*1 SHEPARD, Chief Justice. Grimes, Gary GRIMES and Christie appeal from an order This is an Plaintiffs-Respondents, The sole issue is whether a new trial. during the trial of a medical action, instructing court erred in the trial M.D., GREEN, Stephen C. that the defendant’s treatment Defendant-Appellant. gauged and measured plaintiff should be No. 16210. the standard of health care of the com- a national standard of munity rather than Supreme of Idaho. Court We reverse. health care. Sept. 1987. of the trial At the conclusion Rehearing Denied Dec. that the standard of care was instructed used to the local should be gauge and measure defendant’s treatment neg- plaintiff. Following a verdict of no defendant, ligence on the his instruction was errone- court concluded a motion for a new trial. ous Grimes, April who was approximately pregnant, began 35 weeks weakness, nausea, experiencing and back County pain. hospitalized When Blaine Hospital, reported she was feverish and ruptured. No evi- that her membranes rupture, dence indicated such and several nega- tests to detect amniotic fluid were tests, however, tive. Blood indicated a bac- terial infection. Her condition dete- riorated, transported to and Grimes was Magic Valley Hospital in Twin Falls. placed There she was under the care of Green, defendant-appellant who is a board- obstetrician-gynecologist. Levin, original physician, had noted on the documents, transfer an indication of sus- amniotitis, pected a bacterial infection of surrounding the amniotic fluid the fetus. Grimes, Upon examination of Dr. Green detected no evidence of membrane had a but observed that Grimes bacterial suspected that infection and Grimes suffering placed from amnionitis. Green antibiotics, plan Grimes on a treatment and did not she would survive the believe day. after, began hav- soon respiratory syndrome, distress adult Smith, Hull, Boise, Quane, Howard & life-threatening which is a condition Quane
appellant. argued. Jeremiah A. by septic shock. con- can be caused Ellis, Brown, Boise, but, Steel, performing Sheils & a caesarean section sidered respondents. internist, argued. Allen B. con- Ellis consultation with an *2 eluded surgery point Clair, at St.
fatal to Grimes. (1985). After a verdict in favor of defend Green, plaintiffs ant filed a motion for a Grimes continued to deteriorate rapidly, asserting that under the Buck and she was to LDS in Hospital transferred decision the care for board-cer City Salt Lake where there were superior tified awas national standard of care intensive and neo-natal facilities. care rather than local community stan diagnosed There was having septice- she as care. The trial agreed, stat mia caused amnionitis. Three hours ing in its order that had it had the benefit after arrival a per- caesarean section was of the Buck decision he formed because of would have in Grimes’ condi- extreme jury tion of low structed on a oxygen, blood national standard. Respirato- Adult Hence, amnionitis, ry Syndrome, fetal distress. a motion for The was During child stillborn. a new trial on the caesa- the sole his in basis that rean, it was discovered that the to amniotic struction in erroneous view baby smelling, fluid around the was foul of this Court’s in decision Buck. indicating bacterial infection in the form of judge The trial case instant A hysterectomy per- amnionitis. was later as follows: continuing formed stem a to infec- bacterial case, any “In or claim action for dam- tion and to save Grimes’ life. ages injury any person due to or death of obstetrician-gynecologists Board-certified brought against any physician, the claim- plaintiff, on testifying behalf of indicated or ant an essential that a national for existed chief, of his or her in case affirmatively obstetrician-gynecologists, prove by expert testimony opined that Green had violated that preponderance all evi- standard of care through failure use to dence that negligently the defendant diagnose amniocentesis to Am- amnionitis. failed to meet the standard of is a technique niocentesis wherein a needle health in is inserted into the amniotic with- sac to which such care was or should have been sample draw a of the amniotic fluid provided as such standard existed at the analysis. experts, Defense on the other negligence the alleged time hand, testified that amniocentesis physician. of the defendant
routinely used the Twin Falls area due “An individual shall be the danger that the insertion of a needle might into the convey amniotic sac into the qualified physicians trained and
sac bacteria from other infected tissue.
same class in the same
tak-
Hence, they testified that
actions
training, expe-
into account his or her
Green were in conformance with the stan-
rience and
specializa-
fields
medical
dard of care then
Twin
tion, if any.
community.
