BOISE, Idaho (Legal Newsline) - A surgeon who removed a patient’s gallbladder without telling him she’d left a large gallstone behind can be sued for her lack of candor, the Idaho Supreme Court ruled, in a decision that otherwise affirmed a trial judge’s decision to reject the plaintiff’s expert testimony as too late.
Michael Summerfield went into St. Luke’s McCall hospital for routine surgery to remove a gallstone in August 2015. Dr. Amy Ocmand performed a laparoscopic gallbladder removal but when the organ was examined later, the gallstone was missing and most likely still in the patient’s abdomen. The surgeon failed to tell Summerfield about the fugitive gallstone in two subsequent visits.
Summerfield later developed complications including an abdominal abscess that required major surgery and sued St. Luke’s for malpractice. To comply with Idaho law, he submitted an expert opinion from Dr. Julie Madsen, a fellow physician at St. Luke’s, who said Dr. Ocmand had failed to meet the appropriate standard of care. Dr. Madsen detailed what is expected of general surgeons, but didn’t state a specific opinion about the standard of care for surgeons performing laparoscopic gallbladder removals.
St. Luke’s moved for summary judgment, arguing Dr. Madsen’s expert opinion was insufficient. In response, Dr. Madsen submitted an affidavit stating she routinely deals with gallbladder disease and complications of gallbladder surgery including infections and retained gallstones.
The court granted St. Luke’s summary judgment, but allowed Summerfield to submit yet another affidavit naming surgeons she had spoken with to familiarize herself with the standard of care. This effort failed again, as the court said Dr. Madsen didn’t clearly demonstrate knowledge of the standard of care for laparoscopic surgery.
Summerfield asked the court to reconsider its summary judgment, attaching a third affidavit in which Dr. Madsen named a surgeon she spoke with who explained the specific standard of care for laparoscopic gallbladder removals. This time, the court reversed its summary judgment, only to reverse itself again 28 days later after the judge realized he didn’t have to consider the newly submitted evidence.
The judge said he hadn’t realized the Idaho Supreme Court, in a 2019 decision, held that district judges don’t abuse their discretion by refusing to consider new evidence that is submitted past the deadline. Since Summerfield had six months to supply a proper expert opinion and the third affidavit was well past the deadline, the judge decided not to consider it.
Summerfield appealed to the Idaho Supreme Court, which in an Aug. 31 opinion largely upheld the lower court’s decisions. While the plaintiff cited prior Idaho Supreme Court decisions that appeared to limit the discretion of judges to reject additional evidence submitted to support a motion to reconsider summary judgment, the state high court said, the standard of review had changed.
The plaintiffs cited one Idaho Supreme Court decision stating the district judge must hear motions to reconsider and “must consider any new admissible evidence.” That case was distinguishable, the Supreme Court said, because the court had accepted the new evidence; in Summerfield’s case, the court refused to accept it. An earlier decision reversing a court’s decision to refuse additional affidavits on a motion to reconsider is the oldest of the cases cited by Summerfield and “less indicative of this court’s recent jurisprudence on this issue.”
In the wake of its 2019 decision, the court said, “the district court had the discretion to refuse to consider Dr. Madsen’s untimely third affidavit filed with Summerfield’s motion for reconsideration.”
“While we acknowledge that this may be a harsh outcome for Summerfield, the discretion rested with the district court to disregard the late affidavit, which consisted of evidence obtained after the summary judgment motion had been decided,” the court ruled.
Summerfield had better luck on his claim the surgeon should have informed him about the gallstone she left in his abdomen. While his expert witness wasn’t qualified to discuss the standard of care for laparoscopic gallbladder removal, the court said, Dr. Madsen was well qualified to supply an opinion about doctor-patient disclosures.
The court also rejected St. Luke’s request for legal fees, saying that on balance, the hospital was not the prevailing party.