Fisk v. McDonald ( 2020 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 46639
DAVID FISK and MARGARET FISK, )
Husband and Wife, )
)
Plaintiffs-Appellants,
)
v. )
)
JEFFERY D. MCDONALD, M.D., an ) Boise, April 2020 Term
individual; NORTH IDAHO DAY )
SURGERY, LLC., dba NORTHWEST ) Opinion Filed: October 23, 2020
SPECIALITY HOSPITAL, )
) Melanie Gagnepain, Clerk
Defendants-Respondents,
)
and )
)
JOHN L. PENNINGS, M.D., an individual, )
)
Defendant. )
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. John T. Mitchell, District Judge.
The district court’s decisions are affirmed in part, vacated in part and remanded
for further proceedings.
Gary L. Shockey, PC, Jackson, Wyoming, and Smith, Woolf, Anderson &
Wilkinson, PLLC, Idaho Falls, for Appellants. Gary L. Shockey argued.
Ramsden, Marfice, Ealy & De Smet, LLP, Coeur d’Alene, for Respondent. Jeffery D.
McDonald. Michael E. Ramsden argued.
Garrett Richardson, PLLC, Eagle, for Respondent North Idaho Day Surgery, LLC. Nancy
Jo Garrett argued.
________________________
BURDICK, Chief Justice.
This is a medical malpractice case arising out of treatment received by Margaret Fisk at
North Idaho Day Surgery, LLC, d/b/a Northwest Specialty Hospital (“the Hospital”). David and
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Margaret Fisk appeal from an order of the Kootenai County district court granting summary
judgment in favor of Jeffery D. McDonald, M.D., and the Hospital. The district court granted
summary judgment on the Fisks’ single cause of action for medical malpractice after determining
the Fisks had failed to provide expert testimony demonstrating actual knowledge of the
community standard of care. The Fisks also appeal the district court’s order denying their
subsequent motion for reconsideration.
I. FACTUAL AND PROCEDURAL BACKGROUND
McDonald is a board-certified neurological surgeon who practiced medicine at the
Hospital in March of 2015. The Hospital is a specialty acute-care hospital in Post Falls, Idaho.
On March 10, 2015, McDonald performed an outpatient cervical spinal fusion surgery on
Mrs. Fisk at the Hospital’s facility. The Hospital provided nursing care before, during, and after
Mrs. Fisk’s surgery. Jessica Sholtz, a nurse practitioner, assisted McDonald. Mrs. Fisk’s surgery
had no obvious complications.
The next day, the Hospital’s nurses prepared to discharge Mrs. Fisk. However, at
approximately 12:45 p.m., before she could be discharged, Mrs. Fisk began suffering abdominal
pain and nausea. Shortly thereafter, the nurses administered a suppository for constipation. At
about 3:00 p.m., Mrs. Fisk experienced a large emesis (vomiting), which was reported to Sholtz.
At that point, Sholtz decided to postpone Mrs. Fisk’s discharge from the Hospital. Mrs. Fisk’s
symptoms continued to worsen throughout the day and into the evening. From 7:45 p.m. to 9:00
p.m., Mrs. Fisk experienced nausea with intermittent retching emesis and severe abdominal pain.
The Hospital nursing staff remained in communication with Sholtz, periodically notifying her
about Mrs. Fisk’s condition and receiving additional orders throughout the late evening.
During the night, at 1:26 a.m., Mrs. Fisk told nursing staff that her stomach hurt and that
she felt like she was dying. Around the same time, she vomited what was described as “coffee-
ground emesis” (coagulated blood in the vomit). Mrs. Fisk was still experiencing coffee-ground
emesis an hour later. After Hospital nursing staff relayed information about Mrs. Fisk’s
condition to Sholtz, she ordered them to consult with an on-call intensivist. After consultation,
the intensivist recommended Mrs. Fisk be transferred to Kootenai Medical Center for a
gastrointestinal consult and a possible endoscopy.
The Hospital’s nursing staff communicated the intensivist’s recommendation to Sholtz,
who directed them not to transfer Mrs. Fisk and to prepare her for a possible “scope” later that
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morning. Throughout the next several hours, Mrs. Fisk described her abdominal pain as “a ten-
out-of-ten.”
At 6:00 a.m., Sholtz returned to the Hospital “to round on” Mrs. Fisk. Around 6:45 a.m.,
Sholtz was attempting to coordinate a gastrointestinal consult. An hour later, around 7:45 a.m.,
the nursing staff noted that Mrs. Fisk’s pain remained at a ten-out-of-ten, her bowels were not
making any sounds, and her abdomen was firm and distended. About the same time, John L.
Pennings, M.D., arrived at the Hospital for the gastrointestinal consult. Pennings believed Mrs.
Fisk was in “terminal phase shock” and ordered that she be prepared for surgery. After
performing an exploratory laparotomy, Pennings discovered that Mrs. Fisk had developed
mesenteric artery ischemia, which is “a loss of blood supply to the small intestines [sic] leading
to end-organ loss.” This required Pennings to remove a significant amount of Mrs. Fisk’s small
intestine to save her life. Because Mrs. Fisk’s colon also suffered from a loss of blood supply,
Pennings performed a “total abdominal colectomy with an end ileostomy” (removal of the large
intestine and part of the small intestine). At about 12:18 p.m., after the surgery, Mrs. Fisk was in
critical condition and transferred to the Intensive Care Unit at Kootenai Medical Center, where
she received treatment and eventually recovered, but with serious ongoing repercussions.
The Fisks filed their Complaint against Pennings, McDonald, and the Hospital on March
1, 2017, alleging each defendant was negligent in their medical treatment of Mrs. Fisk. Each
defendant filed separate answers to the Complaint, generally denying liability. Pursuant to a
stipulation of the parties, the district court entered an order dismissing the Fisks’ claims against
Pennings on January 26, 2018.
Pursuant to the district court’s scheduling order, the Fisks disclosed thirteen non-retained
experts and six retained expert witnesses. On April 3, 2018, shortly after filing its own expert
witness disclosures, the Hospital filed a motion to strike the Fisks’ expert witness disclosures and
to exclude the Fisks’ retained experts. Along with its motion to strike and exclude experts, the
Hospital filed a motion for summary judgment. The Hospital’s primary arguments in favor of
summary judgment were (1) that the Fisks failed to provide admissible evidence of the
applicable standard of care or breach of the applicable standard of care; and (2) that the Fisks
failed to present admissible evidence to establish proximate cause. On April 24, 2018, McDonald
filed a similar motion for summary judgment.
The Fisks responded to both motions for summary judgment on May 9, 2018. In support,
the Fisks submitted the declarations of four expert witnesses: Suzanne Nebeker, BSA, RN, BSN,
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MSN, FNB-BC; Vernon R. Kubiak, DNP, CNP, CNS, CNS-BC, PMHNP-BC, RN; Timothy F.
Hawkins, FACHE CHSP; and Robert Y. Uyeda, MD. On May 23, 2018, the district court held a
hearing on both motions for summary judgment and the Hospital’s motion to strike and exclude
the Fisks’ experts.
On May 31, 2018, the district court entered a memorandum decision and order addressing
all the motions. At the outset, the district court denied the Hospital’s motion to strike with
respect to all but one of the Fisks’ disclosed experts, holding that the Fisks were not required to
disclose the foundation for their experts’ community standard of care testimony as part of their
disclosures.1 The court granted both McDonald’s and the Hospital’s motions for summary
judgment, explaining that none of the four expert declarations submitted by the Fisks in
opposition to summary judgment demonstrated that any of the four expert witnesses had “actual
knowledge” of the community standard of care applicable to McDonald or the Hospital. Specific
to the Fisks’ claim against McDonald, the district court explained that the Fisks had not
“adequately pled” that McDonald was vicariously liable for Sholtz’s acts and omissions under a
theory of “express authority, implied authority, or apparent authority.” Finally, the district court
rejected an argument made by the Fisks that the burden of proof on summary judgment never
shifted to them because McDonald and the Hospital had failed to state what the applicable
community standard of care was.
The Fisks filed a motion to amend their complaint on June 7, 2018, to add a claim that
McDonald was liable for the acts and omissions of Sholtz. The district court entered judgments
dismissing the Fisks’ claims against the Hospital and McDonald with prejudice on June 7, 2018,
and June 8, 2018, respectively. The Fisks subsequently filed two motions for reconsideration,
one corresponding to each judgment. In support of their motions for reconsideration, the Fisks
provided additional declarations from Vernon R. Kubiak, Suzanne Nebeker, and Timothy
Hawkins.
