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The Law of Medical Malpractice in Idaho:

A Survey of Basic Considerations

Idaho medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Idaho are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Idaho exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Idaho by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Idaho medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Idaho. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Idaho.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.
I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Idaho?
-Required Elements of a Medical Malpractice Claim in Idaho
-Introduction
-The Basic Elements

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Idaho
-The Discovery Rule
-Introduction
-The Discovery Rule in Idaho
-Special Provisions
-Minors
-Insanity
-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Idaho

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Idaho
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Idaho
-Additional Immunities and Limitations on Liability

V. Presuit Requirements for Medical Malpractice Claims

VI. Required Elements of a Medical Malpractice Complaint
-Basic Elements
-Notice Pleading

VII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Introduction
-Admissibility of Expert Testimony in Idaho

VIII. Comparative Negligence
-Modified Comparative Negligence with 50% Bar Rule
-Apportionment of Fault with Multiple Defendants

IX. Limitation on Noneconomic Damages

X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Idaho

XI. Apologies and Gestures of Sympathy

XII. Website Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Idaho?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred

Required Elements of a Medical Malpractice Claim in Idaho

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Idaho law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Idaho medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Idaho Supreme Court made this point clear in Pearson v. Parsons, 757 P.2d 197, 202 (Idaho 1988), when it instructed: “In a medical malpractice case, a plaintiff has the burden of proving not only that a defendant failed to use ordinary care, but also that the defendant’s failure to use ordinary care was the proximate cause of damage to the plaintiff.”

The Basic Elements

There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff. Ballard v. Kerr, 378 P.3d 464 (Idaho 2016).

  • Duty—or standard of care, recognized by the law, requiring the healthcare provider to conform to a certain standard of conduct;
  • Breach—a failure on the healthcare provider’s part to conform to the standard required, i.e., a breach of the duty;
  • Causation—a reasonably close causal connection between the conduct and the resulting injury; and
  • Damages—actual loss or damage resulting to the interests of another.

The governing standard of care is codified in § 6-1012 of the Idaho Code (2016) (“IC”). It states that the standard of care by which healthcare providers are judged is “in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any.” The term ‘community’ is defined in the statute to mean “that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.” Id

The Idaho Supreme Court explained that the statute “requires a plaintiff bringing a medical malpractice claim to prove, by direct, competent expert testimony and by a preponderance of the evidence, that the defendant negligently failed to meet the applicable standard of health care practice.” Ballard v. Kerr, 378 P.3d 464, 476 (Idaho 2016). The standard is specific to “the time and place of the alleged negligence [and] the class of health care provider that such defendant then and there belonged to….” Mattox v. Life Care Centers of America, Inc., 337 P.3d 627, 632 (Idaho 2014). The Supreme Court further instructed that “[t]o be considered competent, 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’ and ‘must explain how he or she became familiar with that standard of care.’” Ballard, 378 P.3d at 476 (quoting Bybee v. Gorman, 335 P.3d 14, 19 (Idaho 2014)).

The Court, however, made it clear that “a provider is not obligated to provide optimal care or employ the highest degree of skill.” Dekker v. Magic Valley Regional Medical Center, 766 P.2d 1213, 1215 (Idaho 1988). “Negligence on the part of a physician consists in his doing something which he should not have done, or in omitting to do something which he should have done.” Willis v. Western Hospital Association, 182 P.2d 950, 954 (Idaho 1947).

Like with the applicable standard of care, a breach thereof must be established through expert medical witness testimony. IC § 6-103. The statute provides:

a defendant’s failure to meet said standard must be established in such cases by such a plaintiff by testimony of one (1) or more knowledgeable, competent expert witnesses, and such expert testimony may only be admitted in evidence if the foundation therefor is first laid, establishing (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 addressed…. Id.

Likewise, the element of causation between the alleged negligence and the injury to the plaintiff must generally be established by expert medical witness testimony. Easterling v. Kendall, 367 P.3d 1214, 1226 (Idaho 2016). In Easterling, the Idaho Supreme Court instructed:

To establish proximate cause, a plaintiff must demonstrate that the provider’s negligence was both the actual and legal (proximate) cause of his or her injury. Actual cause is a factual question focusing on the antecedent factors producing a particular consequence. Legal cause exists when it is reasonably foreseeable that such harm would flow from the negligent conduct. [internal citations and quotation marks omitted] Id.