Falls
‘community’
“The term
refers
stated,
As above
in conformance with
6-1012, the jury
was instructed that
§
general hospital
licensed
near-
Green’s treatment of Grimes should be
est which such care was or
gauged
against
and measured
the standard
provided.”
should
community.
of health care in the Twin Falls
deliberations,
During
substantially
time of the
said instruction
con-
opinion
6-1012,1
released its
Court
Buck
formed
the mandate of I.C. §
nurse,
registered
practitioner,
practical
Proof of
6-1012.
standard of
licensed
nurse,
anesthetist,
technologist,
health care
case.—In
nurse
medical
home,
any
damages
physical therapist, hospital
claim or
nursing
action
due
any person, brought
injury
any person
negligence
or death
vicariously
liable for the
them,
any
surgeon
against
any
or other
of them or
account
care, including
provision
provide
vider of health
tion,
without limita-
of or
failure
health care or
dentist,
assistant,
any
physicians’
nurse
on account of
matter incidental or related
hence,
we hold that the said instruction This Court reversed the trial court in Buck.
was not
stating:
erroneous.
702 P.2d at
requirement
order to meet the
judge agreed
The trial
with the asser
6-1013(c) showing adequate familiari-
plaintiffs-respondents, repeated
tions of the
*3
specialist
zation a
must demonstrate two
Buck,
appeal,
here on
supra, requires
first,
elements:
that he is board-certified
performance
of a
spe
board-certified
specialty
in the same
as that of the de-
against
cialist
to be measured
fendant-physician;
this demonstrates
standard
national
rather than the statutori
knowledge
appropriate
of the
standard
ly
community
mandated local
standard.
of
of
physicians prac-
care
disagree.
holding
We
The
of Buck is clear
ticing
specialty
question.
in the
Sec-
ly distinguishable from the case at bar.
ond, an out-of-the-area doctor
in-
must
opening language
of the decision in
quire of the local standard in order to
702 P.2d at
insure there are no local deviations from
presented
states: “The
appeal
issue
is
the national standard under which the
whether the trial
correctly
excluded
defendant-physician
witness-physi-
and
pursuant to I.C.
testimony
6-1013 the
§
cian were trained.
nationally
board-certified out-of-state ob
The Court
possessed
held that the witness
stetrician-gynecologist
in a medical mal
actual knowledge
applicable
said
practice case.” The trial court in Buck had
community
by
held
testimony
of a Portland
6-1013(c).
§
obstetrician-gynecologist
was inadmissible
conforming
case,
as not
contrast,
In the instant
plaintiff
6-1013(e).
strictures of I.C.
That statute
testimony
offered the
expert
§
of two
wit-
provides that an expert
may testify
witness
nesses from out of the immediate area.
medical
actions if
they,
extent,
a founda Each testified that
to some
laid,
tion therefor is first
establishing:
were familiar with the local standard of
care in the Twin Falls area. Neither testi-
(c)
expert
that such
possesses
witness
any knowledge
fied to
of a local deviation
professional knowledge
expertise
from
national
coupled with
knowledge
actual
Nevertheless, both such witnesses were
applicable said community standard to
permitted
testify,
and hence the
issue
which his
or her
opinion testimony
Buck, supra,
presented
is not
in the in-
addressed; provided,
is
this section shall
Here,
stant case.
there was evidence that
not
prohibit
be construed to
or otherwise
the local standard of care in Twin Falls
preclude
competent
expert witness who
alleged
deviated from the
national standard
resides elsewhere
adequately
from
famil-
iarizing himself with the standards and
practices
(a particular)
such area
Plaintiffs-respondents
effect,
argue in
giving
thereafter
opinion testimony in
alleging malpractice
cases
of board-
such a trial.
physicians,
Buck establishes a na-
thereto,
such claimant or
as an
health care shall be
in such cases in
chief,
essential
his or her case in
qualified
trained and
affirma-
tively prove by
expert testimony
providers of the same class in the same commu-
preponderance
evidence,
all the
nity,
taking
training,
into account his or her
that such
negligently
then and there
defendant
experience,
specialization,
and fields of medical
to meet the
health
failed
any.
provider
If there be no other like
in which such
and the standard of
allegedly
provided,
was or should have been
indeterminable,
therefore
evidence of such stan-
as such standard
existed at the time dard in similar Idaho communities at said time
alleged negligence
of such
act,
may be considered. As used in this
surgeon, hospital or
pro-
other such health care
"community”
term
refers to that
vider and as such standard then and there exist-
general
the licensed
respect
ed with
to the
class of health care
hospital at or nearest to which such care was or
vider that such defendant
then and there be-
provided.
