Please welcome Taylor Fouser, an Attorney at Gjording Fouser as a Guest Blogger!


Recently, the Idaho Supreme Court Civil Justice Reform Task Force, which is made up of a cross-section of judges and attorneys, recommended the Supreme Court adopt significant changes to the current Idaho Rules of Civil Procedure. As stated in the Task Force’s Final Report, “The suggested changes to the civil rules are intended to provide more timely and cost-effective justice in approximately 70 percent of the general cases filed in Idaho courts,” which includes medical malpractice. While the proposed rules have yet to be adopted by the Supreme Court, leaving in flux whether and when the rules will come into effect, it is believed the Task Force has the full support of the Idaho Supreme Court. This blogpost, which is based on our analysis of the Task Force’s Final Report and a rules presentation from the Hon. Steven Hippler, summarizes how specific proposed rule changes will impact medical malpractice defense so we are prepared if/when the proposed rules become live.


The New Tiers of Discovery

State courts will now be asked to designate a case tier based on an analysis of numerous factors, such as a stipulation, the amount in controversy, discovery needs, expert needs, etc. The three tiers are creatively named: Tier 1 – Simple; Tier 2 – Regular; Tier 3 – Complex. While the parties are free to stipulate, the judge, in the hopes of involving the court more in the case process, as the final say in tier designation. The tier of a case will influence the trial scheduling and amount of discovery permitted in a given case. The discovery limitations by tier type are:



The Task Force is also proposing to eliminate the long-standing discovery standard of “appears reasonably calculated to lead to the discovery of admissible evidence” in favor of the “proportionality standard” utilized by the federal courts. Finally, every case will have mandatory initial disclosures where each party as an affirmative duty to disclose and supplement:

  1. Persons with knowledge

  2. Documents supporting claim or defense

  3. A computation of damages

  4. Liability insurance agreements

  5. Documents referenced in pleadings

Impact on Medical Malpractice Cases

We anticipate most of the medical malpractice cases will fall into the Tier 3 (complex) category. In recent years, the amount of discovery received and the time it takes to respond to a plaintiff’s discovery request has become overly burdensome and often pointless. It has become common practice for plaintiffs’ counsel to engage in fishing expeditions, through their discovery on the hospital, by requesting discovery such as all policies, joint commission documents, brochures, training modules, and even the zip codes of patients seen at the facilities.


In a recent medical malpractice case involving a fall, our hospital was forced to respond to 148 Requests for Admission and 57 Requests for Production. The current rules place a cap on the number of Interrogatories at 40, but there is no such limitation on the number of Requests for Production or Admission, which has been abused by plaintiffs’ counsel.


Overall, If the proposed rules take effect, opposing counsel will have to take greater care in their determination of what to ask for and will give the hospital a stronger leg to stand on in objecting to overly burdensome requests.


Expectations

The proposed rules are still in their infancy stage, and public comment on the rules closed on June 30, 2019. To this end, we can expect some changes and tweaks to the Task Force’s current recommendations. There can be no doubt, however, that there has been a significant push from people in high places to overhaul the current rules. Idaho can expect changes coming down the pike, and medical malpractice defense firms need to be ready.


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The scenario is a tricky, multi-faceted one: The United States is facing a substantial shortage of physicians, largely due to the growth and aging of the population and the impending retirements of older physicians; yet growing concern exists over the competency and cognitive ability of some "older" physicians, which may impact patient safety and have legal/malpractice ramifications. Forty-three percent of all physicians are age 55 or older and 20% of all physicians are age 65 or older. On average, specialists tend to be older than are primary care doctors: for example, 73% of pulmonologists and 60% of psychiatrists are age 65 or older, compared with 40% of internists and 38% of family practitioners. Further consider that, since 2011, about 10,000 Baby Boomers turn 65 per day in the United States. Despite those aged 65 or older comprising only 14% of the population (12.4% in Idaho), they account for more than one-third of inpatient procedures and diagnostic treatments and tests.


