“Knowing” Community Standards for Non-Local Idaho Malpractice Experts

Outsiders are challenged to prove knowledge of local Idaho community medical standards, even when national standards are claimed.

“Community standards” have been litigated since the obscenity trials of the 1950s, but they are rarely more contentious now than in the medical malpractice cases of rural America. Even though hospitals, physicians and nurses may attest to “national standards”, states and courts make their own determinations as to who knows what standards apply.

Idaho is no exception. The state Supreme Court recently remanded two medical malpractice cases to their respective district courts due primarily to those courts erroneously finding that the out-of-state expert witnesses did not know the local community standard of care.

Under Idaho Code, a medical malpractice plaintiff is required to establish the local standard of care element of their claim with either a local expert witness or an out-of-area expert, a requirement of many jurisdictions. Finding a local physician to testify against another is often difficult, if not impossible.

Idaho district court judges have set a high bar for out-of-state experts to prove they are familiar with the local community standard of care, and on those experts explanations of how they became familiar with that standard.

Even though the Idaho Supreme Court ruled in March 2020 that, for board-certified physicians, the local community standard of care was the national standard of care set by national medical boards, that was only if there were no “local deviations” that the local physicians were trained under. The Idaho district courts seem to have assumed that ruling had little weight, continuing with there high-bar for local standards.

In Dlouhy v. Kootenai Hospital District, Duane Dlouhy went in May 2015 to the hospital's emergency department because of rectal bleeding. A CT scan done by Dr. Robert Seeley found “no obvious mass” but noted that “dark red blood” was present. The radiologist charted that a “neoplasm cannot be excluded.” After consulting with Dr. Michael James, Dr. Seeley discharged Dlouhy.

Several hours later, Dlouhy's wife found him passed out in the bathroom and the rectal bleeding had begun again. Dloughy returned to the hospital, and Dr. James performed a colonoscopy, but was unable to get a complete view of the rectum. Dlouhy was discharged again.

Dloughy followed up with his primary care physician and had other follow-up appointments in June and September 2015, and then in January 2016. Before his stage IV colorectal cancer diagnosis in August 2016, the possibility of colorectal cancer was not discussed nor charted at any of his follow-up appointments.

Before Dloughy died in June 2017, he and his family filed a complaint against Kootenai Health, the physicans and others, eventually dropping all but Kootenai Health from the complaint and limiting their claim to vicarious liability for the acts or omissions of Kootenai's employees.

Kootenai Health moved for summary judgment, arguing that the Dlouhys failed to disclosed an expert witness with “actual knowledge” of the local community standard of care. The Dlouhys responded with more materials to support their expert's knowledge of the community standard, but the district court found it insufficient, granting Kootenai's motion.

On appeal, the Idaho Supreme Court found that the district court had abused its discretion in rejecting one of the Dlouhys' experts.

Dlouhy's standard of care expert Kenneth J. Hammerman, MD, board certified in both internal medicine and gastroenterology, and in private practice those fields in San Francisco, California. Hammerman testified that he had familiarized himself with the community standard of care by reviewing the depositions of the physicians and medical staff involved in the case, as well as Kootenai Health's policies and procedures.

The state Supreme Court noted that Dr. Hammerman had reviewed the deposition of Dr. Michael James, the defendant's gastroenterologist, which stated that the local standard of care did not deviate from the national standard of care.

As for the Dlouhy's second expert witness, Judy L. Schmidt, MD, the Supreme Court found that the district court correctly excluded her as her opinion because she never “explicitly stated what the applicable standard of care was or explained how she became familiar with said standard.” While the Dlouhys claimed that Dr. Schmidt had reviewed the defendant physicians depositions, Dlouhy's medical records and Kootenai Health's policies and procedures, Dr. Schmidt's unsworn report “never explicitly stated what the applicable standard of care was or explained how she became familiar with said standard.” As well, the Dlouhys did not submit an affidavit or declaration from Schmidt in response to Kootenai's motion for summary judgment.

The state Supreme Court reversed the district court's granting of summary judgment and remanded the case.

In Fisk v. McDonald, once again an Idaho district court granted incorrectly ruled that all of the plaintiffs' experts had failed to provide testimony demonstrating actual knowledge of the community standard of care.

