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Standard of Care Expert in Malpractice Action; Physician Assistant Fondling Patient


A woman presented to the emergency room complaining of headache, blurry vision, and sensitivity to light. A physician’s assistant examined the woman by taking her pulse and listening to her heart through a stethoscope. The woman alleged that the physician’s assistant removed her bra without her consent and touched her inappropriately while claiming to listen to her heart. The woman sued the physician’s assistant, his supervisors, and the practice group.

 

The district court determined that the claims were subject to the requirements of a medical malpractice claim. The woman's medical expert submitted an affidavit stating the physician’s assistant’s conduct fell below the standard of care for a physician's assistant working in an emergency room in the area. The defendants moved for summary judgment, arguing that the woman's expert's affidavit lacked a proper foundation. The District Court of the Sixth Judicial District of the State of Idaho agreed with the defendants holding that the expert’s affidavit did not establish his familiarity with the standard of care for area emergency rooms at the time of the incident, thus rendering it inadmissible. The district court excluded the expert’s affidavit and granted the defendants’ motion to dismiss.

 

The Supreme Court of Idaho affirmed holding that the district court did not abuse its discretion by holding that the woman’s expert’s affidavit lacked adequate foundation. The court held that in order to provide admissible testimony, the expert need only demonstrate how he or she became familiar with the applicable standard of health care practice.

 

First, the court concluded that the woman’s expert failed to demonstrate how he became familiar with the applicable community standard of health care practice. Specifically, the court noted that the woman’s expert failed to disclose his medical specialty in his affidavit. The court also noted that the woman’s expert failed to explicitly identify how he became familiar with the standard of care for the time period in question in his affidavit. The affidavit simply averred that the woman’s expert was familiar with the appropriate standard of care at some unknown point in time, but did not specifically state how he became familiar with the standard of care that existed at the time of the incident giving rise to the woman's cause of action.

 

The court held that where an expert demonstrates that a local standard of care has been replaced by a statewide or national standard of care, and further demonstrates that he or she is familiar with the statewide or national standard, the statutory foundational requirements have been met. Had the woman identified a statewide or national standard, her medical expert’s affidavit might have sufficed. The court concluded that the woman failed to identify a statewide standard of care that the physician’s assistant breached during his examination. The woman argued that Idaho’s Medical Practice Act established a statewide standard. The court noted that the statute referenced a community standard of care, and reasoned that a statute referencing a community standard of care could not establish a statewide standard of care. The court specifically held that I.C. § 54–1814(22) does not establish a statewide standard of health care practice.

 

However, the court identified another statute, I.C. § 18–919, which established a statewide standard of care for medical professionals which would apply to the physician’s assistant's conduct toward the woman. Had the woman identified that statute, the outcome would have been different.

 

See: Hall v. Rocky Mountain Emergency Physicians, LLC, 2013 WL 4768310 (Idaho, September 6, 2013).  

 

 

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