Summerfield v. St. Luke's McCall ( 2021 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47946
MICHAEL SUMMERFIELD, )
)
Plaintiff-Appellant, ) Boise, June 2021 Term
)
v. ) Opinion filed: August 31, 2021
)
ST. LUKE'S McCALL, LTD., ) Melanie Gagnepain, Clerk
)
Defendants-Respondents, )
)
and )
)
JOHN/JANE DOES I-X, whose true identities )
are presently unknown, )
)
Defendants. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Valley County. Jason D. Scott, District Judge.
The decision of the district court is affirmed in part, reversed in part, and
remanded.
Johnson & Monteleone, LLP, Boise, for Appellant. Jason Monteleone argued.
Brassey Crawford, Boise, for Respondents. Andrew Brassey argued.
_______________________________________________
MOELLER, Justice.
Michael Summerfield brought a medical malpractice suit against St. Luke’s McCall, Ltd.
(St. Luke’s), following the surgical removal of his gallbladder. During surgery, the attending
surgeon, who was employed by St. Luke’s, unknowingly spilled and left a gallstone in
Summerfield’s peritoneal cavity. When it was later determined that the gallstone was not in the
removed gallbladder, the surgeon failed to inform Summerfield of the incident, warn him of any
potential complications, or properly document the incident in his medical records.
St. Luke’s moved for summary judgment, challenging the admissibility of the opinions
offered by Summerfield’s expert witness. St. Luke’s asserted that Summerfield’s expert, as an
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emergency medicine and wound care physician, was unable to establish the requisite knowledge
of the applicable standards of care and breaches thereof by St. Luke’s and the attending surgeon.
The district court initially agreed with St. Luke’s and granted its motion for summary judgment.
Summerfield then filed a motion for reconsideration and attached a supplemental declaration
from his expert witness that established the requisite foundation. The district court considered
this additional evidence and granted Summerfield’s motion. However, the district court later
reversed itself, relying on Ciccarello v. Davies, 166 Idaho 153, 456 P.3d 519 (2019), which held
that a trial court is afforded discretion in determining whether to consider new declarations
accompanying a motion for reconsideration if they were untimely for consideration at summary
judgment. Summerfield appealed to this Court and contends the district court’s sua sponte
reversal of itself was in error and contrary to previous decisions issued by this Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Michael Summerfield had a large gallstone in his gallbladder. On August 31, 2015, Dr.
Amy Ocmand, an employee of St. Luke’s, performed a laparoscopic cholecystectomy to remove
Summerfield’s gallbladder. Following the procedure, Dr. Ocmand sent the removed gallbladder
off for examination, but no gallstone was found. Unknown to Dr. Ocmand, the gallstone had
spilled out of the gallbladder during surgery and was left inside Summerfield’s peritoneal cavity.
After learning that the gallstone had been left inside Summerfield, Dr. Ocmand chose not to
inform him of that fact. Dr. Ocmand also did not make any notation in Summerfield’s medical
chart to reflect the retained stone. Summerfield saw Dr. Ocmand two more times on September
15, 2015, and December 2, 2015, and Dr. Ocmand did not inform him of the missing gallstone.
The retained gallstone unknowingly began to cause health problems for Summerfield.
From January of 2016 through March of 2016, Summerfield saw Dr. Ostermiller for right flank
pain and shoulder pain. Summerfield underwent a urinalysis, an ultrasound of his kidney, and
acupuncture to relieve the pain. In April of 2016, Summerfield received medical care for a
cough, fever, and congestion. In June of 2016, he received more medical care for a cough,
achiness, and a fever. Summerfield also had an unexplained weight loss of six pounds. The
following month Summerfield saw Dr. Ostermiller again with a cough, right lower back pain,
and upper quadrant abdominal pain. Summerfield had lost an additional 12 pounds from the
previous month. Dr. Ostermiller noted a large mass on Summerfield’s right flank. The doctor
speculated that it could be cancer. Summerfield underwent a CT scan of the chest, abdomen, and
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pelvis. The CT scan revealed a “multiloculated peripherally enhancing fluid collection involving
the right posterior flank and retroperitoneal space.” Summerfield was referred to a surgeon who
opined that it was a “chronic intraabdominal abscess with a retained gallstone.” In late July,
Summerfield underwent surgery to drain the abscess and remove the gallstone. However, “the
gallstone was so invested in vital structures by then that it could not be safely removed.”
Initially, the abscess improved; but then it required additional drainage the following month. The
abscess recurred again in September of 2016. Finally, the abscess was able to be drained and the
gallstone removed in an additional surgery. The final surgery required lengthy use of a wound
vacuum to close the large “defect” that was left.
Summerfield brought suit against St. Luke’s on a respondeat superior theory.
Summerfield alleged that Dr. Ocmand, an employee of St. Luke’s, negligently failed to (1) notice
the spilled gallstone during surgery, (2) retrieve it, (3) inform him of the spilled gallstone or
potential health complications, (4) conduct imaging afterward to identify the spilled gallstone’s
location, and (5) make a notation of the spilled gallstone on his medical chart.
Pursuant to discovery, Summerfield disclosed Dr. Julie Madsen as his expert witness.
Summerfield’s disclosure stated that Dr. Madsen was familiar with the standard of care because
she had been “practicing medicine at St. Luke’s at the time relevant to this action” and “was
actively engaged in the practice of medicine in both Boise and McCall in August 2015 and
September 2015.”