While reports often suggest that primary care physicians are in short supply, hard data also indicate a growing, national shortage of medical specialists. Because specialists such as cardiologists, orthopedic surgeons, neurologists, rheumatologists, pulmonologists, and vascular surgeons primarily care for the declining health and organ systems of elderly patients, an increasing number will be needed as the population ages. Coupled with data from physician surveys that show 80% of specialists are overextended or at capacity, while only 20% have time to see more patients or take on new duties, the numbers feel grim for the future of medical services and the health profession's capacity to treat the population in decades to come.


A 2019 study conducted for the Association of American Medical Colleges (AAMC) predicts that the United States will face a shortage of between 46,900 and 121,900 physicians by 2032, including in both primary and specialty care. Even more troubling is that Congressional caps placed on graduate medical education (GME) funding--which was set in 1997 and directly impacts residency training positions--through the Centers for Medicare and Medicaid Services (CMS) during the last 20 years have not kept pace with population growth or aging, nor have they kept pace with the increasing medical school enrollment. Efforts to increase the supply of physicians generally have been focused on primary care rather than medical specialties, and there is a prevailing notion in some policy making circles that the number of specialists should not be increased. The National Center for Health Workforce Analysis's 2013 projections indicated that there would be a primary care physician shortage in 2020, but that the magnitude could vary greatly depending on assumptions about the role of non-physician providers; specifically, they projected the number of primary care physicians would grow by 8% between 2010 and 2020, but the demand for those services would grow by 14%. Given that it takes anywhere from 7 to 15 years to train a doctor, projected shortages in 2032 need to be addressed now so that patients will have access to the care they need. What is encouraging news, however, is that legislation has been introduced in both the House and the Senate, entitled the Resident Physician Shortage Reduction Act of 2019 (H.R. 1763, S. 348), which takes an important step towards alleviating the physician shortage by seeking to gradually add 15,000 Medicare-supported GME residency positions over a five-year period.


Now, consider this: Recognizing the rising ages of older physicians, many hospitals and institutions are beginning to test "older" physicians on their mental and physical acuity. However, physicians are raising questions of fairness, scientific validity, and ageism as a result of those tests/evaluations. Further, in light of the growing shortages of providers, current practitioners are even more loath to abandon patients and give up their practices. Interestingly, the American Medical Association's House of Delegates voted in 2016 that a systematic evaluation should exist for evaluating aging physicians, and perhaps formal guidelines for the timing and method of competency testing for older physicians should be adopted for those who wish to maintain staff privileges beyond a certain age.


Competency in physicians refers to a doctor's ability to practice with reasonable skill and safety, which involves both cognitive and physical considerations. While a physician's responsibility and commitment to practice competently (typically) does not change throughout one's professional career, age-related changes can influence one's ability to do so. For example, beginning at age 40-50, vision and hearing begin to diminish, while visual-spatial ability, inductive reasoning, verbal memory and other cognitive functions suffer the steepest declines after age 65. Equally significant is the fact that not all abilities decline with age: older physicians do have some advantages, such as "crystallized" (or accumulated) knowledge, better ability to reach an early diagnosis, experiencing less psychological distress, and suffering less burnout as compared with younger physicians.


Until now, self reporting has largely regulated the age at which physicians stop practicing, but it is not always effective. For example, older physicians with mild cognitive dysfunction do not always realize their limitations, and their colleagues are reluctant to report them due to concerns of being disrespectful; these physicians tend to rely on pattern recognition in their continued practice and often do not track evidence-based, evolving standard for diagnosis and/or treatment.


Undoubtedly, competency is difficult to assess, and age alone cannot be used as the basis for reviewing and evaluating a physician's competency to practice medicine.

While no court has set forth a mandatory retirement age for physicians and no credentialing or licensing body has set a firm mandatory retirement date for physicians, some credentialing bodies have established age-related policies establishing an evaluation process for physicians when they reach a certain age. For example, the Joint Commission requires hospitals to take an active role in assessing competency, and the Ongoing Professional Practice Evaluation (OPPE) is a program for which the hospital bears the responsibility for allocating necessary resources to develop and maintain the process.

