Background
On July 2, 2019, plaintiff Mark Heath underwent a laparoscopic cholecystectomy performed by Dr. Tait Olaveson, a board-certified general surgeon, at Eastern Idaho Regional Medical Center in Idaho Falls. Heath alleged the surgery caused catastrophic injuries—including intestinal lacerations, a bisected liver, and a severed hepatic artery—requiring emergency air transport to the University of Utah Medical Center. Heath filed a medical malpractice action in July 2021.
To prove the applicable community standard of care and its breach, Heath retained Dr. Michael Meara, a board-certified general surgeon at Ohio State University, as an out-of-area expert. Idaho Code sections 6-1012 and 6-1013 require that such experts possess “actual knowledge” of the community standard of care where the allegedly negligent treatment occurred. Dr. Meara’s affidavit stated he had consulted with Dr. Drew McRoberts, described only as a “board-certified general surgeon practicing in the Idaho Falls/Pocatello area,” to familiarize himself with the local standard of care.
The district court struck both Dr. Meara’s original and amended affidavits, finding they failed to establish an adequate foundation for his testimony. Neither affidavit explained where Dr. McRoberts actually practiced, how long he had been in practice, his familiarity with the specific procedure, or the substance of his consultation with Dr. Meara. Finding Heath unable to prove an essential element of his claim, the district court granted Dr. Olaveson’s motion for summary judgment and dismissed the complaint with prejudice. The court also awarded Dr. Olaveson $3,594.94 in costs as a matter of right after Heath failed to file a timely objection.
The Court’s Holding
The Idaho Supreme Court affirmed on all grounds. The court held that the district court did not abuse its discretion in striking Dr. Meara’s affidavits for lack of foundation. Under Idaho law, an out-of-area expert who consults a local physician to learn the community standard of care must allege facts demonstrating that the local physician actually possessed knowledge of that standard—conclusory assertions are insufficient. The bare statement that Dr. McRoberts practiced in the “Idaho Falls/Pocatello area” did not establish his actual, personal knowledge of the Idaho Falls standard of care in 2019 for the specific procedure at issue.
The court also rejected Heath’s argument that board-certified physicians are automatically subject to a national standard of care, removing the need to inquire locally. Reaffirming its prior decision in Dlouhy v. Kootenai Hospital District, 167 Idaho 639 (2020), the court held that out-of-area experts wishing to testify that the national standard applies must still (1) hold the same board certification as the defendant physician, and (2) actually inquire of the local standard to confirm there are no local deviations from the national standard. Dr. Meara’s affidavits satisfied the first element but failed the second.
The court further rejected the contention that Idaho Falls and Pocatello constitute the same medical community as a matter of law. Citing Phillips v. Eastern Idaho Health Services, Inc., 166 Idaho 731 (2020), the court reiterated that the geographic scope of a medical community is a factual question requiring evidence about the patient base of the relevant hospital—it cannot be resolved by judicial notice alone, particularly where the factual record in Phillips related to a different time period (2015–2016) than the surgery at issue (2019).
Key Takeaways
- An out-of-area medical expert who relies on a local consulting physician to establish community standard of care must allege specific facts—not mere conclusions—showing that the local physician had actual, personal knowledge of the applicable standard: where they practiced, their experience with the specific procedure, and what the consultation revealed.
- Board certification does not automatically render a physician subject to the national standard of care under Idaho law; an out-of-area expert must still affirmatively inquire whether the local standard deviates from the national standard and provide adequate foundation for that inquiry.
- The geographic scope of a medical “community” under Idaho Code section 6-1012 is a fact-specific determination that requires evidence about hospital patient bases; courts will not take judicial notice that two cities constitute the same medical community as a matter of law.
- A plaintiff who fails to timely object to a prevailing party’s cost memorandum under Idaho Rule of Civil Procedure 54(d) waives all objections, including the argument that a pending appeal makes an award premature.
Why It Matters
This decision reinforces Idaho’s demanding foundational requirements for medical malpractice expert testimony, underscoring that out-of-area experts cannot discharge their duty of local familiarization with boilerplate affidavit language. Counsel retaining out-of-state medical experts in Idaho cases must ensure that affidavits detail the local consultant’s specific qualifications, the geographic scope of their practice, their familiarity with the relevant procedure, and the content of any consultations—deficiencies that cannot be cured by simply noting that the local consultant is board certified or practices somewhere near the defendant’s location.
The ruling also serves as a practical reminder that in Idaho medical malpractice litigation, the definition of the “community” is a threshold evidentiary hurdle that must be met with actual proof, not geographic assumption. Plaintiffs treating nearby cities as fungible medical communities—without record evidence of overlapping patient populations—risk losing their expert entirely, and with it, their case.