Rich v. Hepworth Holzer, LLP

172 Idaho 696

535 P.3d 1069

Holly RICH, fka Holly King Hagerman, Plaintiff-Appellant,

v.HEPWORTH HOLZER, LLP, an Idaho Limited Liability Partnership, fka Hepworth, Janis, & Kluksdal, Chartered; E. Craig Daue, individually, Buxbaum Daue, PLLC, a Montana Professional Limited Liability Company, Defendants-Respondents.

Docket No. 49300

Supreme Court of Idaho, Boise, June 2023 Term.

Opinion Filed: September 6, 2023

Rehearing Denied: October 10, 2023

Pedersen Whitehead & Hanby, Twin Falls, attorneys for Appellant. Jarom A. Whitehead argued.

Duke Evett, PLLC, Boise, attorney for Respondent Hepworth Holzer, LLP. Keely E. Duke argued.

Hawley Troxell Ennis & Hawley, LLP, attorneys for Respondents E. Craig Daue and Buxbaum Daue, PLLC. Marvin Smith argued.

BEVAN, Chief Justice

This appeal arises out of a legal malpractice case by Holly Rich against her attorneys, Hepworth Holzer, LLP, and E. Craig Daue and Daue Buxbaum, PLLC ("Daue Buxbaum") (collectively, "Respondents"), regarding their legal representation of Rich in an underlying medical malpractice action against Eastern Idaho Regional Medical Center ("EIRMC"), Dr. John Lassetter (a cardiologist), and Dr. Charles Phillips (an intensivist) (collectively, "EIRMC providers"). In that action, Rich's claims against the EIRMC providers failed because they were filed after the statute of limitations expired. Rich alleged in this action that those claims were not filed on time because of Respondents’ legal malpractice.

Here, both sides filed substantive motions for summary judgment and the district court found that Rich could not prevail because she had "not disclosed any expert [medical] testimony which complies with the requirements of Idaho law for admissibility." The district court concluded that, lacking evidence to "set out a prima facie case of medical malpractice," in the underlying case, Rich's claim against Respondents for legal malpractice failed. Rich appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The medical facts are not in dispute. Rich had a mitral valve repair at the Mayo Clinic in 2008 for severe mitral regurgitation. In April 2014, Rich attempted a second mitral valve repair at the University of Utah Hospital, but the repair failed, and a mechanical mitral valve was placed instead. After that surgery, Rich sought care in Idaho Falls from cardiologist John Lassetter, M.D. Dr. Lassetter reported that Rich had prolonged recovery at the University of Utah, mild fatigue, and shortness of breath but was recovering well. She returned to the University of Utah on May 20, 2014, for evaluation and reported worsening symptoms. An electrocardiogram revealed atrial fibrillation.

Throughout the spring and summer of 2015, Rich continued to have shortness of breath. On September 3, 2015, Rich sought a second opinion from Pocatello Cardiology at Portneuf Medical Center in Pocatello, Idaho, where she was evaluated by Ryan Longmore, D.O. During that appointment, Rich had 92% oxygen saturation on the pulse oximetry on room air and a systolic murmur. Rich made a follow-up appointment for an echocardiogram on September 25, 2015, and when she returned for that test, she was out of breath after walking a few steps and needed assistance walking into the clinic. She was placed on oxygen while receiving the echocardiogram.

Dr. Douglas Boehm dictated the echocardiogram results shortly after Rich was discharged from the hospital. Those results showed dangerous changes in Rich's mitral valve function, which required immediate referral to a cardiac surgeon. Rich was not informed of those results when she left the clinic, nor after her echocardiogram was interpreted. The findings from the echocardiogram revealed that Rich suffered from multiple cardiac infirmities.

When Rich woke up at 4:00 a.m. on September 27, 2015, she was in medical distress. Soon after, Rich went to EIRMC. After arriving at the emergency room, Rich told the physician, Dr. Andrew Garrity, that she had undergone an echocardiogram at Portneuf two days earlier with normal results. While Rich was in the emergency room, her condition deteriorated, requiring intubation. She was transferred to the Intensive Care Unit (ICU), where she was treated by Dr. Phillips. While there, Rich went into cardiac arrest and was resuscitated. After being resuscitated, doctors performed a series of life-saving measures, followed by emergency surgery. Rich remained hospitalized for six weeks, during which she experienced cardiogenic shock that damaged her kidneys, liver, brain, and extremities. Because of poor circulation to her extremities, Rich developed dry gangrene, requiring amputation of multiple fingertips and both legs below the knee.

