Doctor wins lawsuit brought by homeless woman

Jessica M. Karmasek Jul. 15, 2011, 9:52am


BOISE, Idaho (Legal Newsline) - The Idaho Supreme Court on Monday affirmed a jury verdict in favor of a doctor sued for his treatment of a patient.

The patient, Janet Bell Nightengale, brought a lawsuit against Dr. Kevin Timmel, an emergency room doctor who treated her in July 2007.

According to Court documents, Nightengale was a homeless woman living in Boise and had a history of drug use and suffered from both Hepatitis B and C.

Timmel, in evaluating Nightengale for pain in her left arm, failed to diagnose a clot in one of the woman's vascular arteries. That led to cut-off circulation to her left arm and eventually required its amputation above the elbow.

However, a jury returned a special verdict finding that Timmel had not breached the relevant standard of care in his treatment of Nightengale.

Nightengale appealed that verdict, arguing the trial court erred in:

- Determining that two letters sent by the doctor who performed the amputation on her were not admissible for any purpose under Idaho's peer-review statutes;

- Admitting testimony regarding her drug and alcohol use in 2009;

- Admitting expert testimony regarding her decreased life expectancy due to her homelessness;

- Including her name on the special verdict form;

- Requiring expert testimony in order to instruct the jury on recklessness; and

- Failing to strike a prospective juror for cause.

Nightengale also challenges the district court's award of expert witness fees to Timmel as discretionary "exceptional" costs.

The Court affirmed the jury's verdict, but vacated the district court's award of discretionary expert witness fees. Justice Warren E. Jones wrote the opinion, filed July 11.

The Court said the district court did not err in its determination that the peer-review statutes applied to Dr. Dominic Gross' letters.

Gross is the orthopedic surgeon who performed the above-elbow amputation of Nightengale's left arm.

The Court writes, "It is in the public interest to protect and thereby encourage the writing of such letters that initiate the important process of peer review in order to provide better care to Idaho's citizens.

"The statute is intended to encourage doctors and health care organizations to speak freely about mistakes they have made in order to improve the health care system. Encouraging doctors to write letters, such as the ones Dr. Gross wrote to initiate the peer review process, is essential to 'improving the standards of medical practice in the state of Idaho.'"

The lower court also did not abuse its discretion in failing to strike a juror for cause, the state's high court ruled.

During voir dire, Juror No. 1 indicated she thought people sued each other too much and she had a bias that plaintiffs were just trying to get money out of defendants.

Nightengale's attorney questioned the juror further, and while she indicated she had some anger at those who file lawsuits, she also stated she could "determine between truth and non-truth" when "given the evidence."

"Therefore, because Juror No. 1 indicated she could make a decision based on the evidence, the court was entitled to rely on that assurance, and it did not abuse its discretion in denying the motion to strike her for cause," the Court wrote.

The Court, in vacating the district court's award of discretionary expert witness fees, said the lower court did not provide sufficient findings as to why those costs were "exceptional."

"Expert witness testimony is required in every malpractice case, thus the district court seems to have concluded that the expert witness fees were exceptional simply due to the case being one for medical malpractice. Absent other findings, there is no basis for every expert witness' testimony to be considered 'exceptional' simply because it requires specialized knowledge," it wrote.

"That specialized knowledge and expert testimony is exactly the type of 'ordinary' cost of both proving and defending a medical-malpractice claim."

Since the remaining alleged errors only went to the issue of damages and the jury did not reach that issue, they are "clearly harmless," the Court concluded.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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