In connection with hospitals' and institutions' goals of improving patient safety, several have adopted age-related physician policies in recent years. Further, the courts are seemingly keeping pace in this arena, as case law has established that institutions, hospitals, and physician groups can be held directly liable for injuries caused to patients where there was evidence of deficiencies in the physician's skills or judgment that posed a danger to a patient. Further, a number of medical malpractice carriers now require an age-related physician review to include annual physical examination and annual appearance before their underwriting board upon reaching a certain age to continue being insured by that carrier.


The Age Discrimination in Employment Act (ADEA) of 1967 protects people who are 40 years or older from age discrimination in employment, including mandatory retirement ages. However, the courts have generally concluded that, for certain occupations, particularly those in which public safety is involved, age is an employment qualification that employers are allowed to consider while making decisions about hiring and retention of employees. Some of these professions include commercial airline pilots (mandatory retirement at age 65), FBI agents (age 57), and air-traffic controllers (generally age 56). Further, some countries have implemented policies about age-based restrictions on physicians’ practices, some of which have been further modified in response to workforce needs. In the United Kingdom,for example, health professionals are allowed to switch to part-time work while preserving their pension entitlements, while in other countries, mandatory retirement ages for physicians were abolished in response to physician workforce shortages (e.g., Germany lifted its retirement age of 68 for general practitioners/primary care physicians in 2009).

While the likelihood of an implemented mandatory retirement age for physicians in the US remains uncertain for myriad reasons, questions about aging physicians’ competence still persist. Of course, the American Board of Medical Specialties and its member boards could incorporate some additional measures into the re-certification requirements for physicians beyond a certain age, and/or credentialing could ostensibly

include some age-based testing components for practitioners beyond a certain age, justified by the need to ensure patient safety.


At present, only an estimated 5 percent of US medical centers have developed age-related screening policies: the University of Virginia and the Stanford Health system are well-known examples. In 2011, the University of Virginia Health System implemented mandatory physical and cognitive exams every two years for physicians beginning at age 70, while in 2012, Stanford instituted a late-career practitioner policy, including a peer evaluation of clinical performance, a cognitive examination and a comprehensive history and physical examination every two years for physicians aged 75 and older. Nevertheless, in 2015, the Stanford policy was rejected on grounds that it constituted age discrimination, which reflects the likely uphill battle implementation of such policies would incur. Among the difficulties with mandating these assessments is the lack of practical screening tools that are specific, measurable, cost-effective, easily utilized, and accurately predictive.


While a viable solution to address the intersection of the growing elderly population, the rising age of practicing physicians, and the ongoing shortage of physicians remains elusive, measures are being actively evaluated by a number of lawmakers, medical associations, hospitals, and concerned citizens. Hopefully, we will know more on one piece of this jigsaw puzzle by year's end, and see whether the Resident Physician Shortage Reduction Act of 2019 is enacted.

Additional Resources

Recently, upon Motion for Summary judgment by a defendant Hospital, the court entered summary judgment in favor of the defense, on the grounds that one of plaintiffs' expert witnesses lacked actual knowledge of the applicable community standard of care, which equates to a failure by the plaintiffs to prove an essential element of their negligence case.


It is well-settled in Idaho that, to avoid summary judgment in favor of the defense, a plaintiff must offer expert testimony to support allegations that the defendant negligently failed to meet the applicable standard of care. See Dulaney v. St. Alphonsus Regional Medical Center, 137 Idaho 160, 164, 45 P.3d 816, 820 (2002). It is also well-established that Idaho utilizes a community standard of care rather than a broader, national standard of care, and Idaho Code §§ 6-1012 and 6-1013 govern the admissibility of medical expert witness testimony. A plaintiff is required to establish, among other things, that his or her experts have “actual knowledge of the applicable community standard of care” to which the expert’s testimony is addressed. See I.C. § 6-1013; Dulaney, 137 Idaho at 164, 45 P.3d at 820. While § 6-1013 does not preclude an out-of-area expert who is otherwise qualified from giving expert testimony, such experts are required to become familiar “with the standards and practices” of the applicable community. I.C. § 6-1 01 3.


