Not “Knowing” Local Standard of Care, Expert Witness Excluded
Out-of-area expert witnesses must have "actual knowledge" of the local standard of care in medial malpractice cases, the Idaho Supreme Court has ruled.
In Navo v. Bingham Memorial Hospital, Ellery Navo broke his ankle and had surgery in which a metal rod was inserted. The ankle subsequently became infected, and he was scheduled for surgery at Bingham Memorial Hospital (BMH) to remove the rod. A Certified Registered Nurse Anesthetist (CRNA) administered a spinal anesthesia, shortly after which Navo's blood pressure, heart rate, and oxygen levels dropped. The CRNA nurse switched to a general anesthesia, but Navo remained unresponsive until his death.
The Navo family claimed that BMH was liable for its own negligence and that of the CRNA nurse, an independent contractor to BMH. They supported their claim that BMH had been negligent with expert testimony from Dr. Samuel H. Steinberg, a well-known hospital administration expert witness, and an expert on the standards of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
To substantiate his knowledge of local standards, Steinberg testified that he had spoken with Judith Nagel, the Associate Director of the Idaho State Board of Nursing, to affirm that the community standards in rural hospitals in Idaho regarding nurse anesthesia programs was similar to standards in place across the country.
BMH moved to exclude Steinberg, arguing that he was not competent to testify as he had not provided a foundation of "actual knowledge" of the local community standard of care in Blackfoot, Idaho, in December of 2008. BMH submitted an affidavit from Nagel in which she stated that she did not recall making any statements to Steinberg about community standards for nurse anesthetists or for hospitals either in Idaho or other states, nor did she recall any actual knowledge of the local community standard of health care practice that applied to BMH or nurse anesthetists in Blackfoot, Idaho, in December 2008.
The district court granted BMH's motion, finding that Steinberg had not shown that he had actual knowledge of what the standard of care was in Blackfoot, nor did he substantiate his consultation with Nagel.
Navo moved for the district court to reconsider, with Steinberg providing an additional affidavit explaining that, while he had been unable to find a hospital administrator in the Eastern Idaho Region who would speak to him, the Idaho Board of Nursing regulates the provision of nursing anesthesia services for Idaho; Nagel was the proper person to consult with regarding the local standard of care. As well, Navo argued that under governmental regulations in 2008, the local standard of care in Blackfoot had been replaced by the national standard of care.
The district court found that government regulations were not enough to show a national standard of care existed in Blackfoot. With Steinberg's testimony excluded, the district court dismissed on summary judgment.
Navo appealed, but the Idaho Supreme Court found that the district court did not abuse its discretion by refusing to admit Steinberg's testimony. The Supreme court found that the Idaho Code requires an expert witness in a medical malpractice case to have "actual knowledge" of the local standard of healthcare practice. The Supreme court suggested that out-of-area experts could obtain such knowledge by inquiring of a local specialist, if they can "… provide adequate reason to believe that the local specialist interviewed has actual knowledge of the applicable standard of care."
The Idaho Supreme Court noted as well that not all state or federal regulations are of the type that can replace a local standard of care. "Only regulations that concern the 'physical administration of health services' can replace a local standard of care." The local standard of care for anesthesia services in Blackfoot in December of 2008, the Supreme court found, had not been replaced by a national or statewide standard of care.