The district court held a hearing on the Fisks’ motions on October 10, 2018. At the
hearing, counsel for the Fisks communicated his inability to procure local experts to testify as to
the community standard of care, describing it as “virtually impossible in smaller communities in
Idaho.” After the hearing, the district court denied the Fisks’ motion to amend and the motions
for reconsideration. On December 3, 2018, the district court entered an amended judgment with
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The expert witness disclosure that was struck was that of David M. Smith, CPA, who was not one of the experts
the Fisks relied on to prove the local standard of care.
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respect to each defendant, dismissing the Fisks’ claims against McDonald and the Hospital with
prejudice. The Fisks timely appealed.
II. ISSUES ON APPEAL
1. Did the district court err in granting McDonald’s and the Hospital’s motions for summary
judgment on the grounds that the Fisks failed to provide sufficient expert testimony as to
the community standard of care?
2. Did the district court err by holding that the burden was on the Fisks to establish the
essential elements of their case on summary judgment?
3. Did the district court err in denying the Fisks’ motions for reconsideration?
4. Did the district court err in holding that the Fisks failed to properly plead that McDonald
is liable for the acts or omissions of Sholtz under an agency theory of liability?
III. STANDARD OF REVIEW
“On appeal from the grant of a motion for summary judgment, this Court utilizes the
same standard of review used by the district court originally ruling on the motion.” Mattox v. Life
Care Ctrs. of Am., Inc., 157 Idaho 468, 472, 337 P.3d 627, 631 (2014) (quoting Arregui v.
Gallegos-Main, 153 Idaho 801, 804, 291 P.3d 1000, 1003 (2012)). Summary judgment is granted
“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). When considering “whether the evidence
shows a genuine issue of material fact, the trial court must liberally construe the facts, and draw
all reasonable inferences in favor of the nonmoving party.” Mattox, 157 Idaho at 473, 337 P.3d at
632 (citation omitted).
“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
judgment.” Arregui, 153 Idaho at 804, 291 P.3d at 1003 (citing Dulaney v. St. Alphonsus Reg’l
Med. Ctr., 137 Idaho 160, 163, 45 P.3d 816, 819 (2002)). On the threshold issue of admissibility,
“the liberal construction and reasonable inferences standard does not apply . . . .” Mattox, 157
Idaho at 473, 337 P.3d at 632 (citing Dulaney, 137 Idaho at 163, 45 P.3d at 819). 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.” Id.We will not disturb evidentiary rulings of the district court “unless there has been a clear
abuse of discretion.” Navo v. Bingham Mem’l Hosp., 160 Idaho 363, 369–70, 373 P.3d 681, 687–
88 (2016) (quoting Mattox, 157 Idaho at 473, 337 P.3d at 632). We review a district court’s
discretionary decisions under the four-part standard set out in Lunneborg v. My Fun Life, 163
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Idaho 856, 421 P.3d 187 (2018). Under the Lunneborg standard, we ask whether the district
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 choices available to it; and (4) reached its decision by the exercise of reason.” Id. at 863,
421 P.3d at 194 (citation omitted).
IV. ANALYSIS
A. The district court did not err in granting McDonald’s and the Hospital’s motions for
summary judgment on the grounds that the Fisks failed to provide sufficient expert
testimony as to the community standard of care.
The district court granted McDonald’s and the Hospital’s motions for summary judgment
on the grounds that the Fisks failed to present admissible evidence on the applicable community
standard of care—an essential element of their medical malpractice claim.
Under Idaho Code section 6-1012, a plaintiff bringing a medical malpractice claim must
provide expert testimony establishing that the defendant healthcare provider(s) did not meet the
applicable standard of healthcare practice. With regard to the applicable standard of care, section
6-1012 provides in relevant part that:
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 witness may testify as to the applicable community standard of care only if he
or she has actual knowledge of the community standard as it existed “at the time and place of the
alleged negligence.” Navo v. Bingham Mem’l Hosp., 160 Idaho 363, 370, 373 P.3d 681, 688
(2016) (citing I.C. § 6-1013). Idaho Code section 6-1013 governs the manner in which proof of
the community standard of healthcare practice may be provided:
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 therefor is first laid,
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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 (emphasis added).
As dictated by the statute, a plaintiff in a medical malpractice case must establish the
applicable community standard of care by way of expert testimony. Id. A plaintiff who is unable
to find a local expert willing to testify as to the community standard of care is not necessarily
prevented from bringing his or her claim. A plaintiff can also establish the standard of care
through the testimony of an out-of-area expert. See I.C. § 6-1013. However, before an out-of-
area expert can testify as to the standard of care, the expert must show that he or she is familiar
with the applicable standard in the community in which the defendant practices. Dulaney v. St.
Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002) (citations omitted).
Furthermore, the out-of-area expert must explain how he or she became familiar with that
standard of care in that community. Id.In determining whether an expert witness has actual knowledge of the applicable
community standard of care, “[t]he guiding question is simply whether the affidavit alleges facts
which, taken as true, show the proposed expert has actual knowledge of the applicable standard
of care.” Mattox v. Life Care Ctrs. of Am., Inc., 157 Idaho 468, 474, 337 P.3d 627, 633 (2014).
To address this question, “courts must look to the standard of care at issue, the proposed expert’s
grounds for claiming knowledge of that standard, and determine—employing a measure of
common sense—whether those grounds would likely give rise to knowledge of that standard.”
Id. Demonstrating that an expert has actual knowledge of the community standard of care “is not
intended to be an ‘overly burdensome requirement.’” Id. (quoting Frank v. E. Shoshone Hosp.,
114 Idaho 480, 482, 757 P.2d 1199, 1201 (1988)). “Nor is the standard static and firmly rooted in
past medical practices.” Id. Rather, “[s]tandards of care are sensitive to evolving changes in the
way health care services are delivered in the various communities of our State.” Id.Here, all four expert witnesses relied upon by the Fisks to prove the applicable
community standard of care are out-of-area experts. The district court determined that none of
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the experts had demonstrated actual knowledge of the community standard of care in their
declarations. We review each determination in turn.
1. The district court did not abuse its discretion in determining the declaration of Vernon
R. Kubiak was inadmissible on summary judgment for lack of actual knowledge of
the applicable community standard of care.
The Fisks retained Vernon R. Kubiak to provide an expert opinion as to the community
standard of care applicable to nurses. Kubiak works in Pocatello, Idaho, as a nurse practitioner at
the Mental Wellness Center and as a professor at Idaho State University. As an out-of-area
expert, Kubiak claimed in his declaration that the community standard of care for nurses in the
Post Falls/Coeur d’Alene area in March of 2015 was the same as a national standard—the
American Nurses Association (ANA) Standards of Practice. In support of this opinion, Kubiak
relied on the Hospital’s internal standard procedures. Kubiak further indicated that he relied on
the “State Nurse Practices Act,” the “Joint Commission recommendations” for accredited
facilities, the “Hospital’s policies and procedures,” and “authoritative nursing texts and
journals.” Finally, Kubiak reviewed the depositions of Jessica Sholtz, NP, and three registered
nurses employed by the Hospital. Because Kubiak claimed that the Hospital’s policies and
procedures adopted the ANA Standards of Practice as the applicable standard of care, he
explained that there was “no need” for him to actually speak to a registered nurse or an expert
from the Post Falls/Coeur d’Alene area.
The district court determined that although Kubiak had reviewed the depositions of
Jessica Sholtz, NP, and the three registered nurses, he “[did] not link his review of those
depositions to his understanding of the local standard of care.” Therefore, the district court
reasoned, Kubiak did not rely upon any deposition testimony to determine whether the
community standard of care was the same as a national standard. Having determined that Kubiak
relied completely on the Hospital’s internal policy statements in an attempt to familiarize himself
with the community standard of care, and further explaining that this Court’s precedent requires
either consultation with a local expert or review of deposition testimony to establish that the
community standard of care was the same as a national standard, the district court concluded that
Kubiak had failed to demonstrate that the community standard of care for nurses in the Post
Falls/Coeur d’Alene area was the same as a national standard. As such, the district court
reasoned that Kubiak’s familiarity with the national standard was insufficient to demonstrate
actual knowledge of the community standard of care.
