*1 R. L. and Norma RHODEHOUSE Rhodehouse, Plaintiffs-Appellants, STUTTS,
Dr. B. Defendant- Shields
Respondent.
No. Idaho,
Supreme Court Falls, April 1993 Term.
Feb. *2 descending ar-
off Rhodehouse’s left anterior tery, the balloon where it remained after point, At catheter was removed. this Stutts City, had Rhodehouse flown to Salt Lake Utah, surgery for cardiovascular to remove a forming. By the time blood clot which was Falls, Higgins, plaintiffs- Kent A. Idaho for City, Rhodehouse arrived in Salt Lake appellants. doctors there concluded that the maximum damage already to his heart muscle had oc- Smith, Hull, Boise, Quane, Howard & for enough curred and there would not be bene- defendant-respondent. Richard L. Stubbs surgery. justify fit to Rhodehouse was re- argued. turned to Idaho.
TROUT, Justice. 10, 1989, August On Rhodehouse filed suit against Regional the Eastern Idaho Medical malpractice This is a medical in case which (Medical Center) Center and Advanced Car- court trial entered in Systems, diovascular the manufacturer of the favor of the defendant doctor. The trial angioplasty. April catheter used in the On court found that the doctor’s affidavit submit- 30,1990, complaint, Rhodehouse amended his by plaintiff ted was admissible evidence adding Stutts as named defendant. Rhode- under I.R.C.P. because an there was alleged negligent house that Stutts was in insufficient foundation to show the doctor’s taking anti-coagulants him off and misdirect- familiarity with the local standard of care. ing guide the catheter wire into a small We affirm the decision of the district court. artery during branch of the the balloon an- gioplasty, causing guide wire to bend and I. break. granted The court the Medical Center’s AND BACKGROUND PRIOR summary judgment July motion for on PROCEEDINGS 1990, because Rhodehouse not met his had (Rhodehouse) Plaintiff Cleon Rhodehouse showing burden of the standard of health 9, 1987, August suffered a heart attack on complaint against care breached. The Ad- defendant, and was treated Dr. B. Systems vanced Cardiovascular was dis- (Stutts), Shields Stutts at Eastern Idaho Re- missed on March due to settle- gional Falls, in Medical Center Idaho. agreement. ment performed emergency angioplasty, Stutts summary judgment Stutts moved for procedure in guide which a catheter wire is 31,1990, August supported by his own affida- placed through the obstruction followed vit which stated that he was familiar with the passed balloon catheter which is over the standard of care Idaho Falls based on his inflated, removing wire and then the obstruc- practice cardiology in Idaho Falls and his angioplasty tion. performed, After the was physicians association with other the area. improved Rhodehouse’s condition re- and he fully then asserted that he had Stutts com- August mained stabilized until 12. At that plied with standard of care anti-coagu- time Rhodehouse was taken off his treatment of Rhodehouse. anticipation removing lants his catheter- Shortly anti-coagu- ization lines. after the granted The trial a con- court discontinued, lant was chest tinuance the October pains recurred and found that Rhode- judgment hearing permit in order to addi- artery again house’s become obstructed. discovery. The tional time court then attempted angioplasty. Stutts then another permitted filing plaintiffs expert’s the late During procedure tip angio- day prior which was submitted one plasty guide tributary summary judgment hearing wire broke in a small on Janu- 4,1991. the sum- argu- parties then briefs on
ary The court heard oral submitted mary judgment again motion and the court ments on the February January arguments heard 1991. The was trial found that Jenkins’ affidavit *3 opposition In motion for sum- Stutts’ question create of fact as not sufficient to judgment, the mary Rhodehouse submitted alleged of standard of care to an breach the Dr. D. of Ronald Jenkins which affidavit Accordingly, granted the by Stutts. court (1) physician certi- asserted that: he was summary judgment in favor of and Utah; City, cardiology in fied in Salt Lake cure deficien- time to the denied Rhodehouse (2) he was instructor heart catheteriza- cy- School; angioplasty and at Utah Medical tion (3) he had reviewed Stutts’ and moved for reconsideration Rhodehouse 26, 1990, the cine films from October 35mm 25, 1991, arguing March that Jenkins’ affida- hospital angioplasty for the and the records and the court had not vit was sufficient that operations performed on Cleon Rhodehouse. given opportunity supplement the him an of of