B. Procedural Background

Rich retained E. Craig Daue of Buxbaum Daue on July 26, 2016, to pursue a medical malpractice case against Portneuf. Daue was not licensed to practice law in Idaho, so Daue contacted John Janis with Hepworth Holzer to arrange co-counsel representation on her case. Rich signed a representation agreement with Daue and Janis in June 2017. Their engagement agreement covered "all matters relating to a claim for damages which client believes may exist against Portneuf Medical Center [ ]" but did not identify a potential claim against the EIRMC providers.

To satisfy a condition precedent to filing a medical malpractice case,¹ Hepworth Holzer initiated a prelitigation screening proceeding against Portneuf's medical providers on June 9, 2017, and later expanded the proceeding to include Portneuf itself. Portneuf raised the specter of mounting an "empty chair"² defense, prompting Hepworth Holzer on September 22, 2017, to initiate a prelitigation screening proceeding against the EIRMC providers too.

To satisfy the statute of limitations, given the tolling provisions in the prelitigation screening statute,³ a complaint against the EIRMC providers had to be filed by January 8, 2018. Rich emailed Daue and Janis on January 2, 2018, to ask if the lawsuit against the EIRMC providers had been filed. She was told it would be filed on time. On January 8, 2018, Daue sent a draft complaint to Janis. Eight days later, on January 16, 2018, a complaint and demand for jury trial was finally filed against the EIRMC providers, as well as against Portneuf and some of its providers. Although the complaint against Portneuf and its providers was timely because of the earlier initiation of prelitigation screening proceedings against them, the statute of limitations against the EIRMC providers had expired. As a result, Rich was unable to maintain her claims against the EIRMC providers.

On September 25, 2018, Rich settled with Portneuf for an undisclosed amount. On December 13, 2019, Rich brought a legal malpractice action against Hepworth Holzer, Craig Daue and Buxbaum Daue based on her inability to maintain her medical malpractice action against the EIRMC providers.

According to the district court's scheduling order, Rich needed to disclose her expert witnesses by June 28, 2021. Rich named four experts by the deadline: (1) attorney G. Lance Nalder, (2) Howard L. Garber, M.D., (3) Elisa Collins, MSN, APRN, and (4) Debra Lee, RN, MS, CCM, CDMS, CRC. The expert witness disclosure included a recitation of the opinions each expert would proffer at trial.

Respondents moved for summary judgment and filed joint motions to strike Nalder's, Dr. Garber's, and Nurse Collins’ testimony. While those motions were pending, Respondents disclosed their own experts, Dr. Curtis Sandy and Dr. Edward Kimball. Those experts gave deposition testimony on August 31, 2021. The next day, Rich filed a supplemental expert witness disclosure, using those depositions to change the foundation from which her expert, Dr. Garber, intended to testify about the local standard of care. Respondents then moved to strike Rich's supplemental disclosure.

The district court heard argument on all pending motions. Rich relied on the theory that all she had to show was "some chance of success" on her underlying medical malpractice case to withstand summary judgment. She argued that her experts’ statements, as contained in her expert witness disclosures, met this standard. The district court implicitly rejected Rich's "some chance of success" argument. Instead, the court applied the alternate "case-within-a-case" theory as advocated by Respondents and found that Rich could not prevail because she had "not disclosed any expert testimony which complies with the requirements of Idaho law for admissibility." The district court concluded that, lacking evidence to "set out a prima facie case of medical malpractice," Rich's claim against Respondents for legal malpractice failed. Rich appeals.

II. ISSUES ON APPEAL

1. Whether the district court applied an incorrect legal standard for determining causation in a legal malpractice case.

2. Whether the district court erred in deciding that Rich's experts were not qualified to testify.

3. Whether the district court erred in disregarding Rich's supplemental expert witness disclosure.

4. Whether any of the parties are entitled to attorney fees or costs on appeal.

III. STANDARDS OF REVIEW

"In a legal malpractice appeal, the standard of review for this Court when reviewing a district court's grant of summary judgment is well-settled: this Court ‘uses the same standard properly employed by the district court originally ruling on the motion.’ " Ciccarello v. Davies , 166 Idaho 153, 158, 456 P.3d 519, 524 (2019) (quoting Lanham v. Fleenor , 164 Idaho 355, 358, 429 P.3d 1231, 1234 (2018) ). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." I.R.C.P. 56(a). A moving party must support its assertion by citing particular materials in the record or by showing that the "materials cited do not establish the... presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact[s]."...