Trial was scheduled for November 19, 2019, and the deadline for Summerfield’s expert
witness disclosure was set for June 24, 2019. On June 26, 2019, two days after the deadline,
Summerfield disclosed Dr. Madsen as his sole expert witness, and attached her curriculum vitae
and a report summarizing her findings. Dr. Madsen is board-certified in emergency medicine and
has practiced in wound care for the previous eight years. Dr. Madsen’s experience did not
include the performance of any laparoscopic cholecystectomies. While Dr. Madsen’s report
referenced what is expected of general surgeons, it failed to state the particular standard of care
when it comes to board-certified surgeons performing laparoscopic cholecystectomies.
Additionally, Dr. Madsen did not detail any inquiries she conducted of other physicians who
perform laparoscopic cholecystectomies.
St. Luke’s filed a motion for summary judgment asserting that Summerfield could not
establish a foundation for his claim because Dr. Madsen was not familiar with the standard of
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care required of general surgeons who perform laparoscopic cholecystectomies. Summerfield
responded by filing an affidavit from Dr. Madsen in an attempt to address St. Luke’s contentions
(the “first affidavit”). Dr. Madsen expanded on her experience with laparoscopic
cholecystectomies by stating that as an Emergency Medicine Physician-Specialist, she routinely
evaluates patients with gallbladder disease and refers them to surgery. Further, she regularly
manages complications of gallbladder surgery, including wound infection, retained or spilled
gallstones, and other related complications. Dr. Madsen listed many surgical standards in her
affidavit that applied to laparoscopic cholecystectomies but most were very broad surgical
standards, such as “obtain informed consent from the patient.” Again, Dr. Madsen did not detail
any inquiries she conducted of other physicians who perform laparoscopic cholecystectomies.
After the district court heard argument on St. Luke’s motion for summary judgment, it
granted Summerfield leave to submit a supplemental affidavit regarding the names of the
surgeons with whom Dr. Madsen had spoken in order to familiarize herself with the applicable
standard of care. The district court also requested the publication of the American College of
Surgeons to which Dr. Madsen had cited when listing the surgical standards in her prior
affidavit.
Dr. Madsen’s supplemental affidavit (the “second affidavit”) provided the publication for
her list of surgical standards. The second affidavit also detailed her discussion with two general
surgeons from Wyoming who had worked at St. Luke’s on a locum tenens 1 basis. Dr. Madsen
stated, “in discussing the details of performing general surgery at St. Luke’s McCall in 2015,
these two locum tenens physicians . . . verified for me that the [standards of care] that applied to
them were the same as the national [standards of care].” This discussion, however, occurred in
late 2014 or into the middle of 2015, predating Summerfield’s surgery on August 31, 2015 and
his post-operative complications. Dr. Madsen went on to further detail a conversation with other
physicians:
Specifically, I spoke to Jon Getz, M.D., and Johnny Green, M.D., who are Boise-
based general, abdominal surgeons, relative to the [standards of care] applicable
to general, abdominal surgeons in McCall, Idaho, also in the late 2014 or into the
middle of 2015 time frame. Both Drs. Getz and Green confirmed for me that my
understanding of the [standards of care] applicable in this case regarding Mr.
Summerfield was, in fact, correct and accurate and also that the national
[standards of care] controlled.
1
A doctor taking the place of another or temporarily filling an open position.
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Dr. Madsen’s second affidavit also alleged that Dr. Ocmand violated the applicable standards of
care when she failed to inform Summerfield of the spilled gallstone and by failing to make any
notation concerning it in his medical chart.
The district court granted St. Luke’s motion for summary judgment, finding that Dr.
Madsen could not establish familiarity with the applicable standard of care to maintain
Summerfield’s action. The district court noted that, as a matter of law in a medical malpractice
case, the plaintiff must offer expert testimony that the defendant negligently failed to meet the
applicable standard of care. The expert witness’s opinions and testimony must be supported by
the following foundation:
(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[.]
I.C. § 6-1013.
Initially, the district court noted that Dr. Ocmand is a board-certified general surgeon and
Dr. Madsen is not. The standard of care for board-certified specialists is the national standard of
care. Because Dr. Madsen is not board-certified, the district court reasoned that she could not be
presumed to know that standard. However, Dr. Madsen could still demonstrate her knowledge of
the applicable standard of care through her experience or study of the specialty of the defendant
physician. Nevertheless, the district court determined she also failed to meet this burden. Dr.
Madsen described her experience as managing complications of gallbladder surgery, evaluating
patients with gallbladder disease, and referring patients for laparoscopic cholecystectomies. Her
experience never described actually performing laparoscopic cholecystectomies.
The district court found that Dr. Madsen’s affidavits only referenced general knowledge
of what is expected of general surgeons, not particular knowledge of board-certified physicians
performing laparoscopic cholecystectomies. Additionally, Dr. Madsen did not perform any
pertinent inquiries of other physicians. For example, she spoke with two unidentified surgeons
from Wyoming who told her the national standard of care applies to general surgeons. She also
spoke with two general surgeons who practice in Boise, Dr. Getz and Dr. Green, who told her the
same information. Dr. Madsen alleged she had specific conversations with Dr. Getz and Dr.
Green that “confirmed for me that my understanding of the [standards of care] applicable in this
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case regarding Mr. Summerfield, was, in fact, correct and accurate.” However, she spoke to them
well before Summerfield’s post-operative complications began. The district court remained
unconvinced: “[l]eft unsaid is precisely what ‘understanding’ of Dr. Madsen’s was ‘confirmed’
by Drs. Getz and Green. That’s one reason Dr. Madsen’s description of these conversations isn’t
convincing evidence that she learned from them the standard of care applicable to general
surgeons in connection with laparoscopic cholecystectomies.”