Dr. On the issue the standard care The denied Rhode- affidavit. trial court provides: Jenkins’ affidavit reconsider, stating motion to that house’s time since Rhodehouse had had considerable my opinion upon I the state based judgment argument first reviewed, my person- documents and films supplement to file a motion and training knowledge and and with a rea- al rely yet on the and Rhodehouse continued to certainty. medical sonable in its form. professional I5. am familiar with the the lo- found Jenkins’ statements about applicable physi- standard of admissible cal standard of care were not engaged Dr. in the cian B. Shields Stutts thus court re- under I.R.C.P. and of Cleon Rhodehouse in Idaho treatment ruling grant- the earlier fused to reconsider Falls, upon my re- in 1987. Based Idaho summary judg- ing respondent’s motion for of the medical records and treatment view ment. Stutts, I am of Mr. Rhodehouse Dr. appeal, that Jen- On opinion Dr. the stan- Stutts breached familiarity sufficient physician en- kins’ affidavit shows of care dard as of care withstand gaged the treatment of cases such with the local standard Falls, Idaho, summary judgment in Idaho motion for including necessarily grant- not limited to not but trial court abused its discretion following ... particulars time Jen- ing him additional kins’ affidavit. argument on the sum- At the close motion, coun- mary II.
sel stated:
[Bjeeause
Jen-
[in
we chose
DID
THE TRIAL
NOT ABUSE
COURT
expressly from a case that
affidavit]
kins’
IN
DISCRETION
GRANTING
ITS
114
Prenger,
approved [Clarke
Court
MOTION FOR
RESPONDENT’S
(1988)],
766,
in the
Idaho
JUDGMENT
SUMMARY
finds that insufficient
that the Court
event
like to have leave to amend
we would
is
that on
It
axiomatic
affidavit.
judgment,
all facts and infer
views
favor
the non-
the record in
ences from
response,
the court advised counsel
moving party has the
party
moving
appropriate
“an
mo-
he
to make
would have
genuine
proving
the absence
burden
“more than
tion” and that
the court was
Butte
material fact. East Lizard
issues of
summary judgment
grant
inclined” to
Howell,
Corp. v.
by Water
been met
if the standard
(1992).
These standards
806
plaintiffs affidavit.
apply
point
to motions for
that at
that’s a
conclusion
best
trial,
and would not be admissible at
there
malpractice
medical
cases. Pearson v. Par-
it,
nothing
support
sons,
there to
and we’re
right
twenty-two
in the catch
situa-
back
(1988);
Prenger,
see also
Clarke
tion where we started.
766,
East Lizard
122 Idaho at
the motion to reconsider.
*4
Furthermore,
P.2d at 806.
the affidavits
Accordingly, although
only objected to
supporting
opposing
the motion “shall set
admissibility
of Jenkins’ affidavit under
forth such facts as would be admissible in
-1013,
§§
I.C.
6-1012 and
the trial court
evidence,
affirmatively
and shall show
excluded evidence of the local standard of
competent
the affiant
testify
is
56(e).
Jenkins’ affidavit based on Rule
56(e).
matters stated therein.”
I.R.C.P.
56(e)
reason,
may
For this
we
consider Rule
appeal.
Mining,
on
122
See Hecla
Idaho at
objection
ordinarily
Some form of
is
783,
Rhodehouse’s motion for Rule we must consider the admissibili court stated: ty of evidence under the Rule before consid 56(e) Now, Rule and Rule 56 itself ering whether the affidavit is sufficient to talked about the affidavits. Their affida- withstand vits must type be that the evidence §§ 6-1012 reviewing and -1013. When evi trial, set forth therein is admissible at it dentiary questions summary judgment, has to knowledge. be based on actual the trial court must look to the affidavit itself which, alleges and determine whether it facts IAs read Dr. Jenkins’ ... true, if taken as would render the evidence appear to me at best telling the doctor is Garner, therein Dunlap admissible. that, conclusion, us that he knows (filed 19, 1993). May WL 163873 Idaho Code say the standard of care. He doesn’t how § requires plaintiff in medical mal gets really he it or what it is. He infers practice prove by expert cases to direct testi it’s the same as the Board Certified stan- mony negligently that the defendant failed to along thought dard. And all I have “applicable meet the standard of health care sufficient____ that’s not practice community.” Idaho Code Based on Dr. forth, even particular 6-1013 sets require when I consider the inferences most favor- admissibility expert ments for of that medical non-moving able to party, I’m still at a testimony: (1992), involved the expert testimony may only which be ad-
[S]uch
testimony
if
there-
at trial.
