Frank v. East Shoshone Hospital
757 P.2d 1199
Idaho
1988
Check Treatment

*1 discussed. Supreme There the spe- Court request. ant’s The resultant effect on the cifically jury noted as to that company: railroad can not gauged, it inescap- but able prejudicial that it was jury to a who ... danger and that it had signs no notwithstanding that error and the abso- anything to people warn the keep to off lute failure of the court to instruct on the ... and duty it was the appellant theory of attractive nuisance was extreme- company] to every precau- take [railroad ly prejudicial plaintiff’s to the case.

tion people to warn danger Just as recently year ago, as one going upon though ... even Justice it be a tres- Bakes authored a unanimous for pass to do so. this Court again which held once that: York, 586, 8 Idaho at 69 P. at 1054. “Litigants right jury have to have the In this case the trial court instructed the every instructed on theory reasonable jury, law, “As a matter of the railroad is presenting relief, a basis of a claim for required place signs upon not to proper- its thereto, defense theory which such finds ty private to indicate its proper- status as support in pleadings and evidence.” ty.” Anyone with even experi- limited trial Citing Ker, 75, Messmer v. ence knows that such an instruction is bad. cases, plus P.2d 536 other follow- When it is couched in terms of “as a matter ing requested which he concluded that a juror readily law” a can believe that instruction given. should have been statutory there is some enactment to that Freightlines Garrett v. Bannock Paving juror, effect—when there is none. A if he Co., 731, 112 Idaho 722 at 735 P.2d 1033 at attorney, is an only juror, might such a (1987). 1041-1042 The trial bench and bar understand that such is established case may why well wonder today’s opinion precedent, law it but is not. The worst Justice Bakes finds no error in the trial aspect of the instruction is that it should give court’s refusal to an instruction on a given. not have been Jurors could and theory presented by parties which was both would confuse a Property” sign “Private litigant. This is not a directed con- verdict Trespass” with a sign, “No or with a “Pri- judge text. The trial jury did allow the Property vate Trespassing Danger” —No — deck, decide the but not with a full Most, sign. if persons, not all have had and that is appeal what the is all about. exposure seeing some signs. The first three sentences of In- Given

struction No. 4 jurors told the of their

obligation: your

These instructions define duties 757 P.2d 1199 jury as members of the and the law that applies to this case. Your duties are to Shirley Frank, Henry M. FRANK and facts, apply determine the the law set wife, husband and facts, forth these instructions to those Plaintiffs-Appellants, way and in this to decide the case. In so doing, you must follow these instruc- EAST SHOSHONE tions. HOSPITAL, Defendant, R., p. 117. Given Instruction 4No. was requested by the compa- defendant railroad Faith, M.D., jointly Glenn C. indi- ny, and authority Huyck cited as case vidually, Defendant-Respondent. 62, Code, plus generally; “Title Poca- Code, Municipal generally.” tello in- No. 16648. struction given. should have been No Supreme Court of Idaho. precedent giving for case law of an July only instruction which could serve to obfus- tried, being cate the issue and confuse the

jurors as has been discussed earlier. The succumbing

trial court erred in to defend-

481 malpractice alleged medical Plaintiffs Frank re- arising from the treatment Mrs. Dr. East Shoshone from Faith ceived Hospital a broken ankle. Faith for contending summary judgment, for moved expert, Dr. was plaintiffs’ that in of care not familiar with the standard in Valley region known as the Silver granted.1 The motion was northern Idaho. any states that in Idaho Code § plaintiff “must” medical pos- expert establish “that such witness knowledge exper- professional and sesses coupled knowledge tise with actual applicable community said standard testimony expert is ad- which added).2 deposi- (emphasis dressed” plaintiffs’ expert, Dr. testimony tion of Blaisdell, however, fails to establish Blaisdell was familiar with local Shoshone Hos- standard of care at East provides: pital. The record Reynolds (argued), Spokane, Dennis W. [By ha- Q. You defendant’s counsel] Wash., Dodson, and M. d’Al- Charles Coeur the standard of care ven’t discussed ene, plaintiffs-appellants. for any particular in doctors that practice in that area? PA, Lewiston, Aherin & Rice for defend- argued. Rice ant-respondent. Stephan C. [By Dr. No sir. A. Blaisdell] Q. Okay. You’re not familiar with the BISTLINE, Justice. procedures room emergency at the appeal by plaintiffs-appellants This is an Hospital in that were a in favor Frank from February you? of 1982 are effect defendant-respondent of Faith an action detail, no sir. A. Not alleging malpractice. The district medical Blaisdell, p. Deposition of Dr. 61. Conse- granted summary judgment court on the quently, trial court that with the expert ground plaintiffs’ was not fa- plaintiffs’ expert as matter of law was a community miliar local or stan- with the 6-1013(e). applicable with the not familiar dard as mandated We care. .affirm. (a) actually establishing scope appellate that such an is Our is limited to 1. of review witness, (b) determining only genuine expert whether there exist said held prevail- and whether the issues of material fact opinion can be testified to with reasonable ing party judgment as matter of entitled to (c) certainty, expert that such wit- medical Butts, Gro-Mor, Inc. law. v. professional knowledge possesses and ex- ness (Ct.App.1985). 721 knowledge pertise coupled with actual of community applicable said standard to which provides Code in full: Idaho 6-1013 expert opinion ad- his or her expert Testimony community witness on of dressed; provided, this section not be con- applicable practice of standard. —The standard preclude prohibit com- strued or otherwise a defendant’s failure to meet said such petent expert witness who resides elsewhere in such cases standard must be established familiarizing adequately himself with the from (1) by testimony plaintiff one or more such a (a practices particular) witnesses, standards and such competent expert knowledgeable, giving opinion testimony in testimony may only area and thereafter expert such be admitted in laid, is first a trial. evidence if the foundation therefor