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On appeal, the Fisks argue that a hospital’s internal policies adopting national standards
of practice are by themselves enough to demonstrate that the community standard of care was the
same as a national standard. In support of their position, they cite to Mattox v. Life Care Centers
of America, Inc., 157 Idaho 468, 337 P.3d 627 (2014), and Suhadolnik v. Pressman, 151 Idaho
110, 254 P.3d 11 (2011). However, neither Mattox nor Suhadolnik supports the Fisks’ position.
In Mattox, the plaintiff’s expert personally interviewed two local practitioners and relied on a
patient-specific care plan that had been developed by the plaintiff’s primary care provider to
demonstrate actual knowledge of the community standard of care. 157 Idaho at 478–79, 337 P.3d
at 637–38. The expert’s consultation with two local practitioners in Mattox makes that case
immediately distinguishable from the case at hand because Kubiak did not consult any local
practitioners. In Suhadolnik, the plaintiff’s expert attempted to rely upon the plaintiff’s medical
records in addition to the defendant’s deposition to familiarize himself with the community
standard of care. 151 Idaho at 118, 254 P.3d at 19. However, because the defendant stated in his
deposition that he did not know the standard of care and did not testify that the community
standard was the same as the national standard, we reasoned that it was insufficient to provide
foundation for the plaintiff’s expert’s opinion as to the standard of care. Id. at 119–20, 254 P.3d
at 20–21. In sum, neither case cited by the Fisks supports their argument that an out-of-area
expert can rely on a hospital’s internal policies alone to demonstrate that the community standard
of care was the same as a national standard.
In fact, we have never held that a hospital’s internal policies, standing alone, were
sufficient to allow an expert to ensure that the community standard of care does not deviate from
the national standard. Nor are we prepared to do so based on the internal policies discussed in
Kubiak’s declaration. Kubiak pointed to the following Hospital policy statement to support his
conclusion that the ANA standards were the community standard of care: “It is the policy of the
hospital to utilize the American Nurses Association’s standards of practice based on the nursing
process.” This policy statement, he claims, “makes the American Nurses Association’s standards
of practice applicable to all nursing actions at the facility.” It is not immediately clear from this
policy statement that the ANA standards were the community standard of care in the Post
Falls/Coeur d’Alene area. It could be that the Hospital only intended to supplement the
community standard of care with the ANA’s standards of practice. Or the Hospital may have the
policy statement as a form of aspirational goal for its nurses. Without the further detail ultimately
provided in Kubiak’s second declaration and discussed in Section C of this opinion, it is unclear
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that the ANA standards had become the community standard of care. That is not to say that the
Hospital’s policy statement cannot help inform Kubiak’s understanding of the community
standard of care, but it does not provide enough on its own to determine whether the ANA
standards were the community standard of care.
Notwithstanding the district court’s conclusion that Kubiak relied solely upon the
Hospital’s internal policy statements to determine that the ANA standards of practice were the
community standard of care, and notwithstanding the Fisks’ argument on appeal that the
Hospital’s policy statements were sufficient on their own, we note that Kubiak’s first declaration
indicates that he did in fact review the depositions of nurse practitioner Sholtz and three of the
hospital’s nurses. And we disagree with the district court’s characterization of those depositions
as not having been relied upon by Kubiak. In coming to that conclusion, the district court pointed
out that Kubiak’s declaration did not specifically “link” the fact that he reviewed the depositions
to his knowledge of the standard of care. We agree that Kubiak did not do so, at least in the sense
that he did not mechanically state that the depositions caused him to understand that the
community standard of care was the same as a national standard of care. However, such a
specific “link” between an expert’s testimony regarding the standard of care and the foundation
upon which it relies is not necessary. It is enough that Kubiak explained in his declaration that
his opinions as to the standard of care were based upon his review of the records, discussions,
interviews, and other relevant documents that were provided to him and indicated that the
depositions of nurse practitioner Sholtz and the three Hospital nurses were among the documents
which he reviewed.
This conclusion is supported by a number of our more recent cases explaining that “no
‘magic language’ is required to demonstrate the requisite familiarity with the applicable standard
of health care practice . . . .” Samples v. Hansen, 161 Idaho 179, 183, 384 P.3d 943, 947 (2016);
see also Phillips v. E. Idaho Health Servs., Inc., 166 Idaho 731, 747, 463 P.3d 365, 381 (2020);
Mattox, 157 Idaho at 473–74, 337 P.3d at 632–33 (“This Court does not require that an affidavit
include particular phrases or state that the expert acquainted himself or herself with the
applicable standard of care in some formulaic manner in order to establish adequate foundation
under Section 6-1013.”) (citations omitted). Rather, “[t]he guiding question is simply whether
the affidavit alleges facts which, taken as true, show the proposed expert has actual knowledge of
the applicable standard of care.” Mattox, 157 Idaho at 474, 337 P.3d at 633. To require an expert
to include specific language “linking” the sources he reviewed to his understanding of the
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standard of care is to demand the “magic language” we have said is not required. Explaining that
a source was reviewed by the expert and that all of the sources reviewed helped to inform the
expert’s understanding of the standard of care is enough for a district court to come to the limited
conclusion that the expert relied upon that source in forming his opinion on the standard of care.
Rather than getting hung up on whether an expert has mechanically stated that he relied
upon a source, the key question is the quality of the sources reviewed by the expert, and whether
they contain sufficient facts which, if taken as true, can support the expert’s claim that he has
familiarized himself with the community standard of care.
Reviewing the depositions of local healthcare providers is one way an out-of-area expert
can determine that the community standard of care is the same as a national standard. Phillips,
166 Idaho at 748, 463 P.3d at 382. Here, having concluded that Kubiak reviewed four
depositions in addition to the Hospital’s internal policies in forming his opinion that the ANA
standards were the same as the community standard of care, we would ordinarily turn to those
depositions, or Kubiak’s statements about their contents, to determine whether they contain
sufficient facts to demonstrate that the community standard of care does not deviate from the
national standard of care. See, e.g., Kozlowski v. Rush, 121 Idaho 825, 830, 828 P.2d 854, 859
(1991) (concluding that an out-of-area expert’s testimony was supported by sufficient foundation
when the expert testified that he was familiar with a national standard of care and had reviewed
the deposition of a doctor who practiced in the same area as the defendant which stated that the
community standard was the same as the national standard “with one irrelevant exception”).
However, we are unable to review the depositions in this case because none of them, with the
exception of four irrelevant pages of Sholtz’s deposition, appear anywhere in the record.
Furthermore, Kubiak, in his first declaration, does not quote from or otherwise explain the
content of those depositions in any detail. Therefore, although we conclude that Kubiak did in
fact rely upon the depositions in forming his understanding of the community standard of care,
we cannot, based upon Kubiak’s first declaration, conclude that the depositions contained
sufficient facts to demonstrate that the community standard of care deviates from the ANA
standards identified by Kubiak. As such, we must conclude that Kubiak’s familiarity with the
ANA standards is not enough to demonstrate actual knowledge of the community standard of
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care, because his first declaration2 fails to show that the ANA standards were the community
standard of care. Thus, the district court did not abuse its discretion in determining that Kubiak’s
declaration was inadmissible at the summary judgment stage.
2. The district court did not abuse its discretion in determining the declaration of Dr.
Robert Y. Uyeda was inadmissible on summary judgment for lack of actual
knowledge of the applicable community standard of care.
The Fisks retained Dr. Robert Y. Uyeda primarily to provide an expert opinion as to the
element of causation. However, the Fisks also intended for Uyeda to testify as to the applicable
community standard of care. Uyeda is a physician and surgeon with an active general surgery
practice in Los Angeles County, California. As an out-of-area expert, Uyeda claimed in his
declaration that he familiarized himself with the community standard of care by consulting with
Mrs. Fisk’s primary care physician, Dr. Scott Dunn, who is a physician local to the Post
Falls/Coeur d’Alene area. Based upon his consultation with Dunn, Uyeda believed his medical
opinions were consistent with the community standards of care in the Post Falls/Coeur d’Alene
area, particularly in relation to “the need for nurse practitioner Sholtz to have personally
examined M[r]s. Fisk in the evening of March 11, 2015, and the need to involve a medical doctor
in the care and assessment much earlier than the engagement of the interventionist in the early
morning hours of March 12[, 2015].”
