Frank C. Newberry v. Laurence L. Martens, M.D., and Twin Falls Clinic and Hospital, et al.

Laurence Martens, M.D. (Dr. Martens) appeals from a district court judgment ordering
him to pay damages to Frank C. Newberry (Newberry) for medical malpractice. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

One night while repairing an automobile, Newberry, who was hammering metal on
metal, felt something strike his right eye. Newberry immediately felt a burning sensation and
saw spots in his field of vision. He was driven to an emergency room in Twin Falls where Dr. Martens, a family practice physician, was on duty. Dr. Martens examined Newberry's eye, but
was unable to locate any foreign matter. Dr. Martens determined that most likely an object
struck Newberry's eye, causing a superficial laceration, but deflected away without penetrating.

Dr. Martens prescribed Newberry antibiotics and sent him home with instructions to return the
next day.

When Newberry returned the following day, Dr. Martens again examined his eye.
Newberry reported that the spots in his vision remained but that the burning sensation was less
severe. Seeing nothing of concern, Dr. Martens again sent Newberry home.

The day after this second visit, Newberry experienced extreme pain in his eye and
increasing disturbances of his vision. Later that day, he lost all vision in his right eye. Newberry
sought medical treatment from Dr. David Leach, (Dr. Leach) an ophthalmologist.

Dr. Leach
located a small piece of metal deep in Newberry's eye, and sent Newberry to Salt Lake City for
specialized treatment not available in Twin Falls. Doctors performed surgery on Newberry's
eye, but were unable to return his vision. It was later determined that Newberry lost his eyesight
due to the introduction of a virulent bacteria known as Bacillus-Cereus along with the metal
shard.

Newberry sued Dr. Martens and the Twin Falls Clinic and Hospital for medical
negligence and other related claims. Twin Falls Clinic and Hospital was dismissed by
stipulation, but Newberry and Dr. Martens proceeded to trial. At trial, Dr. Martens objected to
two jury instructions discussing proximate cause, and he also objected to the admission of expert
testimony presented by Dr. Leach suggesting that Dr. Martens breached the applicable standard
of care for a health care provider. After an eight-day trial, a jury returned a verdict in favor of
Newberry and awarded him $250,000 in economic damages and $500,000 in non-economic
damages. Following post-trial motions, the district court adjusted the economic damages from
$250,000 down to $39,843.05, resulting in a total judgment of $539,843.05. Dr. Martens filed a
timely appeal from that judgment which is now before this Court.

II. STANDARD OF REVIEW

"The standard of review for issues concerning jury instructions is limited to a
determination of whether the instructions, as a whole, fairly and adequately present the issues
and state the law. When the instructions, as a whole, do not mislead or prejudice a party, an
erroneous instruction does not constitute reversible error." Bailey v. Sanford, 139 Idaho 744, 750, 86 P.3d 458, 464 (2004) (quoting Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho
879, 882, 42 P.3d 672, 675 (2002)).

The decision whether to admit expert testimony is within the sound discretion of the trial
court and will not be overturned absent a showing the trial court abused that discretion. Kolln v.
St. Luke's Reg'l Med. Ctr., 130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997).

III. ANALYSIS

On appeal, Dr. Martens presents two issues. First, he argues the jury instructions given
below were in error. Second, he contends the district court erred in permitting one of
Newberry's experts, Dr. Leach, to present expert testimony that Dr. Martens breached the
applicable standard of care.

A. Jury Instructions

It is Dr. Martens' position that two jury instructions in particular were in error. At trial,
these instructions were numbered 10 and 11, and both dealt with proximate cause.

The
instructions at issue were not identical to the standard pattern jury instructions, but a court may
diverge from those instructions if a "different instruction would more adequately, accurately or
clearly state the law." I.R.C.P. 51(a)(2). Instruction number 10 stated:
When I use the expression "proximate cause," I mean a cause which, in
natural or probable sequence, produced the damage complained of. It need not be
the only cause. It is sufficient if it is a substantial factor concurring with some
other cause acting at the same time, which in combination with it, causes the
damage.

