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Romero v. Hanisch

May 3, 2010

BONNIE ROMERO, PLAINTIFF,
v.
DENISE HANISCH, M.D.; AND REGIONAL HEALTH PHYSICIANS, INC., D/B/A EDGEMONT REGIONAL MEDICAL CLINIC AND CUSTER REGIONAL MEDICAL CLINIC, DEFENDANTS.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER DENYING DEFENDANT HANISCH'S SECOND MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This matter is before the court pursuant to a motion for summary judgment*fn1 filed by Dr. Denise Hanisch pursuant to Fed. R. Civ. P. 56(b). (Docket 43). Dr. Hanisch, a physician practicing family medicine, alleges that plaintiff has failed to identify an expert witness qualified to testify as to the standard of care applicable in this case and as to whether Dr. Hanisch deviated from the standard of care. Id.; Docket 44 at p. 6. Plaintiff Bonnie Romero resists Dr. Hanisch's motion for summary judgment, arguing that her expert witness, a licensed pharmacist, is qualified to testify as to these issues. (Docket 51). The motion is ripe for adjudication.

FACTS AND PROCEDURAL HISTORY

The following recitation includes those facts pertinent to Dr. Hanisch's motion for summary judgment. These facts are undisputed by Ms. Romero and Dr. Hanisch and are contained in their respective statements of facts. (Dockets 45, 52, & 60).

In 1999, Ms. Romero and her husband moved near Edgemont, South Dakota. Ms. Romero began treatment with Dr. Hanisch and the Edgemont Regional Medical Clinic. Dr. Hanisch is a licensed physician practicing medicine in South Dakota. At the times alleged in the complaint and up to August of 2006, Dr. Hanisch practiced medicine in Custer and Edgemont, South Dakota.

In September of 2000, Dr. Hanisch prescribed medication to Ms. Romero for the treatment of high cholesterol, a condition known as hyperlipidemia. From September of 2000 until December of 2006, while under the care of Dr. Hanisch, Ms. Romero continued to take a series of medications to treat her hyperlipidemia.

In October of 2004, Dr. Hanisch prescribed a combination of Zetia and Crestor, each to be taken once a day in 10 mg. doses. Two months later, Dr. Hanisch ordered a lipid profile test. Test results from Custer Regional Hospital Laboratory dated December 16, 2004, indicated that Ms. Romero's ALT (alanine transaminase) and HDL (high density lipoprotein) levels were slightly elevated. On July 26, 2005, the Custer Regional Hospital Laboratory tested Ms. Romero's liver function, but not her lipid profiles. Dr. Hanisch noted on Ms. Romero's chart that "all labs are excellent" and that her liver function and lipids should be retested in a year.

On April 11, 2006, Ms. Romero went to the Edgemont Regional Medical Clinic for an annual physical examination, which included a review of her medications. A blood sample was taken, and Dr. Hanisch informed Ms. Romero that all of her test results were normal.*fn2 Dr. Hanisch refilled all of Ms. Romero's medications for another year. Dr. Hanisch last treated Ms. Romero on April 11, 2006.

In December of 2006, Ms. Romero became ill while in Wisconsin and was diagnosed with acute hepatitis. Ms. Romero was referred to the Mayo Clinic. Due to failing liver function, Ms. Romero underwent an emergency liver transplant on January 28, 2007.

On April 2, 2008, Ms. Romero filed a complaint in this court against Dr. Hanisch, Regional Health Physicians, Inc., doing business as Custer Regional Medical Clinic and Edgemont Regional Medical Clinic, and Regional Health Network, Inc., doing business as Custer Regional Hospital. (Docket 1). Ms. Romero asserts a claim of negligence against defendants and seeks to recover for alleged economic and non-economic losses, the loss of the ability to enjoy life, and the costs of the lawsuit including prejudgment interest. Id. Each defendant filed a separate answer denying liability, asserting affirmative defenses, moving for dismissal of the complaint, demanding a trial by jury, and seeking reimbursement for costs. (Dockets 11, 12, & 17).

On February 20, 2009, Ms. Romero disclosed her one and only expert witness in this case, Dr. Richard Kingston. Dr. Kingston is a licensed pharmacist and clinical toxicologist. Dr. Kingston will testify as to the standard of care applicable to Dr. Hanisch in her care and treatment of Ms. Romero, as to whether Dr. Hanisch breached this standard of care by failing to monitor Ms. Romero's liver functions, and as to whether the statin drugs prescribed by Dr. Hanisch caused Ms. Romero's liver failure.

Dr. Hanisch moved for summary judgment on the ground that Ms. Romero allegedly failed to present any competent expert witness testimony on the standard of care applicable to family practice physicians and on the issue of whether Dr. Hanisch deviated from the standard of care. (Dockets 43 & 44). Dr. Hanisch argues that Dr. Kingston, as a pharmacist, is incompetent as a matter of law to testify on these issues as he lacks the necessary training, education, and experience of a family practice physician. (Docket 44 at p. 6). In support of her argument, Dr. Hanisch relies on the following uncontested facts: Dr. Kinsgton is not a medical doctor;

Dr. Kingston is not licensed to practice medicine by any board; Dr. Kingston does not hold medical staff privileges anywhere; Dr. Kingston has never been licensed to make medical diagnoses or prescribe medications; and Dr. ...


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