The district court concluded that Uyeda’s consultation with Mrs. Fisk’s primary-care
physician was insufficient to demonstrate actual knowledge of the community standard of care
because Uyeda’s declaration did not show that the primary-care physician had actual knowledge
of the standard of care for nurses in the Post Falls/Coeur d’Alene area in March of 2015.
“One method for an out-of-area expert to obtain knowledge of the local standard of care
is by inquiring of a local specialist.” Dulaney, 137 Idaho at 164, 45 P.3d at 820 (citing Perry v.
Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000)). “[W]hen consulting with a
local specialist, that specialist need not have practiced in the same field as the defendant, so long
as the consulting specialist is sufficiently familiar with the defendant’s specialty.” Suhadolnik,
151 Idaho at 116, 254 P.3d at 17 (citing Newberry v. Martens, 142 Idaho 284, 292, 127 P.3d 187,
195 (2005)). The out-of-area expert’s declaration must also “provide adequate reason to believe
that the local specialist interviewed has actual knowledge of the applicable standard of care.”
2
Kubiak’s first declaration was his only declaration at the time the district court decided the defendants’ motions for
summary judgment.
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Mattox, 157 Idaho at 476, 337 P.3d at 635 (quoting Dulaney, 137 Idaho at 166–67, 45 P.3d at822–23).
In Dulaney v. St. Alphonsus Regional Medical Center, this Court held that an out-of-area
expert’s affidavit lacked foundation when it did not contain facts demonstrating that the local
specialist who was consulted had actual knowledge of the applicable standard of care. 137 Idaho
at 166–67, 45 P.3d at 822–23. There, the out-of-area expert was an emergency-room physician
who had been retained to testify about the community standard of care applicable in emergency-
room settings in Boise, Idaho. Id. at 164–65, 45 P.3d at 820–21. In his affidavit, the out-of-area
expert stated that he familiarized himself with the community standard of care by consulting a
physician who practiced internal medicine at the Boise VA Medical Center. Id. at 165–66, 45
P.3d at 821–22. The out-of-area expert further explained in his affidavit that the local physician
had “confirmed that there were no deviations between the standard of care applicable to
emergency room physicians in Boise, Idaho . . . treating a patient with [plaintiff’s] symptoms . . .
and the standard of care applicable to emergency room physicians practicing in Seattle,
Washington treating similar patients . . . .” Id. at 166, 45 P.3d at 822.
Affirming the district court’s decision striking the out-of-area expert’s testimony as to the
standard of care, this Court emphasized that the out-of-area expert’s affidavit did not contain any
facts demonstrating that the local physician had actual knowledge of the community standard of
care applicable to emergency-room physicians in Boise at the relevant time. Id. at 166–67, 45
P.3d at 822–23. Therefore, the out-of-area expert’s consultation with the local physician was not
sufficient to familiarize him with the community standard of care because the local physician did
not have actual knowledge of the specific community standard. Id.Here, there are no facts suggesting that Dunn, a primary-care physician in Post Falls, is
familiar with the standard of care applicable to nurses working in a hospital in the Post
Falls/Coeur d’Alene area. That is not to say that Dunn could not have familiarized himself with
the standard of care applicable to nurses and subsequently shared that information with the Fisks’
expert. He most certainly could have. See Newberry v. Martens, 142 Idaho 284, 292, 127 P.3d
187, 195 (2005) (citation omitted) (“[I]t is unnecessary for an expert witness to be of the same
specialty as the defendant so long as the expert establishes he possesses actual knowledge of the
standard of care to be applied.”). However, Uyeda’s declaration did not establish that Dunn did
so in this case. Much like the expert in Dulaney, who could not rely on a consultation with a
local physician who practiced internal medicine when there were no facts demonstrating that the
13
local physician had actual knowledge of the standard that applied to emergency-room physicians,
here, Uyeda’s declaration is insufficient where it contains no facts demonstrating that the
primary-care physician had actual knowledge of the specific standard of care for nurses. As a
result, the district court correctly determined that Uyeda had not familiarized himself with the
applicable community standard. Accordingly, the district court did not abuse its discretion in
concluding that Uyeda’s declaration was inadmissible on summary judgment.
3. The district court did not abuse its discretion in determining the declaration of
Timothy F. Hawkins was inadmissible on summary judgment for lack of actual
knowledge of the applicable community standard of care.
The Fisks retained Timothy F. Hawkins to testify, in part, regarding the community
standard of care for the administration of a hospital. Hawkins resides in Cape Coral, Florida. He
works as a part-time hospital administration consultant and as the Living Hope Haiti Surgical
Team coordinator, surgical tech, and director of field engineering. As an out-of-area expert,
Hawkins claimed in his declaration that the community standard of care for hospital
administration in the Post Falls/Coeur d’Alene area in March of 2015 were the same as two
national standards—the Joint Commission Standards and the “CMS” Conditions of Participation.
In making this determination, Hawkins relied upon his consultation with Dennis Kelly, who
works in the “non-long term care division” of the Idaho Department of Health and Welfare.
Hawkins confirmed with Kelly that the Hospital is a “CMS facility” and is therefore subject to
all CMS standards and guidelines such as the CMS Conditions of Participation. Hawkins also
stated that he reviewed the Hospital’s “Medical Staff By-Laws.” Finally, Hawkins claimed that
the Hospital is subject to the Joint Commission Standards because it holds itself out as
“accredited by the Joint Commission.”
The district court concluded that there was no foundation for Hawkins’s opinions
regarding the applicable community standard of care because the Joint Commission standards he
relied upon in his declaration could not be the community standard of care.
Federal or statewide regulations that establish a standard of care can be the community
standard of care. See Navo, 160 Idaho at 371–72, 373 P.3d at 689–90. However, “not all state or
federal regulations are the type that can replace a local standard of care.” Id. at 372, 373 P.3d at
690. As a consequence, a national standard of care does not automatically become the
community standard “simply because the federal government has created some general
regulatory scheme for a given area of medicine.” Id. Rather, “[t]here is a marked difference
14
between regulations that govern the physical administration of health care services to patients
and those that govern other aspects of a health care provider’s practice, such as organizational,
personnel, and utilization requirements.” Id. (emphasis added) (quoting McDaniel v. Inland Nw.
Renal Care Group-Idaho, LLC, 144 Idaho 219, 223, 159 P.3d 856, 860 (2007)). “Only
regulations that concern the ‘physical administration of health services’ can replace a local
standard of care for purposes of Idaho Code sections 6-1012 and 6-1013.” Id. (quoting Mattox,
157 Idaho at 478, 337 P.3d at 637). To become the community standard of care, “th[e] regulation
must provide actual concrete guidance with respect to the activities it purports to govern.” Id. at
373, 373 P.3d at 691 (emphasis added).
We have previously reviewed several Joint Commission Standards and found them
lacking the “actual concrete guidance” required to supplant a community standard of care. Id. at
371–74, 373 P.3d at 689–92. For example, in Navo v. Bingham Memorial Hospital, we addressed
the following Joint Commission Standards:
LD.1.10—“The hospital identifies how it is governed. The hospital has
governance with ultimate responsibility and legal authority for the safety and
quality of care, treatment, and services.”
LD.1.30—“The hospital complies with applicable law and regulation.”
LD.2.20—“Each hospital program, service, site or departments has effective
leadership.”
LD.3.50—“Care, treatment, and services provided through contractual agreement
are provided safely and effectively.”
160 Idaho at 373, 373 P.3d at 691. These standards were “not sufficient to replace a local
standard of care” because rather than “provid[ing] a coherent standard of care that a hospital
could look to for guidance in the administration of anesthesia services,” the Standards were mere
“[g]eneralities requiring ‘compliance with the law,’ ‘effective leadership,’ and that services be
provided ‘safely’ and ‘effectively[.]’” Id.
Here, Hawkins’s declaration claimed the Hospital fell below the standard of care
purportedly contained within the following three Joint Commission Standards:
NR.02.03.01—“The nurse executive directs the implementation of nursing
policies and procedures, nursing standards and nurse staffing plans.”
LD.04.03.07—“Patients with comparable needs receive the same standard of care,
treatment and services throughout the hospital.”
PC.02.01.19—“The hospital recognizes and responds to changes in patient
condition.”
15
We agree with the district court that these Joint Commission Standards are mere administrative
generalities and not a substitute for the community standard of care at issue in this case.