Our today decision does not cast an oner- that all legitimate the facts and inferences ous plaintiffs arising burden on in medical therefrom mal- are to be construed most practice favorably non-moving actions. It is not an toward the overly party, bur- Pocatello, Anderson City requirement densome to have an *3 176, (1986); 731 P.2d 171 become Anderson v. familiar with the standard of care 658, Ethington, 103 Idaho 651 P.2d 923 in the community alleged malprac- where (1982); Huyck Co., Mining Hecla 101 tice is Clair, committed. In Buck v. St. 299, (1980); Idaho 612 P.2d 142 I.R.C.P. 743, 746, 108 Idaho 781, 784 56(c), I am of the view that Dr. Blaisdell (1985), expert became familiar with the was marginally qualified express his local standard of by simply question- care opinion as to a violation of the local stan- ing Furthermore, a local doctor.3 I.C. dard of care. Dr. Blaisdell was asked: 6-1013(c)provides nothing pro- § you “Have done any- research or done competent hibit a expert witness who re- thing yourself to familiarize with the stan- sides adequately elsewhere from familiariz- dard of care in Valley, the Silver either ing him or applicable herself with the local Kellogg or the Hospital.” standard of care.4 answered, He “only indirectly,” and then Thus, requirement because the explain of I.C. went on to that he had observed burden, patients is not a treatment of crushing from that locality was familiar decline with the treatment judicially abrogate received in legisla- particular area. His then ture’s require decision to that each and becomes somewhat confusing when he as- every malpractice expert be or become fa- serts that the standard of care in the Silver miliar with the local standard of care. is, Valley region be, or should similar to a Costs to defendants. Affirmed. national standard. It court, should be noted that the trial in HUNTLEY, J., TOWLES, J., pro ruling on summary the motion for judg- tem., concur. ment, alluded to the fact that Blaisdell was orthopedic board-certified surgeon SHEPARD, Justice, concurring Chief should opine not be heard to as to the only. result general care rendered I concur in the conclusion reached family practitioner. deposition, In his majority, i.e., that the summary judgment Blaisdell asserted that he had worked with granted by the trial court should be af- and was familiar with the standard of care However, firmed. I emphatically disagree general for a or family practitioners. and dissent with the basis used majority to reach that result. Hence, I point would hold that at the summary judgment, knowledge of Dr. majority quotes a few sentences Blaisdell satisfy was sufficient to the local deposition from the of Dr. (plain- Blaisdell requirement standard of care contained witness), tiffs’ medical and con- 6-1013(c). Particularly, I would so cludes therefrom that the witness did not hold in view of this Court’s most recent knowledge have of the standard of care in pronouncement in summary the area of Valley, Kellogg, Silver or the East Sho- i.e., judgment, Hospital. shone appropriate unless the basis therefor is presents that the issue a close beyond demonstrated a reasonable doubt. question. given our standard Steer, for Nelson v. Idaho 16807, S.Ct. # Slip summary judgment, i.e., op. the issuance of (May 23,1988). # 36 2, Although subsequently supra. the Buck decision was 4. See note Green, limited and clarified in Grimes v. 113 519, (1987), Idaho 746 P.2d 978 the above noted point of law was not. majority knowledge ability. sug- The truncated Blaisdell also presents background gested given no factual that even if Mrs. Frank whatsoev- had consent, background er. It is that factual which I under such circumstances it submit forms the correct probably basis for affirm- would not been have valid. Dr. ing summary judgment. opined issuance Blaisdell that Mrs. Frank could’have background distinguishes That transported by private Spo- factual this been vehicle to Green, 519, kane, case from approximately days Grimes v. and in fact two (1987) Clair, 746 P.2d 978 transported Spokane by and Buck v. St. later she was private 702 P.2d 781 and her husband in a vehicle. every other medical case con- nothing There the record to indicate *4 by sidered this Court. any by of the treatment rendered Dr. presents only question

