BOISE, Idaho (Legal Newsline) - An Idaho woman who says she developed breathing difficulties after following a doctor’s instructions to pump ozone gas into her vagina can proceed with her malpractice suit, Idaho’s highest court ruled, overturning a lower-court dismissal based on lack of scientific evidence the gas caused her symptoms.
Jana Mortenson sued Dr. Jeffrey Baker and The Healing Sanctuary, an Idaho Falls clinic that says it specializes in “integrated, integrative, and functional medicine,” after she said Dr. Baker recommended ozone for abdominal pain related to a urinary tract or her hysterectomy. Mortensen said the doctor first prescribed antibiotics, but when the pain persisted he claimed ozone would “blast” any bacteria from her body.
The doctor didn’t write a formal prescription, but told her to receive the supplies “upstairs” in the clinic. She received an “insufflation bag” and a tube to squeeze the gas into her vaginal canal and was told to return daily for more ozone.
“Mortensen soon noticed, because of the distinct odor of ozone, that once she began treatment at home, the gas leaked from her vaginal canal into the air in the room,” the court said. “Even so, Mortensen continued returning to The Healing Sanctuary every morning to get the bag refilled with ozone.”
When she told a nurse she smelled ozone when she applied the gas to her vagina, she said the nurse responded she “must have a tiny canal.” Another nurse allegedly told her ozone gas would be good for her lungs.
By February 2019 Mortensen said she felt like her lungs were collapsing. She went to an urgent care clinic and received a steroid inhaler. She again complained about shortness of breath to the staff at The Healing Sanctuary but they insisted the ozone didn’t cause her symptoms. Mortensen and her fiancé researched ozone and she ultimately went to an emergency room for asthma and heart issues and is still being treated by specialists.
Mortensen sued Dr. Baker and The Healing Sanctuary for malpractice in November 2019. Dr. Baker moved for summary judgment the following April because Mortensen hadn’t provided any experts to establish a violation of professional standards or causation. The court gave Mortensen an extension and in June she provided statements from three experts. In October, the trial court dismissed her case and Mortensen appealed.
The Idaho Supreme Court, in an Aug. 30 opinion written by Chief Justice G. Richard Bevan, reversed the dismissal. The trial court erred by refusing to admit parts of Mortensen’s testimony about the treatment and her symptoms, the Supreme Court ruled, as well as striking testimony from an expert that the ozone likely caused the plaintiff’s breathing problems.
Idaho, like most states, sets a higher evidentiary standard for malpractice lawsuits, requiring plaintiffs to submit expert opinions to support their claim a doctor deviated from the proper standard of care. In this case, however, Mortensen needed only to raise a question of fact about whether the ozone injured her, the high court ruled.
Mortensen’s expert, Dr. Amy Baruch, submitted reports citing the Food and Drug Administration’s opinion that “Ozone is a toxic gas with no known useful medical application.” Dr. Baruch also examined Mortensen’s medical records and recollection of her symptoms to conclude that the ozone was to blame. That was an allowable conclusion, the court said.
Justice Colleen Zhan dissented, joined by Justice Robyn Brody. She said Dr. Baruch failed to cite sufficient scientific evidence to support her conclusion ozone was to blame for Mortensen’s symptoms. It wasn’t enough to note that the FDA disapproved of ozone therapy and the plaintiff complained of breathing problems after she started it.
“In short, although Dr. Baruch references various pieces of information, at no point does she tie them together to explain how she used that information to develop her opinion,” the dissenting justice wrote.