Idaho Medical Malpractice Laws

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Outside of the injury itself, going through litigation involving a claim of medical malpractice can be a painful process. It is likely that you placed a great amount of trust within your chosen health care provider. Patients allow their health care providers to see their medical history, learn about their current and ongoing physical ailments, prescribe medications and perform procedures that often require their life to be put in the hands of their physician. However, that trust becomes severed the moment you become injured as a result of professional negligence. Finding out the necessary steps to take after being a victim of medical malpractice is tremendously important but can be time-consuming and overwhelming. If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in Idaho has created a finite period of time in which you are permitted to bring a claim. In addition, the law in Idaho has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Idaho; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Idaho.

Suing for Medical Malpractice in Idaho

Under state law, a patient may pursue a civil claim called medical liability or medical malpractice against physicians or other health care providers if the health care provider causes injury or death to the patient through a negligent act or omission. For your case to be successful, you must establish:

• A doctor-patient relationship existed

• The doctor violated the owed duty of care

• Your injury was caused by the doctor’s actions or omissions

• You suffered damages as a result of the medical malpractice

Timing is everything when filing a medical malpractice claim in Idaho as the law places a statute of limitations on how long you may wait to bring your claim. Once a claim is brought against the appropriate defendants, the law in Idaho allows named defendants to claim modified contributory negligence as a defense against a medical malpractice claim. Modified contributory negligence requires the defendant to prove that the plaintiff failed to exercise reasonable care and that failure led to your injury.

How long do I have to file a medical malpractice case in Idaho?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are within the permissible timeframe. The law in Idaho mandates that an action for personal injury must be filed within two years from the date that the injury occurred. [1] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the two-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule. If a health care provider either left a foreign object in your body or fraudulently concealed the malpractice, the standard statute of limitations will freeze until one year after you either discover the presence of the foreign object or the malpractice that the health care provider was attempting to hide. [2]

Another exception to the statute of limitations exists if the injured party is a minor. If the person who sustained an injury due to medical malpractice was under the age of 18 years old at the time of the malpractice, they have until the earlier of reaching the age of 18 years old or six years after the cause of action arose to file a lawsuit. [3]

In Idaho Medical Malpractice Cases, who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not an inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In Idaho, you may bring a medical malpractice claim for damages due to injury against any physician and surgeon or other provider of health care, including, without limitation, any dentist, physicians’ assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related. [4]

When it comes to medical malpractice, a health care provider may be deemed to have been negligent when they failed to meet the applicable standard of health care practice of the community in which the care should have been provided, as such standard existed at the time and place of the negligence that you are claiming to have occurred. [5]

What if I am partially to blame? Can I Still Recover Money for Idaho Medical Malpractice?

Idaho, along with 32 other states recognizes the doctrine of modified comparative fault. [6] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Idaho is one of 12 states (Arkansas, Colorado, Georgia, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you bleed excessively during a procedure performed by your doctor and the loss of blood caused a significant injury. A court finds that your excessive bleeding was caused by a combination of an incorrect incision performed by the doctor and a failure on your part to properly disclose all of the medication you had taken prior to the procedure. The court ultimately finds that the doctor should have performed a different incision during the procedure and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not properly disclosing your medications to your doctor prior to undergoing the procedure. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Idaho decided to adopt a modified system.

Are there medical malpractice recovery caps in Idaho?

If your medical malpractice claim was successful, it is likely that a court will award you a sum of money known as damages. The law in Idaho has established different types of damage awards that you may receive:

Economic Damages are awarded for the purpose of helping to put you back in the monetary position which existed before your injury occurred. For example, economic damages help to repay the money you lost as a result of your injury, such as medical expenses, wages lost due to an inability to work, physical therapy costs, loss of future earnings, etc. The law in Idaho does not place a cap on the amount of economic damages you may receive, though a judge is able to reduce an award deemed to be unsupported or unjustified. [7]

Non-economic Damages are meant to compensate you for occurrences that are hard to properly quantify like; pain and suffering, loss of consortium, and the loss of enjoyment of life. The law in Idaho limits your non-economic damage recovery to $400,000 but is adjusted each year based upon the average wage increase. [8] If it is found that the defendant acted recklessly or willfully the $400,000 damage cap will not be implemented. [9]

Punitive Damages are not meant to compensate you for your injury. Instead, Idaho awards punitive damages with the intention of punishing the defendant and attempting to deter future similar behavior. In order for punitive damages to be awarded in a medical malpractice lawsuit, you must prove by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous action on the part of the named defendants. If an award is granted by the court, they will be capped at the greater of three times the compensatory damage award or $250,000. [10]

Expert witness reporting and testimony

An expert witness is very important to your medical malpractice case for a two reasons. First, an expert witness will be able to provide testimony to the court which will go towards proving that there was a breach of the standard of care owed to you by a health care provider and that the breach was the proximate cause of your injury. Second, the law in Idaho requires the opinion of an expert in all medical malpractice cases.

