SUHADOLNIK v. Pressman

CONCLUSION IV. judgment of the district affirm the

We appeal respon- award costs

court. We

dents. JONES, BURDICK, J. W.

Justices

JONES, KIDWELL concur. and J. Pro Tem P.3d 11 Betty

Franz Suhadol SUHADOLNIK

nik, individually and as husband and

wife, Plaintiffs-Appellants,

v. PRESSMAN, M.D., H. H.

Scott Scott

Pressman, M.D., liability a limited com

pany, Eye Associates, P.A., an Idaho

corporation, and Business Entities I

thrоugh X, Doe, and John Doe and Jane wife, through X, I Defen

husband

dants-Respondents.

No. 37526. Idaho,

Supreme Court of

Boise, May Term.

m Whitehead, Falls, Pedersen and Twin for appellants. argued. Jarom A. Whitehead LLP, Boise, respon- prescription dosage in a lesser after for Carey Perkins surgery cataract with Dr. Pressman. argued. Terrence S. Jones dents. forgo Suhadolnik elected to cataract sur- JONES, Justice. J. May gery until when he contacted arising malpractice case a medical This is Eye The Associates and was informed he operation performed Dr. from a cataract surgery phy- clearance for from needed a Franz plaintiff-appellant Scott Pressman performed this exam on sician. Paris appeal The Suhadolniks Suhadolnik. 25, 2006, surgery. him for cleared summary judgment order in court’s district page of the document created dur- first Respondents on its determi- favor of based ing this exam lists “current medications” tak- Aрpellants’ expert, Dr. Hof- nation that the Simvastatin, Cyclocort, en Suhadolnik as: bauer, adequately inform himself on failed to 0.4MG, Lisinopril, and “FLOMAX 1 TAB care. We affirm. the local standard of 30, QD-days, sepa- Ref: 11.” Flomax is also rately prescription identified as a on the I. page. second Dr. Pressman testified that file, presumably this document was in his and History and Procedural Factual prior surgery, available to him to the but that argues that Appellant Franz Suhadolnik reviewing prior he had no recollection of it to Pressman, surgeon, Dr. failed to cataract his surgery. Suhadolnik’s inquire prior about his of the adequately use 30, 2006, May On Suhadolnik went to The Flomax,1 prescription drug which resulted Eye pre-operation a Associates for visit. during surgery and a lack of increased risks visit, During completed this Suhadolnik an- Suhadolnik further ar- informed consent. form, history signed other medical con- 2005, that, early were indi- gues as as there history sent forms. The medical form asked advisory journals and an in medical cations patient you dosages the to “List all meds and Drug from the Food and Administration use,” only Lisinopril Zocor and were (FDA)2 puts pa- prior that use of Flomax response. paper- identified in The additional greater complications during at risk of tients completed during work this visit included an surgery.3 cataract the informed consent form for cataract sur- at Suhadolnik met with Dr. Pressman The 1) gery, that: the which warned results of Boise, 2005, Eye in October of Associates 2) surgery guaranteed; the could not be possibility surgery. of cataract to discuss surgery complications of the to remove the visit, During performed an this Pressman worse; eye cataract could make vision in the exam, eye Suhadolnik that he and informed 3) implantation may lens include loss of surgery point would need cataract some infection, clarity, inability corneal to dilate completed medical the future. Suhadolnik a pupil, and dislocation of the lens and visit, history during which did not form retina. Yet another form identified the risks a current medication. Suha- list Flomax as of anesthesia. description ac- dolnik testified this was taking performed curate he started the medi- Dr. Pressman the cataract sur- because (two 31, gery May During surgery, after on 2006. cation December months visit), pursuant prescription capsule posi- a Suhadolnik’s came out of the October lens physician, allowing personal from care Dr. Paris. tion vitreous fluid come into the effects, eye. experiencing ill anterior chamber of the Pressman re- After several side placed quit taking approxi- Flomax in moved the fluid and an intraocular Suhadolnik 2006, eye; mately January portion but use of lеns in the anterior of the how- resumed acknowledged 3.Dr. some evidence of 1. Flomax is a medication that relaxes the mus- Pressman during surgery aid with urina- cles around bladder to males increased risks cataract as re- Flomax, tion. prior use of but stated that at the sult of 2006, surgery in data time of Suhadolnik's this advisory Appellants failed to include this FDA inconclusive. was still Therefore, appeal. we de- in the record of this cline to consider its contents. ever, position Respondents is in III. Whether the are enti- for lens preferable attorney appeal? tled fees eye. After the posterior position of the Suhadolnik surgery, Dr. Pressman asked III. Flomax, prior or a similar medi- about use of cation, floppy iris such that could cause as Analysis during sur- experienced Suhadolnik’s A. Standard of Review Pressman, this was gery. According to Dr. determining whether there Before learnеd of Suhadolnik’s the first time he genuine is sufficient evidence to raise a issue undeiwent prior use of Flomax. Suhadolnik preclude summary judg material fact 2007, surgery in but remains “le- additional ment, this Court must first address the ad eye.” gally in the affected blind missibility testimony. Dulaney v. Betty filed Franz and Suhadolnik this ac- Ctr., Reg’l Alphonsus St. Med. alleging the defen- tion (2002). 163,45 P.3d per- provided negligent care in the dants admissibility expert testimony surgery. Suhadolnik’s cataract formance of separate is an issue that and distinct They allege also that the defendants failed to from whether is sufficient as re- obtain Suhadolnik’s informed consent genuine to raise issues of material fact quired by through §§ 39-4501 39^-507. I.C. preclude summary judg- sufficient to ment____The summary judg- The defendants moved for liberal construction and rea- 1) arguing that: Dr. ap- ment Pressman’s affida- sonable inferences standard does not however, ply, deciding to when whether or vit was sufficient shift the burden to the testimony not in offered connection with a plaintiff to demonstrate that a material fact summary judgment motion for is admissi- regarding existed a breach of the local stan- ble. 2) care; dard of and Dr. Pressman obtained requisite prior (internal omitted). consent from Suhadolnik Id. citations surgery to because risks of Flomax were analyzing testimony whether When offered surgery.