Joint Commission Standard NR.02.03.01 is directed at “organizational” or “personnel”
matters, not “the physical administration of healthcare services to patients.” While Hawkins
argues that it shows that the nurse executive sits atop the “nursing chain of command,” this
argument collapses under its own weight. Standard NR.02.03.01 provides no details about the
policies or procedures a nurse or nurse practitioner must follow when a post-op patient presents
with severe abdominal distress. It only explains how the Hospital organizes its workforce of
nurses.
Similarly, Joint Commission Standard LD.04.03.07 fails to provide a substitute for the
community standard of care for the same reason. As Hawkins explains in his declaration,
Standard LD.04.03.07 governs the availability of treatment and services to ensure that one
patient is not provided less access to the hospital’s treatment and services based on different
payment sources, variances in staff, or different settings. Although it provides that all patients
should receive the same standard of care, it does not delineate a specific standard that concerns
the actual “physical administration of healthcare to patients” or provide “actual concrete
guidance” on such activities.
Finally, Joint Commission Standard PC.02.01.19, though discussing treatment of
individual patients, also lacks the “actual concrete guidance” required to replace the community
standard of care. The standard is silent on how to recognize changes in patient condition and fails
to provide specific concrete guidance on how to respond to such changes.
In sum, none of the Joint Commission Standards relied upon by Hawkins in his
declaration provide “actual concrete guidance” concerning “the physical administration of health
care to patients” sufficient to replace the community standard of care. See Navo, 160 Idaho at
372–73, 373 P.3d at 690–91. As a consequence, Hawkins familiarity with the Joint Commission
Standards is insufficient to show “actual knowledge” of the community standard of care because
those standards were not specific enough to supersede the community standards. Accordingly,
the district court did not abuse its discretion in concluding that Hawkins’s declaration was
inadmissible on summary judgment because it lacked the requisite foundation.
4. The district court did not abuse its discretion in determining the declaration of
Suzanne Nebeker was inadmissible on summary judgment for lack of actual
knowledge of the applicable community standard of care.
16
The Fisks retained Suzanne Nebeker to, among other things, testify about the applicable
community standard of care for nurses and nurse practitioners. Nebeker is a nurse practitioner in
Salmon, Idaho. As an out-of-area expert, Nebeker claims to have familiarized herself with the
community standard of care for nurses and nurse practitioners in the Post Falls/Coeur d’Alene
area by reviewing Kubiak’s report (attached to his first declaration), the Hospital’s internal
policies, several Idaho regulations, and a number of secondary sources, such as textbooks,
scholarly articles, and professional manuals. Nebeker concluded that the community standard of
care in the Post Falls/Coeur d’Alene area in March of 2015 was the same as a statewide standard
of care.3
The district court concluded that, like Kubiak, Nebeker’s declaration failed to show that a
statewide standard was the community standard for nursing care in the Post Falls/Coeur d’Alene
area in March of 2015.
Among the defects in Nebeker’s declaration is that she failed to explain how the
secondary sources she relied upon in forming her opinion demonstrate that the community
standard of care was the same as a statewide standard. While the extensive list of secondary
sources cited in her declaration might have informed her opinion as to the applicable standard of
care, nothing in her declaration explains what that standard of care was, or how she determined
that it was the community standard in the Post Falls/Coeur d’Alene area. Nebeker’s reliance on
the Hospital’s internal policies fails for the same reasons. Even if those policies helped her form
the opinions in her declaration, her declaration failed to explain how she determined that the
applicable community standard of care was the same as a statewide standard of care.
Nebeker’s reliance on the report attached to Kubiak’s first declaration is also insufficient
to provide her with actual knowledge of the community standard of care. As previously
explained in Section A(1), Kubiak failed to demonstrate in his first declaration that he had actual
knowledge of the community standard of care. Therefore, it stands to reason that Nebeker cannot
show actual knowledge of the community standard of care by reviewing the report or declaration
of an out-of-area expert determined to lack actual knowledge of the community standard. Put
differently, Nebeker cannot rely upon an expert report to familiarize herself with the community
3
It is not entirely clear from Nebeker’s first declaration what she believed the local standard of care to be. However,
because she ultimately opined that the Hospital and nurse practitioner Sholtz fell short of state regulations and
nursing guidelines, it appears that she believed the local standard of care was the same as a statewide standard.
17
standard of care when the expert who authored the report had no familiarity with the community
standard of care to begin with.
Finally, Nebeker’s reliance on the Board of Nursing regulations fails to provide her with
“actual knowledge” of the community standard of care because none of the regulations govern
the “physical administration of health services.” Nebeker asserted that as a licensed nurse
practitioner, Sholtz was required to comply with state regulations promulgated by the Board of
Nursing. Specifically, Nebeker cites to Idaho Administrative Code: IDAPA 23.01.01.280.01, –
280.02(a)–(c), (e), (g), and –280.05.4
An expert may prove actual knowledge of the community standard of care by
demonstrating familiarity with a statewide standard of care that is the standard within the
applicable community. Navo, 160 Idaho at 371–72, 373 P.3d at 689–90. In order for State
regulations to be the community standard of care, they must “concern the physical administration
of health services.” Id. at 372, 373 P.3d at 690. The statewide regulation must also provide
“actual concrete guidance with respect to the activities it purports to govern.” Id. at 373, 373
P.3d at 691.
In this case, none of the IDAPA provisions relied upon by Nebeker govern the actual
physical administration of healthcare services. For example, IDAPA 23.01.01.280.01 provides as
follows:
01. Purpose.
a. To establish standards essential for safe practice by the advanced practice
registered nurse; and
b. To serve as a guide for evaluation of advanced practice registered nursing to
determine if it is safe and effective.
This provision is a broad purpose statement and, as such, does not provide “concrete guidance”
as to “the physical administration of health services to a patient.”
Nebeker’s reliance on IDAPA 23.01.01.280.02 is also misplaced. That rule, at the time
Nebeker relied upon it, provided in relevant part:
02. Core Standards for All Categories of Advanced Practice Professional
Nursing. The advanced practice professional nurse shall practice in a manner
4
Though the district court determined that Nebeker also relied upon IDAPA 23.01.01.400.01 and –400.02, careful
review of Nebeker’s declaration indicates that she did not rely on those sections. Sections 400.01 and 400.02 are
cross-referenced in the language of IDAPA 23.01.01.280.02(c). Nebeker quoted section 280.02(c) in full in her
declaration. As such, sections 400.01 and 400.02 appear in her declaration as part of that quoted language. Nebeker
did not include the language of sections 400.01 or 400.02 in her declaration, nor did she refer to them in discussing
the standard of care.
18
consistent with the definition of advanced practice professional nursing and the
standards set forth in these rules. The advanced practice professional nurse may
provide client services for which the advanced practice professional nurse is
educationally prepared and for which competence has been attained and
maintained.
a. The advanced practice professional nurse shall consult and collaborate with
other members of the health care team.
b. The advanced practice professional nurse shall recognize his limits of
knowledge and experience and shall consult and collaborate with and refer to
other health care professionals as appropriate.
c. The advanced practice professional nurse shall retain professional
accountability for advanced practice professional nursing care according to the
advanced practice professional nurse’s scope of practice and Subsections 400.01
and 400.02 of these Rules.
...
e. The advanced practice professional nurse shall assess clients, identify problems
or conditions, establish diagnoses, develop and implement treatment plans and
evaluate patient outcomes.
...
g. The advanced practice professional nurse shall use critical thinking and
independent decision-making, commensurate with the autonomy, authority and
responsibility of the practice category . . . .
By their plain terms, none of these sections govern the “physical administration of health
care to patients.” Sections (a)–(c) provide broad standards and competency requirements, but say
nothing of patient treatment. Section (e), on the other hand, discusses “clients,” but it merely
describes in broad terms the tasks an advanced practice professional nurse will seek to
accomplish. It does not explain how nurses are to accomplish these tasks, nor does it provide a
specific standard of care to be applied in accomplishing them. Section (g) is a broad statement
regarding the competency of advanced practice professional nurses, it does not speak to the
physical administration of health care to patients. Thus, section 280.02 merely provides general
statements about what advanced practice professional nurses do and the competencies they must
maintain. It does not specifically govern the physical administration of healthcare to a patient.