When securing a medical expert to testify, you must make certain that they are qualified. The law in Idaho considers a medical expert to be qualified to provide testimony in support of a medical malpractice claim if they have actual knowledge of the community standard applicable to your claim. This knowledge must be linked directly to the timeframe when you claim the malpractice occurred. [11] The law in Idaho considers the term “community” to be the geographical area ordinarily served by the licensed general hospital at or nearest to where care was provided.

Are some parties immune from medical negligence cases?

While the law in Idaho allows you to bring a medical malpractice lawsuit for damages caused by the professional negligence of a large amount of health care providers, some exceptions do exist. Government entities like counties, cities and city hospitals as well as their employees are provided immunity from liability as long as the employees were acting within the scope of their employment and without malice or criminal intent and the claim is based upon an act or omission in the execution of a statute or a discretionary duty. [12] However, every governmental entity is subject to liability arising out of its own negligent or wrongful act or omission to the same extent that a private citizen would be held liable. [13]

Settling medical malpractice cases in Idaho

In an effort to encourage settlement, the law in Idaho does require every claim of medical malpractice to go through a pre-litigation screening process. The Board of Medicine presides over the process and receives and processes requests for pre-litigation hearings. Anyone wishing to initiate a medical malpractice must first make a pre-litigation hearing request by submitting a Medical Malpractice Pre-Litigation Screening application form. Each request must state in detail the claim being made; list the names of all involved physicians and hospitals; and the date and location of that the malpractice occurred.

The pre-litigation hearing itself is fast moving and informal. A Panel Chairman and attorneys are appointed by the Idaho State Bar to oversee the hearing. During the hearing, the goal of the claimant is to prove that it was more likely than not that the named defendants failed to meet the applicable standard of health care practice of the community in which the care was or should have been provided. Once the panel has heard the arguments of both sides, the hearing will come to a close. The Panel Chairman will then indicate whether the matter appears to be frivolous or of merit. However, this opinion is in no way binding and the claimant may continue to file their claim with an eye on a trial if they wish. If the panel is unanimous with respect to an amount of money in damages that in its opinion should fairly be offered or accepted in settlement, it may advise all of the involved parties of their opinion. [14]

Litigating medical negligence cases in Idaho

A claim for medical malpractice in Idaho begins with the filing of a complaint. The complaint must specifically describe the malpractice that you claim to have occurred as well as ask the court for relief.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the claim going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court

In Idaho, a civil action first begins with the filing of the complaint with the clerk of the appropriate court. The complaint is the legal document used to begin a civil lawsuit. The complaint document should include:

  • Your name
  • The names of all of the defendants
  • The address of all named defendants
  • The specific facts giving rise to your claim
  • A general request for relief from the court

Once the complaint is filed with the appropriate court, it must then be personally served upon the defendant(s) by the sheriff. Once the defendant(s) is served, he has twenty-one (21) days to file an answer at the same court. [15]

After the complaint is properly filed with the appropriate court, you must also request Pre-trial Litigation Hearing. This requirement serves to promote settlement while protecting the court system from wasting its time on frivolous claims.

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a process that is designed to allow both sides to disclose information to each other in order to prevent unnecessary surprises at trial.

The discovery process can include:

  • Interrogatories
  • Depositions
  • Production of documents
  • Requests for admission

Essentially, discovery includes any item that can help bolster the legal argument of either side.

Interrogatories are written questions posed to the other side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The actual deposition involves a question and answer session between opposing counsel and the aforementioned possible parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating.

Production of documents is a process where each side is permitted to request documents that may be used at trial.

Requests for admission are statements posed by one side to the other for the purpose of having the other side admit or deny.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, most cases do settle prior to going to trial.

In an effort to increase the likelihood of settlement, the law in Idaho requires all involved parties to undergo a Pre-Litigation Hearing whereby each side presents their case to an appointed panel of attorneys. After hearing both sides of the case, an opinion will be issued noting whether your claim has merit or is frivolous. The panel will also provide insight into what they feel to be a fair settlement award. The opinion rendered by the panel is in no way binding and the medical malpractice claim may proceed to trial if either side wishes.


During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Idaho: a judge or a jury. In Idaho, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. If an attorney does not feel a particular potential juror will be fair, the attorney can use one of four peremptory challenges and ask the judge not to allow that person to sit on the jury. [16} Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Idaho, a person is considered to be qualified to be a juror if they are:

  • A citizen of the United States
  • Are at least 18 years old
  • Able to read, write and speak English
  • Reside in Idaho
  • Of sound mind

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.