The Supreme Court explained that proximate cause can be established via direct evidence or a “chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable.” Sheridan v. St. Luke’s Regional Medical Center, 25 P.3d 88, 98 (Idaho 2001). Conclusive proof through direct evidence is not the standard to establish causation in a medical malpractice claim. Formont v. Kircher, 420 P.2d 661, 667 (Idaho 1965). The Supreme Court noted that “is asking for the impossible.” Ballard, 378 P.3d at 482. The Court discussed this issue in Formont in which it observed:

The rule would seem to be that respondent [plaintiff] was not required to prove his case beyond a reasonable doubt, nor by direct and positive evidence. It was only necessary that he show a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable….

If the rule of law is as contended for by defendant and appellant, and it is necessary to demonstrate conclusively and beyond the possibility of a doubt that the negligence resulted in the injury, it would never be possible to recover in a case of negligence in the practice of a profession which is not an exact science. [internal citations and quotations marks omitted] Formont, 420 P.2d at 667.

“The question of proximate cause is one of fact and almost always for the jury.” Cramer v. Slater, 204 P.3d 508, 515 (Idaho 2009). Expert testimony is typically required to establish causation in medical malpractice cases because “the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury.” Flowerdew v. Warner, 409 P.2d 110, 113 (Idaho 1965).

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Idaho

In general, medical malpractice claims in Idaho are subject to a two-year statute of limitations contained in IC § 5-219(4). The limitations period begins to run as of the date of the alleged negligence. Id. The statute states “the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of, and the limitation period shall not be extended by reason of any continuing consequences or damages resulting therefrom or any continuing professional or commercial relationship between the injured party and the alleged wrongdoer….” Id.

The Idaho Supreme Court confirmed that medical malpractice actions must be filed within two years after the cause of action accrued under the statute. Stuard v. Jorgenson, 249 P.3d 1156, 1159 (Idaho 2011). The Court also confirmed that a cause of action accrues at the time of the negligence complained of. Id. In most cases, “the act or omission complained of and the injury to the plaintiff occur at the same time….” Davis v. Moran, 735 P.2d 1014, 1019 (Idaho 1987).

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under Idaho law in calculating the exact date the applicable limitations period ends. Rule 2.2(a) of the Idaho Rules of Civil Procedure sets forth how time is calculated. It states:

The following apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

  • Generally. When the period is stated in days or a longer unit of time:
  • exclude the day of the event that triggers the period;
  • count every day, including intermediate Saturdays, Sundays, and legal holidays; and
  • include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
  • Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible, then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Idaho

The Idaho Legislature has rejected the application of a general Discovery Rule for medical malpractice claims. IC § 5-219-(4). However, IC § 5-219-(4) does provide for the Discovery Rule in two specified situations: (1) when a foreign object is inadvertently left inside the body and (2) when a defendant attempts to fraudulently conceal the negligence. Id. The statute states:

when the action is for damages arising out of the placement and inadvertent, accidental or unintentional leaving of any foreign object in the body of any person by reason of the professional malpractice of any hospital, physician or other person or institution practicing any of the healing arts or when the fact of damage has, for the purpose of escaping responsibility therefor, been fraudulently and knowingly concealed from the injured party by an alleged wrongdoer standing at the time of the wrongful act, neglect or breach in a professional or commercial relationship with the injured party, the same shall be deemed to accrue when the injured party knows or in the exercise of reasonable care should have been put on inquiry regarding the condition or matter complained of….

When the Discovery Rule applies, the claim “must be commenced within one (1) year following the date of accrual as aforesaid or two (2) years following the occurrence, act or omission complained of, whichever is later.” Id. That is, the claim must be filed within one year of the date the plaintiff discovers or reasonably should have discovered the foreign object or fraudulent concealment or within the standard two-year limitations period, whichever limitations period ends later.