Next, at the time it was relied upon by Nebeker, IDAPA 23.01.01.280.05 provided:
05. Nurse Practitioner. In addition to the core standards, advanced practice
professional nurses in the category of nurse practitioner shall practice in accord
with standards established by the American Nurses Credentialing Center, the
American Academy of Nurse Practitioners, the National Association of Pediatric
Nurse Associates and Practitioners or the Association of Women’s Health
19
Obstetrics and Neonatal Nurses. Nurse practitioners who meet qualifying
requirements and are licensed by the board may perform comprehensive health
assessments, diagnosis, health promotion and the direct management of acute and
chronic illness and disease as defined by the nurse practitioner’s scope of practice.
The scope of practice of an authorized nurse practitioner may include the
prescribing and dispensing of pharmacologic and non-pharmacologic agents.
This section adopts national standards for advanced practice professional nurses in the category
of nurse practitioners and delineates the scope of practice such nurses may engage in if they meet
certain qualifications. Like the previous provisions, it does not mention patients or provide any
concrete standard governing the physical administration of healthcare services.
Because none of the IDAPA provisions referred to in Nebeker’s declaration govern “the
physical administration of health care services,” they cannot replace the community standard of
care for nurses or nurse practitioners in the Post Falls/Coeur d’Alene area. As such, Nebeker
could not use these general statewide regulations to familiarize herself with the community
standard of care for nurses and nurse practitioners in the Post Falls/Coeur d’Alene area in March
of 2015.
In sum, none of the various sources relied upon by Nebeker in her declaration
demonstrated that she had “actual knowledge” of the community standard of care. Accordingly,
the district court did not abuse its discretion in concluding that Nebeker’s declaration was
inadmissible for purposes of establishing the applicable community standard of care on summary
judgment.
5. Summary.
The district court did not err in concluding that none of the expert declarations supplied
by the Fisks on summary judgment provided adequate foundation for any of their experts to
testify as to the applicable community standard of care in the Post Falls/Coeur d’Alene area
during March 2015. Because such testimony is required under Idaho Code sections 6-1012 and
6-1013 to establish the standard of care in a medical malpractice claim, the Fisks failed to
establish an essential element of their case. Therefore, the district court did not err in granting
summary judgment in favor of McDonald and the Hospital.
B. The district court did not err by ruling that the burden was on the Fisks to establish the
essential elements of their case on summary judgment.
The Fisks argue that the district court erred in granting summary judgment because
McDonald and the Hospital supported their motions for summary judgment with conclusory
expert affidavits that did not establish the applicable standard of care, and thus, the burden never
20
shifted to the Fisks to produce evidence in opposition to the motion. In response, McDonald and
the Hospital argue that summary judgment was properly granted because the Fisks were unable
to produce admissible evidence to establish an essential element of their medical malpractice
claim.
Summary judgment is appropriate where the moving party 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). “The burden of proving the absence of a genuine issue of material fact rests
at all times on the moving party.” Bromley v. Garey, 132 Idaho 807, 810, 979 P.2d 1165, 1168
(1999) (citing Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 (1994)). There is “no
express or implied requirement in Rule 56 that the moving party support its motion with
affidavits or other similar materials negating the opponent’s claim.” Chandler v. Hayden, 147
Idaho 765, 771, 215 P.3d 485, 491 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Rather, “[w]here the non-moving party will bear the burden of proof at trial, the moving
party’s burden may be satisfied by showing the absence of material fact with regard to any
essential element of the non-moving party’s claim.” Bromley, 132 Idaho at 810, 979 P.2d at 1168
(citing Celotex, 477 U.S. at 317). “Once the absence of sufficient evidence on an element has
been shown, the burden shifts to the non-moving party to establish a genuine issue of material
fact.” Id. At that point, “[t]he non-moving party cannot merely rely upon its pleadings, but must
produce affidavits, depositions, or other evidence establishing an issue of material fact.” Id. at
810–11, 979 P.2d at 1168–69.
Under Idaho Code section 6-1012, a medical malpractice plaintiff must affirmatively
prove the standard of care element by direct expert testimony “as an essential part of his or her
case in chief.” In other words, when confronted by a defendant’s motion for summary judgment
in a medical malpractice case, the only way for a plaintiff to establish a prima facie case is
through competent expert testimony on the standard of care.
In this case, both McDonald and the Hospital asserted that they were entitled to summary
judgment because the Fisks had failed to establish the standard of care through expert testimony.
Because the Fisks would bear the ultimate burden of proof on this element at trial, McDonald’s
and the Hospital’s argument, if successful, would satisfy their initial burden to demonstrate the
absence of material fact under I.R.C.P. 56(a). Bromley, 132 Idaho at 810, 979 P.2d at 1168
(citing Celotex, 477 U.S. at 317). That is, by arguing that the Fisks failed to produce admissible
expert testimony as to the standard of care under Idaho Code section 6-1012, McDonald and the
21
Hospital challenged the Fisks’ ability to establish an element essential to their claim, which
caused the burden to shift to the Fisks to produce admissible evidence supporting that element.
As detailed in Section A above, the Fisks failed to produce any admissible evidence establishing
the community standard of care and, as a consequence, failed to establish an essential element of
their medical malpractice claim. Therefore, summary judgment was appropriate. See Eldridge v.
West, 166 Idaho 303, 312–13, 458 P.3d 172, 181–82 (2020) (“If a plaintiff in a medical
malpractice action fails to provide expert testimony evidence that the defendant negligently
failed to meet the applicable standard of health care, the medical defendant is entitled to
summary judgment.”) (quoting Mattox, 157 Idaho at 473, 337 P.3d at 632 (citation omitted)).
Inasmuch as the Fisks failed to make the requisite showing, expert declarations from McDonald
or the Hospital’s witnesses were unnecessary in order for the district court to grant summary
judgment against the Fisks.
Nonetheless, the Fisks argue that McDonald and the Hospital were required to submit
expert declarations establishing the community standard of care in order to succeed on summary
judgment. The Fisks cite to Mattox v. Life Care Centers of America Inc., 157 Idaho 468, 337
P.3d 627 (2014), in support of their argument. In Mattox, we noted that “it is not unusual for a
defendant in a medical malpractice case to support a motion for summary judgment with an
affidavit stating in very general, conclusory terms that the defendant complied with the
applicable standard of care.” 157 Idaho at 472 n.1, 337 P.3d at 631 n.1. However, because we
were reversing the summary-judgment decision on other grounds, we explained that:
We leave for another day the question of whether such an affidavit is admissible
evidence and sufficient to shift the burden of production to the plaintiff in a
medical malpractice case. We do, however, observe that whether an affidavit is
submitted in support of, or in opposition to, a motion for summary judgment, it
must contain admissible evidence. In a malpractice case that would include at a
minimum the identification of the standard(s) of care at issue in the case.
Id. Thus, we left open the possibility that a conclusory expert affidavit submitted by the defense
in a medical malpractice case could be insufficient to shift the burden of production to the
plaintiff if it did not identify the standard of care at issue.
While that possibility remains open, it is not implicated by the facts of the case currently
before us. There is a distinction between (a) providing a conclusory expert affidavit to
affirmatively establish that the defendant did not fall below the applicable standard of care, and
(b) demonstrating that the plaintiff has failed to establish the standard of care in their own expert
22
affidavits or declarations. Our recent decision in Eldridge v. West, 166 Idaho 303, 458 P.3d 172(2020), highlights the difference.
In Eldridge, a patient brought a medical malpractice action against the doctor who
performed his hip replacement surgery when he developed MRSA following the surgery. Id. at
306–07, 458 P.3d at 175–76. In a motion for summary judgment, the doctor alleged that the
patient “failed to produce admissible evidence that showed that they had breached the applicable
standard of care.” Id. at 307, 458 P.3d at 176. In support of his motion for summary judgment,
the doctor submitted his own affidavit, generally asserting that he had acted consistently with the
applicable standard of care, but not describing that standard or how the treatment he provided
conformed to it. Id. The patient moved to strike the portion of the doctor’s affidavit discussing
the standard of care on the grounds that it was conclusory. Id.