inconclusive at the time of the In summary in connection with a motion for response, the submitted the affi- admissible, Suhadolniks judgment applies this Court support davit of Dr. Hofbauer in of their an abuse An of discretion standard. abuse argument that Dr. requires three-part Pressman failed meet review discretion (1) inquiry: right- the local standard of care whether the lower court and failed to obtain discretion; ly However, perceived the issue as one of Suhadolnik’s informed consent. (2) whether the court acted within the the district court determined that Dr. Hof- boundaries of such discretion and consis- affidavit was bauer’s inadmissible because he tently any legal applicable with standards knowledge failed to demonstrate actual of the choices; (3) specific whether the and, therefore, granted local standard of care by court reached its decision an exercise of summary judgment to the defendants on evidentiary reason. A district court’s rul- appealed both counts. The Suhadolniks ings by will not be disturbed this Court this Court. unless there has been a clear abuse discretion. II. v. McDaniel Inland Northwest Renal Care Appeal LLC, 219, 221-22, Issues on Group-Idaho, (2007) (internal 858-59 citations I. Whether the district court abused its omitted). excluding discretion in Dr. Hofbauer’s ground affidavit on the that did not he B. The district court did not abuse its holding actual demonstrate discretion in that Dr. Hof- bauer failed to demonstrate actual local standard of care? knowledge of the local standard of any II. Whether Suhadolniks waived care. arguments concerning their informed they consent claims because failed to precondition A to the admission of separately briefing? testimony by malprac- in in address them a medical motion, pertaining summary judgment to a is that the familiarize himself tice case improperly and that the district court did practice or care for not with the local standard of weigh conflicting evidence. practice field at issue the case. the medical The Suhadolniks contend 6-1013. The district court that determined Hofbauer, expert, their medical Dr. ade- summary judg defendants met their initial with the quately familiarized himself stan- by providing ment burden Dr. Pressman’s ophthalmologists practicing of care for dard affidavit, wherein he testified that he was by reviewing depositiоn of Dr. Boise familiar with the local standard of care for They point Pressman. out that Dr. Press- ophthalmology surgery May and cataract deposition man testified in his that the stan- of 2006 and that he did not breach that requires taking dard of care of an ade- However, standard.4 the court determined history, keeping quate patient current affidavit, that the Suhadolniks’ submitted FDA medical literature and advisories Hofbauer, was inadmissible because Dr. advising patients complica- of the risks Pressman’s did not contain infor surgical procedure tions of the at issue so mation the local standard of care they may make an informed decision as “concerning precautions past due to use of proceed. They contend that to whether specifi medication Flomax.” The court testimony Dr. Hofbauer based his on these cally noted that Dr. Pressman testified his errеd in standards and that the district court deposition that he was not aware a stan Furthermore, they concluding otherwise. practice regarding dard of Flomax and was point to inconsistencies between Dr. Press- requiring not aware of a standard disclosure man’s and statements prior of increased risks for use of Flomax. affidavit, contending the district Therefore, Dr. Hofbauer’s reliance on Dr. failing court erred in to take the inconsisten- deposition Pressman’s was insufficient to fa determining cies into account in the infer- miliarize himself with the local standard of testimony. drawn from his ences to be and his affidavit was care inadmissible. Be submitted, cause no other evidence had been Respondents argue that Dr. Hofbauer granted Respondents’ the court motion how he familiarized failed to demonstrate summary judgment for on the medical mal care, point- himself with the loсal standard of reasons, practice claim. For the same ing out that Dr. Pressman’s did granted summary judgment court also to the provide regarding not sufficient information ‍‌‌​​‌‌​​​‌‌‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‍Respondents on the informed consent claim.5 any Respondents relevant of care. standard argue that a also that there is no evidence summary judgment In order to avoid replaced by state or case, local standard has been malpractice plaintiff in a medical must regulatory federal standards such that expert testimony provide that the defendant knowledge doctor, Hofbauer’s of the national stan- “negli provider, or other health care dards would be sufficient to define the local gently applicable failed to meet the standard Finally, Respondents practice.” Dulaney, standard of care. ar- of health care 137 Idaho 164, gue question expеrt that resolution of the of the at 45 P.3d at 820. In order for precur- testimony to in a medical mal admissibility expert of is a be admissible claim, party must demonstrate: applying the liberal construction rules sor argue plaintiffs also that Dr. was sufficient to shift the burden to the 4. While the Suhadolniks conclusory to Pressman's affidavit was too Respondents’ meet to establish the foundation for Dr. Hofbauer’s testimony. burden, summary judgment initial appear While there do to be inconsis- evidentiary separately this issue was not raised tencies between Dr. Pressman’s and Furthermore, appeal. an this Court as has held that a issue affidavit, the Suhadolniks have failed show moving support party must their upon how those inconsistencies reflect Dr. Hof- evidence, summary judgment but it motion with knowledge the local standard of care. bauer’s of party adverse that must come forward with is the support specific сlaim. See Foster facts to their opinion holding express 5. We no on this 278, Traul, 890, 893, 141 Idaho 120 P.3d 281 v. court, as the informed consent issue has district Therefore, affidavit, (2005). Dr. Pressman’s properly appeal. raised on See Part not been knowledge demonstrated of a local stan- which III.C. below. care, description provided a of that stan- dard of dard, standard, alleged compliance that and 116