The Idaho Supreme Court explained the rationale behind the state’s relatively harsh medical malpractice statute of limitations as follows:

Perhaps the most vexing problem in malpractice [insurance] rate setting nationally has been the protracted period of time that passes prior to the reporting and settlement of malpractice claims. What has been described as the “long tail” on malpractice losses is the period during which doctors and hospitals may be exposed to liability for iatrogenic injuries following actual patient contact. In part, this results from some statutes of limitations which may not begin to run until several years after the incident which caused the injury. As a result a claim may be far removed in time from the point at which the patient received the actual treatment. In Idaho this problem has been significantly restricted by I.C. § 5-219 which sets a limitation of court action for medical malpractice within two years “following the occurrence, act or omission complained of” or one year following “discovery” of a foreign object left in the body. Jones v. State Board of Medicine, 555 P.2d 399, 415 (Idaho 1976).

Special Provisions

Minors

Minors are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims. IC § 5-230 governs medical malpractice actions involving minors. It provides that if “a person entitled to bring an action … at the time the cause of action accrued” is under the age of majority the “time of such disability is not a part of the time limited for the commencement of the action….” That is, being a minor at the time the cause of action accrued tolls the statute of limitations. However, it cannot be tolled “for a period of more than six (6) years….” Id. Accordingly, the standard limitations period for minors is six years from the date of the alleged negligence, but the limitations period may not exceed six years.

Insanity

Individuals who are deemed insane are also subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims. IC § 5-230 governs medical malpractice actions involving the insane. It provides that if “a person entitled to bring an action … at the time the cause of action accrued” is under the disability of insanity “such disability is not a part of the time limited for the commencement of the action….” That is, being insane at the time the cause of action accrued tolls the statute of limitations. However, it cannot be tolled “for a period of more than six (6) years….” Id. Accordingly, the standard limitations period for the insane is six years from the date of the alleged negligence, but the limitations period may not exceed six years.

Final Thoughts

The application of Idaho medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Idaho medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Idaho attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Idaho

Although Idaho does not have an explicit statute of repose applicable to medical malpractice claims in either its statutes or case law, it should be noted that the general two-year statute of limitations contained in IC § 5-219-(4) bears characteristics of a statute of repose and even operates similar to that of a statute of repose. For instance, the limitations period under the statute of limitations is triggered by the occurrence of the negligent act or omission and may expire even before the injured party is aware of his or her injury just like a statute of repose. Additionally, the limitations period under the statute of limitations may expire before the injured party was even aware that he or she may potentially have a claim, again, just a like a statute of repose. Finally, with both the statute of limitations and a statute of repose, claims are barred once the applicable time period has expired.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Idaho

Subject to the exceptions provided for in the Idaho Tort Liability Act, Idaho waives sovereign immunity for the torts (medical malpractice claim is a form of tort) as follows:

every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties, whether arising out of a governmental or proprietary function, where the governmental entity if a private person or entity would be liable for money damages under the laws of the state of Idaho…. IC § 6-903(1).

IC § 6-903(5) provides that “it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment and without malice or criminal intent.”

Any claim against the state or its employees under the Idaho Tort Liability Act must “be presented to and filed with the secretary of state within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later.” IC § 6-905. However, minors are not subject to the foregoing general filing requirement. Instead, minors may file a claim under the Idaho Tort Liability Act within 180 days of turning 18 years old or six years “from the date the claim arose or should reasonably have been discovered, whichever is earlier.” IC § 6-906A.

Claims against a governmental entity “shall accurately describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six (6) months immediately prior to the time the claim arose.” IC § 6-907.

IC § 6-908 provides that no “claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribe by” the Tort Liability Act. The governmental entity must notify the claimant in writing of its approval or denial of the claim within 90 days of its submission. IC § 6-909. If the entity fails to provide it written decision within the 90-day period, the “claim shall be deemed to have been denied….” Id.