After the district court denied the motion to strike, this Court granted the patient’s
application for permissive appeal and we reversed the district court’s decision on the grounds
that that the conclusory expert affidavits did not comply with Idaho Rule of Civil Procedure
56(c)(4)’s admissibility or competency requirements. Id. at 311–312, 458 P.3d at 180–81. We
explained that to satisfy Rule 56(c)(4)’s admissibility requirements in a medical malpractice
case, an affidavit submitted by a defendant would be required to, “at a minimum, include an
identification of the standard of care applicable to the behavior in question.” Id. at 312, 458 P.3d
at 181 (citing Mattox, 157 Idaho at 472 n.1, 337 P.3d at 631 n.1). Because the doctor’s affidavit
was conclusory as to the standard of care, the district court abused its discretion in denying the
patient’s motion to strike them. Id.Importantly, we took care in Eldridge to distinguish between the admissibility
requirements in Rule 56(c)(4) and the “level of evidence required of a moving party in order to
shift the burden during a motion for summary judgment.” Id. (citing Foster v. Traul, 141 Idaho
890, 893, 120 P.3d 278, 281 (2005)). For example, we reversed the district court’s order granting
summary judgment in favor of the doctor because its decision specifically relied upon the
inadmissible affidavit. Id. Conversely, we affirmed the district court’s order granting summary
judgment in favor of the doctor’s physician’s assistant (even though she also submitted a
conclusory affidavit) because she had successfully argued that the plaintiff failed to provide
expert testimony establishing the standard of care applicable to physician’s assistants within the
relevant community. Id. at 311–12, 458 P.3d at 181–82.
23
In sum, Mattox and Eldridge do not require a defendant to provide expert testimony
establishing the applicable standard of care to succeed on summary judgment in every case.
Rather, these cases demonstrate the difference between the admissibility requirements for
affidavits used in support of a summary judgment motion and the burdens of production required
in responding to a motion for summary judgment. A defendant in a medical malpractice case
may shift the burden to the plaintiff on motion for summary judgment in more than one way.
While a defendant may submit expert affidavits to shift the burden of production to the plaintiff,
a defendant may also shift the burden by demonstrating that the plaintiff failed to establish an
essential element of their claim, such as the standard of care. Where a defendant submits an
expert affidavit, and the district court relies on it to grant summary judgment, the affidavit must
be admissible under Rule 56(c)(4).
Here, because the district court granted summary judgment on the basis that the Fisks
failed to establish an essential element of their medical malpractice claim, its decision was not
based on expert testimony submitted by McDonald or the Hospital. As such, the conclusory
nature or admissibility of any such testimony is immaterial to the district court’s decision.
Therefore, the district court did not err in determining that the burden was on the Fisks to
establish the essential elements of their medical malpractice claim.
C. The district court erred in denying the Fisks’ motions for reconsideration.
After the district court awarded summary judgment to McDonald and the Hospital, the
Fisks moved for reconsideration and included with their motion supplemental expert
declarations. The district court denied the motions on the grounds that the additional declarations
failed to show that the Fisks’ experts had actual knowledge of the community standard of care.
The Fisks argue that the district court erred in denying their motions for reconsideration. They
assert that the district court failed to consider additional expert declarations submitted in support
of the motions and applied the wrong standard for reconsideration. McDonald and the Hospital
argue that the district court considered the additional expert declarations submitted on
reconsideration and correctly concluded that they did not provide admissible evidence of the
community standard of care.
Idaho Rule of Civil Procedure 11.2(b)(1) provides:
A motion to reconsider any order of the trial court entered before final judgment
may be made at any time prior to or within 14 days after the entry of a final
judgment. A motion to reconsider an order entered after the entry of final
judgment must be made within 14 days after entry of the order.
24
I.R.C.P. 11.2(b)(1). 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).
When deciding the motion for reconsideration, the district court must apply the
same standard of review that the court applied when deciding the original order
that is being reconsidered . . . Likewise, when reviewing a trial court’s decision to
grant or deny a motion for reconsideration, this Court utilizes the same standard
of review used by the lower court in deciding the motion for reconsideration.
Id.
Here, the district court was asked to reconsider an order granting summary judgment, so
the summary judgment standard applied to the district court’s decision on the motion for
reconsideration and now applies to this Court’s review of that decision on appeal. Id. “When the
district court grants summary judgment and then denies a motion for reconsideration, this Court
must determine whether the evidence presented a genuine issue of material fact to defeat
summary judgment.” Id. (quoting Idaho First Bank v. Bridges, 164 Idaho 178, 186, 426 P.3d
1278, 1286 (2018)).
The Fisks supported their motions for reconsideration with additional expert declarations
from Nebeker, Kubiak, and Hawkins. Although the Fisks contend that the district court failed to
consider these additional declarations, the district court explicitly stated “[t]he Court has
reviewed the new affidavits” in its memorandum decision and order denying the motion for
reconsideration. The district court simply found that the new declarations presented no new
evidence of the applicable standard of care. After careful review, we agree with the district court
in part, but hold that the district court erred with respect to the admissibility of Kubiak’s
testimony. We address each of the supplemental declarations.
Nebeker’s second declaration explained that she reviewed the deposition of Nurse Miller
who testified that her training included the ANA standards which “guide everything in nursing,”
that Miller understood that the Hospital incorporated the ANA standards into its protocols, and
that nurses were expected to act in accordance with those standards. Nebeker’s second
declaration also indicated that Nurse Hetzler testified in her deposition that the ANA standards
were incorporated into the Hospital’s protocols. Nebeker reviewed those protocols and came to
the conclusion that the Hospital had adopted the ANA standards. In addition, Nebeker’s second
25
declaration explains that she confirmed her understanding of the community standard of care by
consulting with three local healthcare practitioners, two of whom were associated with the
Hospital. Specifically, she explains that she discussed “the standard of care for [a] patient who
develops acute abdominal pain.”
However, Nebeker’s second declaration is insufficient for one of the same reasons as her
first declaration; it does not spell out a single standard of care. Even if we were to conclude that
Nebeker’s second declaration established that the ANA standards of practice were the
community standard of care for nurses, her second declaration does not contain any language
from the ANA standards of practice or otherwise explain the contents of those standards in a way
that provides a coherent standard of care. As such, the district court did not abuse its discretion in
determining that Nebeker’s second declaration was insufficient to establish that she had actual
knowledge of the applicable community standard of care.
On the other hand, Kubiak’s second declaration filled the void that was apparent in his
first declaration by providing facts that, when taken as true, establish that the ANA standards of
practice had been adopted as the community standard of care for nurses. Kubiak’s second
declaration provided significantly more detail explaining how he familiarized himself with the
community standard of care. Like Nebeker’s second declaration, Kubiak’s second declaration
explained that he reviewed the deposition of Nurse Miller who testified that her training
incorporated the ANA standards, that the ANA standards “guide everything in nursing,” that the
Hospital had incorporated the ANA standards into its protocols, and that she understood that
nurses were expected to act in accordance with the ANA standards. Kubiak further explained
that he reviewed the depositions of Robin Hetzler, Pamela Carpenter, and nurse practitioner
Jessica Sholtz, and that those depositions made clear that the nurses understood they were
expected to comply with the ANA standards. Kubiak’s second declaration also indicates that he
reviewed the Hospital’s protocols and determined that the Hospital had adopted the ANA
standards.
Unlike Nebeker, Kubiak’s first declaration contained numerous statements of the
applicable standards of care. Generally, Kubiak explained that the standard of care for nurses is
“typically defined as what a reasonable and prudent nurse would do when caring for a same or
similar patient in the same or similar circumstances.” Kubiak also included specific standards of
care relevant to Mrs. Fisk’s treatment. For example, he explained that “adequate pain
management is a compelling and universal requirement,” and that “[w]hen a patient states that he
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or she believes he or she is dying, it is reasonable for the registered nurse to assume that
something significant is happening and immediate care is needed.” Furthermore, Kubiak
explained that registered nurses are trained to understand that “coffee ground emesis can be a
sign of abdominal bleeding and requires immediate intervention.” With respect to
documentation, Kubiak explained that “[c]lear, accurate, and accessible nursing documentation
is an essential element of safe, quality, effective, and evidence based nursing according to the
American Nurses Association.” To that end, Kubiak explained that “all nursing care must be well
documented.”
Kubiak’s first and second declaration, taken together, demonstrate that he reviewed the
depositions of four local healthcare providers, along with the Hospital’s internal policy
statements to familiarize himself with the community standard of care. Specifically, his second
declaration contains sufficient facts from the sources he reviewed to demonstrate that the ANA
standards of practice, which he was familiar with, had been adopted as community standards of
care. Because of his familiarity with the ANA standards, Kubiak was able to elucidate several
standards of care that were applicable to nurses within the community. Therefore, Kubiak’s
second declaration provided sufficient additional information, such that, his two declarations,
taken together, demonstrated his familiarity with the applicable community standards of care for
nurses in the Post Falls/Coeur d’Alene area.