(a) actually conclusory opinion speculative. Dulaney, is held be or 137 that such (b) witness; expert expert 164, Therefore, that Idaho at 45 P.3d at 820. in a testify opinion can to the with a action, witness malpractice expert an must (c) certainty; degree reasonable of medical show he or she is familiar with the local possesses profes- expert that the witness standard of care for the relevant timeframe (d) knowledge expertise; sional and аnd specialty, and “must also state how he or expert that the witness has actual knowl- she became familiar with that standard of edge applicable community stan- care.” Id. expert opinion dard care to which his An out-of-area can meet testimony is addressed. requirement personal the foundational 6-1013) added). (citing (emphasis § I.C. Id. knowledge by inquiring specialist of a local Additionally, § the com- I.C. 6-1012 defines (citing the standard of care. Id. munity of care standard as: Ctr., Perry Magic Valley Reg’l v. Med. 134 (a) the standard of care for the class (2000)). 46, 51, 816, Idaho 995 P.2d Ad 821 provider health care to which the defen- ditionally, consulting spe when with a local belonged functioning, taking dant cialist, specialist practiced need not have training, expe- into account the defendant’s defendant, long in the same field as so as rience, specialization, and fields of mediсal consulting specialist sufficiently famil (b) any; if as such standard existed at the specialty. iar with the defendant’s See New alleged negligence; time of the defendant’s Martens, 284, 292, berry v. 127 (c) as such standard existed at the (2005). plaintiffs expert P.3d place alleged negligence. of the defendant’s inquiries can also make to another out-of- Dulaney, 137 Idaho 45 P.3d at 820 specialist, long specialist area so as has (internal 6-1012) (citing citations omit- ques had sufficient contacts with the area in ted). personal tion to demonstrate In addition to these foundational Blair, the local standard. v. See Shane 56(e) requirements, requires I.R.C.P. that af (2003). 126, 130, Idaho summary fidavits submitted on a motion for Furthermore, where judgment must “set forth such facts as would demonstrates that a local standard of evidence, care be admissible in and shall show replaced by been has a statewide or national affirmatively competent that the affiant is care, testify standard of further to the and demonstrates matters stated therein.” 56(e). that he or per I.R.C.P. The affiant have she is familiar with the statewide6 must standard,7 knowledge sonal of the facts contained within or national the foundational re quirements § the affidavit and within statements it cannot of I.C. have been 6-1013 met. Smith, example, plaintiff’s expert 6. For require- in Grover v. the 7. An can meet the foundational expert by demonstrating ments of I.C. 6-1013 federal demonstrated the that a local standard of regulatory replaced scheme has the local replaced by care for dentists a was statewide expert standard of care and that the is familiar licensing standard because the state board re- Hayward Pharmacy with this scheme. v. Jack's quired patient history Legisla- a and because the Inc., 622, 628, 713, 141 Idaho 115 P.3d 719 ture codified thеse standards in the State Dental (2005). Hayward, plaintiff's In the out-of-area Act, §§ Practice 54-901 to 54-924. 137 expert depositions reviewed the of the defendant- 247, 253, 1105, (2002). Idaho 46 P.3d 1111 Fur- pharmacists, plaintiff’s reviewed the medical rec- ther, plaintiff's expert the demonstrated knowl- ords, spoke pharmacist regarding and to a local edge of these statewide standards because he was only the standard of care. Id. Not did the professor dentistry Creighton University a of at depositions show that the local standard was the Nebraska, in had administered and observed the go-slow” "start-low and method for administer- exam, licensing spoken Idaho state and had medication, ing pharmacist but the local con- applicable local dentists about the standard. Id. firmed this method and further stated that such specifically This Court noted that because the governed by regu- standard was statе and federal expert licensing observed the exams and stated 629, lations. the Id. at 115 P.3d at 720. Because patient’s history that failure to take a would expert was familiar with these federal stan- exam, expert result a failure of the the had they replaced and dards had demonstrated ‍‌‌​​‌‌​​​‌‌‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‍that knowledge standard, actual that the local standard had the local pert’s this Court deemed the ex- replaced by testimony been a statewide standard. Id. affidavit admissible. Id.