Instruction number 11 read:

A cause can be a substantial contributing cause even though the injury,
damage or loss would likely have occurred anyway without that contributing
cause. A substantial cause need not be the sole factor, or even the primary factor
in causing the plaintiff's injuries, but merely a substantial factor therein.
From Dr. Martens' perspective, the problem with these instructions is that they permitted
the jury to assign liability if the plaintiff met the "substantial factor" test, rather than the arguably
stricter "but for" test. While the "substantial factor" test inquires into whether the defendant's
conduct substantially contributed to the plaintiff's injury, the "but for" test asks whether the
complained of injury would have occurred "but for" the defendant's alleged negligence – in
other words, what would have transpired in a hypothetical world absent the defendant's alleged
negligence. See Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 1040, 895 P.2d 1229, 1233
(Ct. App. 1995).

At trial, Dr. Martens advanced as his theory of the case that he was not liable for
Newberry's loss because Newberry would have lost his eye even without Dr. Martens'
negligence. In sum, Dr. Martens argued to the jury that his alleged negligence was not a "but
for" cause of Newberry's injury. Dr. Martens contends the district court erred in permitting the
jury to assign liability based on the substantial factor test and that so instructing the jury
precluded it from considering his theory of the case. Additionally, Dr. Martens argues the "but
for" test is properly used in place of the "substantial factor" test in cases such as this where there
is only one allegedly negligent cause of the plaintiff's injury.

In discussing proximate cause, it should first be noted that it contains two components.
First there is actual cause, and second there is true proximate cause, sometimes known as "legal
cause." Munson v. State, Dept. of Highways, 96 Idaho 529, 531, 531 P.2d 1174, 1176 (1975);
Sisters of the Holy Cross, 126 Idaho at 1039-40 n.1, 895 P.2d at 1232-33 n.1. Actual cause is the
factual question of whether a particular event produced a particular consequence. Sisters of the
Holy Cross, 126 Idaho at 1039-40 n.1, 895 P.2d at 1232-33 n.1. True proximate cause "focuses
upon legal policy in terms of whether responsibility will be extended to the consequences of
conduct which has occurred." Munson, 96 Idaho at 531, 531 P.2d at 1176 (quoting Henderson v.
Cominco American, Inc., 95 Idaho 690, 695, 518 P.2d 893, 878 (1973)). Phrased differently, it is
the defendant's conduct (actual cause) that inflicts the harm, but it is the law (legal cause or true
proximate cause) that determines whether liability for that conduct attaches. Id. In this case, the
question in dispute concerns actual cause.

Under Idaho law, in a medical malpractice action where there is evidence of two or more
possible causes of the plaintiff's injury, rather than using the "but for" test the jury must be
instructed that the doctor's negligence "was a proximate cause of the injury if it was a substantial
factor in bringing about the damage."1 Fussell v. St. Clair, 120 Idaho 591, 591, 818 P.2d 295,
295 (1991). This Court has "specifically reject[ed]" the inclusion of the "but for" test where
more than one cause could have brought about the injury. Id. "The but for instruction and the
substantial factor instruction are mutually exclusive." Le'Gall v. Lewis County, 129 Idaho 182,
187, 923 P.2d 427, 432 (1996). In short, the "but for" test may be employed when there is a
single possible cause, but when there are multiple possible causes of the plaintiff's injury a
"substantial factor" instruction must be given instead. Id. at 186-87, 923 P.2d at 431-32.

In Fussell, the plaintiffs were the parents of a child who suffered brain damage as the
result of a difficult birth. 120 Idaho at 592, 818 P.2d at 296. At trial, the parties presented
evidence of two possible causes of the baby's injury: the parents indicated the harm was caused
by the defendant doctor's negligence, and the doctor argued that the injury resulted from a
prolapsed umbilical cord that occurred naturally and without negligence on anyone's part. Id. at
593, 818 P.2d at 297. The trial court in Fussell gave instructions to the jury that included the
"but for" test, but because there were multiple possible causes of the baby's injury, this Court
determined that instructing the jury on the "but for" test under those circumstances was
reversible error. Id. at 593-94, 818 P.2d at 297-98.