(Empha-
he,
longed
capacity
to and in which
she or it
added.)
sis
functioning.
providers
Such individual
lant, Green,
tional standard
which the actions of all
who is a board-certified Obste-
physicians
gauged
such
will be
and mea-
trician-Gynecologist.
original physi-
sured,
cian,
and hence
can
Levin,
be no local
Dr. Donald
had noted on the
such
deviation from
a national standard.
transfer documents an
sus-
indication of
argument ignores
Such
the clear
pected amnionitis,
mandate
in-
is a bacterial
6-1012.
fairness to
surrounding
fection of the amniotic fluid
counsel
the instant
we
Grimes,
Upon
the fetus.
examination of
perceive
language
some of the
of Buck as Green could
detect
evidence of mem-
lending
support
some
to respondents’ as-
brane
but observed that Grimes
dicta,
language
sertions.
suspected
had a bacterial infection and
necessary
to the narrow
*4
might
Grimes
suffering
be
from amnioni-
Buck, i.e.,
competence
the
of a witness to
amniocentesis,
perform
tis. Green did not
testify,
we
now disavow that dicta.
process
a
by
sample
which a
of the amniot-
Instead,
analyzed.
ic fluid is
extracted
Generally,
granting
an order
denying
placed
he
on
plan
Grimes
a
treatment
a new trial will not be overturned absent
that,
antibiotics. The record indicates
an abuse of discretion.
v.
Luther
How
Falls,
when Grimes arrived in Twin
Green
land,
(1980).
101 Idaho
did not believe
day,
she would survive the
however,
bar,
In the case at
the sole basis
and,
fact,
any
failed to
note
tests
.grant
of the trial court’s decision to
a new
results
her
days
chart for the first three
upon
was
perception
based
his
she was in
Buck,
his care. The record further
Hence,
law as announced in
supra.
indicates that Dr. Green failed to conduct
question is
the
not whether
was
an
follow-up
cultures,
discretion,
Gram
or cervical
abuse of
Stains
but rather the
which, according
testimony,
is
one
law. Clark
St.
Property
Paul
given.
Liability
Cornpanies,
Insurance
102
(1981).
Idaho
P.2d
639
454
improvement,
After
some short-lived
order
the trial court
a
began experiencing
Respira-
Adult
reversed,
is
and the cause is
(ARDS),
tory
Syndrome
Distress
is a
remanded with instructions that the verdict
life-threatening
condition
often is
be
judgment
reinstated and
which,
shock,
turn,
by septic
caused
appellants.
entered thereon.
Costs
caused
a bacterial infection. At this
point,
performing
considered
cae-
a
JJ.,
BAKES,
DONALDSON and
but,
section,
sarean
consultation
concur.
Skeem,
internist,
Dr. Randall
an
concluded
surgery
HUNTLEY,
fatal
Grimes.
Justice, dissenting.
A more detailed review of the facts and
Grimes’ condition continued to deterio-
rate,
proceedings surrounding
this case
bene-
and she was transferred to the shock
ficial, as
majority opinion
fully
does not
unit
Hospital
trauma
of LDS
Salt Lake
explain
In
proceedings
April City
below.
superior
where there were
intensive
1981, Grimes,
approximately
who was
thir-
care and
she
neo-natal facilities. There
ty-five
pregnant, began experiencing
diagnosed
having
weeks
was
septicemia
caused
weakness,
life,
pain.
nausea and back
When
amnionitis. In an
save
effort to
her
hospitalized
County Hospital,
in Blaine
performed
she
caesarean section was
and the
reported
attending
physi-
feverish
that her mem-
child was stillborn. The
cian,
Wise,
ruptured.
branes
evi-
Dr. Stuart
testified
performed
dence
indicated
several tests
caesarean was
because of
negative.