H7 Rush, can expert ob-gyn] depositions an out-of-area dem- fendant the Specifically, of sev- nurses, familiarity by standard a spoke with a local eral to board ob-gyn certified onstrate by specialist and review- speaking practicing local who Pocatello was at the same born, deposition testimony Stephanie that establishes was ing time and read the depo- by a nationаl governed local standard is V. the sition of Dr. Gene Rufi who is another Rush, 825, 121 Idaho ob-gyn Kozlowski v. practicing standard. board-certified Pocatel- (1992). 828-29, 854, In 829, P.2d Ko- 828 857-58 lo.” at 121 Idaho 828 P.2d at 858. zlowski, the plaintiffs expert the reviewed Additionally, Perry, plaintiffs expert the testimony, deposition wherein defendant’s depositions Hospital “reviewed the of three standard defendant stated that the local nurses; the nursing reviewed a standard text equivalent to the national and was standard ...; talked with the executive director of the by particular 121 Ida- governed handbook. Nursing; of spoke Idaho Board and 829, at the ho at 828 P.2d 858. Because nursing faculty at members two Idaho nurs- men- expert was familiar with the handbook ing determine schools to whether the Twin standard, embodying as the national tioned for administering Falls standard intramuscu- area, specialty was board-certified in injections any way lar differed in from the еxpert Court held the demonstrated suf- national or state-wide standard.” 134 Idaho standard of ficient of the local Therefore, at experts Perry, at 51- care. Id. See also 134 Idaho Perry clearly Kozlowski reviewed no (finding 995 P.2d at 821-22 abuse of deposition more than the defendant’s testi- expert in the testimo- discretion admission mony in order become familiar with the relying hospi- three ny depositions local of care. standard text, particular and the tal nurses review of a depositions identified that the local when this Court While has never affirmed equivalent stan- admissibility standard to the national expert testimony based governed by by dard and the text reviewed solely expert’s on an review deposition Therefore, expert). knowledge of a local testimony, have stated may we that this be by reviewing can be standard established may possible “[I]t sufficient. be for an ex testimony by speaking to local pert to become familiar with the local stan confirming experts has standard by reviewing dard of care the defendant doc replaced by been a national standard. Stutts, deposition____” tor’s Rhodehouse v. 208, 212, 1228 P.2d Although are cited in Perry Kozlowski and (1994) added). (emphasis Newberry, See also subsequent provid- as decisions this Court 292, 127 (“Inquiring P.3d at Idaho at admissibility ing a standard for the specialist with a local is ‘one method’ an based on review of tes- may knowledge, obtain witness such alone, timony inappropriate this is an charac- method.”) (internal only the but it is not See, Grover, e.g., of the 137 terization cases. omitted). Rhodehouse, plain citation In the (“An at P.3d at out-of- Idaho 46 1109 expert his knowledge tiffs based of the local expert can with state become familiar deposi standard of care on the defendant’s by local standаrd of care ... ‘review of a tion, films, hospital 35 mm and records. Id. deposition stating that standard the local Although at P.2d at the Court standard, vary not from the national does acknowledged pro that such a might review coupled expert’s personal knowledge with the adequate expert’s vide an foundation for an Perry, national (citing standard.” care, 821-22)). 51-52, knowledge of local standard it at of 995 P.2d at In Idaho Kozlowski, deposition found in that case to be insuf expert the out-of-area reviewed only deposition ficient deposition testimony, also because “never stated not but con- that the standard of practitioner a local familiar local care was the same tacted to become standard, “In as the national nor in fact [the with the local standard of care. an effort did care, any make defendant-doctor] determine the local area of direct reference standard expert] [plaintiffs [de- of to the local standard of care.”8 There- read Id. opinion goes in on cannot 8. The Rhodehouse to state “that an become familiar with the fore, edge by reviewing may acceptable it be for an of a local standard of care while knowledge deposition testimony, the court held that Dr. of local standard to demonstrate testimony, by reviewing deposition Pressman’s did not contain suffi- of care clearly testimony articulate the cient evidence of the local standard to render must time, particular place Specifi- for the Dr. Hofbauer’s affidavit admissible. local standard (1) cally, in order to meet the the court noted that: Dr. Pressman specialty and at issue not requirements of I.C. 6-1013. testified that he was aware of the stan- foundational patients dard of in 2006 for who case, expert, the Suhadolniks’ Dr. In this were, been, or on Flomax had because Hofbauer, that the local standard stated medical evidence was inconclusive at Boise, Idaho, surgery cataract care for time; (2) and Dr. Pressman never testified ophthalmologist May required an to: that the local standard was the same as the (1) literature and FDA be current on medical national standard. This determination is not (2) advisories; adequate medical his- take an abuse of discretion because reliance on (3) tory; patients and and advise of risks deposition testimony already alone is at the thereby allowing complications them to make adequate outer bounds of foundational evi- an informed decision. Dr. Hofbauer also dence, and because Dr. Pressman’s testimo- standards of care are “[t]hesе stated ny provide is too inconclusive to a sufficient very ophthalmologists. In basic standards of knowledge basis of for Dr. Hofbauer’s con- my opinion the standards of care relevant to clusions. Dr. Pressman’s treatment Mr. Suhadolnik The facts of this ease are similar to Rhode- vary by locale and do not thus could be house, expert attempted rely wherein an the same as national considered standards.” deposition testimony speaking without ophthal- Dr. Hofbauer is a board-certified specialist, a local because Hofbauer did mologist currently practicing Beverly rely practi- not on a conversation with a local California, Hills, experi- with a multitude of tioner order to familiarize himself with the ophthalmology surger- ence in and cataract Although local standard of care. Idaho case Therefore, presumed ies. he is to be knowl- specifically require law does not such a dis- edgeable specialists of the class of of which cussion, distinguishes this fact alone this case However, Dr. Pressman is member. he (expert from Kozlowski reviewed defendant’s knowledge must also demonstrate of the local deposition, depositions of several nurses standard of care in order for his spoke specialist), Perry (expert to a local be admissible. deposition testimony reviewed the of three Dr. Hofbauer stated in his affidavit that spoke nurses and to the executive director of knowledge of the local standards board, nursing the state as well as several following derived from the sources: schools), faculty Hayward members Idaho I actual have of the standard of (expert spoke pharmacist, to local reviewed Boise, Idaho, during care as it existed depositions defendant-pharmacists, and re- provision of 2006 as it related to the records), plaintiffs viewed Grover to Franz medical care Suhadolnik Dr. dentists, (expert spoke to several local ad- My knowledge my Pressman. comes from licensing ministered and observed state ex- experience training, as well as from ams was familiar national standards testimony provided by Dr. Pressman in state), adopted in the and (expert Shane and of the medical records spoke to another out-of-area familiar of Franz Suhadolnik. care), with the standard wherein all of the acknowledged experts spoke specialists, persons While district court that to local or standard, knowledgeable an out-of-area can demonstrate knowl- of the local in order merely by reviewing hospi- local standard of care of the local standard in ordеr to meet the founda- physician.” tal records and the actions of a local requirements of I.C. 6-1013. tion less, Nonethe- 125 Idaho at 868 P.2d at 1229. This does Dr. Hofbauer’s review of Suhadolnik's med- mean, however, not as both the district court and provide any ical records in this ‍‌‌​​‌‌​​​‌‌‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‍case does not contend, Respondents that review of these information the local standard of care. knowledge expert's documents cannot add to the

