Dekker v. Magic Valley Regional Medical Center ( 1988 )

SHEPARD, Chief Justice.

This is an appeal from a summary judgment entered in a medical malpractice action in favor of defendants hospital, a board-certified anesthesiologist, and a board-certified ear, nose and throat physician. The hospital, Magic Valley Regional Medical Center, is located in Twin Falls, Idaho, and both defendant physicians practice in Twin Falls, Idaho. Summary judgment was granted in favor of all the defendants on the basis that the experts of plaintiffs had failed to establish a familiarity with the community standard of care in Twin Falls, Idaho, and a breach of that standard of care by the defendants. We affirm.

Although a number of issues are raised by plaintiffs-appellants, we deem they are subsumed in, and/or disposed of, by the issue stated above, i.e., has there been established a triable issue of fact of defendants’ breach of the applicable standard of care in the instant case.

Summary judgment is properly issued if the pleadings, depositions and admissions on file, together with affidavits, indicate that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). Summary judgment is properly issued when the non-moving party bearing the burden of proof fails to make a showing sufficient to establish the existence of an element essential to that party’s case. Badell v. Beeks, 115 Idaho 101, 765 P.2d 126 (1988). This Court has most recently stated in Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988):

In order to preclude summary judgment in medical malpractice cases, plaintiffs must show that expert testimony has been offered by either the plaintiff or defendant, which when viewed in the light most favorable to plaintiffs indicates that the defendant has negligently failed to meet the applicable standard of health care practiced in the community, (citation omitted).

See also Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986); Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982).

The following facts appear to be without question. A minor child, David Lawrence Dekker, was one of twins born May 6, 1979, seven weeks premature. On May 25, 1982, he was admitted to the Magic Valley Hospital for a tonsellectomy, adenoidecto-my and bilateral myringodectomy (placement of tubes). He was examined by Maxwell and Annest, the anesthesiologist, prior to surgery. A white cell count and chest x-ray were ordered prior to surgery, and his temperature was monitored every fifteen minutes. The white blood cell count was within normal limits, and the x-ray report and films indicated no infiltrate or on-going infectious upper respiratory problems. On May 26, 1982, anesthesiology services were provided by Dr. Annest, and the surgery was performed by Dr. Maxwell. The surgery report reported the operation as “without complications,” but the anesthesia report indicated a “severe laryn-gospasm,” indicating a spasm of the vocal cords closing off the air supply. Following the surgery, complications developed and emergency procedures were necessary, and the child remained in the intensive care unit until June 11, 1982.

Apparently unknown to the parents, the doctors, and the hospital, David’s twin brother had contracted a form of viral pneumonia, and had communicated this to David. The communication of the disease was not present, nor ascertainable the morning of surgery. One witness has testified that following surgery the child resumed his course of improvement and appeared to be improving his mental and motor skill development delay which had been exhibited prior to the surgery. However, the parents assert that the child had experienced a lack of oxygen and suffers severe physical and emotional problems. The resolution of that conflict is unnecessary.

As herein noted, to preclude summary judgment in a medical malpractice case, it must be shown by expert testimony that there has been a negligent failure to meet the applicable standard of health care practice of the community. Pearson v. Parsons, supra; Maxwell v. Women’s Clinic, P.A., 102 Idaho 53, 625 P.2d 407 (1981). I.C. § 6-1012 requires as an essential part of plaintiffs’ case, affirmative proof that defendant failed to meet the applicable standard of health care practice in the community in which the care was, or should have been, provided. Health care providers are to be judged in comparison with similarly trained and qualified providers of the same class in the same community. “Community” is defined as “that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.”

I.C. § 6-1013 requires that the applicable standard of practice, and a defendant’s failure to meet that standard must be established by plaintiff with the testimony of

[o]ne (1) or more knowledgeable, competent expert witnesses, and such expert testimony may only be admitted as evidence if the foundation therefor is first laid, establishing (a) that such an opinion is actually held by the expert witness, (b) that the said opinion can be testified to with reasonable medical certainty, and (c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed; ... (emphasis added).

In the instant case we agree with the well-reasoned opinion of the trial court which held that the evidence submitted by plaintiffs in opposition to the motion for summary judgment failed to establish a prima facie case in accordance with the requirements of the statutes.

In opposition to defendants’ motions for summary judgment, plaintiffs submitted two affidavits of physicians, both practicing in Salt Lake City, Utah, one of whom was board-certified in otolaryngology, and the other board-certified in pediatrics and a professor at the University of Utah College of Medicine. Both affidavits opine that because of the indications of upper respiratory infection, the surgery should have been postponed. Each affidavit opines, “It is a departure from optimal patient care to not postpone an elective surgery under such circumstances.”¹

It is clear that neither affidavit demonstrates any knowledge of the applicable standard of care in the area of Twin Falls, Idaho. I.C. § 6-1013 requires “actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed; ...” I.C. § 6-1012 provides in pertinent part:

... plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony ..., that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, ...

We find nothing in the supporting affidavits of plaintiffs to create any issue as to the defendants’ failure to meet any standard then existing in the area served by their practices or the Magic Valley Regional Medical Center. The affiants practice in Salt Lake City, and there is no indication in the record that they profess any knowledge of the standard of care in the area served by the Magic Valley Regional Medical Center. It is sufficient to say that the affidavits of the plaintiffs’ experts in no way demonstrate any such familiarity. It is likewise sufficient to say that in view of the strictures of our statutes, the assertion that defendants’ acts were a “departure from optimal patient care” is wholly insufficient to satisfy the burden of plaintiffs at the summary judgment juncture in a medical malpractice action. We further note that the affidavits submitted in opposition to summary judgment contain no assertions regarding a breach of duty by Magic Valley Regional Medical Center.

We have considered plaintiffs’ additional assignments of error and consider them either subsumed in our previous discussion, or so wholly at odds with our well-established case law as to not require comment.

The decision of the district court is affirmed; costs to respondents, no attorney fees allowed.

BAKES and JOHNSON, JJ. concur.

1 . Those statements appear to be based on nurses' notes that the child displayed a purulent nasal discharge prior to the surgery. Even assuming that the defendant physicians had or were charged with knowledge of such notes and the nasal discharge, we find no indication in the record that proceeding with the surgery was a breach of the local standard of care.