If the claim is denied, the claimant “may institute an action in the district court against the governmental entity or its employee in those circumstances where an action is permitted….” IC § 6-910. A claim against a governmental entity or its employee under the Idaho Tort Liability Act must be commenced within two years “after the date the claim arose or reasonably should have been discovered, whichever is later.” IC § 6-911. Failure to file within the prescribed time period will result in the claim being “forever barred.” Id.

IC § 6-918 provides that governmental entities and their employees “shall not be liable for punitive damages on any claim allowed” under the Idaho Tort Liability Act.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Idaho

Idaho has enacted a general Good Samaritan law that is codified in IC § 5-330. The statute provides immunity for individuals who, in good faith, render aid at an emergency scene. It states: “That no action shall lie or be maintained for civil damages in any court of this state against any person or persons, or group of persons, who in good faith, being at, or stopping at the scene of an accident, offers and administers first aid or medical attention to any person or persons injured in such accident….” Id.

The immunity granted by Idaho’s Good Samaritan law does not apply if “it can be shown that the person or persons offering or administering first aid, is guilty of gross negligence in the case or treatment of said injured person or persons or has treated them in a grossly negligent manner.” Id. Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence.

The statute expressly states that the grant of immunity provided therein “shall cease upon delivery of the injured person to either a generally recognized hospital for treatment of ill or injured persons, or upon assumption of treatment in the office or facility of any person undertaking to treat said injured person or persons, or upon delivery of said injured person or persons into custody of an ambulance attendant.” Id.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Idaho Code (2016). Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 6—Actions in Particular Cases—of the Idaho Code (2016).

V. Presuit Requirements for Medical Malpractice Claims

Any person who wants to initiate a medical malpractice claim in court must first submit the claim before a hearing panel prior to filing an action in court. IC § 6-1001. The statute states:

The Idaho state board of medicine, in alleged malpractice cases involving claims for damages against physicians and surgeons practicing in the state of Idaho or against licensed acute care general hospitals operating in the state of Idaho, is directed to cooperate in providing a hearing panel in the nature of a special civil grand jury and procedure for prelitigation consideration of personal injury and wrongful death claims for damages arising out of the provision of or alleged failure to provide hospital or medical care in the state of Idaho, which proceedings shall be informal and nonbinding, but nonetheless compulsory as a condition precedent to litigation. [emphasis supplied]

The panel retains jurisdiction over a claim for up to 90 days from the date of the commencement of the proceedings. IC § 6-1011. If the panel is unable to decide the issues within the 90-day period, “it shall summarily conclude the proceedings and the members may informally, by written communication, express to the parties their joint and several impressions and conclusions, if any….” Id. If all parties and the panel agree, the jurisdiction of the panel may be extended for additional periods of 30 days. Id.

At the conclusion of the panel, by majority and minority reports or by unanimous report, as the case may be, the panel “shall provide the parties its comments and observations with respect to the dispute, indicating whether the matter appears to be frivolous, meritorious or any other particular description.” IC § 6-1004.

The Idaho Supreme Court described the pre-litigation panel requirement as follows:

In 1976 the Idaho legislature enacted statutes relating to the prelitigation screening of medical malpractice cases. One of the declared purposes of the legislation was “to encourage nonlitigation resolution of claims against physicians and hospitals by providing for prelitigation screening of such claims by a hearing panel.” To accomplish that purpose, the legislation provided that prelitigation screening proceedings were “compulsory as a condition precedent to litigation,” and that “the applicable statute of limitations shall be tolled and not be deemed to run during the time that such a claim is pending before such panel and for thirty (30) days thereafter….” Because the statute of limitations is tolled during the period from the commencement of the prelitigation screening proceedings until thirty days after they are concluded, a party who claims to have been harmed by medical malpractice need not commence a lawsuit while the prelitigation screening proceedings are pending in order to avoid the running of the statute of limitations….

Prelitigation screening panel proceedings are not a civil lawsuit, nor are they an adjunct to a civil lawsuit. They are entirely separate proceedings. The prelitigation screening panel proceedings are informal and nonbinding, the rules of evidence do not apply, no record is kept, there is no cross-examination or rebuttal, the proceedings are closed even to the parties except when they are presenting their own testimony and argument, and there is no judicial review or appeal of the panel’s recommendations. The proceedings are conducted entirely by the board of medicine. [internal citations omitted] Rudd v. Merrit, 66 P.3d 230, 234-235 (Idaho 2003).