H9 fairly recent and was not with the local stan- Flomax was themselves familiarize time. efforts to as- conclusive that Dr. Hofbauer’s dard of care. of care are further the local standard

certain of the ex- from the efforts distinguishable Doctor, Q did the standard of [Mr. Jones]: Kozlowski, Perry, Hayward, perts in require place in of 2006 experts, in addition to each of those because you that the medication Flomax to disclose speсialist, reviewed a local also speaking to any risk at all of carried with it increased knowledge- persons multiple depositions of complications? standard, Dr. Hof- whereas able of the local A: No. only one and it was inconclu- bauer reviewed Q: Why not? sive. any A: was—the association with Flomax Furthermore, also similar to this case is surgery very un- issues with cataract was Rhodehouse, where the reviewed just beginning clear at the time. It was care or identify the local standard of failed to clear defini- be noticed. And there was no standard, national because the existence of a were, complications tion of what those deposition gives no indication Dr. Pressman’s what the risks were. The risk rate of replaced by had been that the local standard complications from Flomax cataract sur- only vague standard and makеs a national small, gery very so— to a local standard of care. references “small,” Q: you say how small are When you first Q did Pedersen]: When [Mr. you talking? use aware that Flomax could—the become Well, complication A: rate of cataract patient increase the Flomax in a could surgery pa- is small. And the number of complication during cataract sur- risks of a complica- tients on Flomax is small. And gery? any significance tions that visual are are Well, report[ Pressman]: ] A the first [Dr. very, very very slight. small. So peer journal review was 2005. in a non-peer reviewed arti- There were some Before, throwaway journals that had Q you in the Pedersen]:

cles told me [Mr. Flomax, in approximately you’d it. So talked about if have known about early indication that there you patient there was some would have told the about it. possible your testimony issues related. you changing was Are on that? him

You would have told that there was an risk? increased Q: you you doing were Before retired there is a A: I woidd have said surgeries, you were aware cataract risk, slight yeah, typically. Flomax, increased patient on—had taken that a Flomax, you patient if what did tell a about Q: you Regardless of what said when anything? your you question, a counsel asked a that’s fact, mean, Well, very you’ve already not conclusive isn’t it? I said A: the data was true, something And I would have said isn’t it? that’s as, slightly in- general, such there is a Object Mr. Jones: to form. complications people who creased risk of typically I would have said Witness: are on Flomax. risk, yes. slight increased there was Q: ‘slightly’? would have said You added). Review of this (emphasis A: Uh-huh. personal that Dr. Pressman had no indicates say Q: it the standard of care Was regard- standard of care local ‘slightly’? ing patients whо precautions to take Object Mr. Jones: to Form. had used Flomax or as to what information regarding in- provide patients such Pm not aware what the to The Witness: of resulting prior use of community creased risks from practice in the was standard Furthermore, although Dr. Press- particular Flomax. particular drag at that for said, personally would have I data on man states that he Because as time. Flomax, adequate history you the defini- before did a cataract warned about the risks objective history? tion of a of a care is standard personally if Even Dr. Pressman standard. '03, May yes. A: In regarding the would have warned Suhadolnik Q: May In of '06? Flomax, not aware of if he was this risks Oh, May in A: of '06. Yes. standard, community practice being a testimony cannot serve as a foundation for Q: And it the standard of care to —I identifying of care. the local standard See you generally. But at asked before this Additionally, Dr. § Pressman’s 6-1012. time, keep was it the standard of care to not establish that the local does your in the literature in current medical replaced by a national standard has been field? any- there is no mention standard because Object deposition regarding a national Mr. Jones: to form. where in the Consequently, standard. Dr. Hofbauer’s is, practice Standard of Witness: equiv- statement that the standard of care is community, keep is to current on re- alent to a national standard without foun- is journals, yes. cent medical McDaniel, dation and inadmissible. 144 Ida- Q you go How did about [Mr. Pedersen]: (“Conclusory ho at P.3d doing that back in '06? that an statements is familiar with many jour- A: We to medical subscribe the local standard he familiar because library nals. We make use of the at Saint the national standard are insufficient to meet primarily, although Al’s St. Luke’s also. 6-1013.”). requirement § of Idaho Code continuing We attend medical education Therefore, Dr. Hofbauer’s reliance on Dr. peers. courses. We talk to Pressman’s does not meet Q: you keep Do track of what the FDA requirements foundational of I.C. 6-1013. says drugs? about argue The Suhadolniks that the dis those, yes. A: We are advised about narrowing trict court erred in the standard Q: practice pay Was it standard of to particular, of care to Flomax rather than attention to those? allowing general standard testified to in A: Yes. deposition regarding Dr. Pressman’s “ade quate patient history” “staying informed general Dr. Hofbauer these used admissions journals” on medical to be a sufficient basis as basis for his standards ade- for the local standard. quate patient reviewing histories (d) 6(a), (b), journals paragraph of his deposition, In his Dr. Pressman stated: However, affidavit. court identi- district Well, Q examрle, for [Mr. Pedersen]: “concerning fied the local standard of care as you say practice would it’s a standard precautions past due to use of the medication technique you oper- use sterile when ando specifically Flomax” and did not address ation? general Hofbauer’s reiteration of the more A [Dr. Pressman]: I would. standards of care. Q: practice keep Standard of current narrowing The district court’s of the stan- on the medical literature in the field that particularly dard care Flomax is not an you’re in? gener- abuse of discretion because this Court A: Yes. ally identifies the standard of care terms Now, Q: I want go to make sure we back major appurtenant facts to the case. to we’re operation here talk about an Perry, See 134 Idaho at 995 P.2d at 821 30th, performed May that was '06. ‍‌‌​​‌‌​​​‌‌‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‍(identifying the relevant standard of care as

