Moving Towards a Workable Definition of ‘Community’ After Bybee v. GormanAdded by Marvin M. Smith in Articles & Blogs, Health Law on February 10, 2016
By Marvin M. Smith and Austin Strobel
For nearly 40 years, Idaho, like other sparsely populated states, has adhered to a statutorily created community standard of health care practice for purposes of determining medical negligence in medical malpractice actions.1 This began in 1976, when the Idaho Legislature, due to: (1) the disparity between urban and rural areas in terms of availability of medical facilities, education programs, and other specialists, (2) policy concerns about rising malpractice insurance premiums, and (3) concerns about attracting quality doctors to the state, codified Idaho Code §§ 6-1012 and 6-1013.2 In legal academia, Idaho’s statutorily created community standard of care as codified in these sections is generally referred to as a variant of the “strict locality rule” – requiring that medical experts familiarize themselves with the community standard of health care practice with strict specificity as to time, place, and specialty of the provider.3
Over the last decade, commentators have criticized Idaho Code §§ 6-1012 and 6-1013, with calls for legislative reform ranging from revision within the current framework to wholesale adoption of a uniform, national standard of care in Idaho.4 While commentators calling for the adoption of a national standard of care make valid points about the standardization of medical education and board certification, they largely ignore the continued disparity between similarly situated Idaho physicians and hospitals in terms of facilities and the availability of cutting-edge medical equipment.5 Put another way, even assuming a similar level of competence, skill, and training, there is still no level playing field between a physician practicing at a small community hospital in a remote, rural Idaho town, and a similarly situated practitioner at a large hospital in an urban setting. Further, commentators also underemphasize the importance of the inherent flexibility in utilizing a community standard of care in a sparsely populated state like Idaho. For example, at Idaho’s larger hospitals in urban settings, where hospitals and physicians remain at or near the cutting edge, the community standard of health care practice may mirror the national standard of care, with the possibility of slight variation where appropriate.6 On the other hand, smaller regional hospitals and practitioners that still do not have the most up-to-date facilities, specialized and highly trained staff, and equipment will be held to a standard commensurate with the hand they have been dealt. In light of these continued disparities, the community standard of health care practice still has a place in Idaho.
However, as commentators suggest, legislative steps can and should be taken to modernize Idaho Code §§ 6-1012 and 6-1013 and make Idaho’s medical expert familiarization requirements more predictable and more efficient for plaintiffs, defendants, patients, and practitioners. This article briefly discusses the process of familiarization of non-local expert witnesses under current law, discusses recent interpretations of the law in Bybee v. Gorman, and finally, suggests a change to § 6-1012 to enhance efficiency and predictability in the process of familiarization of expert witnesses.
Familiarization of expert witnesses under Idaho Code §§ 6-1012 and 6-1013
For medical malpractice plaintiffs to survive summary judgment, plaintiffs must submit testimony in affidavit form from at least one expert witness that has actual knowledge of the local standard of health care practice that indicates “that the defendant health care provider negligently failed to meet the applicable standard of health care practice.”7 Further, the affidavit must demonstrate that the expert meets the three foundational requirements of Idaho Code § 6-1013, namely:
“(a) that such an opinion is actually held by the expert witness,
(b) that the said opinion can be testified to with reasonable medical certainty, and
(c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is ad-dressed[.]”8
In order to demonstrate actual knowledge of the community standard of health care practice, the medical expert must show that he or she is “familiar with the standard of health care practice for the relevant medical specialty, during the relevant timeframe, and in the community where the care was provided.”9 Additionally, the medical expert must explain “how he or she became familiar with that standard of care.”10 Local experts can show familiarity directly by showing actual knowledge of the community standard of care through their practice in the relevant community for the relevant time period. For non-local experts, the most common method to obtain knowledge of the community standard of care is by inquiring of a local practitioner within the relevant community and for the relevant time period.11
Bybee v. Gorman: A Summary
Recently, a major issue in this area of law has been the scope of the statutory definition of community. Idaho Code § 6-1012 defines the relevant community as: “that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.”12 This definition is crucial, as the community sets the outer geographic boundaries of the pool of physicians from which plaintiffs can draw an expert or a consulting physician to familiarize a non-local expert.
The most recent Idaho Supreme Court case interpreting Idaho’s statutory familiarization requirements for experts came near the end of 2014 in Bybee v. Gorman.13 In Bybee, the plaintiffs alleged that a defendant physician from Idaho Falls “was negligent.. .due to… failure to monitor and periodically test…for adverse side effects attributable to amioda-rone.”14 While the outcome of this particular case actually hinged on the adequacy of plaintiff’s expert’s consultation with an anonymous Idaho Falls consulting physician, the other issue raised by the defendant on summary judgment — the scope of community under § 6-1012 — highlights a potential area for improvement to Idaho’s community standard of care framework.
