October 22, 2020

Idaho Family Gets Second Chance in Missed Cancer Diagnosis Case

The Idaho Supreme Court reversed a lower court’s decision to exclude expert medical witness testimony, holding that expert medical witnesses must have actual knowledge of the community standard of care, regardless if it’s a community or an “out-of-area” expert. Duane Dloughy went to the emergency room in May 2015 because he was suffering from rectal bleeding. While a CT scan found no apparent mass, the doctors noted that a tumor could not be ruled out. The patient returned hours later, and underwent a colonoscopy but a full view of the rectum was not possible.

Despite multiple appointments between June 2015 and January 2016, Dloughy was not diagnosed with stage IV cancer until August 2016, and died in June 2017. Dloughy’s family sued Kootenai Health citing vicarious liability. The trial court granted summary judgment in favor of the hospital while excluding the family’s out-of-area expert witness testimony because they had not shown their out-of-area expert witness was familiar with the local standard of care. The witness, Dr. Kenneth Hammerman, is a board-certified gastroenterologist from San Francisco, testified that the national standard of care for that particular scenario requires a physician to perform a second colonoscopy within a month if the original resulted in an incomplete view of the rectum. Dr. Hammerman was familiar with local standards, and noted there is no difference in how similar patients would be treated whether in San Francisco or Idaho.