Familiarity, of sorts

The facts of Bybee v Gorman , No. 40887, 2014 Opinion No. 96 (Idaho Sup. Ct. Sept 19, 2014), are convoluted and involve drug toxicity after prescription drug misuse, but that’s not what interested me. What interested me, and I hope will interest you, is how the expert witness was qualified to offer testimony. The case was rescheduled several times, and there were multiple judge disqualifications, but eventually the case came to trial. The district court addressed the issue of whether the expert witness was familiar with the standard of care in the community. It ruled that the defendant’s expert’s affidavits were inadmissible because the doctor “failed to demonstrate that he was familiar with the applicable standard of health care practice for the relevant community” as required by statute, Idaho Code Sec 6-1012. You see, the relevant community, where the malpractice occurred was Idaho Falls, and the expert practiced in Pocatello. The expert said that he was familiar with the standard of care in Idaho Falls because he consulted a cardiologist there to discuss what the standard of care was. When questioned as to whom he contacted, he refused to identify the practitioner. It was postulated that because of this failure to identify his source of knowledge, he failed to meet the qualifications of an out-of-area expert witness. The district court ruled for the defendant, and this appeal ensued.

The supreme court in deciding this case used a 3-part test to determine whether the district court abused its discretion. The 3 prongs of the test are (1) whether the lower court viewed the issue as one over which it could exercise its discretion, (2) whether the district court exercised its discretion consistent with applicable legal standards, and (3) whether the district court reached its decision through the exercise of reason.

The 2 bases for the appeal were whether the district court erred in defining the relevant community, and whether the court was correct in disallowing the expert’s testimony because the source of his familiarity with the community was not divulged. Idaho Code Section 6-1013 requires that a medical expert must be knowledgeable and competent. Specifically, it states the following.

(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….

In addition, the expert’s testimony must not be merely conclusory, and it must also be based on personal knowledge. IRCP 56(e) requires the following.

The party offering such evidence must show that it is based upon the witness’ personal knowledge and that it sets forth facts as would be admissible in evidence. The party offering the evidence must also affirmatively show that the witness is competent to testify about the matters stated in his [or her] testimony. Statements that are conclusory or speculative do not satisfy either the requirement of admissibility or competency under Rule 56(e).

As to the standard of care in the community in question, the court looked at Section 6-1012 that states the following.

In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care… on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant or 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 such 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, as such standard existed at the time and place of the alleged negligence of such physician…and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning…As used in this act, the term “community” refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided. (emphasis added by the court)

This means that the expert (1) had to be familiar with the community standards, (2) at the time and in the environment that they were rendered, (3) by those similarly trained and in the same profession, (4) according to the status of medical care in the facility in that area, and (5) must show how he became familiar with this standard of care.

The district court ruled that the communities were different because they were served by different hospitals as per the statute. The supreme court noted that this was a factual issue and within the discretion of the lower court to decide, but the court found that it constituted harmless error and instead chose to focus on the bigger issue: the expert’s familiarity with the standard of care.

On my own, I looked up the 2012 census data and discovered that the 2 cities are 52 miles apart, an hour’s drive, and that the population of Idaho Falls was 58,048 and that of Pocatello was 54,732. I’m not from Idaho; I’m just a regular Joe from Manhattan, but I just don’t see the difference. I probably don’t know the differences between various strains of potatoes either, but I digress.

The expert testified that he was “familiar with the standard of care applicable to cardiologists in the Idaho Falls/Pocatello area” during the time in question. In addition, he stated that “the community in terms of the area served by the EIRMC hospital in Idaho Falls consisted of people from both Idaho Falls and Pocatello.” Both statements were determined to be merely conclusory and thus did not support the foundation that he was familiar with the standard of care. The district court determined that he was not qualified as a local expert, so the court looked at whether he was qualified as an out-of-area expert on the basis of his testimony that he spoke with an unnamed cardiologist to familiarize himself with the local standard of care. The court determined that without identifying his source, the plaintiff would be unable to investigate the expert’s credentials and personal knowledge as to the standard of care; therefore, he was not qualified as an expert.

The supreme court ruled that failure to identify the source of the expert’s knowledge was not fatal to his ability to act as an expert. Obviously, his credibility would be brought into question during cross-examination, but deciding this question as a matter of law was an abuse of discretion by the district court. The supreme court reversed the lower court’s decision and remanded for a new trial.


There are essentially 2 standards of care: the local standard and the national standard. Each state is free to choose which one it follows. States that are more rural tend to lean toward the local standard, and heavily populated urban states tend to adopt the national standard of care. The basis for this distinction is historical and concerns such issues as access to the most technological advances, access by practitioners to continuing education, lack of specialists in rural areas, and the list goes on. Most reasons are usually not applicable today; however, state’s rights are what they are, and each jurisdiction creates laws that best benefit its own population.

The reality is that most jurisdictions have adopted a national standard of care because all specialty programs must meet the same common educational requirements (CODA). The national specialty certifying examination (American Board of Orthodontics) is the same for everyone, access to current knowledge is readily available to all, and the only real excuse for keeping the locality rule is that in many rural states it is hard to attract qualified specialists to certain areas. Thus, often specialty care is rendered by nonspecialists, so different standards of care do make some sense.

However, if you are ever called as an expert witness in a nonlocal venue, you may be asked how you came to be familiar with the standard of care in the community in question. You should be prepared to answer that question directly and succinctly. You cannot say that orthodontics is the same all over the country. It is, but you can’t say that. You must have familiarized yourself in some manner so that you can sensibly articulate and explain to the court that you know how things are done and why they are done in the community in question because you….

Whom do you know and talk to but don’t want to name?

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Apr 4, 2017 | Posted by in Orthodontics | Comments Off on Familiarity, of sorts
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