The district court further noted that Dr. Madsen failed to demonstrate her knowledge of
the applicable standard of care through study of authoritative texts or articles. 2 Even though Dr.
Madsen listed the surgical standards from the American College of Surgeons’ website, the
website specifically qualified that the list “does not constitute a standard of care.” The district
court concluded: “Relying on a statement that expressly disclaims being a standard of care to try
to demonstrate knowledge of the standard of care suggests Dr. Madsen doesn’t know where to
look to learn the standard of care.”
In sum, the district court held that Dr. Madsen did not show knowledge of the applicable
standards of care, either through her professional experience or study. Without such knowledge,
the district court reasoned that there was no foundation for Dr. Madsen’s opinions regarding Dr.
Ocmand’s alleged breaches of those standards. Therefore, the district court could not consider
Dr. Madsen’s opinion at summary judgment and Summerfield otherwise had no evidence to
establish any breach of the applicable standards of care.
Summerfield then filed a motion for reconsideration of the district court’s decision on
summary judgment and attached a third affidavit from Dr. Madsen (the “third affidavit”).
Summerfield argued that Dr. Madsen’s third affidavit clearly demonstrates that she has
knowledge and is familiar with the applicable standards of care. Dr. Madsen’s third affidavit
stated that ten days after the entry of judgment dismissing Summerfield’s case on summary
judgment, she called Dr. Matthew Macha—a Boise general surgeon who performs laparoscopic
cholecystectomies—to discuss the standard of care for laparoscopic cholecystectomies. Although
the district court stated, “before this conversation, Dr. Madsen hadn’t—according to the record in
this case—made a bona fide effort to learn the applicable standard of care for laparoscopic
cholecystectomies from someone with knowledge of it,” it decided to consider Dr. Madsen’s
2
The district court noted that Dr. Madsen did additional reading to try to learn the applicable standard of care and
then cited several articles on spilled gallstones. Nevertheless, these articles were not part of the record in front of the
district court and their content was unclear to the district court, so they were not considered.
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third affidavit. The district court noted that Dr. Madsen’s third affidavit supplied the foundation
that was missing when summary judgment was granted. St. Luke’s contended that the district
court should not consider the late affidavit; the district court disregarded St. Luke’s assertions
and considered Dr. Madsen’s third affidavit, recognizing that “case law dictates considering new
evidence in connection with Rule 11.2(b) motions.”
As the district court later noted, at the time it made this ruling it was under the impression
that it must consider new evidence on a motion for reconsideration. Accordingly, upon
consideration of Dr. Madsen’s third affidavit, the district court granted Summerfield’s motion for
reconsideration and vacated the prior order granting summary judgment to St. Luke’s. However,
the district court ordered a monetary sanction against Summerfield for the late filing in lieu of
excluding Dr. Madsen’s third affidavit.
Then, 28 days later, the district court sua sponte rescinded its order granting
Summerfield’s motion for reconsideration and reinstated judgment in favor of St. Luke’s. The
district court explained its reasons for reversing itself:
[T]he [district court’s] choice of sanction was influenced by case law requiring
the trial courts to consider new evidence submitted with a motion to reconsider.
. . . That case law seemed to put the Idaho Supreme Court’s thumb on the scale in
favor of considering new evidence, despite the movant’s failure to submit the
evidence when the movant should’ve submitted it. . . . That perception contributed
to the [district court’s] decision to elevate—above the fairness and judicial-
economy concerns involved in letting the movant escape the natural consequences
of missed deadlines—the aim of an adjudication made on the fullest factual
record.”
The district court further noted that it did not take notice of this Court’s recent decision in
Ciccarello v. Davies, 166 Idaho 153, 456 P.3d 519 (2019), before making its initial decision. 3 In
Ciccarello, this Court held that a district court did not abuse its discretion in refusing to consider
new evidence on reconsideration when the declarations were untimely for consideration at
summary judgment, thereby clarifying the case law on a lower court’s obligation to consider new
evidence submitted with a motion for reconsideration:
While this Court has explained that when considering a motion for
reconsideration the trial court should take into account any new facts presented by
the moving party that bear on the correctness of the order, this rule was not
designed to allow parties to bypass timing rules or fail to conduct due diligence
3
Cicarrello was decided after the parties briefed the issue but before the district court’s order granting
Summerfield’s motion for reconsideration.
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prior to a court’s ruling. Rather, the purpose of a motion for reconsideration is to
reexamine the correctness of an order.
166 Idaho at 162, 456 P.3d at 528 (internal citations, quotation marks, and brackets omitted). The
district court stated that had it been aware of Ciccarello, it would have made a different decision.
The district court then reversed itself, reasoning:
Reevaluating the issues in light of Ciccarello, the [district court] no longer
considers forgiving Summerfield’s missed deadlines and considering Dr.
Madsen’s third affidavit to be the best exercise of its discretion. Instead, the best
exercise of the [district court’s] discretion is to decline to consider that affidavit. It
was submitted after Summerfield’s deadline for filing opposition papers on
summary judgment, and it evidences a post-judgment effort to render Dr. Madsen
qualified to render her opinions on the applicable standard of care, when that
effort should’ve occurred much earlier—by the time of Summerfield’s expert
disclosures and, if not then, not later than when his opposition papers came due.
. . . Alternatively, the [district court] simply declines to consider that affidavit, as
Ciccarello allows, because it wasn’t filed within the time allowed by I.R.C.P.