Finally, Hawkins’s second declaration fails because, while it clarifies the interrelationship
between the Joint Commission Standards and CMS, it fails to cure the deficiencies outlined
earlier in this opinion. In his second declaration, Hawkins explained that CMS does not
promulgate its own standards, but that a hospital may meet CMS’s requirements to “formulate
and implement standards for its facility” by adopting the Joint Commission Standards. Since the
Hospital is a CMS participant, Hawkins explained that he believed the Hospital had adopted the
Joint Commission Standards. Therefore, Hawkins asserted that he adequately familiarized
himself with the community standard of care by relying on the Joint Commission Standards cited
in his first declaration. However, Hawkins does not cite to any additional Joint Commission
Standards beyond those relied upon in his first declaration. As explained, those standards cannot
supplant the community standard of care because they do not “concern the physical
administration of health services” or provide “actual concrete guidance with respect to the
activities it purports to govern.” Navo v. Bingham Mem’l Hosp., 160 Idaho 363, 372–73, 373
P.3d 681, 690–91 (2016). Thus, Hawkins’s second declaration failed to demonstrate actual
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knowledge of the community standard of care for the same reasons his first declaration failed to
do so.
In conclusion, the district court did not abuse its discretion to the extent that it concluded
that Hawkins’s second declaration and Nebeker’s second declaration were inadmissible because
they failed to demonstrate that either expert had actual knowledge of the community standard of
care. However, because Kubiak’s second declaration demonstrated that he had actual knowledge
of the community standard of care, the district court abused its discretion in concluding that
Kubiak’s testimony as to the standard of care was inadmissible at the motion for reconsideration
stage. Therefore, the district court erred in denying the Fisks’ motions for reconsideration.
D. The district court erred in determining that the Fisks failed to properly plead that
McDonald was liable for the acts or omissions of Sholtz via the agency theory of
liability.
At the outset, we note that none of the Fisks’ expert witnesses were directly critical of
McDonald’s conduct. While the experts claimed in their declarations that the conduct of Sholtz
and the Hospital’s nursing staff fell below the applicable standard of care, not a single expert
purported to have knowledge of the community standard of care applicable to neurosurgeons
such as McDonald or opined that McDonald’s conduct fell below that standard of care. As such,
the only reason we ultimately reverse the district court’s grant of summary judgment in favor of
McDonald is because of our conclusion in this section that the Fisks were not required to plead
the agency theory of liability in order to hold McDonald liable for Sholtz’s acts or omissions.
That said, on remand the Fisks will still be required to prove the agency theory of liability to
ultimately hold McDonald liable. Our holding is limited to the district court’s determination
regarding the Fisks’ pleadings.
The district court held that McDonald cannot be liable for the acts and omissions of nurse
practitioner Sholtz because the Fisks failed to plead a theory of express authority, implied
authority, or apparent authority in their Complaint. The Fisks argue that the district court erred in
requiring that they specifically plead an agency theory of liability in order to rely on the theory in
arguing that McDonald was negligent.
“A cause of action not raised in a party’s pleadings may not be considered on summary
judgment nor may it be considered for the first time on appeal.” Navo v. Bingham Mem’l Hosp.,
160 Idaho 363, 374, 373 P.3d 681, 692 (2016) (quoting Maroun v. Wyreless Sys., Inc., 141 Idaho
604, 613, 114 P.3d 974, 983 (2005)). Idaho Rule of Civil Procedure 8(a) provides:
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(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
I.R.C.P. 8(a).
However, “the technical rules of pleading have long been abandoned in Idaho, and the
general policy behind the current rules of civil procedure is to provide every litigant with his or
her day in court.” Navo, 160 Idaho at 374, 373 P.3d at 692 (quoting Brown v. Pocatello, 148
Idaho 802, 807, 229 P.3d 1164, 1169 (2010)). “Accordingly, when reviewing a pleading, this
Court should focus on ensuring ‘that a just result is accomplished, rather than requiring strict
adherence to rigid forms of pleading.’” Id. (quoting Seiniger Law Office, P.A. v. N. Pac. Ins. Co.,
145 Idaho 241, 246, 178 P.3d 606, 611 (2008)). “The purpose of a complaint is to inform the
defendant of the material facts upon which the plaintiff rests the action.” Id. Thus, “the key issue
in determining the validity of a complaint is whether the adverse party is put on notice of the
claims brought against it.” Id. at 374–75, 373 P.3d at 692–93.
Express authority, implied authority, and apparent authority are theories by which an
agency relationship arises between a principal and a third party. Bailey v. Ness, 109 Idaho 495,
497, 708 P.2d 900, 902 (1985). “One consequence of an agency relationship is that the principal
becomes liable for the torts committed by the agent within the scope of agency.” Navo, 160
Idaho at 375, 373 P.3d at 693. These three types of authority are not themselves causes of action.
Id. They are legal theories giving rise to an agency relationship. Id.
“Under notice pleading, a party is no longer slavishly bound to stating particular theories
in its pleadings.” Seiniger Law Office, 145 Idaho at 246, 178 P.3d at 611. “Rather, a party is
required to state an underlying cause of action and the facts from which that cause of action
arises.” Navo, 160 Idaho at 375, 373 P.3d at 693.
In their Complaint, the Fisks clearly allege a negligence cause of action against
McDonald. Though they did not specifically include the terms “agency” or “agent,” the
Complaint refers to Sholtz as McDonald’s physician assistant on multiple occasions.
Furthermore, the Fisks’ Complaint alleges that McDonald violated the standard of care as
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described in Idaho Code section 6-1012. The agency theory of liability is included within the
plain language of Idaho Code section 6-1012. See I.C. § 6-1012 (“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 [or] registered nurse . . . or
any person vicariously liable for the negligence of them . . . .”). We conclude that the Fisks’
Complaint was sufficient to put McDonald on notice that the Fisks sought to hold him liable for
the acts or omissions of Sholtz. The district court erred in determining that the Fisks were
required to plead a specific agency theory of liability (i.e., express, implied, or apparent) to hold
McDonald liable for Sholtz’s acts or omissions.
E. No party is entitled to attorney’s fees on appeal.
Both the Fisks and McDonald request attorney’s fees pursuant to Idaho Code section 12-
121. The Hospital has not requested attorney’s fees on appeal.
Idaho Code section 12-121 provides:
In any civil action, the judge may award reasonable attorney’s fees to the
prevailing party or parties when the judge finds that the case was brought, pursued
or defended frivolously, unreasonably or without foundation. This section shall
not alter, repeal or amend any statute that otherwise provides for the award of
attorney’s fees.
I.C. § 12-121. When the dispositive issue on appeal is a question of law, an award of attorney’s
fees under section 12-121 is proper where “the law is well-settled and the appellant has made no
substantial showing that the district court misapplied the law.” Elec. Wholesale Supply Co. v.
Nielson, 136 Idaho 814, 828, 41 P.3d 242, 256 (2001) (citations omitted). “An award under
[Idaho Code section] 12-121 is appropriate where an appeal presents no meaningful issue on a
question of law but simply invites the appellate court to second-guess the trial judge on
conflicting evidence.” Id.Under this standard, no party is entitled to attorney’s fees because several meaningful
issues of law have been raised in this appeal. The arguments of the parties revolved around
genuine issues of law regarding the requirements for an out-of-area expert to become familiar
with the community standard of care in a medical malpractice action. Thus, we decline to award
attorney’s fees to either party.
V. CONCLUSION
For the above reasons, we conclude that the district court did not err in initially granting
summary judgment in favor of McDonald and the Hospital. However, we further conclude that
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the district court erred in denying the Fisks’ motions for reconsideration and that the district
court erred in determining that the Fisks were required to plead a specific agency theory of
liability (i.e., express, implied, or apparent) in order to hold McDonald accountable for Sholtz’s
acts or omissions. Accordingly, the district court’s judgments dismissing the Fisks’ medical
malpractice claims against McDonald and the Hospital are vacated. This case is remanded for
further proceedings consistent with this opinion. No attorney’s fees or costs are awarded on
appeal.
Justices BRODY, BEVAN, STEGNER, and MOELLER CONCUR.
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