In this case the district court determined that as in Fussell, more than one cause was
advanced at trial as a possible cause of the Plaintiff's damages. At trial, Newberry stressed as
possible causes Dr. Martens' negligence in failing to locate the metal shard and to refer
Newberry to a specialist. Dr. Martens stressed causes unrelated to his alleged negligence, such
as the presence of the Bacillus-Cereus bacteria. In keeping with Fussell and it progeny, the
district court therefore deviated from the standard pattern jury instructions to exclude mention of
the "but for" test.

Instruction number 10 was taken from standard pattern jury instruction 2.30.2 but omitted
the following language: "It is not a proximate cause if the injury, loss or damage likely would
have occurred anyway." The district court explained this omission by pointing out that the
excluded language was, in substance, simply a rephrasing of the "but for" test and therefore
inappropriate in a multiple cause case. Indeed, the language stricken by the district court was
also omitted by this Court in Fussell when stating what instruction should have been used in that
case. 120 Idaho at 595, 818 P.2d at 299. The second sentence of instruction number 11 used
here by the district court was also adapted from language in Fussell. See id. (quoting Fouche v.
Chrysler Motors Corp., 107 Idaho 701, 704, 692 P.2d 345, 348 (1984)).

Faced with the rule in Fussell, Dr. Martens first attempts to distinguish that case by
arguing that unlike in Fussell, here there was only one possible cause of Newberry's injury – the
bacteria. The difficulty with that argument is it simply ignores evidence presented by Newberry
that Dr. Martens' negligence contributed to the injury. Dr. Martens was free to argue that he was not negligent, or that his negligence was not a substantial factor in Newberry's loss, but evidence
of medical negligence was presented as a possible contributing cause. Dr. Martens cannot
simultaneously point to a second cause, independent of his negligence, and at the same time
maintain that this is a single cause case.

Dr. Martens next asserts that by instructing the jury on the "substantial factor" test rather
than the "but for" test, the district court wrongly precluded him from arguing his theory of the
case – that absent Dr. Martens' negligence Newberry was nevertheless likely to have lost sight in
the affected eye. This is incorrect. Nothing prevented Dr. Martens from presenting his factual
assertion that Newberry would likely have lost his sight even if there had been no negligence and
that medical negligence was not a substantial factor in causing the lost eyesight. What the trial
court refused to do was instruct the jury on the "but for" test as Dr. Martens urged. Although Dr.
Martens correctly points out that the trial court must "instruct the jury on every reasonable theory
recognized by law that is supported at trial," Everton v. Blair, 99 Idaho 14, 16, 576 P.2d 585, 587
(1978), in multiple cause cases instruction on the "but for" test is not "recognized by law" and
consequently Dr. Martens is not entitled to such an instruction. Le'Gall, 129 Idaho at 186-87,
923 P.2d at 431-32. Dr. Martens was free to present his view of the facts to the jury, and at trial
he did so. Unfortunately for Dr. Martens, he was unable to persuade the jury that his conduct
was not a substantial factor in Newberry's injury.

Dr. Martens next contends that even if there are multiple possible causes, the Fussell rule
does not apply unless there are multiple defendants and multiple potential acts of negligence.
Non-negligent causes, Dr. Martens argues, are not causes at all for the purpose of determining
whether a case is a single or multiple cause case. For this proposition, Dr. Martens quotes the
following language from this Court's decision in Hilden v. Ball:

we cannot conclude that the trial court erred in viewing this as a single "force" or
cause case, and therefore there is no basis for the appellant's claim. First, there
was only a single defendant, Dr. Ball, on trial for negligence, and no other doctor
or health care provider was mentioned in any of the evidence as having been
guilty of negligence which caused or contributed to the death of Mr. Hilden.
117 Idaho 314, 335, 787 P.2d 1122, 1143 (1989).

Dr. Martens' confidence in the quoted language from Hilden is misplaced. The language
in question was dicta and moreover is contrary to this Court's more recent decisions in Fussell
and Manning v. Twin Falls Clinic & Hosp. Inc., 122 Idaho 47, 51, 830 P.2d 1185, 1189 (1992).