to detect amniotic fluid were
low
ox-
Grimes’ extreme condition of
blood
did, however,
(two-and-a-
ygen,
prolonged
Blood tests
indicate bacteri-
caused
deteriorated,
al
half days)
Respiratory
infection.
condition
existence of Adult
transported Magic
Syndrome
and Grimes was
Val- Distress
and amnionitis
ley Hospital Twin
ruptured
Additionally,
Palls.
she was
fetal
There
membranes.
placed
defendant-appel-
under the care of
rapid
distress
section.
caesarean
deliberat
During
time the
procedure, it was discovered
During the
opinion in Buck v. St.
ing, we released our
baby
amniotic fluid around
(1985).
Clair,
smelling which indicated bacterial
was foul
for board-certified
we held
hys-A
in the form of amnionitis.
infection
the local or
specialists,
stem
performed
later
terectomy was
to the national stan
equivalent
care is
in the area
continuing bacterial infection
and to
originally infected
amnionitis
spe-
that for board-certified
We believe
Grimes’ life.
save
cialists,
care is
local standard of
obstetrician-
During
national standard
equivalent to the
on behalf
experts
testified as
gynecologists
care____
The board-certified
indicated that a national
of Grimes
prod-
the state are the
practicing within
existed for board-certified
of care
nationally designed education
uct of
obstetrician-gynecologists, and further tes-
care familiar to
grams. The standard of
had violated that standard
tified that Green
this state
by failing
perform
amniocentesis
Id.
is the national
experts
Defense
testified
on Grimes.
745,
525 tion____ Buck, Id. 702 that the defendant’s conduct be com- P.2d 781. pared only geo- within his own graphic community or that of a similar only correctly Not did locality mandated a new trial where the interpret requiring Buck as a different defendant was a specialist (i.e. national) standard of care than he had subject to a national standard of care. upon, instructed it was well within its dis- The court further held particular grant cretion to a new trial on the basis of (i.e. circumstances of a community local its failure to so instruct. deviations) suit, could be relevant in a but MacNamara, In Morrison v. 407 A.2d could not be giving outlined without first (D.C.1979), the court a sim- addressed correct instruction on the national stan- situation, holding ilar that where a national care.) dard of adopted, standard of care had been it was arguably As the requiring error new trial to instruct irrevoca- bly tainted prejudiced against look standard in the local Grimes’ experts instructions, all-encompassing as such an erroneous I effectively precluded certainly say error cannot from the trial court considering manifestly the issue on the basis abused its discretion in Robbins, correct standard. a new trial. As in the local com- munity practice given as the sole stan- “Varying geographical standards of care jury. agree for the I longer are with the Rob- valid in view of uni- bins court may form local deviations proficiency standards of established cases, but, relevant in individual national board as that certification.” noted, A.2d at 565. it can never serve as the sole instruction, basis of an for to do so would It follows that an instruction which com- only ignore but would abe non- pares a nationally certified medical sequitur can be no “local devia- fessional’s conduct exclusively with the —there tions,” something unless there is to deviate standard of care [locally] or a similar [in] erroneous____ (i.e. standard). from a national community is [T]he *7 appel- majority For the to hold otherwise is lee’s conduct is compared to be solely nothing convoluted, more than a indirect with the standard of in and attempt limiting sub-rosa our Buck Washington Thus, D.C. effect, holding, with the designated trial court jury was instructed to ignore the testi- scapegoat. Here, the trial court could do mony appellant’s expert witness on little else present- under circumstances the standard care. This instruction and, least, ed it very at the did not mani- was error. 407 A.2d at (Emphasis festly abuse its discretion in added). new trial. Morrison, As in the trial court’s initial
instruction that a local standard of care BISTLINE, J., concurs. controlling, supplemental instruc tion that the standard of care “in Twin
Falls, Idaho” was a of fact for the
jury, negated any prospect uti
lizing a national standard of care as man
dated Morrison, under Buck. inAs
jury was effectively ignore instructed to
the testimony of Grimes’ witnesses who set
forth the national standard of care and
indicated that Green had violated such.
(See
Footer,
also Robbins v.
(D.C.Cir.1977),wherein it was held that a
trial court’s instructions to indicat-