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Unidentified Local Specialist Can Familiarize Expert on Community Care Standard


A man sought treatment for atrial fibrillation from a board-certified cardiologist. The cardiologist prescribed 200 mg tabs of amiodarone, a heart rhythm medication, and instructed him to take two tablets twice daily for one week and then to reduce the dose to one tablet twice daily. The cardiologist wrote a prescription for sixty, 200 mg tabs, with refills lasting one year.

 

After a catheterization procedure, the cardiologist diagnosed the man with borderline two-vessel coronary artery disease. The cardiologist recommended continued medical therapy, including taking amiodarone, but reduced the dose to one 200 mg tab per day, unless the man experienced any “breakthrough symptoms,” in which case he was to resume taking two 200 mg tabs per day. The man was instructed to return to the clinic for follow-up care in six months, or as needed, with routine lab work to be completed prior to his visit.

 

The man did not return to the cardiologist for a follow-up appointment, but continued taking amiodarone for about two and a half years. The pharmacy where the man filled the amiodarone prescription twice received the cardiologist's authorization to refill the amiodarone prescription at the man's request.

 

About two years after his initial visit to the cardiologist, the man began suffering from a severe cough and shortness of breath. He sought treatment from another physician. Analysis of his blood showed abnormally high thyroid levels. Based on the results, the physician recommended that he return to the cardiologist. The man made an appointment with the cardiologist for the following month but that appointment was rescheduled to two weeks later. The subsequent appointment was canceled because the cardiologist was unavailable and was never rescheduled.

 

Thereafter, the man sought treatment from a third physician who concluded that amiodarone was causing his thyroid problems. The third physician instructed the man to stop taking amiodarone and he complied. He had his thyroid surgically removed. A pathology exam revealed degenerative changes of the thyroid gland characteristic of amiodarone toxicity.

 

The man and his wife sued the cardiologist alleging that he was negligent in his care and treatment of the man due to the cardiologist's failure to monitor and periodically test him for adverse side effects attributable to amiodarone.

 

The cardiologist filed a motion for summary judgment. The couple’s response was supported by the affidavit of a cardiologist who practiced at a medical center in a city within one hour’s distance of the city where the man was treated. The medical center where the couple’s expert worked served patients from throughout the region, including the city where the man was treated. In the cardiologist's reply, he argued that the couple’s expert affidavit was inadmissible as it failed to comply with the foundation requirements of Idaho Code sections 6–1012 and 6–1013, and I.R.C.P. 56(e). The couple provided supplemental affidavits from their original expert, as well as an affidavit from an additional medical expert, who opined that the man's thyroid gland tissue showed changes commonly associated with amiodarone toxicity.

 

The Bonneville County District Court concluded that the couple’s original expert’s affidavits were inadmissible because they failed to demonstrate that he was familiar with the applicable standard of health care practice for the relevant community as required by Idaho Code section 6–1012. The district court found that the relevant community was the city where the man was treated, and because the expert practiced in a city an hour away, he was not qualified to testify as to the applicable standard of health care practice in the city where the man was treated. Further, the district court concluded that the couple’s medical expert failed to meet the foundation requirements for an out-of-area expert because he failed to identify the cardiologist with whom he conferred regarding the applicable standard of health care practice in the city where the man was treated. Having found the couple's medical expert’s testimony to be inadmissible, the trial court granted the cardiologist's motion for summary judgment.

 

The Supreme Court of Idaho vacated and remanded. The court held that any error by the trial court in determining that the town where the expert worked was not within the geographical area served by the hospital was harmless as the out-of-area medical expert's summary judgment affidavit was sufficient to demonstrate that he consulted with a local expert, and the out-of-area medical expert's summary judgment affidavits were sufficient to demonstrate that he actually held an opinion as to whether the cardiologist violated the standard of care for prescribing an antiarrhythmic drug in the city where he worked and the city where the man was treated, that such an opinion was held with a reasonable degree of medical certainty, and that he was not only an expert, but had actual knowledge of the applicable medical standard.