In March 2015, Jeffery D. McDonald, M.D., a board-certified neurological surgeon, performed a cervical spinal fusion surgery on Margaret Fisk at Northwest Specialty Hospital in northern Idaho. Fisk was scheduled to be released from the hospital the next day, but began suffering abdominal pain and nausea. By the afternoon, she was vomiting blood. Jessica Sholtz, a nurse practitioner who had assisted McDonald with the surgery, postponed Fisk's discharge from the hospital. Late that night, Fisk was vomiting blood, experience “ten-out-of-ten” pain. The nursing staff advised Scholtz, who ordered them to consult an an on-call intensivist, who saw Fisk and then recommended she be transferred to Kootenai Medical Center for a gastrointestinal consult and a possible endoscopy. Schultz directed the hospital staff not to transfer Fisk.

At 6:00 a.m. the next morning, Schultz attempted to coordinate a gastrointestinal consult while Fisk continued to report extreme pain. About two hours later, John L. Pennings, M.D., arrived for the gastrointestinal consult, believed Fisk was in “terminal phase shock”, and found during exploratory surgery that Fisk had developed mesenteric artery ischemia, “a loss of blood supply to the small intestines [sic] leading to end-organ loss.” Pennings removed her entire large intestine and part of her small intestine. Fisk eventually recovered, but “with serious ongoing repercussions.”

David and Margaret Fisk filed complaint against Pennings, McDonald, and the Hospital, alleging negligent medical treatment. The Fisks disclosed thirteen non-retained experts and six retained expert witnesses.

The Hospital moved to strike the Fisks' expert witness disclosures and to exclude their retained experts, and moved for summary judgment arguing that the Fisks failed to provide admissible evidence of the applicable standard of care and that they failed to present admissible evidence to establish proximate cause. McDonald filed a similar summary judgment motion.

The Fisks responded, submitting the declarations of four of their expert witnesses: Suzanne Nebeker, BSA, RN, BSN, 3MSN, FNB-BC; Vernon R. Kubiak, DNP, CNP, CNS, CNS-BC, PMHNP-BC, RN; Timothy F. Hawkins, FACHE CHSP; and Robert Y. Uyeda, MD..

The court found that none of the four expert four expert witnesses had demonstrated “actual knowledge” of the community standard of care applicable to McDonald or the Hospital, and that the Fisks had not “adequately pled” that McDonald was vicariously liable for Sholtz's acts and omissions, granting both McDonald's and the Hospital's motions for summary judgment.

The Fisks filed a motion to amend their complaint to add a claim that McDonald was liable for the acts and omissions of Sholtz, as well as motions for reconsideration. At the hearing on Fisks's motions, their counsel “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.'”

The district court dismissed Fisks' claims against McDonald and the Hospital, with prejudice, and the Fisks appealed.

The Idaho Supreme Court noted in particular the district court's finding as inadmissible Kubiak's expert opinion as to the community standard of care applicable to nurses. A nurse practicioner in southern Idaho (Pocatello), Kubiak reviewed the Hospital's policies and procedures and found that they had adopted the national nursing standards of the American Nurses Association (ANA).

While the state Supreme Court found that by itself insufficient, it found that Kubiak had also reviewed the depositions of nurse practitioner Sholtz and the three Hospital nurses in coming to his conclusions. While Kubiak's declaration did not specifically “link” those reviews to the standard of care, there was no requirement that he “mechanically state” such a link. The Supreme Court referred to its more recent cases explaining that “no ‘magic language' is required to demonstrate the requisite familiarity with the applicable standard of health care practice.”

However, since the Supreme Court was unable to review the depositions because none of the relevant portions of them appeared anywhere in the record, the Supreme Court found that the district court did not abuse its discretion in granting summary judgment.

Yet the Supreme Court did find in the end that the district court erred in denying the Fisks' motions for reconsideration when Kubiak's second declaration “filled the void” establishing that the ANA standards of practice had been adopted as the community standard of care for nurses.” Kubiak's second declaration provided a detail explanation of how he familiarized himself with the community standard of care, in part explaining that he reviewed the deposition of one of the nurses 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 also too care to explain that the standard of care for nurses included specific standards to Fisk's treatment. For example, “[w]hen a patient states that he 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.”

While the state Supreme Court found that the Fisks remaining expert witnesses failed to demonstrate knowledge of the community standard of care, it concluded that the district court erred in denying the Fisks' motions for reconsideration due to Kubiak̈́'s declarations, remanding the case to the district court.

Even national standards of care may be complicated. Contending with “deviations” and differences between the medical and legal concepts of standards of care will keep the issue at the fore of many rural malpractice claims.