56(b)(2) and there is no good excuse for Summerfield’s failure to develop and
present the necessary foundation for Dr. Madsen’s opinions until after a decision
was rendered on summary judgment.
Summerfield timely appealed the district court’s order on summary judgment and the
district court’s order reinstating judgment for St. Luke’s.
II. STANDARD OF REVIEW
“This Court exercises de novo review of a grant of summary judgment and the ‘standard
of review is the same as the standard used by the trial court in ruling on the motion for summary
judgment.’ ” AED, Inc. v. KDC Invest, LLC, 155 Idaho 159, 163, 307 P.3d 176, 180 (2013)
(quoting Stonebrook Const., LLC v. Chase Home Fin., LLC, 152 Idaho 927, 929, 277 P.3d 374,
376 (2012)). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
I.R.C.P. 56(a). A material fact exists when a reasonable jury could return a verdict for the non-
moving party based on the evidence presented. Marek v. Hecla, Ltd., 161 Idaho 211, 220, 384
P.3d 975, 984 (2016). “This Court liberally construes the record in favor of the party opposing
the motion for summary judgment and draws any reasonable inferences and conclusions in that
party’s favor.” Robinson v. Bateman-Hall, Inc., 139 Idaho 207, 209, 76 P.3d 951, 953, (2003).
“The admissibility of expert testimony, however, is a threshold matter that is distinct
from whether the testimony raises genuine issues of material fact sufficient to preclude summary
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judgment.” Arregui v. Gallegos-Main, 153 Idaho 801, 804, 291 P.3d 1000, 1003 (2012) (internal
citation omitted). The “liberal construction and reasonable inferences standard does not apply”
when determining the admissibility of expert testimony; instead, “the trial court must look at the
witness’ affidavit or deposition testimony and determine whether it alleges facts which, if taken
as true, would render the testimony of that witness admissible.” Mattox v. Life Care Ctrs. of Am.,
Inc., 157 Idaho 468, 473, 337 P.3d 627, 632 (2014).
This Court reviews a district court’s decision on a motion for reconsideration using the
same standard of review the lower court used when deciding the motion. Monitor Finance, L.C.
v. Wildlife Ridge Estates, LLC, 164 Idaho 555, 433 P.3d 183 (2019). When this Court reviews a
trial court’s discretionary decision, it applies a four-prong test to determine whether there was an
abuse of discretion: whether the trial court “(1) correctly perceived the issue as one of discretion;
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal
standards applicable to the specific choice available to it; and (4) reached its decision by the
exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 867, 421 P.3d 187, 198 (2018).
III. ANALYSIS
A. The district court’s decision to grant summary judgment to St. Luke’s is affirmed in
part and reversed in part.
Summerfield contends that the district court erred in granting St. Luke’s motion for
summary judgment based on its finding Dr. Madsen failed to lay a proper foundation to testify to
the applicable standard of care and the breaches thereof by Dr. Ocmand. Summerfield asserts
that Dr. Madsen’s second affidavit laid a sufficient foundation to testify that Dr. Ocmand
breached the applicable standard of care by: (1) failing to notice and retrieve the spilled
gallstone; (2) failing to inform Summerfield of the spilled gallstone; and, (3) failing to make a
notation in Summerfield’s medical record of the spilled gallstone. We agree in part and conclude
Dr. Madsen, through her education, training, and practice at St. Luke’s, as set forth in the first
and second affidavits, could offer an expert opinion regarding the latter two alleged breaches of
care: the failure to inform and the failure to note the incident in Summerfield’s medical records.
Therefore, the district court erred when it granted summary judgment for St. Luke’s and
dismissed Summerfield’s case entirely.
1. Establishing the applicable standard of care.
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Idaho Code section 6-1012 requires that a plaintiff who brings a medical malpractice
claim must provide expert testimony establishing that the healthcare provider did not meet the
applicable standard of healthcare practice. Fisk v. McDonald, 167 Idaho 870, 880, 477 P.3d 924,
934 (2020). Idaho Code section 6-1012 provides in part:
In any case, claim or action for damages due to injury to or death of any person,
brought against any physician and surgeon or other provider of health care,
including . . . any . . . nurse practitioner, registered nurse, . . . hospital, . . . or any
person vicariously liable for the negligence of them . . . such claimant or plaintiff
must, as an essential part of his or her case in chief, affirmatively prove by direct
expert testimony and by a preponderance of all the competent evidence, 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, as such standard existed at the time and place of the alleged
negligence . . . with respect to the class of health care provider that such defendant
then and there belonged to and in which capacity he, she or it was functioning.
I.C. § 6-1012.
An expert must have actual knowledge of the community standard of care at the time and
place of the alleged malpractice in order to testify. Fisk, 167 Idaho at 880, 477 P.3d at 934. The
expert can demonstrate knowledge of the community standard of care provided by Idaho Code
section 6-1013:
The applicable standard of practice and such a defendant’s failure to meet said
standard must be established in such cases by such a plaintiff by testimony of one
(1) or more knowledgeable, competent expert witnesses, and such expert
testimony may only be admitted in evidence if the foundation therefore 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; provided, this section
shall not be construed to prohibit or otherwise preclude a competent expert
witness who resides elsewhere from adequately familiarizing himself with the
standards and practices of (a particular) such area and thereafter giving opinion
testimony in such a trial.
I.C. § 6-1013. The district court’s holding below focused on the third requirement—that Dr.
Madsen did not possess the actual knowledge of the applicable community standard of care.