expert
mitted
evidence
the foundation
(a)
laid, establishing
Kozlowski,
expert
first
that such
plaintiffs
is
out-of-state
actually
expert
held
opinion
spe-
is
deposition in
which
reviewed
(b)
witness,
opinion can
that the said
be
local standard was no
cialist testified that the
to with reasonable medical cer-
testified
national standard.
different
than the
(c)
tainty,
witness
Under these
possesses professional knowledge and ex-
circumstances,
the Court
found that
coupled
pertise
with actual
sufficiently familiar
plaintiffs expert was
standard to
said
of care and that the
the local standard
with
expert opinion testimony
his or her
which
allowing
testimo-
erred
trial court
____
addressed;
at 859.
ny at trial.
Id. at
Added to these
case,
In the
provision
judgment context is the additional
with the local
became familiar
that Jenkins
that the affidavits
“set
of I.R.C.P.
through
his review
be admissible in
forth such facts as would
Stutts,
hospi
35mm
films and the
cine
*5
affirmatively that
and shall show
evidence
may
possible
be
tal records. While it
competent
testify to
affiant is
to
the
the
the
stan
familiar with
local
expert
become
therein.”
matters stated
reviewing
doc
the defendant
dard of care
deposition,
presented with
are not
tor’s
we
knowledge of the
to show actual
order
physician in
here. Unlike the
that situation
of care under I.C.
local standard
Kozlowski,
that the local
never stated
expert
has held that a medical
the Court
as
nation
of care was the same
standard
inquire
a
must
of
local
from out-of-the-area
standard,
any
make
nor in fact did Stutts'
community
al
specialist as to the local
standard
Lenzi,
the local standard of care.
direct reference to
of care. Strode
(1989) (before
Furthermore,
a board-
that an ex
775 P.2d
we have indicated
specialist from outside
state
pert
certified
familiar with the local
cannot become
care,
may testify as
the standard of
hospi
merely by reviewing
care
standard of
minimum,
“must,
inquire
a
of
specialist
physi
of a local
records and the actions
tal
the lo
specialist to determine whether
local
Boe,
294, 297-
cian. See Gubler v.
the na
varies from
cal
standard
Because
spe
for that board certified
tional standard
inquired
of
there is no indication
Jenkins
—
Garner,
Idaho-,
cialty”); Dunlap v.
doctor,
did
state
a local
and Stutts
—
(filed
P.2d-,
May
ments of Rule
thus we must assume that
judge
the district
considered all of the ex-
THE TRIAL
DID
COURT
NOT ABUSE
pert’s testimony presented by the affidavits.
ITS DISCRETION IN DENYING
only
appeal
It was
in their
briefs
RHODEHOUSE ADDITIONAL TIME
attorney
either
mentioned the
TO SUPPLEMENT HIS AFFIDAVIT
appropri-
of Rule 56. It would not have been
ate for
sufficiency
this Court to consider the
the trial
point
of the affidavits at that
when it had not
in denying
abused its discretion
him
presented
judge.
been an issue
additional time to
district
the Jenkins’
affidavit. The
expert’s
Court held that
decision
extend time to
supplement an affidavit is
together
within the sound
legitimate
with all
inferences flow-
discretion of the trial
therefrom,
court. See I.R.C.P.
ing
preclude
was sufficient to
*6
56(f);
Pascoe,
Johnston v.
summary judg-
to the issuance of
(1979).
In de
§§
ment on the basis of I.C.
6-1012 and
termining whether a trial court abused its
-1013.
Id.
CONCLUSION herein, the sum- stated
For reasons judgment granted by the trial court is
mary attorney award no costs or
affirmed. We appeal.
fees
McDEVITT, C.J., and BISTLINE
JOHNSON, JJ. concur.