In Fussell, this Court determined the possible causes of the baby's injury were (1) the doctor's negligence, and (2) a naturally occurring prolapsed umbilical cord not attributable to the doctor's
negligence. 120 Idaho at 593, 818 P.2d at 297. The prolapsed umbilical cord was the "second"
cause that rendered Fussell a multiple cause case, even though the problem with the umbilical
cord was not the result of negligence and even though the doctor was the only defendant.

Similarly, in Manning, a hospital patient with a severe respiratory ailment died when nurses
disconnected his supplemental oxygen supply in order to move him to another room. 122 Idaho
at 50, 830 P.2d at 1188. In that case, this Court upheld the district court's application of the
Fussell rule because there were two possible causes of the patient's death; (1) the nurse's
negligent conduct, and (2) the patient's preexisting ailment, not resulting from negligence. Id. at
51, 830 P.2d at 1189. Again, in Manning the patient's respiratory illness was deemed a "second
cause" resulting in the application of the Fussell rule, even though the illness was not the result
of negligence. Id. As a result, Manning also directly contradicts the dicta from Hilden on which
Dr. Martens relies.

Dr. Martens also argues that there is language in Fussell requiring Idaho courts to use the
"but for" test in cases where there is only one defendant and only one cause resulting from
negligence. For this proposition, Dr. Martens quotes the following language from Fussell:

Although the evidence presented by the Fussells indicated that Dr. St. Clair's
negligence was the sole cause of the brain damage and death of the child, the
evidence submitted by Dr. St. Clair indicated that there was a cause for which Dr.
St. Clair was not responsible – an occult (hidden) prolapsed umbilical cord. Dr.
St. Clair's evidence would have supported a finding by the jury that the prolapsed
umbilical cord occurred without any negligence of the doctor. If the jury had
accepted this evidence and yet had found that Dr. St. Clair was negligent in
responding to the prolapsed cord when it was discovered, the jury might have
been misled by the proximate cause instruction given by the trial court. The jury
might have concluded that the doctor's negligence could not have been a
proximate cause because even if the doctor had not been negligent, the brain
damage and death of the child would have occurred. Stated in the same terms as
the last sentence of the proximate cause instruction given by the trial court, the
jury might have concluded that the doctor's negligence was not a proximate
cause, because the brain damage and death would likely have occurred anyway.
120 Idaho at 593, 818 P.2d at 297 (emphasis as added by Dr. Martens).

When placed in context, the meaning of those words from Fussell is roughly the opposite
of the meaning given to them by Dr. Martens. It should be remembered that the potentially
misleading proximate cause instruction at issue in Fussell was the "but for" test now advocated
by Dr. Martens. Id. When this Court in Fussell wrote that "[t]he jury might have concluded that the doctor's negligence could not have been a proximate cause because even if the doctor had not
been negligent, the brain damage and death of the child would have occurred," the Court was
not, as Dr. Martens appears to suggest, promoting such reasoning as exemplary in multiple cause
cases. Id. Instead, the Court was explaining how the trial court's instructions might have misled
the jury into applying the "but for" test in a multiple cause case, and the Court ultimately
concluded this was reversible error. Id.

Finally, Dr. Martens directs our attention to a pair of policy arguments. The first of these
contends that if the existence of a non-negligent possible cause alongside an allegedly negligent
possible cause requires instruction on the "substantial factor" test in place of the "but for test,"
use of the "but for" test would be largely extinguished in medical negligence cases. This, Dr.
Martens continues, is because in such cases a non-negligent possible cause can often be found in
the underlying physical problem that first brought the plaintiff to seek medical attention. Dr.
Martens argues that in crafting Fussell and its progeny, this Court cannot have intended such an
outcome.