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Idaho, there is only one recognized form of action, and it is known as a “civil action.” Rule 3(a) of the Idaho Rules of Civil Procedure. A medical malpractice action is commenced by filing a complaint. Rule 3(b). Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 7(a). It must be accompanied with a completed Supreme Court approved case information sheet. Rule 3(d).

Rule 8(a) requires that a complaint that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Under Rule 8(d)(1), “[e]ach allegation must be simple, concise, and direct. No technical form is required.” The complaint may “set out 2 or more statements of a claim … alternatively or hypothetically, either in a single count … or in separate ones.” Rule 8(d)(2). If the plaintiff “makes alternative statements, the pleading is sufficient if any one of them is sufficient.” Id. In addition, the complaint may contain as many separate claims as the plaintiff has “regardless of consistency.” Rule 8(d)(3). All complaints “must be construed so as to do justice.” Rule 8(e).

The complaint must contain a caption “setting forth the names of the parties, the title of the court, the case number, [and] the title of the document….” Rule 2(a)(2). All pleadings must be written in English. Rule 2(b). In addition, Rule 2(a) sets forth a detailed list of technical requirements for all pleadings.

The complaint must state its claims “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Rule 10(b). “If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial, must be stated in a separate count or defense.” Id.

The complaint “must be signed by at least one attorney of record licensed in the State of Idaho, in the individual attorney’s name, or by a party personally if the party is unrepresented.” Rule 11(a).

Notice Pleading

Idaho is a notice pleading state. Seiniger Law Office, P.A. v. North Pacific Insurance Company, 178 P.3d 606, 611 (Idaho 2008). The Idaho Supreme Court explained the state’s notice pleading requirement as follows:

Generally, a claim for relief need contain only “a short and plain statement of the claim showing that the pleader is entitled to relief….” Under notice pleading, “a party is no longer slavishly bound to stating particular theories in its pleading.” A complaint need only state claims upon which relief may be granted. A party’s pleadings should be liberally construed to secure a just, speedy and inexpensive resolution of the case. The emphasis is to insure that a just result is accomplished, rather than requiring strict adherence to rigid forms of pleading. “The key issue in determining the validity of a complaint is whether the adverse party is put on notice of the claims brought against it.” [internal citations omitted] Id. at 612.

Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is IC §§ 6-1012 and 6-1013. Under IC § 6-1012, a “plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that [the] defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided….”

IC § 6-1013 provides that a prospective expert witness must possess “professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed….” An expert who does not live within the community in question may familiarize “himself with the standards and practices of such area and thereafter” give opinion testimony….” Id. In general, the statute “requires that a medical malpractice plaintiff lay a foundation establishing that his or her expert witness possesses ‘actual knowledge of the applicable … community standard to which his or her expert opinion testimony is addressed.’” McDaniel v. Inland Northwest Renal Care, 159 P.3d 856, 859 (Idaho 2007) (quoting IC § 6-1013).

The Idaho Supreme Court instructed that naked assertions by a prospective expert witness “that because he is familiar with the national standard of care he is also” familiar with the applicable standard of care in Idaho are insufficient to qualify him as an expert witness. Strode v. Lenzi, 775 P.2d 106, 108 (Idaho 1989). “Conclusory statements which are incapable of objective evaluation by anyone” cannot serve as the basis of qualifying an individual as an expert. Id. At a minimum, an out of area prospective expert must “inquire of a local specialist to determine whether the local community standard varies from the national standard….” Id.

The Idaho Supreme Court explained the rationale for the state’s reliance on local standard of care rather than a national standard of care as many states follow in medical malpractice cases.

This Court has held that when the Legislature enacted Idaho Code §§ 6-1012 and 6-1013 in 1976, it was in part “concerned with the disparity between urban and rural areas in terms of availability of medical facilities, education programs, and other specialists.”  Understandably, 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. [internal citations omitted] McDaniel, 159 P.3d at 861.