 

Any error by the trial court in determining that the town where the expert worked was not within the geographical area served by the hospital was harmless. An expert in a medical malpractice action must show that he or she is familiar with the local standard of care for the relevant timeframe and specialty, and must also state how he or she became familiar with that standard of care. If users of a hospital's services commonly go from one location to the place where the hospital is located, then that location falls within the geographical area which constitutes the “community,” for purposes of demonstrating whether a medical expert in a malpractice action is familiar with the applicable standard of health care practice for the relevant community. Any error by the trial court in determining that the city where the man was treated was not within the geographical area served by the hospital where the expert practiced was “harmless” because the expert's summary judgment affidavits were insufficient to establish a foundation for the admissibility of his testimony. The couple’s expert’s first affidavit simply stated: “I have been licensed to practice medicine in Idaho since 2005 and am familiar with the standard of care applicable to cardiologists in the [city where the man was treated/the city where the expert practiced] area as it existed during [the years the man was treated]....” This conclusory statement of familiarity with the applicable standard of health care practice, without identifying the manner in which such familiarity was developed, was insufficient to establish a foundation for the admissibility of his testimony. The only evidence as to whether the city where the man was treated was within the geographical area ordinarily served by the medical center where the expert practiced was in the expert’s supplemental affidavit, which stated: “The community, in terms of the area served by [the medical center], consisted of people from both [the city where the man was treated and the city where the medical center was].” The court found this statement to be too conclusory to satisfy the foundation requirements of Idaho Code sections 6–1012 and 6–1013 because it did not identify the basis of the expert's knowledge as to where medical center patients came from and, more importantly, it did not attempt to identify, or even approximate, the frequency which patients from the city where the man was treated elected to receive services at the medical center as opposed to other hospitals. The trial court erred in holding the geographical scope of the community was a legal, rather than factual, determination. However, because the couple failed to provide necessary evidence that would support a factual determination that the city where the man was treated fell within the geographical area ordinarily served by the medical center where their expert practiced, the trial court’s error was harmless.

 

Nonetheless, the trial court abused its discretion by concluding that the couple’s medical expert's affidavits were inadmissible because the couple’s expert did qualify as an out-of-area medical expert who had familiarized himself with the applicable community standard of practice. The out-of-area medical expert's summary judgment affidavit was sufficient to demonstrate that he consulted with a local expert. An affidavit that fails to identify an anonymous consultant does not categorically fail to comply with the foundation requirements for admissibility of an out-of-area expert's testimony under Idaho Code section 6–1013. Rather, the inquiry remains whether the out-of-area expert demonstrated how he or she became adequately familiar with the community standard of health care practice, making it sufficiently clear that the expert consulted with a local specialist who had actual knowledge of the standard of health care practice for the proper class of provider during the relevant time period. One method for an out-of-area medical expert to obtain knowledge of the local standard of care is by inquiring of a local specialist. The out-of-area medical expert's summary judgment affidavit, in which he stated that he had spoken to an unnamed board certified cardiologist who maintained a clinical practice in the city where the man was treated during the time frame the man was treated about the standard of care for prescribing an antiarrhythmic drug in that city and the city where the expert practiced, was sufficient to demonstrate that the unidentified local consultant was familiar with the relevant standard of health care practice, as required to lay the foundation for admissibility of an out-of-area expert's testimony in a medical malpractice case.

 

As an out-of-area expert, the couple’s medical expert's affidavits met all other foundation requirements of Idaho Code section 6–1013 and I.R.C.P. 56(e). Idaho Code section 6–1013 required that the expert must show that he or she actually holds the opinion, that it is held with a reasonable degree of medical certainty, and that he or she is not only an expert but has actual knowledge of the applicable community standard. The couple’s medical expert's affidavits contained specific facts showing that he had familiarized himself with the applicable standard of health care practice and held the opinion, to a reasonable degree of medical certainty, that the treating cardiologist violated the standard of health care practice for cardiologists in the city where the man was treated during the time period he was treated. The trial court failed to apply the applicable legal standards and thus, abused its discretion by determining the couple’s medical expert's affidavit testimony to be inadmissible.

The Supreme Court of Idaho vacated and remanded the trial court’s grant of summary judgment in favor of the cardiologist.

 

See: Bybee v. Gorman, 2014 WL 4656517 (Idaho, September 19, 2014) (not designated for publication).

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

 

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