As noted above, § 6-1012 defines community as “that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.”15 Plaintiffs argued that Pocatello was an area ordinarily served by Eastern Idaho Regional Medical Center (EIRMC), the general hospital in Idaho Falls, and therefore, that their Pocatello expert had direct knowledge of the standard of care at EIRMC because he practiced in the same communi-ty.16 In short, plaintiffs functionally argued that Idaho Falls and Pocatello were, or at least could be, part of the same community for purposes of § 6-1012.
The district court disagreed, holding that there was no possibility of overlapping communities in Idaho under § 6–1012’s definition of com-munity.17 Idaho Falls was its own distinct community, served only by one general hospital, EIRMC. Pocatello was its own distinct community, served only by one general hospital, Portneuf Medical Center. Therefore, under the district court’s interpretation of § 6–1012, Pocatello physicians would, as a matter of law, be non-local experts and would need to familiarize themselves with the Idaho Falls/EIRMC community standard of care in order to give an expert opinion in an Idaho Falls medical malpractice case.
The Idaho Supreme Court disagreed with the district court, holding that § 6-1012 at least left open the possibility for overlapping com-munities.18 Unlike the district court, which held as a matter of law that Pocatello was not the same community as Idaho Falls for purposes of § 6-1012, the Idaho Supreme Court held that the question of whether an Idaho city is in the same geographic area ordinarily served by a general hospital in another Idaho city is a factual issue to be decided by a judge.19 Thus, under the Supreme Court’s interpretation of § 6-1012, Pocatello could be part of the area ordinarily served by Idaho Falls’ licensed general hospital, EIRMC, and Idaho Falls could be part of the area ordinarily served by Pocatello’s general hospital. Portneuf Medical Center plaintiffs would just need to prove it. The Idaho Supreme Court’s recognition of the possibility of overlapping communities raises questions about the continued usefulness of § 6-1012’s definition of community in its current form.
Overlapping communities with uncertain boundaries: The problems
The two major problems associated with statutory language that defines the relevant community by tethering it to the area ordinarily served by the general hospital at or closest to where the care at issue took place are: (1) unpredictability; and (2) inefficiency. As noted by the Supreme Court in Bybee, “[t]he imprecision of this definition of community lies in the word ‘ordinar-ily.’”20 Using this metric to determine the scope of the community, “judges viewing the same evidence may reach differing conclusions as to whether patients from a particular location use a hospital’s services on a regular or common basis.”21 This imprecision creates unpredictability and inefficiency for all involved.
For plaintiffs and plaintiffs’ counsel, much time and effort goes into finding a local expert or local physician willing to consult and familiarize a non-local expert with the relevant community standard of care. Under the current definition of community in § 6-1012, plaintiffs are left to make an educated guess about the scope of the relevant community, and therefore, a guess about whether a certain expert or consulting physician will satisfy the requirements of § 6-1012. The outcome of plaintiffs’ guessing game will ultimately be decided in a second game of “judge roulette.”
For example, imagine a hypothetical Pocatello medical malpractice case where the alleged negligent medical treatment occurred at Port-neuf Medical Center. In this case, the only expert willing to testify or consult with plaintiffs is from and practices in American Falls. Based on the facts presented, Judge “A” determines that American Falls is not part of the area ordinarily served by Portneuf in Pocatello, and thus, is not part of the same community for purposes of § 6-1012. Therefore, the plaintiffs’ American Falls physician cannot be used as an expert or consulting physician for a non-local expert. Plaintiffs’ case is dismissed on summary judgment for failure to meet the requirements of §§ 6-1012 and 6-1013.
Imagine a second hypothetical case with the same substantive facts, but a new wrinkle with the expert. This time, the only expert plaintiffs can find to testify or consult practices in Rexburg. Upon hearing the evidence, Judge “B” is persuaded that Rexburg is part of the area ordinarily served by Portneuf in Pocatello. Judge “B” further finds that the Rexburg expert has direct knowledge of the community standard of care in Pocatello by virtue of his practice in the relevant community. Plaintiffs’ case survives summary judgment and proceeds to trial.
On top of being unpredictable, requiring each side to marshal facts to prove that a certain area is or is not part of the area ordinarily served by a given area is inefficient and a needless waste of client, attorney, and judicial resources. Under the current definition of community in § 6-1012, both plaintiffs and defendants must spend time marshaling facts, briefing the issue, and arguing the issue in court. Judges and law clerks must spend time evaluating the parties’ briefing and ultimately determine the issue of whether a certain area is ordinarily served by a given hospital within the meaning of § 6-1012. Most importantly, clients and taxpayers pay for all of this. This unpredictability and inefficiency baked into the current statute’s definition of community is unjustifiable given the existence of a simple solution.