Under Idaho law, an expert medical witness does not have to belong to the same specialty as the defendant to qualify as an expert permitted to provide opinion testimony. Ballard v. Kerr, 378 P.3d 464, 477 (Idaho 2016). In Ballard, the expert witness was a certified plastic surgeon, but the defendant was an anesthesiologist who performed cosmetic surgery. The Court ruled “this would not preclude [the expert] from testifying on the applicable standard of care.” Id.

The Supreme Court explained that “[i]t is unnecessary for an expert witness to be of the same specialty as the defendant so long as the expert establishes he possesses actual knowledge of the standard of care to be applied.” Newberry v. Martens, 127 P.3d 187, 195 (Idaho 2005). Furthermore, the Court stated that an “expert of a different specialty may obtain actual knowledge of the standard of care through interacting and practicing with physicians of the applicable specialty.” Ballard, 378 P.3d at 477.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Idaho

Idaho has not formally adopted either the Frye or Daubert standard to the exclusion of the other. However, the Idaho Supreme Court “has used some of Daubert’s standards in assessing whether the basis of an expert’s opinion is scientifically valid.” Weeks v. Eastern Idaho Health Services, 153 P.3d 1180, 1184 (Idaho 2007). For example, the “Daubert standards of whether the theory can be tested and whether it has been subjected to peer-review and publication have been applied, but the Court has not adopted the standard that a theory must be commonly agreed upon or generally accepted.” Id. Accordingly, under Idaho law, the “question under the evidence rule is simply whether the expert’s knowledge will assist the trier of fact; not whether the information upon which the expert’s opinion is based is commonly agreed upon.” State v. Merwin, 962 P.2d 1026, 1030 (Idaho 1998).

Under Idaho law, the starting point in determining the admissibility of expert testimony in a medical malpractice case is Rule 702 of the Idaho Rules of Evidence. Merwin, 962 P.2d at 1030. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The Idaho Supreme Court provided the following detailed guidance on the admissibility of expert testimony in Coombs v. Curnow, 219 P.3d 453, 464-466 (Idaho 2009).

Under the rules, expert opinion testimony is only admissible when “the expert is a qualified expert in the field, the evidence will be of assistance to the trier of fact, experts in the particular field would reasonably rely upon the same type of facts relied upon by the expert in forming his opinion, and the probative value of the opinion testimony is not substantially outweighed by its prejudicial effect.” “[E]xpert opinion which is speculative, conclusory, or unsubstantiated by facts in the record is of no assistance to the jury in rendering its verdict, and therefore is inadmissible….”

In determining whether expert testimony is admissible, a court must evaluate “the expert’s ability to explain pertinent scientific principles and to apply those principles to the formulation of his or her opinion.”  Admissibility, therefore, depends on the validity of the expert’s reasoning and methodology, rather than his or her ultimate conclusion.  So long as the principles and methodology behind a theory are valid and reliable, the theory need not be commonly agreed upon or generally accepted.  While the court must “distinguish scientifically sound reasoning from that of the self-validating expert, who uses scientific  terminology to present unsubstantiated personal beliefs,” it may not “substitute its judgment for that of the relevant scientific community.”

Relevant considerations in determining whether the basis of an expert’s opinion is scientifically valid include “whether the theory can be tested and whether it has been subjected to peer-review and publication.” Other indicia of reliability include “the close oversight and observation of the test subjects, the prospectivity and goal of the studies, … the presence of safeguards in the technique, … analogy to other scientific techniques whose results are admissible, … the nature and breadth of inferences drawn, … the extent to which the basic data are verifiable by the court and jury, … [the] availability of other experts to test and evaluate the technique, [and] the probative significance of the evidence in the circumstances of the case.”

Trial courts have wide discretion in determining both whether an expert witness is qualified and once qualified whether the proffered testimony is admissible. Weeks v. Eastern Idaho Health Services, 153 P.3d 1180, 1183 (Idaho 2007). The standard on review is that of abuse of discretion. Id. The analysis performed by the Supreme Court is: (1) whether the trial court correctly perceived the issue as one of discretion, (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it, and (3) whether the trial court reached its decision by the exercise of discretion. Id.