Dr. Martens is correct to observe that the rule in Fussell and Manning is apt to apply to
medical negligence cases in many instances. The subtext of Dr. Martens' argument is that such
an outcome – the widespread use of the substantial factor test in medical negligence cases – is
unthinkable. It is not unthinkable, and as Fussell and Manning make clear, it has already been
the rule for many years where the trial court is presented with evidence of multiple possible
causes. See Fussell, 120 Idaho at 591, 818 P.2d at 295 (decided in 1991 and stating that "[w]e
hold that in an action for medical malpractice when there is evidence of two or more causes that
contributed to the damages suffered, for only one of which the doctor is responsible, the proper
proximate cause instruction should instruct the jury that any negligence of the doctor was a
proximate cause of the injury if it was a substantial factor in bringing about the damage. We
specifically reject the inclusion of an instruction under these circumstances requiring the
claimant to prove that the injury would not have occurred ‘but for' the doctor's negligence);
Manning, 122 Idaho at 51, 830 P.2d at 1189 (applying Fussell under similar facts in 1992);
Le'Gall, 129 Idaho at 186-87, 923 P.2d at 431-32 (applying Fussell outside the realm of medical
negligence in 1996); Doe v. Garcia, 131 Idaho 578, 582, 961 P.2d 1181, 1185 (1998).

The second policy argument introduced by Dr. Martens contends that rejecting the "but
for" test in cases where there is only a single potentially negligent defendant does not serve any valid policy objective. The reason many courts have rejected the "but for" instruction in multiple
cause cases, continues Dr. Martens, is to prevent multiple potentially negligent defendants from
each escaping liability by assigning blame to each other. Rejecting the "but for" test in a case
lacking multiple defendants, Dr. Martens argues, is applying a solution where no problem exists.
Dr. Martens' argument on this point is a cogent one, but there exists at least one policy
argument supporting the use of the substantial factor test cases involving multiple causes but
only one potentially negligent defendant. The facts of the instant case present a classic "lost
chance" scenario. In some other jurisdictions, Newberry would be permitted to advance the
theory that even if it were likely he would have lost sight in the affected eye absent Dr. Martens
negligence, that negligence robbed Newberry of whatever chance he had for timely, effective
treatment. Manning, 122 Idaho at 51-52, 830 P.2d 1189-90. Idaho, however, has declined to
adopt the doctrine of "lost chance." Id. When doing so, this Court wrote:
Our review of the cases that have considered the rationale of the doctrines of
"increased risk of harm" or "lost chance" convinces us to reject both doctrines.
The "substantial factor" standard of proof for proving proximate causation strikes
a fair balance between the claimant and the defense. It is not necessary to have
any further reduction in the claimant's burden of proving proximate cause.
Id. at 52, 830 P.2d at 1190.

We see then that this Court, when it rejected the lost chance doctrine, did so based on its
confidence that the use of the substantial factor test in such circumstances "strikes a fair balance
between the claimant and the defense." Id. Here, Dr. Martens proposes that whatever hope
Newberry had to recover under the substantial factor test be taken away as well. Doing so would
be contrary to this Court's stated intention in Manning to employ the substantial factor test in
place of the "but for" test in cases such as this in order to provide a fair balance between
claimants and defendants. Id.

After reviewing the arguments, it is seen that the jury instructions under examination in
this case fairly and adequately presented the issues and stated the law. We consequently affirm
their use under the facts presented.

B. Admission of Testimony Establishing the Standard of Care

Dr. Martens contends the district court erred in permitting Newberry's expert, Dr. Leach,
to present testimony that Dr. Martens' conduct breached the applicable standard of care. Since
Dr. Martens contends that Dr. Leach's testimony should not have been accepted, Dr. Martens argues that the case Newberry presented at trial was fatally deficient and the verdict should
therefore be reversed.

The trial court's decision whether to admit expert testimony is reviewed by this Court
under the abuse of discretion standard. Kolln, 130 Idaho at 327, 940 P.2d at 1146. This Court
will not overturned such a ruling absent a showing the trial court abused its discretion. Id.
Under Idaho law, the plaintiff in a medical malpractice case must offer expert testimony
indicating the applicable standard of care was breached by the defendant health care provider.