This case of Faith constituted a violation of the stan- physician required only presented whether a to treat a dard of care. The issue person injury. plaintiff, who has an only rather what Dr. Faith did do. The Frank, Shirley compound suffered testimony by a frac- Dr. Blaisdell as to the care ture of her left ankle and by was delivered to rendered compound Dr. Faith is that the emergency room of East Shoshone fracture of the ankle should have been Hospital shortly midnight reduced, albeit, before on Febru- Dr. Blaisdell did not dis- ary by 1982. There she general was examined practitioners might be Faith, general practitioner/physician. Dr. a procedure. reluctant to undertake such a diagnosed injury He and rendered Hence, allegations against Dr. Faith emergency cleansing care in injury, or- do not relate to his treatment of Mrs. dering x-rays, applying dressing, a and sta- Rather, Frank. they relate to Faith’s al- bilizing the ankle. Faith determined that leged failure to render additional treatment injury' required beyond treatment and care. No rule of law is cited which competence, suggested level treat- requires physician care, to render by ment one of two physicians. other places liability upon him if he fails to do so. Frank refused that tendered offer of treat- fact, In pro- our statute I.C. 39-1391c by physicians, ment other and stated that pertinent part: vides in by she desired treatment physician Nothing in this act shall be deemed to Spokane, Washington. require any physician to undertake to or point At that in time Dr. Faith was treatment, to furnish medical care and presented the following circumstanc- emergency whether on an basis or other- es. Frank had a blood alcohol content wise, any person requesting Upon delivering .244. Mrs. Frank to the presented treatment, for such care and emergency room, her husband had left and any physician nor shall be held lia- reappear did not regu- for ten hours. The any by ble in civil action reason of his physician lar of Mrs. Frank was unavail- refraining furnishing from the of such able, and she refused any treatment from referring care and treatment or the same physician, other local demanding rather specialist physician to a or other believed that she treated Spokane, Washing- be at uniquely him to more appropri- be injuries ton. The to Mrs. Frank were not ately experienced qualified. threatening, life and Faith did not believe Hence, I would hold that no cause of that Mrs. Frank capable giving was in- action lies in the instant circumstances for procedures formed consent to further the refusal of Dr. Faith to render addition- Hospital. al care. It is that failure to render care plaintiffs’ expert, which forms the basis for Dr. Blaisdell’s agreed general that a practitioner/physi- opinion that Dr. Faith deviated from the cian, care, faced injury, might i.e., when with such that Dr. Faith failed reluctant to treat it because of his lack of to reduce the fracture. While the record

discloses a conflict plaintiffs’ between the expert, pursuant of Mrs. Frank and Dr. Faith 6-1013(c), as to whether become familiar with the local inability Faith advised her of his community standard of care. care, render I additional do not conclude Plaintiffs contend that treatment here that such is a material conflict of fact since provided violated a standard of care in ev- undisputed it is that Mrs. Frank refused ery community Idaho. It is true that in Hospi- further treatment at East Shoshone cases, malpractice may some seem self-evi- tal and demanded that she be treated at dent. An operating intoxicated doctor on a Spokane. There is no assertion patient example. is one In such a transpor- record that the Franks demanded undoubtedly resources are wasted re- Spokane, tation to or that such demand was quiring an to become familiar with any event, In refused. that issue would the local standard of care: the liability hospital, relate to the which alleged speaks for itself. I sub- defendant, has been dismissed as a and is majority mit the vast of cases are not so party appeal. not a on this plaintiffs’ position If clear cut. were brief, In summary would affirm the adopted, an endless stream of cases would court, judgment issued the trial but not Court, demanding reach this *5 define grounds majority opin- on stated is, not, what and what is “clear cut” mal- ion. practice. Making such a distinction is of- arbitrary. especially ten This is true be- BAKES, Justice, concurring specially: law, cause we are trained in the field of I concur with the Court’s that the medicine. plaintiff’s expert, affidavit of important, majority opin- Just as as the adequate requirements was not to meet the notes, ion it does not a Herculean take 6-1013(c) of I.C. and therefore under I.R. § effort for an familiar become 56(e) C.P. the affidavit was not sufficient to with the local standard of care. It can be preclude entry of Moreover, telephone. done on the if the 56(e) favor of the defendant. I.R.C.P. re- plaintiff’s expert cannot find doctor from opposing quires “[sjupporting affi- community the local to inform him or her personal made on davits knowl- care, of the local standard of I.C. 6-1012 § edge, shall set forth such facts as would be provides prac- of that where the standard evidence, and shall show admissible “indeterminable, tice is evidence of such compe- affirmatively that affiant standard in similar Idaho communities at testify tent to to the matters stated there- Thus, may said time be considered.” added.) (Emphasis in.” affidavit today speaks clearly decision as to the re- requirements did not meet the Dr. Blaisdell quirements concerning expert’s knowl- 6-1013(c), 56(e) and I.C. I.R.C.P. edge of the local standard of care. As a opin- accordingly I concur with the Court’s result, longer no the statute will serve as a ion. See Parsons, Pearson v. trap unwary. for the Bakes, J., concur- ring in the result. portion I also Shepard’s concurring opin-

of Chief Justice he concludes that under I.C.

ion which in the “no cause of action lies

instant circumstances for the refusal of render additional care.” Ante at

Faith to 483, 757 P.2d

HUNTLEY, Justice, concurring. majority’s adoption concur with requires

“bright line” rule which that the