VIII. Comparative Negligence

Modified Comparative Negligence with 50% Bar Rule

By statute, Idaho uses modified comparative negligence with a 50% bar rule. IC § 6-801. The statute provides that a plaintiff’s contributory negligence or comparative responsibility does not bar recovery, stating:

Contributory negligence or comparative responsibility shall not bar recovery in an action by any person or his legal representative to recover damages for negligence, gross negligence or comparative responsibility resulting in death or in injury to person or property, if such negligence or comparative responsibility was not as great as the negligence, gross negligence or comparative responsibility of the person against whom recovery is sought…. [emphasis supplied] Id.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not equal to or greater than the defendant or defendants being sued by the plaintiff—the 50% bar rule. If the plaintiff’s percentage share of determined fault is equal to or greater than the total of the defendant or defendants (i.e., plaintiff’s contributory negligence is determined to be 50% or greater), then the plaintiff is not entitled to any recovery.

The foregoing language in the above quoted portion of the statue is the codification of the 50% bar rule, which holds that if the plaintiff’s allocated percentage of fault is 50% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 49% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $49,000 because the plaintiff’s allocated percentage share of fault, i.e., 49% or $49,000, is deducted from the damage award. If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because Idaho imposes the 50% bar rule.

The Idaho Supreme Court explained the state’s comparative negligence statute as follows:

In an action for personal injuries, a plaintiff cannot recover when it is proven by the evidence that his negligence was a proximate cause of his injury, and that his negligence was equal to or greater than the negligence of the defendant notwithstanding that the evidence may also show negligence on the part of the defendant….

We continue to follow long standing and well established precedent in the Idaho case law which construes the wrongful death statute and the comparative negligence statutes and hold that the plaintiffs can recover for wrongful death only when the wrongful act would have entitled the person injured to maintain an action if death had not ensued. Thus, if the decedent’s negligence was not as great as that of the defendants, then decedent’s heirs would be entitled to recover for their loss reduced by the percentage of decedent’s negligence. However, where the decedent’s negligence is equal to or greater than the defendant’s negligence, then the decedent’s heirs are barred from recovery as would be the injured party had he survived. Bevan v. Vassar Farms, Inc., 793 P.2d 711, 715 (Idaho 1990).

Comparative negligence is a fault and damages allocation system. Under Idaho’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. IC § 6-801. Fault is determined and apportioned among the plaintiff and all defendants by the trier of fact, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault. The statute reads: “but any damages allowed shall be diminished in the proportion to the amount of negligence or comparative responsibility attributable to the person recovering.” Id.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Unfortunately for plaintiffs pursuing medical malpractice claims, Idaho follows the “individual comparison” or “individual rule” approach. Beitzel v. City of Coeur d’Alene, 827 P.2d 1160, 1164 (Idaho 1992). The Idaho Supreme Court made this point clear in Beitzel, announcing “Under the ‘individual rule’ adopted by the Idaho legislature when it enacted comparative negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover.” Id.

Under Idaho law, the plaintiff in the foregoing example would not be entitled to any recovery since the plaintiff’s share of negligence is greater than each of the defendants’ share on an individual comparison basis (40% versus 30% for each of the defendants).  

IX. Limitation on Noneconomic Damages

Idaho law imposes a limit on the amount of noneconomic damages that can be recovered in a medical malpractice action. IC § 6-1603. It states: “In no action seeking damages for personal injury, including death, shall a judgment for noneconomic damages be entered for a claimant exceeding the maximum amount of two hundred fifty thousand dollars ($250,000)….” Note, however, that the cap as of July 1, 2017 is $345,351.04.

The statute was amended for 2004, and the initial base cap was set at $250,000. However, the cap is adjusted annually based on a specified formula that provides “on July 1, 2004, and each July 1 thereafter, the cap on noneconomic damages established in this section shall increase or decrease in accordance with the percentage amount of increase or decrease by which the Idaho industrial commission adjusts the average annual wage as computed pursuant to section 72-409(2), Idaho Code.” Id.