It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court. The Idaho Court of Appeals reviews the final orders and judgments made by Idaho District Courts and has authority to reverse or modify the decisions made.

An appeal is usually based upon the notion that the lower court made a clear error in resolving the facts of the case, abused its discretion in making the decision or misinterpreted or failed to follow the applicable law.

If a party wishes to appeal a decision rendered by a lower court, the appeal must be filed within forty-two (42) days of the order. [17]

How to find the best Idaho Medical Malpractice Lawyer for your case

Medical malpractice litigation is complicated, messy and sometimes confrontational. If you or a loved one has had the unfortunate experience of being injured as a result of the negligence of a health care provider, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring competent, diligent and experienced legal representation can take your mind off of the legalese so that you can focus on healing.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. It is not fair that you not only have to physically suffer for the negligence of another let alone be left with out-of-pocket expenses that you would not otherwise have incurred had the negligence not taken place. A strong legal representative can help obtain monetary relief from the court that will help compensate you for your injuries.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table. Some attorneys and firms may be stronger in some areas than others. Determine what qualities are important to you and go from there.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

You should also ask your potential attorney or firm how they communicate with their clients. Many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Ask the attorney or firm their rate and if they handle medical malpractice cases on an hourly or contingency basis. Many attorneys prefer contingency fees in personal injury cases which means that you are not obligate to pay an upfront or ongoing expense to the attorney or firm but you are obligated to pay a percentage of your ultimate recovery.

Some notable medical malpractice law decisions from Idaho

These cases represent awards to plaintiffs in medical malpractice cases in Idaho. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Herett v. Wentz

The plaintiff, Joyce Herrett, was a patient at the hospital when the defendant, nurse Marilou Wentz, improperly removed a central venous catheter line. The improper removal caused the plaintiff to suffer an air embolism and stroke. The plaintiff remained in the hospital for over two months learning how to walk and talk after suffering brain damage.

A lawsuit was filed against the nurse and the hospital alleging that the nurse’s actions were in direct contravention of reasonably safe practices and violated the applicable standard of care while showing reckless disregard for the consequences. At trial, it was argued that the plaintiff’s stroke was caused by an air embolism and that the air embolism was caused by the nurse removing the central line without having the plaintiff flat on her back.

The jury ultimately agreed as 10 of 11 jurors felt the nurse acted recklessly when she removed the catheter from the plaintiff’s neck and that the reckless behavior was the proximate cause of the stroke. The jury awarded $3.85 million in damages after deciding a nurse at St. Luke’s Magic Valley Medical Center acted recklessly when she improperly removed a catheter from a woman’s neck, causing her to have a stroke and permanent brain damage. $327,520 was awarded for past economic damages; $94,484 to cover the hospitalization costs; $178,000 to make necessary modifications to the plaintiff’s home; $1.4 million for future medical bills; $1.5 million for non-economic damages; and $350,000 of non-economic damages for loss of consortium.

Ballard v. Kerr

A medical malpractice wrongful death lawsuit was filed against Silk Touch Laser, its owner and anesthesiologist Brian Kerr on behalf of the now deceased patient, Krystal Ballard, after she died from septic shock shortly after undergoing a liposuction and fat transfer operation.

The plaintiff, Ballard’s husband, argued that her infection was caused by bacteria entering her body during the procedure as a result of reusable medical equipment recklessly being used.

The anesthesiologist argued that Krystal contributed to her infection by not taking proper precautions and that the equipment used during the operation were properly disinfected prior to use.

The court sided with the plaintiff and awarded $3.8 million in damages – $2.5 million in economic damages and $a1.3 million in non-economic damages. The ruling was appealed and the Idaho Supreme Court affirmed. a jury verdict for $3.8 million against a southwest Idaho doctor following the death of a woman who underwent a liposuction procedure.


[1] Idaho Code Ann. § 5-219

[2] Idaho Code Ann. § 5-219

[3] Idaho Code Ann § 5-230

[4] Idaho Code Ann § 6-1012

[5] Idaho Code Ann § 6-1012

[6] Idaho Code Ann § 6-801

[7] Idaho Code Ann § 6-1604

[8] Idaho Code Ann § 6-1603

[9] Idaho Code Ann § 6-1604

[10] Idaho Code Ann § 6-1604(3)

[11] Idaho Code Ann § 6-1012

[12] Idaho Code Ann § 6-904

[13] Idaho Code Ann § 6-903

[14] Idaho Code Ann § 6-1004

[15] I. R. C. P. 12

[16] I. R. C. P. 47(j)

[17] I. R. C. P. 83(e)


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