whether the surgery and the post-operative care should be considered separate acts of negligence for the purposes of the statute of limitations.
Dr. Sonntag initially treated the elevated intraocular pressure in Lynda Conway's left eye with medication. There is no expert testimony indicating that such initial treatment fell below the applicable standard of care. Rather, the alleged malpractice was failing to take alternative measures after the initial treatment proved ineffective. The Conways' expert stated that in his opinion "the Defendant negligently failed to meet the applicable standard of health care practice in the Boise-Meridian community in providing post-operative care for elevated pressure in Lynda Conway's eye after medication failed to resolve the condition." He opined that Dr. Sonntag's treatment was first negligent on November 12, 1999. According to the expert, " he Defendant's level of care failed to meet the community standard when, on November 12, 1999, . . . the pressure in Lynda Conway's eye spiked to 50+ after continued treatment with various medications and the Defendant failed to take alternative measures to reduce the pressure in the eye."
Under the facts of this case, the Conways' claim could not have accrued before the first incident of alleged malpractice, which was on November 12, 1999. They filed their request for a prelitigation screening panel on November 8, 2001, less than two years after the alleged act of malpractice. Therefore, their claim alleged in count two of the complaint was not barred by the statute of limitations, and the district court erred in dismissing it.
Dr. Sonntag also requests attorney fees on appeal pursuant to Idaho Code ยง 12-121. Because he is not the prevailing party, he is not entitled to an award of attorney fees under that statute. Swallow v. Emergency Medicine of Idaho, P.A., 138 Idaho 589, 67 P.3d 68 (2003).
III. CONCLUSION
The judgment of the district court is vacated, the order granting summary judgment is reversed, and this case is remanded for further proceedings consistent with this opinion. Costs on appeal to the appellants.
Chief Justice SCHROEDER and Justices TROUT, BURDICK and JONES CONCUR.
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