You’rе aware of that? injec- the administration of intramuscular A: Correct. tions); Kozlowski, 121 Idaho at (identifying requiring at 858 the standard as Q: ob-gyns Was it the biophysical profile standard of back in to “conduct a or size”); community '03 this to take an use ultrasound to determine fetal Grimes, 113 Idaho at 746 P.2d at 979 adopted histories have been as a statewide (identifying the standard of care for use of explanation standard and there is no as to amnionitis). diagnose amniocentesis to It what would “adequate” constitute an patient was therefore within the Therefore, bounds of discretion history. the Suhadolniks have identify for the district court to the local failed to demonstrate Idaho has standard in terms of Flomax because it was adopted a statewide standard in the field of the side effects and risks associated with this ophthalmology for the administration of a drug particularly alleged that are to have patient’s history. medical injuries. caused Suhadolnik’s cognizant The Court is of the fact that Finally, the argue experts Suhadolniks may outside difficulty encounter if Dr. deposition testimony even Pressman’s locating practitioner a local cooper- who will inadequate is providing to establish a standard of ate regarding information taking patient’s care for a history, medical prevailing standard of care in the community, a particularly this standard is statewide standard that in smaller communities where replaced has the local practitioners standard of care. live and work in rather close that, Grover, They argue proximity like in where with one another. On the other hand, replaced any statewide dental standards lo cognizant Court is also of the fact taking patient’s cal standard for a medical that increased availability communiсation and history, §§ through 54-1811 54-1834 of medical information has resulted in more similarly require adequate patient an practice histo standardization of practi- between ry regardless customary of what in a tioners in urban centers and those in rural particular locale. The Suhadolniks fail McDaniel, communities. As we noted in any statutory provi cite text from years these “Recent have increasing witnessed provide any argument sions and fail to as standardization in profession, the health care provisions replaced to how these have variety due to a of factors.” 144 Idaho at taking patient’s local standard for a 159 P.3d at 861. Those factors include Rather, history. they governmental cite to Grover as es regulation, development of re- tablishing a every gional statewide mandate in provider and national organizations, profession requiring adеquate patient an greater access to the flow of medical However, history. stated, the Court in Grover em information. We “in present phasized power environment, licensing of the state medical care there are a vari- dentistry implement board of ety ways statewide of malpractice plain- that a medical standards, specifically may addressed the act tiff be able to a establish local standard by adopted Legislature in implementing being synonymous of care regional as with a standards, expert’s these and identified the or national standard of care.” Id. As shown familiarity above, with these standards because of there are various avenues which a plaintiff may his administration and observation of the proceed to establish a standard exam, licensing care, support state in order to cooperation or without the the determination that the practitioners. local standard of local record this case replaced by care efforts, had been a statewide stan does not reflect what any, if Suhadol- dard of care.9 There is no similar discus nik or his made to learn the standard (other sion in the Suhadolniks’ brief practitioner care from a local than licensing state medical adopting board deposition), from Dr. Pressman’s but it isn’t standards, implementation statewide or the plaintiff too much to ask that some effort that, governing such standards in an act Failing be made. Suhadolnik’s counsel ophthalmology. Additionally, entire field of could have made more valiant effort to provided any Dr. Hofbauer never piece together founda a case from Dr. Pressman’s adequate patient tion for his conclusion and affidavit but failed to do so.10 patiеnt history 9. The might "adequate” dentist Grovertook no so tion of what constitute his- tory. it was obvious that he breached the standard of Further, care. ques- Groverdid not deal with the reading 10. A fair of Dr. Pressman’s indicates that there were standards of during reasonably Any oral counsel noted informed decision. such Respondents’ As Court, it is consent shall deemed valid and so in- argument of this case before be plaintiff- physician if the the Court to make formed or dentist to whom up not given by him. it is or whom it is secured has appellant’s case for given made such disclosures and such ad- have failed to Because the Suhadolniks respecting pertinent vice facts and consid- Dr. Hofbauer’s actual establish ordinarily erations as would be made and pertaining of care to cata- the local standard given under the same or similar circum- surgery, the district court acted within ract stancеs, by physician a like or dentist of holding its discretion in to be good standing practicing in the same com- therefore affirm that hold- inadmissible. We section, munity. As used this the term ing. community” “in the same refers to that ordinarily geographic by area served C. The waived their lack Suhadolniks general hospital licensed at or nearest argument. informed consent given. which such consent is Respondents argue that the Su briefs, opening In their the Suhadolniks any argument appeal hadolniks waived on make no mention of this or the other in- regarding their claim for lack of informed statutes, they present formed consent nor do separately consent because it was not raised argument may as to how the district court or briefed before this Court. The Suhadol applying §§ have erred in I.C. 6-1012 and only provide argument opening niks in their 1013 to the informed consent issue. There- require brief the foundatiоnal fore, appeal. the issue is on waived malpractice ments for a medical claim and separately identify fail to their informed con Respondents D. are not entitled to at- appeal. sent claim as an issue on torney appeal. fees on A malpractice claim is a Respondents argue they are separate cause of action and distinct from a attorney appeal pursuant entitled to fees on claim for lack of informed consent. Foster v. 54(e)(1) § to civil rule and I.C. 12-121. “Ida Traul, 890, 894-95, permits ho Code 12-121 an award of attor (2005). require 282-83 The foundational ney prevailing fees in a civil action to the expert testimony ments for for an informed party if the court determines the case was vary claim consent somewhat from those in brought, pursued frivolously, or defended un §§ According 6-1012 and 1013. to I.C. reasonably or without foundation.” Newber § 39-4506: 292-93, ry, 142 Idaho at 127 P.3d at 195-96. Consent, consent, or Although Respondents prevail refusal for the appeal, medical, furnishing hospital, dental arguments or Suhadolniks’ are not unreason care, surgical discussed, procedures treatment previously or able. As the case law shall respects person suggests be valid all if the deposition testimony that review of giving refusing or provide the consent is sufficient- appropriate alone can an foundation ly pertinent respecting aware of expert knowledge facts for of the local standard of for, of, significant need the nature and the care and the relied on case this ordinarily upon, pa- general risks attendant such a identified several standards used care, receiving permit tient such Although they as to the Dr. ultimately Hofbauer. are giving withholding general identify or of such consent to be toо the local standard of professional specialty argument for his in the medical com- whether these facts would be indica- munity required and that he adhered to those standards. tive that a standard of care Dr. Press- risk, He stated twice that he have would advised a man to inform Suhadolnik increased patient complications responded negative, increased risk of if Suhadolnik’s counsel in the patient saying was on Flomax. Since Dr. Paris’ that Dr. Pressman’s manner of report was in his file and indicated that Suhadol- could not establish the local standard of care. Flomax, nik was on it can be inferred for sum- Whether or not these facts would be sufficient to care, mary judgment purposes might that Dr. Pressman was establish the local standard of it have (even though helpful responded aware of this information the infor- been 'more for counsel to have correct). mаtion was not When asked at oral in the affirmative. care, as, arguments the Suhadolniks’ are reason- such “It is the local standard of care not and, therefore, malpractice?” attorney commit an ‍‌‌​​‌‌​​​‌‌‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌​‍award for able inappropriate in this case. fees is