I.C. § 6-1013. The foundation for that expert witness must show:

(a) that such opinion is actually held by the expert witness;

(b) that the expert
witness can testify to the opinion with a reasonable degree of medical certainty;

(c) that the expert witness possesses professional knowledge and expertise; and

(d) that the expert witness has actual knowledge of the applicable community
standard of care to which his expert opinion testimony is addressed.
Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002)
(emphasis added). Idaho law defines the applicable standard of care as:

(a) the standard of care for the class of health care provider to which the
defendant belonged and was functioning, taking into account the defendant's
training, experience, and fields of medical specialization, if any; (b) as such
standard existed at the time of the defendant's alleged negligence; and (c) as such
standard existed at the place of the defendant's alleged negligence.
Dulaney, 137 Idaho at 164, 45 P.3d at 820 (internal citations omitted) (citing I.C. § 6-1012).

Dr. Leach practiced in the same community, Twin Falls, and at the same time as the
events that gave rise to this action. Dr. Leach is an ophthalmologist, whereas Dr. Martens is a
family practice physician. Dr. Martens does not contend that Dr. Leach was unqualified to offer
an opinion because they belong to different specialties – Dr. Martens correctly concedes that it is
unnecessary for an expert witness to be of the same specialty as the defendant so long as the
expert establishes he possesses actual knowledge of the standard of care to be applied. See
Clarke v. Prenger, 114 Idaho 766, 769, 760 P.2d 1182, 1185 (1988).

Instead, Dr. Martens argues that Dr. Leach lacked actual knowledge of the standard of
care applicable to family practice physicians because Dr. Leach did not testify that he explicitly
asked a family practice physician what the standard of care was in Twin Falls. At trial, Dr.
Leach testified that he learned the standard of care by practicing alongside family practice
physicians in Twin Falls, by providing and obtaining referrals, and by discussing patient care
with them. Dr. Martens contends that these interactions with family practice physicians were not enough to provide Dr. Leach with the statutorily required "actual knowledge" of the applicable
standard of care.

It is necessary for an expert testifying as to the standard of care to "state how he or she
became familiar with that standard of care." Dulaney, 137 Idaho at 164, 45 P.3d at 820.
Inquiring with a local specialist is "[o]ne method" an expert witness may obtain such knowledge,
id., but it is not the only method. Idaho Code § 6-1013 requires that an expert witness must
possess "actual knowledge" of the standard of care, but contrary to Dr. Martens' suggestion it
does not dictate that such actual knowledge must in all cases be obtained by explicitly asking a
specialist in the relevant field to explain the local standard of care.
When reviewing a trial court's ruling under the abuse of discretion standard, we inquire

(1) whether the trial court correctly perceived the issue as one of discretion;

(2) whether the trial
court acted within the outer boundaries of its discretion and consistently with the legal standards
applicable to the specific choices available to it; and (3) whether the trial court reached its
decision by an exercise of reason. Sun Valley Shopping Ctr., Inc., v. Idaho Power Co., 119
Idaho 87, 94, 803 P.2d 993, 1000 (1991). When ruling that Dr. Leach's testimony was
admissible, the district court stated its determination was an exercise of discretion. The district
court used reason and acted within the boundaries of its discretion when ruling that Dr. Leach's
professional interactions with family practice physicians in the Twin Falls area at the time of the
events giving rise to the present suit provided Dr. Leach with the requisite actual knowledge of
the applicable standard of care. We therefore affirm the district court's ruling admitting the
expert testimony of Dr. Leach.

C. Attorney fees

Newberry requests an award of attorney fees on appeal pursuant to I.R.C.P. 54(e)(1) and
I.C. § 12-121. Idaho Rule of Civil Procedure 54(e)(1) "creates no substantive right to attorney
fees, but merely establishes a framework for applying I.C. § 12-121." Huff v. Uhl, 103 Idaho
274, 277 n.1, 647 P.2d 730, 733 n.1 (1982). Idaho Code § 12-121 permits an award of attorney
fees in a civil action to the prevailing party if the court determines the case was brought, pursued
or defended frivolously, unreasonably or without foundation. Mutual of Enumclaw Ins. Co. v.
Pederson, 133 Idaho 135, 139, 983 P.2d 208, 212 (1999). Dr. Martens' arguments, while
unpersuasive, raised issues concerning proximate cause that were not frivolous, unreasonable, or
without foundation. We therefore decline to award attorney fees in this case.