7 Things Lawyers Can't Tell Jurors

Medical Malpractice in Idaho

For as long as I have been practicing law in Idaho (since 1984), the rules concerning medical malpractice have been so heavily weighted against plaintiffs seeking redress for injuries caused by doctors that the great majority of plaintiff's lawyers will not touch a medical malpractice case, and of those who do file lawsuits claiming their clients have been hurt by a doctor's negligence, 92% of those filed cases are dismissed by the court before a jury ever hears the case.  Mind you, these are cases that experienced attorneys believe are meritorious. 

The rules that have traditionally been so onerous are these:

1 Idaho Code section 6-1012 requires that a plaintiff who brings a medical malpractice claim must provide expert testimony establishing that the healthcare provider did not meet the applicable standard of healthcare practice.

2. An expert must have actual knowledge of the community standard of care at the time and place of the alleged malpractice in order to testify.  The "community" has been pretty much limited to the city in which the malpractice occurred.

3. the plaintiff's expert doctor must be identified by name and must give testimony that the procedure used by the doctor in question violated the standard of care for that procedure in that city at the time the procedure was employed and that it was the proximate cause of the bad result that occurred.

As a practical matter, these requirements have made it nearly impossible to successfully bring medical malpractice lawsuits in Idaho. Putting aside that many lawyers (and I know these lawyers!) refuse to handle medical malpractice cases because they need doctors to testify in personal injury cases and they don't want to make enemies of a doctor they may need in the future, doctors are reluctant to testify against a doctor that practices in their community.  

A more common reason is that, in the small communities in Idaho, doctors don't want to make enemies of other doctors by testifying another doctor screwed up. 

The work-around for lawyers has been to get a doctor outside of that community to somehow gain knowledge of what the community standard is in that small town, and then testify.  

That is very hard to do.

Another problem with the locality rule is that it allows for sloppy medical practice without consequence.  As one lawyer told me decades ago, " if the community standard is that all the doctors of that specialty botch their treatments in the same way, negligence is the standard in that community, and a doctor can't be held to account for that.

Fortunately, the Idaho Supreme Court recently, in two cases, has changed the way medical malpractice cases can be prosecuted.

In Phillips v. Eastern Idaho Health Services, Inc., the Idaho Supreme Court held that Idaho Falls, Idaho, and Pocatello, Idaho were not "distinct communities" even though the two cities are about 45 miles apart, and separated by Blackfoot Idaho, which has its own hospital system. The Supreme Court held that Idaho Falls and Pocatello, because citizens in those cities routinely use each other's medical providers, are not, in fact, separate and distinct communities.  The community standard for Idaho Falls may be considered the community standard of Pocatello and vice-versa. 

Secondly, and even more importantly, In Summerfield v. St. Luke's McCall, Ltd, 494 P.3d 769 (Idaho 2021), the Idaho Supreme Court stated that the "community" in which a board-certified" doctor practices is the entire nation. "For board-certified specialists, the local standard of care is equivalent to the national standard of care."

 In that case, the doctor was a board-certified general surgeon.  The court determined that a regular surgeon might not be capable of testifying against a "board-certified" general surgeon, but a board-certified general surgeon is held to a national, not a local, standard.  

In other words, if you are damaged by a board-certified general surgeon, you do not need to ask the only other general surgeon in town to testify against him; you can employ a board-certified doctor from anywhere in the United States.

This is a game-changer in medical malpractice litigation.  Those harmed by local doctors who are board-certified can employ a properly-qualified doctor from out of state to review the medical records to determine if the doctor has breached the applicable standard of care.

I think all persons who undergo surgery in Idaho would like to think that their doctor is the best at what he does.  They want to believe their doctor holds himself to a national standard of excellence, not the low bar traditionally required in small towns around Idaho. 

I would advise persons about to undergo surgery to ask two things of their surgeon.  First, is he board-certified?  Second, are you a medical doctor or are you an osteopath?  Both can become board-certified, but they are trained differently. If you have a preference for medical doctors, ask the person who is going to cut you open specifically which type of doctor he is.