Subsection (2) of the statute states: “The limitation contained in this section applies to the sum of: (a) noneconomic damages sustained by a claimant who incurred personal injury or who is asserting a wrongful death; (b) noneconomic damages sustained by a claimant, regardless of the number of persons responsible for the damages or the number of actions filed.” IC § 6-1603(2). That means the number of defendants ultimately found liable for the injured party’s injuries or death does not affect the cap on noneconomic damages.

The cap on noneconomic damages does not apply to (1) causes of action arising out of willful or reckless misconduct or (2) causes of action arising out of an act or acts which the trier of fact finds beyond a reasonable doubt constitute a felony under state or federal law. IC § 6-1603(4).

In the event the case is heard by a jury (rather than the judge in a bench trial), “the jury shall not be informed of the” cap on noneconomic damages. IC § 6-1603(3). This type of limitation generally is intended to prevent juries from increasing other types of damage awarded in an effort to off-set the harshness of a cap on noneconomic damages.

In 2011, the Idaho Supreme Court clarified that the cap on noneconomic damages contained in IC § 6-1603 “applies to each individual bringing a cause of action, not on a per-claim basis.” Aguilar v. Coonrod, 262 P.3d 671, 679 (Idaho 2011). In Aguilar, there were five individual claimants in a wrongful death action. The defendant doctor argued that the cap imposed by IC § 6-1603 should be applied to the five claimants collectively, i.e., all five limited to a single capped damage award, which at the time was $682,200.65. However, the Court rejected that interpretation of the statute, stating that the plain language of the statute itself contradicted the defendant’s position. Id. Thus, the cap on noneconomic damages applied to each of the five claimants individually, i.e., under the statute, each could receive up to the capped amount.

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Idaho

Idaho law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Idaho under Rule 1.5 of the Idaho Rules of Professional Conduct. Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  • whether the fee is fixed or contingent.

It is important to note that Commentary to Rule 1.5 states that the eight factors enumerated in the Rule are not exclusive and that each factor will not be applicable in every case.

Rule 1.5(b) requires lawyers to communicate to clients, preferably in writing, the “scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible….” This must be communicated to clients “before or within a reasonable time after commencing the representation….” Id.

Contingent fee arrangements are expressly permitted by Rule 1.5(c), subject to the requirements described therein. A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentage that shall accrue to the lawyer in the event of settlement, trial or appeal….” Id. It must also explain what “litigation and other expenses [are] to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.” Id. The agreement must “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.” Id. Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Id.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Idaho is among the states that have enacted an “I’m Sorry” law. It is contained in IC § 9-2-9-207(1) and is specific to healthcare providers. The statute shields healthcare providers who communicate benevolent gestures by making them inadmissible as evidence of liability in an action for medical malpractice. The statute reads as follows:

In any civil action brought by or on behalf of a patient who experiences an unanticipated outcome of medical care, or in any arbitration proceeding related to, or in lieu of, such civil action, all statements and affirmations, whether in writing or oral, and all gestures or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, including any accompanying explanation, made by a health care professional or an employee of a health care professional to a patient or family member or friend of a patient, which relate to the care provided to the patient, or which relate to the discomfort, pain, suffering, injury, or death of the patient as the result of the unanticipated outcome of medical care shall be inadmissible as evidence for any reason including, but not limited to, as an admission of liability or as evidence of an admission against interest.

For purposes of the statute, the term ‘unanticipated outcome’ means “the outcome of a medical treatment or procedure that differs from an expected, hoped for or desired result.” IC § 9-2-9-207(3)(b).

The term ‘health care professional’ means “any person licensed, certified, or registered by the state of Idaho to deliver health care and any clinic, hospital, nursing home, ambulatory surgical center or other place in which health care is provided. The term also includes any professional corporation or other professional entity comprised of such health care professionals as permitted by the laws of Idaho.” Id.

It is important to note that any statement of fault that is otherwise admissible and is communicated in connection with an expression of apology, condolence, or sympathy is not protected by the statute and is thus admissible as evidence in a medical malpractice action against the healthcare provider. IC § 9-2-9-207(2).

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Idaho understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

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