Dr. Madsen can establish that she has “actual knowledge” of the applicable standard of
care under Idaho Code section 6-1013 by being a “provider[] of the same class in the same
community, taking into account [the defendant provider’s] training, experience, and fields of
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medical specialization.” I.C. § 6-1012. In the alternative, Dr. Madsen can “ ‘demonstrate a
knowledge acquired from experience or study of the standards of the specialty of the defendant
physician sufficient to enable [her] to give an expert opinion as to the conformity of the
defendant’s conduct to those particular standards.’ ” Dulaney v. St. Alphonsus Reg’l Med. Ctr.,
137 Idaho 160, 168, 45 P.3d 816, 824 (2001) (emphasis added) (quoting Clarke v. Prenger, 114
Idaho 766, 769, 760 P.2d 1182, 1185 (1988)).
2. Dr. Madsen did not establish a foundation to give expert testimony regarding
whether, under the applicable standard of care, Dr. Ocmand should have noticed
and retrieved the spilled gallstone during the surgery.
Regarding the first alleged breach of a standard of care, Dr. Madsen’s first and second
affidavits did not sufficiently establish a foundation to give expert testimony concerning whether
Dr. Ocmand should have noticed the spilled gallstone and retrieved it. Dr. Madsen is not a
provider of the “same class in the same community” when considering Dr. Ocmand’s
specializations. Dr. Ocmand is a board-certified general surgeon. Dr. Madsen is not. “For board-
certified specialists, the local standard of care is equivalent to the national standard of care.”
Samples v. Hanson, 161 Idaho 179, 184, 384 P.3d 943, 948 (quoting Buck v. St. Clair, 108 Idaho
743, 745, 702 P.2d 781, 783 (1985)). Dr. Madsen’s experience is in emergency medicine and in
wound care. Her affidavits failed to describe any experience relating to laparoscopic
cholecystectomies—she had never witnessed the procedure, nor has she performed one. In
addition, Dr. Madsen did not describe any experience dealing with spilled gallstones or
retrieving spilled gallstones during a laparoscopic cholecystectomy. She detailed her experience
as evaluating patients with gallbladder disease, referring them for surgery, and managing post-
operative wound infections from gallbladder surgery. Her experience as a physician did not
include Dr. Ocmand’s specializations as a board-certified general surgeon who regularly
performs laparoscopic cholecystectomies. Therefore, we affirm the district court’s conclusion
that Dr. Madsen is not a “provider[] of the same class in the same community, taking into
account [the defendant provider’s] training, experience, and fields of medical specialization” in
order for her to give expert testimony relating to the complications of a spilled or retained
gallstone during a laparoscopic cholecystectomy. I.C. § 6-1012.
Additionally, we also affirm the district court’s conclusion that Dr. Madsen failed to
“ ‘demonstrate a knowledge acquired from experience or study’ ” of the applicable standard of
care. Dulaney, 137 Idaho at 168, 45 P.3d at 824 (emphasis added) (quoting Clarke, 114 Idaho at
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769, 760 P.2d at 1185). In her expert disclosure, Dr. Madsen merely referenced the care expected
of general surgeons; she failed to come close to stating the particular standard of care when it
comes to board-certified surgeons performing laparoscopic cholecystectomies. In her first
affidavit filed in response to St. Luke’s motion for summary judgment, Dr. Madsen listed
surgical standards obtained from the American College of Surgeons’ website. However, upon
closer examination, the district court noted that the website clearly stated the surgical standards
“do[] not constitute a standard of care.”
In her second affidavit, Dr. Madsen stated that she had a discussion with two general
surgeons from Wyoming who worked at St. Luke’s McCall on a locum tenens basis. During that
discussion, Dr. Madsen claimed “these two . . . physicians . . . verified for me that the [standards
of care] that applied to them were the same as the national [standards of care].” However, she
still failed to detail what the standards of care are. Furthermore, by Dr. Madsen’s own admission,
this discussion occurred in late 2014 or into the middle of 2015. Considering that Summerfield
did not undergo gallbladder surgery until August 31, 2015, and his complications did not occur
immediately after surgery, it would be impossible to presume that Dr. Madsen discussed this
specific case—or even laparoscopic cholecystectomies generally—with the two Wyoming
surgeons.
Dr. Madsen also stated that she had a discussion with two other doctors, Dr. Getz and Dr.
Green, who are Boise-area abdominal surgeons. According to Dr. Madsen, they discussed the
relative standards of care applicable to general abdominal surgeons. Even though Dr. Madsen
declared that these doctors “confirmed for me that my understanding of the [standards of care]
applicable in this case regarding Mr. Summerfield, was, in fact, correct and accurate,” there is no
indication that Dr. Madsen discussed laparoscopic cholecystectomies with them. As the district
court properly noted, “[l]eft unsaid is precisely what ‘understanding’ of Dr. Madsen’s was
‘confirmed’ by Drs. Getz and Green. That’s one reason Dr. Madsen’s description of these
conversations isn’t convincing evidence that she learned from them the standard of care
applicable to general surgeons in connection with laparoscopic cholecystectomies.” Dr. Madsen
provided no foundation to provide an expert testimony regarding spilled or retained gallstones—
whether physicians performing laparoscopic cholecystectomies should notice a spilled stone
during surgery or whether a physician should attempt to retrieve a spilled stone. Accordingly, we
conclude that the district court properly determined that Dr. Madsen did not demonstrate
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knowledge of the applicable standard of care through professional experience or study.