IY.

Conclusion 254 P.3d 24 The Court affirms district court’s ex- CISZEK, individually; Linda Ronald G. clusion of Dr. Hofbauer’s affidavit for failure Wilson, Wilson and A. Linda husband requirements to meet foundational of I.C. wife; Dole, Bill Dole and Marian Consequently, § 6-1013. the Court affirms wife; husband and Mike Anderson and grant summary judg- the district court’s Rayelle Anderson, wife; husband and Respondents. ment favor of the Costs on Culbreth, Joe Culbreth and Sharon hus Respondents. appeal are awarded to wife; band and Kirk Hobson and Kim berly Hobson, wife; husband and Seth BURDICK, Justices W. JONES and Moulding Moulding, and Jennifer hus HORTON concur. wife; Casey band and Neal and Kristin Neal, wife; husband and and William EISMANN, specially Chief Justice Dolly Girton, Girton and husband and concurring. wife, Plaintiffs-Appellants, majority opinion, I concur in the but write v.

only thoughts add additional as to what is KOOTENAI COUNTY BOARD OF COM required to establish the local standard of MISSIONERS and Coeur D’Alene Pav care. “How an becomes familiar with Inc., ing, Defendants-Respondents, issue, legal that standard of care is a not a Dixon, medical issue.” Ramos v. 144 Idaho 32, (2007). 533, Thus, 156 P.3d West, LLC, Beacon Intervener- needs assistance from counsel Respondent. knowing required what is to learn the No. 37562. applicable standard of care. Idaho, Supreme Court of applicable standard of care be must Boise, April 2011 Term. specific to the issues of care involved in the particular case. “The standard of care is 2011. simply typically provided the care under sim Rehearing July Denied type

ilar circumstances the relevant provider community health care in the at the place alleged negligent

time and act.” Blair,

Shane v. 126, 130, (2003).

180, 184 case, “yes”

In this Dr. Pressman answered questions

to the it of whether was the stan- adequate history

dard of “to take an you history,” keep

before did a cataract “to your

current the medical literature in

field,” “pay and to to [what attention says drugs].” questions

FDA about General applicable

such as this do not establish the care, any question

standard of more than a

Case Details

Case Name: SUHADOLNIK v. Pressman

Court Name: Idaho Supreme Court

Date Published: May 25, 2011

Citation: 254 P.3d 11

Docket Number: 37526

Court Abbreviation: Idaho