Grimes v. Green , 113 Idaho 519 ( 1987 )

SHEPARD, Chief Justice.

This is an appeal from an order granting a new trial. The sole issue is whether during the trial of a medical malpractice action, the trial court erred in instructing the jury that the defendant’s treatment of plaintiff should be gauged and measured by the standard of health care of the community rather than a national standard of health care. We reverse.

At the conclusion of the trial the jury was instructed that the standard of care in the local community should be used to gauge and measure defendant’s treatment of plaintiff. Following a verdict of no negligence on the part of defendant, the trial court concluded his instruction was erroneous and granted a motion for a new trial.

In April 1981, plaintiff Grimes, who was approximately 35 weeks pregnant, began experiencing weakness, nausea, and back pain. When hospitalized in Blaine County Hospital, she was feverish and reported that her membranes had ruptured. No evidence indicated such rupture, and several tests to detect amniotic fluid were negative. Blood tests, however, indicated a bacterial infection. Her condition deteriorated, and Grimes was transported to Magic Valley Hospital in Twin Falls. There she was placed under the care of defendant-appellant Green, who is a board-certified obstetrician-gynecologist. Her original physician, Levin, had noted on the transfer documents, an indication of suspected amniotitis, a bacterial infection of the amniotic fluid surrounding the fetus. Upon examination of Grimes, Dr. Green detected no evidence of membrane rupture, but observed that Grimes had a bacterial infection and suspected that Grimes was suffering from amnionitis. Green placed Grimes on a treatment plan of antibiotics, and did not believe she would survive the day.

However, soon after, Grimes began having adult respiratory distress syndrome, which is a life-threatening condition that can be caused by septic shock. Green considered performing a caesarean section but, upon consultation with an internist, con-eluded that surgery at that point would be fatal to Grimes.

Grimes continued to deteriorate rapidly, and she was transferred to LDS Hospital in Salt Lake City where there were superior intensive care and neo-natal facilities. There she was diagnosed as having septicemia caused by amnionitis. Three hours after arrival a caesarean section was performed because of Grimes’ extreme condition of low blood oxygen, Adult Respiratory Syndrome, amnionitis, and fetal distress. The child was stillborn. During the caesarean, it was discovered that the amniotic fluid around the baby was foul smelling, indicating bacterial infection in the form of amnionitis. A hysterectomy was later performed to stem a continuing bacterial infection and to save Grimes’ life.

Board-certified obstetrician-gynecologists testifying on behalf of plaintiff, indicated that a national standard of care existed for board-certified obstetrician-gynecologists, and opined that Green had violated that standard of care through the failure to use amniocentesis to diagnose amnionitis. Amniocentesis is a technique wherein a needle is inserted into the amniotic sac to withdraw a sample of the amniotic fluid for analysis. Defense experts, on the other hand, testified that amniocentesis was not routinely used in the Twin Falls area due to the danger that the insertion of a needle into the amniotic sac might convey into the sac bacteria from other infected tissue. Hence, they testified that the actions of Green were in conformance with the standard of care then prevailing in the Twin Falls community.

As above stated, in conformance with I.C. § 6-1012, the jury was instructed that Green’s treatment of Grimes should be gauged and measured against the standard of health care in the Twin Falls community. During the time of the jury deliberations, this Court released its opinion in Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985). After a verdict in favor of defendant Green, plaintiffs filed a motion for a new trial, asserting that under the Buck decision the standard of care for board-certified specialists was a national standard of care rather than a local community standard of care. The trial court agreed, stating in its order that had it had the benefit of the Buck decision he would have instructed the jury on a national standard. Hence, the trial court granted a motion for a new trial on the sole basis that his instruction to the jury was erroneous in view of this Court’s decision in Buck.

The trial judge in the instant case instructed the jury as follows:

“In any case, claim or action for damages due to injury or death of any person brought against any physician, the 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 the defendant negligently failed to meet the applicable standard of health care practice of the community in which such care was or should have been provided as such standard existed at the time and place of the alleged negligence of the defendant physician.

“An individual physician shall be judged in comparison with similarly trained and qualified physicians of the same class in the same community, taking into account his or her training, experience and fields of medical specialization, if any.

“The term ‘community’ refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.”

The said instruction substantially conformed with the mandate of I.C. § 6-1012,¹ and hence, we hold that the said instruction was not erroneous.

The trial judge agreed with the assertions of the plaintiffs-respondents, repeated here on appeal, that Buck, supra, requires the performance of a board-certified specialist physician to be measured against a national standard rather than the statutorily mandated local community standard. We disagree. The holding of Buck is clearly distinguishable from the case at bar. The opening language of the decision in Buck, 108 Idaho at 744, 702 P.2d at 782, states: “The issue presented on appeal is whether the trial court correctly excluded pursuant to I.C. § 6-1013 the testimony of a nationally board-certified out-of-state obstetrician-gynecologist in a medical malpractice case.” The trial court in Buck had held that the testimony of a Portland board-certified obstetrician-gynecologist was inadmissible as not conforming to the strictures of I.C. § 6-1013(e). That statute provides that an expert witness may testify in medical malpractice actions if a foundation therefor is first laid, establishing:

(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.

This Court reversed the trial court in Buck. 108 Idaho at 746, 702 P.2d at 784, stating:

In order to meet the requirement of I.C. § 6-1013(c) showing adequate familiarization a specialist must demonstrate two elements: first, that he is board-certified in the same specialty as that of the defendant-physician; this demonstrates knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question. Second, an out-of-the-area doctor must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained.

The Court held that the witness possessed actual knowledge of the applicable said community standard as required by I.C. § 6-1013(c).

In the instant case, by contrast, plaintiff offered the testimony of two expert witnesses from out of the immediate area. Each testified that they, to some extent, were familiar with the local standard of care in the Twin Falls area. Neither testified to any knowledge of a local deviation from any national standard of care. Nevertheless, both such witnesses were permitted to testify, and hence the issue in Buck, supra, is not presented in the instant case. Here, there was evidence that the local standard of care in Twin Falls deviated from the alleged national standard of care.

Plaintiffs-respondents argue in effect, that in cases alleging malpractice of board-certified physicians, Buck establishes a national standard by which the actions of all such physicians will be gauged and measured, and hence there can be no local deviation from such a national standard. Such argument ignores the clear mandate of I.C. § 6-1012. In fairness to the trial court and counsel in the instant case, we perceive some of the language of Buck as lending some support to respondents’ assertions. However, that language is dicta, was not necessary to the narrow holding of Buck, i.e., the competence of a witness to testify, and we now disavow that dicta.

Generally, an order granting or denying a new trial will not be overturned absent an abuse of discretion. Luther v. Howland, 101 Idaho 373, 613 P.2d 666 (1980). In the case at bar, however, the sole basis of the trial court’s decision to .grant a new trial was based upon his perception of the law as announced in Buck, supra. Hence, the question is not whether there was an abuse of discretion, but rather the question is one of law. Clark v. St. Paul Property and Liability Insurance Cornpanies, 102 Idaho 756, 639 P.2d 454 (1981).

The order of the trial court granting a new trial is reversed, and the cause is remanded with instructions that the verdict of the jury be reinstated and judgment entered thereon. Costs to appellants.

DONALDSON and BAKES, JJ., concur.

1 . 6-1012. Proof of community standard of health care practice in malpractice case. — 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 without limitation, any dentist, physicians’ assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, 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 of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed 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. Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, of any. If there be no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered. As used in this act, the term "community” refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided. (Emphasis added.)