Therefore, her opinion lacked foundation and was inadmissible. Her testimony, on that basis,
was correctly not considered by the district court. Without admissible expert testimony,
Summerfield had no evidence to establish his first breach of care claim against Dr. Ocmand—
that she should have noticed and retrieved the spilled gallstone. Thus, summary judgment on that
ground was properly granted by the district court.
3. Due to her training and experience, Dr. Madsen could offer an expert opinion on
whether, under the applicable standard of care, Dr. Ocmand should have timely
informed Summerfield of the spilled gallstone and whether Dr. Ocmand should have
made a notation in Summerfield’s medical chart regarding the spilled gallstone.
Although we affirmed the district court as to the first alleged breach of the standard of
care, we must reverse its ruling as it pertains to the remaining two alleged breaches of the
standard of care: (1) Dr. Ocmand’s failure to notify Summerfield of the spilled stone and (2) Dr.
Ocmand’s failure to make a notation in Summerfield’s medical chart. The standard of care for
these two claims are of such a general nature that Dr. Madsen was qualified to give an expert
opinion on them.
Dr. Madsen is a physician with consulting privileges at St. Luke’s. She had consulting
privileges during Summerfield’s surgery. Part of Dr. Madsen’s work experience was to manage
complications of gallbladder surgery, including spilled gallstones. Dr. Madsen’s second affidavit
clarified that as a board-certified emergency medicine physician, Dr. Madsen is knowledgeable
and aware of the ethical obligation to disclose surgical errors and inform patients of potential
harm of those errors. Furthermore, Dr. Madsen noted that St. Luke’s By-Laws contain guidelines
on error disclosure and set the standard of care for physicians at St. Luke’s.
Dr. Madsen opined that Dr. Ocmand breached the applicable standard of care when the
pathology report showed the absence of a gallstone, meaning the gallstone had been spilled and
remained inside of Summerfield. At that point, Dr. Ocmand should have informed Summerfield
of the retained stone, but she did not. Moreover, Dr. Ocmand should have made a notation in
Summerfield’s medical chart regarding the spilled stone; but she did not do this either. Dr.
Madsen testified that during this time there was no difference at St. Luke’s between how a
surgeon reviews a pathology report and how physicians handle post-operative care. Dr. Madsen
did not need to match the specific training and expertise of Dr. Ocmand in order to testify to
these opinions; they are of such a general nature that Dr. Madsen’s experience, board-
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certification, and consulting privileges at the same facility are sufficient to meet the foundational
requirements. As to these two claims, the district court erred by placing undue emphasis on Dr.
Madsen’s lack of experience in laparoscopic cholecystectomies. She did not need experience
performing laparoscopic cholecystectomies in order to give an expert opinion that Summerfield
should have been notified of the spilled gallstone and a notation should have been made in his
medical chart. We conclude that Dr. Madsen demonstrated the requisite knowledge to offer these
opinions. Therefore, the district court erred by granting summary judgment in favor of St. Luke’s
and the case is remanded for further proceedings.
B. The district court did not abuse its discretion by rescinding its order granting
Summerfield’s motion for reconsideration and reinstating its order on summary
judgment in favor of St. Luke’s.
Summerfield contends the district court erred by sua sponte rescinding its order on
reconsideration and reinstating summary judgment for St. Luke’s. Because we have reversed, in
part, the district court’s ruling on summary judgment as it pertained to the latter two alleged
breaches of the standard of care, we will only address whether the district court erred by
rescinding its order on Summerfield’s motion for reconsideration as to the first alleged breach of
the standard of care—failure to notice and remove the spilled gallstone.
Summerfield asserts the district court erred by solely relying on Ciccarello and ignoring
this Court’s opinions in Fisk, 167 Idaho 870, 477 P.3d 924, Puckett v. Verska, 144 Idaho 161,
158 P.3d 937 (2007), and Shane v. Blair, 139 Idaho 126, 75 P.3d 180 (2003). Regarding Fisk,
Summerfield argues, “[t]his Court held that Idaho’s trial courts have no discretion to decide
whether to entertain a motion for [re]consideration and that they must consider any new
admissible evidence or authority bearing on the correctness of its orders.” (Emphasis added). In
Fisk, the defendant was a board-certified neurological surgeon who performed an outpatient
cervical spine fusion surgery on the plaintiff. 167 Idaho at 877, 477 P.3d at 931. The following
day, before the plaintiff was released from the hospital, the plaintiff developed severe abdominal
pain and began vomiting profusely. Her condition continued to worsen. Eventually, the plaintiff
underwent an exploratory laparotomy, which led another doctor to discover that the plaintiff
developed mesenteric artery ischemia—or a loss of blood supply to the small intestines. Id. at
877–78, 477 P.3d at 931–32. Doctors removed a significant amount of the plaintiff’s small and
large intestines. She recovered, but with serious ongoing repercussions. The plaintiff brought suit
against the defendant and disclosed six retained expert witnesses. The defendant filed a motion
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to strike the plaintiff’s expert witness disclosures and a motion for summary judgment because
the plaintiff failed to provide admissible evidence of the applicable standard of care or breach of
that standard of care. Id. at 878, 477 P.3d at 32.