Fixed geographic boundaries: The solution
In its opinion in Bybee, the Supreme Court alluded to a solution to the problems of unpredictability and inefficiency created by overlapping “communities” with uncertain boundaries. The Idaho Supreme Court called the “uncertainty” created by the statute a “consequence of the legislature’s choice of language defining ‘community.’”22 In the words of the Court: “[r]ather than choosing to define community by means of distance from the nearest licensed general hospital, the legislature chose to define community by reference to the locations from which the patient base of the hospital is de-rived.”23 In short, the Supreme Court drew a roadmap to the solution – which is to give “communities” fixed geographic boundaries.
A fixed geographic community boundary is created by pegging the geographic boundary of the community to a fixed mile radius from the licensed general hospital nearest to where the alleged negligent care was provided. This would allow plaintiffs to select their expert or consulting expert with little to no guesswork involved, and would leave little room, if any, for different outcomes given cases with similar facts but different judges. A fixed geographic boundary for the relevant community would also drastically reduce conflict about whether a certain expert or consulting physician practiced within the relevant community.
Instead of marshaling facts, briefing the issue, and arguing about whether a certain area is ordinarily served by a certain general hospital, plaintiffs and defendants could simply refer to a map and easily determine whether or not the expert or consulting physician practices in the relevant community. While there may still be some room for argument about an expert that practices at or near the periphery of the fixed boundary, tethering the statutory definition of community to a fixed boundary should greatly reduce the possibility of needless litigation in most cases.
Idaho’s statutory framework for establishing an expert witness’ familiarization with the community standard of care could use a little work to bring it into the Twenty-First Century. One painless way the legislature could improve § 6-1012 would be tethering the definition of community to a fixed, geographic boundary, rather than the current amorphous and unpredictable area ordinarily served language. Determining the geographic scope of the relevant community through a fixed geographic boundary would make the familiarization process more predictable and more efficient for everyone involved.
If you would like more information about this topic or other legal issues, please contact a member of our Health Law Group or call 208.344.6000.
- Idaho Code §§ 6-1012 and 6-1013; Monique C. Lillard, The Standard of Care for Health Care Providers in Idaho, 44 IDA-HO REV. 295, 300–02 (2008).
- See McDaniel v. Inland Nw. Renal Care Grp.-Idaho, LLC, 144 Idaho 219, 223–24, 159 P.3d 856, 860–61 (2007) (citing Buck v. St. Clair, 108 Idaho 743, 746, 702 P.2d 781, 784 (Idaho 1985)); see also Lillard, supra note 1, at 301–02.
- Idaho Code §§ 6-1012 and 6-1013; Marc D. Ginsberg, The Locality Rule Lives! Why? Using Modern Medicine to Eradicate an Unhealthy Law, 61 DRAKE REV. 321, 333 (2013); E. Lee Schlender, Malpractice and the Idaho Locality Rule: Stuck in the Nineteenth Century, 44 IDAHO L. REV. 361, 361-62 (2008); see also Kelley Ann Porter, Note, Dulaney v. Saint Alphonsus Regional Medical Center: Reconstructive Surgery for Plaintiffs’ Medical Nightmare–A Call for Reform of the Local Standard of Care, 38 IDAHO L. REV. 597, 620–25 (2002).
- Ginsberg, supra note 3 (advocating a national standard of care); Porter, supra note 3, at 630; Lillard, supra note 2, at 356.
- See generally McDaniel, 144 Idaho at 224, 159 P.3d at 861 (noting in 2007 that the legislature’s election of a community standard of health care practice is understandable given that “the practice of medicine in Idaho has historically involved a good number of doctors practicing in small communities with limited resources, limited access to the flow of medical information, and limited support from like providers. Such doctors, if held to the same standard of practice as those in urban communities, would face inequities stemming from the geographical location of their practice.”).
- See McDaniel, 144 Idaho at 224, 159 P.3d at 861 (noting that “in the present medical care environment, there are a variety of ways that a medical malpractice plaintiff may be able to establish a local standard of care as being synonymous with a regional or national standard.”);
- Bybee v. Gorman, 157 Idaho 169, 174, 335 P.3d 14, 19 (2014); Idaho Code § 6-1013.
- Idaho Code § 6-1013.
- Bybee, 157 Idaho at 174, 335 P.3d at 19 (citing Suhadolnik v. Pressman, 151 Idaho 110, 116, 254 P.3d 11, 17 (2011)); Idaho Code § 6-1012.
- Bybee, 157 Idaho at 174, 335 P.3d at 19 (quoting Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 164, 45 P.3d at 820
- Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002) (citing Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000)).
- Idaho Code § 6-1012.
- 157 Idaho 169, 335 P.3d 14 (2014).
- Id. at 172.
- Idaho Code § 6-1012.
- Bybee, 157 Idaho at 175, 335 P.3d at 20.
- Id. at 176.
- Id. at 176–77.
- Id. at 176 (emphasis added)
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