“An expert testifying as to the standard of care in medical malpractice actions must show that he or she is familiar with the standard of care for the particular health care professional for the relevant community and time.” Dulaney, 137 Idaho at 164, 45 P.3d at 820 (citations omitted). “The expert must also state how he or she became familiar with that standard of care.” Id. An out-of-area expert may obtain knowledge of the local standard of care by various methods, including consultation with a local specialist or a review of deposition testimony in which a local specialist testified to the local standard of care. See Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994).


Defendants argued that Plaintiffs’ medical experts’ testimony was inadmissible because Plaintiffs’ out-of-area experts did not show actual knowledge of the local community standard of care as required under Idaho Code §§ 6-1012 and 6-1013. As a result, Defendants argued that summary judgment in their favor was appropriate because Plaintiffs’ could not establish a prima facie claim for medical malpractice under Idaho Code § 6-1012.


Plaintiffs conversely argued that their experts did not need to be familiar with the local standard of care because board-certified physicians and physician's assistants are held to a national standard of care, and the "local community standard of care" for a board-certified physician is, in fact, a national standard. Plaintiffs further alleged that their expert had actual knowledge of the local standard of care based on his review of the depositions, medical records, and the defendant Hospital's health policies and procedures. Notably, during this expert's deposition, however, he stated that he had never been licensed to practice medicine in Idaho, had never practiced medicine in Idaho, and had never spoken to anyone who had practiced medicine in Idaho or the county in which the events-in-question occurred.


The Court rejected Plaintiffs' reliance on Samples v. Hanson, 161 Idaho 179, 185, 384 P.3d 943, 949 (2016), because the challenged medical expert in that case--unlike Plaintiff's expert here--did have actual knowledge of the local standard of care. Further, this Court reaffirmed the disavowal of Buck v. St. Claire, to the extent it held that a national standard of care replaces the local, community standard for board-certified physicians, because such a holding contradicts the "clear mandate of I.C. § 6-1012." See Grimes v. Green, 113 Idaho 519, 521, 746 P.2d 978, 980-81. Ultimately, the Court re-affirmed the applicability of the Grimes holding that medical experts are still required to show actual knowledge of the local standard of care. Id. at 521 (“an out-of-the-area doctor must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained.”).


Further, the Court rejected Plaintiffs' assertions that the local standard of care has been supplanted by Joint Commission standards, federal regulations, or the Defendant Hospital's own policies and procedures. The Court explained that, in order to supplant the local standard of care for the purposes of §§ 6-1012 and 6-1013, a statute must be more than “some general regulatory scheme for a given area of medicine” and must “govern the physical administration of health care,” as opposed to “organizational, personnel, and utilization requirements,” which was not the case here. Navo v. Bingham Memorial Hospital, 160 Idaho 363, 372-73, P.3d 681, 689-90 (2016) (quoting McDaniel v. Inland Northwest Renal Care Group—Idaho, LLC, 144 Idaho 219, 223, 159 P.3d 856, 860 (2007)).


Finally, the Court advised that while reviewing a defendant doctor's deposition testimony may, in some cases, enable an expert to become familiar with the local standard of care, the depositions that Plaintiffs' expert reviewed did not suffice because nowhere in any of the depositions he reviewed was the local standard of care (1) applicable to the specific medical specialties, (2) during the pertinent time frame, (3) in the county where the alleged negligence occurred, stated. Additionally, none of the reviewed depositions established a national standard of care would supplant the local standard of care.


While this is an encouraging 'win' by the defense, it does represent the ongoing attempts by plaintiffs to supplant Idaho's community standard of care with a national one. Defense counsel will need to remain vigilant on this issue.

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