The district court granted the motion for summary judgment, finding none of the
plaintiff’s disclosed expert witnesses had “actual knowledge” of the applicable community
standard of care. Id. The plaintiff filed a motion for reconsideration and provided additional
declarations from her retained expert witnesses. Id. at 878-79, 477 P.3d 932-33. The motion was
denied. The plaintiff appealed the district court’s denial of her motion for reconsideration, among
other alleged errors. Id. at 879, 477 P.3d at 933. When addressing the plaintiff’s appeal of the
district court’s denial of reconsideration, this Court stated:
The district court has no discretion to decide whether to entertain a motion for
reconsideration. Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113
(2012). In addition, the district court ‘must consider any new admissible evidence
or authority bearing on the correctness of [the] order.’ Jackson v. Crow, 164 Idaho
806, 811, 436 P.3d 627, 632 (2019) (quoting Fragnella, 153 Idaho at 276, 281
P.3d at 113).
Id. at 892, 477 P.3d at 946.
Fisk is not quite on point with the case at hand because the district court in Fisk
considered the plaintiff’s additional expert declarations filed with the motion for reconsideration,
but still denied the motion. The Court in Fisk was not asked to decide whether the district court
should have considered the additional declarations but whether the district court’s denial of the
motion was proper. Id. In the case before us, the district court exercised its discretion and
decided not to consider Summerfield’s third affidavit from Dr. Madsen—and that is what
Summerfield alleges was erroneous.
Similarly, Puckett does not support Summerfield’s contention that a district court has no
choice but to consider additional evidence submitted with a motion for reconsideration. In
Puckett, this Court noted that a “decision to grant or deny a request for reconsideration rests in
the sound discretion of the trial court.” 144 Idaho at 166, 158 P.3d at 942. It further stated,
“when reviewing a motion for reconsideration, the district court ‘should take into account any
new facts presented by the moving party that bear on the correctness of the interlocutory order.
The burden is on the moving party to bring the trial court’s attention to the new facts.’ ” Id.(emphasis added) (quoting Coeur d’Alene Mining Co. v. First Nat’l Bank, 118 Idaho 812, 823,
800 P.2d 1026, 1037 (1990)). Puckett implies that consideration of additional evidence or facts
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accompanying a motion for reconsideration rests with the discretion of the district court, rather
than a mandatory obligation.
Shane, on the other hand, is a closer call. There, the plaintiff filed suit against a doctor
the plaintiff alleged negligently breached the standard of care in operating on his spine. 139
Idaho at 127, 75 P.3d at 181. The defendant filed a motion for summary judgment, which the
district court granted, finding the plaintiff did not establish that his expert witness had knowledge
of the relevant standard of care. Id. at 128, 75 P.3d at 182. The plaintiff filed a motion for
reconsideration and submitted a fourth affidavit from his expert witness and another expert
witness. Id. The district court struck both supplemental affidavits and denied the motion for
reconsideration. Id. On appeal, this Court held that the district court erred in striking the
supplemental affidavits. Id. at 130, 75 P.3d at 184. However, the Court’s analysis was rather
short and did not state that the district court was required to consider the new affidavits, or that it
abused its discretion by not considering them. Id. Moreover, Shane, the oldest of the cases cited
by Summerfield, is less indicative of this Court’s recent jurisprudence on this issue.
We find Ciccarello is directly on point here and reaffirm its holding. The district court
had the discretion to refuse to consider Dr. Madsen’s untimely third affidavit filed with
Summerfield’s motion for reconsideration. In Ciccarello, the plaintiff brought suit against his
attorney for negligence and legal malpractice for his attorney’s alleged defective drafting of a
company sales contract that was adverse to plaintiff’s interests and a breach of the applicable
standard of care under the rules of professional conduct. 166 Idaho at 156–57, 456 P.3d at 522–
23. The plaintiff made his expert witness disclosure and then the defendant moved for summary
judgment arguing the plaintiff had not proffered expert testimony establishing that the defendant
failed to meet the standard of care. Id. After the district court took the matter under advisement,
the plaintiff submitted a “rebuttal expert disclosure” affidavit from his retained expert. Id. at 158,
456 P.3d at 524. The next day, the district court granted the defendant’s motion for summary
judgment. Id. The plaintiff moved for reconsideration and filed an additional declaration from his
proposed expert. Id. The district court denied the motion, noting that the plaintiff did not provide
sufficient expert testimony at the time of the summary judgment motion. Id.
On appeal to this Court, we affirmed the district court’s denial of the plaintiff’s motion
for reconsideration. Id. at 161–62, 456 P.3d at 527–28. We held:
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As indicated by the district court, because the declarations provided by
[the plaintiff’s] experts were untimely for consideration at summary judgment per
Idaho Rule [of] Civil Procedure 56(b)(2), it was not required to consider them in
ruling on the motion for reconsideration. While this Court has explained that
when considering a motion for reconsideration ‘the trial court should take into
account any new facts presented by the moving party that bear on the correctness
of the order,’ Int’l Real Estate Solutions, Inc., v. Arave, 157 Idaho 816, 819, 340
P.3d 465, 468 (2014), this rule was not designed to allow parties to bypass timing
rules or fail to conduct due diligence prior to a court’s ruling. Rather, ‘[t]he
purpose of a motion for reconsideration is to reexamine the correctness of an
order.’ Id.Id. at 162, 456 P.3d at 528 (emphasis added). This Court went on further to hold that the district
court did not abuse its discretion in declining to consider the plaintiff’s additional expert
declarations after summary judgment. Id. The plaintiff’s opposition brief and supporting
documents were supposed to be filed at least fourteen days before the hearing, yet they were
filed fifty days after that date. Id. Therefore, the district court exercised its discretion reasonably.
Id.
Ciccarello held that the district court is afforded discretion on whether to consider
untimely declarations of fact accompanying a motion for reconsideration. Ciccarello’s reasoning
is applicable here, too. The trial court should have the discretion to determine whether it will
consider additional evidence in support of a motion for reconsideration, if it is submitted late.
Without such discretion, “parties [can] bypass timing rules or fail to conduct due diligence prior
to a court’s ruling” because the trial court must consider any additional evidence. Id. at 162, 456
P.3d at 528. When addressing a motion for reconsideration, Ciccarello still requires a trial court
to consider evidence touching on the “correctness” of its original order. For example, if the trial
court’s ruling was based on a misunderstanding of the record, or if there was material evidence
in the record that either side failed to present to the court on summary judgment, the court must
consider such evidence on reconsideration if it would affect the correctness of its original
decision. However, Ciccarello allows the court discretion to not consider evidence which
reasonably should have been made a part of the record sooner, but was not. In short, while a
motion for reconsideration is a safety valve to protect against legal and factual errors, it is not
intended to be a mechanism that encourages tactical brinkmanship or a lack of diligence.
On Summerfield’s motion for reconsideration, the district court was initially unaware of
the broad discretion it had been granted under Ciccarello. The district court’s order implies that
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it was under the impression that it was required to consider the additional evidence. That is not
what Ciccarello states. Once the district court realized its mistake, it then exercised its discretion
to correct its error. We find the district court did not abuse its discretion by reversing its decision
to grant Summerfield’s motion for reconsideration and reinstating judgment for St. Luke’s.
It is clear Dr. Madsen was retained at least six months before St. Luke’s filed a motion
for summary judgment, as Summerfield identified Dr. Madsen as his sole expert witness in
response to St. Luke’s interrogatory. The district court held that Dr. Madsen’s initial expert
witness disclosure, her first affidavit in response to summary judgment, and her second affidavit
permitted by leave of the district court all failed to establish her knowledge of the applicable
standard of care. Dr. Madsen’s third affidavit, attached to Summerfield’s motion for
reconsideration, was filed long past the expert disclosure deadline and well after the filing of his
briefs and affidavits in opposition to St. Luke’s motion for summary judgment. Moreover, Dr.
Madsen’s third affidavit consisted of knowledge obtained about the applicable standard of care
after the summary judgment motion had already been ruled on by the district court. Dr.
Madsen’s third affidavit detailed her phone call with Dr. Macha, a Boise general surgeon who
performs laparoscopic cholecystectomies, to discuss the standard of care 10 days after judgment
had been entered against Summerfield. Dr. Madsen had not spoken with a general surgeon who
performs laparoscopic cholecystectomies before this point. As the district court noted, “there is
no good excuse for Summerfield’s failure to develop and present the necessary foundation for
Dr. Madsen’s opinions until after a decision was rendered on summary judgment.”
While we acknowledge that this may be a harsh outcome for Summerfield, the discretion
rested with the district court to disregard the late affidavit, which consisted of evidence obtained
after the summary judgment motion had been decided. The district court properly recognized the
issue as one of discretion, acted within the outer boundaries of that discretion, applied the correct
legal principles, and reached its decision by the exercise of reason. We cannot conclude the
district court abused its discretion in light of the lack of diligence demonstrated by the record.
Thus, we affirm the district court’s order rescinding its order granting Summerfield’s motion for
reconsideration and reinstating judgment for St. Luke’s. Consistent with our opinion above, this
holding only applies to Summerfield’s allegation that Dr. Ocmand breached the standard of care
by failing to notice and retrieve the spilled gallstone.
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C. St. Luke’s is not entitled to attorney fees or costs on appeal. Summerfield is entitled to
his costs.
St. Luke’s requests attorney fees pursuant to Idaho Code section 12-121 or Idaho Rule of
Civil Procedure 54(e)(2). Both award attorney fees to the prevailing party if a case or appeal was
brought frivolously or without foundation. I.C. §12-121; I.R.C.P. 54(e)(2). Because we have
concluded that the district court erred in granting summary judgment to St. Luke’s on two of the
three grounds, Summerfield was the overall prevailing party and Summerfield’s appeal was
clearly not frivolous. Accordingly, we deny St. Luke’s request for attorney fees.
St. Luke’s also requests costs under Idaho Appellate Rule 40. Costs under Idaho
Appellate Rule 40 are awarded as a matter of course to the prevailing party. Because St. Luke’s
is not the prevailing party, it is not entitled to costs on appeal; however, Summerfield, as the
prevailing party, is entitled to costs on appeal.
IV. CONCLUSION
The district court’s summary judgment decision is affirmed in part and reversed in part.
We affirm the district court’s decision to grant St. Luke’s motion for summary judgment on
Summerfield’s claim that Dr. Ocmand breached the standard of care for not noticing the spilled
gallstone and not retrieving it because Dr. Madsen did not establish a sufficient foundation to
testify as to the appropriate standard of care. We also affirm the district court’s sua sponte
decision to reverse itself and not consider Dr. Madsen’s third affidavit and reinstate judgment for
St. Luke’s on this same ground. However, we reverse the district court’s decision to grant St.
Luke’s motion for summary judgment as to Summerfield’s claims that Dr. Ocmand breached the
standard of care by failing to inform Summerfield of the spilled gallstone and by failing to note
the spilled gallstone in Summerfield’s medical chart because Dr. Madsen laid a sufficient
foundation to testify as to these matters.
Summerfield is awarded his costs on appeal as the prevailing party. The case is remanded
for further proceedings consistent with this opinion.
Chief Justice BEVAN, and Justices BRODY, STEGNER and BURDICK CONCUR.
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