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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35157

MELINDA COOMBS, natural mother of 

MICHAEL HALL, deceased, and THE 

ESTATE OF MICHAEL HALL, as 

represented by MELINDA COOMBS, 

personal representative,

Plaintiffs-Appellants, 

v. 

ADRIAN CURNOW, M.D., and RUSSELL 

GRIFFITHS, M.D., 

Defendants-Respondents. 

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Boise, August 2009 Term

2009 Opinion No. 124

Filed: October 13, 2009

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District of the State 

of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

Order granting judgment notwithstanding the verdict is vacated and the 

case is remanded.

Lojek Law Offices, Chtd., Boise, for appellants. Donald W. Lojek argued.

Moffatt, Thomas, Barrett, Rock & Fields, Chtd., Boise, for respondents. 

Patricia M. Olsson and Nancy J. Garrett argued. 

_____________________

J. JONES, Justice.

This is an appeal from the district court‘s entry of judgment notwithstanding the 

verdict (j.n.o.v.) in favor of respondents in a medical malpractice case after the district 

court found that the appellants‘ expert testimony regarding causation was scientifically 

unreliable. Because we find that the district judge impermissibly weighed the evidence in 

considering respondents‘ motion and that the evidence was legally sufficient to support 

the jury‘s verdict, we vacate the j.n.o.v. and remand with instructions to reinstate the jury 

verdict.
2

I.

On June 22, 2002, Michael Hall, then nearly three years old, and his family were 

attending a picnic at a family member‘s home. While at the picnic, Michael was feeding 

potato chips to the host‘s dog, a golden retriever. In the course of feeding the dog, 

Michael spilled some of the chips on the ground. Michael and the dog both attempted to 

retrieve the dropped chips at the same time and, when Michael tried to take the chips 

away from the dog, the dog bit him on the face. The bite left Michael with a ―deep 

gouging wound‖ in his cheek, approximately two inches by two inches in size. 

Michael was taken to St. Alphonsus Regional Medical Center for treatment of the 

bite, which was characterized as ―very serious but not life-threatening.‖ Dr. Adrian 

Curnow, a pediatric surgeon and intensivist specializing in pediatric critical care, was 

assigned as Michael‘s primary physician. At the time, Dr. Curnow was one of only two 

pediatric surgeons in Idaho.1To assist in treating Michael, Dr. Curnow contacted Dr. 

Russell Griffiths, a pediatric craniofacial plastic surgeon. Dr. Griffiths was the only 

pediatric craniofacial plastic surgeon in Idaho at that time. 

After discussing the various treatment options with Drs. Curnow and Griffiths, 

Michael‘s mother, Melinda Coombs, opted to have the severed tissue reimplanted on 

Michael‘s face.2 Mrs. Coombs consented to the surgery after being advised of the 

attendant risks, including the risk of death. Upon obtaining Mrs. Coombs‘ consent, Dr. 

Griffiths performed an exploratory surgery to determine the likelihood of successful 

reattachment. During the surgery, Dr. Griffiths discovered only one artery and no vein, 

making successful reimplantation less likely. Dr. Griffiths informed Mrs. Coombs of his 

discovery, at which point she reaffirmed her consent to the reimplantation surgery. Dr. 

Griffiths then performed the surgery and was able to reattach the tissue to Michael‘s face 

and reconnect it to the blood supply. 

Throughout Michael‘s surgery, he was sedated with the sedative agent Propofol 

(Diprivan). Pursuant to a ―bridging order‖3issued by Dr. Griffiths, Michael was to 

 

1 Dr. Curnow‘s partner, Dr. Ellen Reynolds, was the other pediatric surgeon.

2 Michael‘s face was seriously deformed from the bite and, without successful reimplantation, he would 

have been required to undergo multiple surgeries throughout the course of his life and would likely have

suffered ―significant psychological harm from being visibly deformed.‖

3 Michael‘s primary physicians had left the hospital and the bridging order was a directive for his care until 

they returned.
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remain sedated after his surgery while he was recovering in the intensive care unit (ICU). 

Prolonged sedation was deemed necessary because there was a significant risk the 

reimplantation would fail if there was any disturbance to the reattached tissue. In light of 

Michael‘s young age, there was concern he would not remain still if conscious and 

thereby cause disturbance to the tissue. In deciding on the sedative to be administered, 

Dr. Griffiths consulted with Dr. Smagula, the anesthesiologist assigned to Michael‘s case. 

Based on the consultation, Dr. Griffiths ordered Propofol to continue to be administered.4

Although Propofol was not indicated for long-term sedation of pediatric patients in the 

ICU, and Dr. Griffiths had not previously administered the drug under such 

circumstances, he elected to use Propofol because the alternative sedative, Versed, 

carried a risk of idiosyncratic reaction.5

After Michael‘s surgery, Dr. Curnow and his partner, Dr. Reynolds, resumed 

primary responsibility for Michael‘s treatment. Upon doing so, they left the existing 

Propofol order in place and ordered Michael‘s blood pressure, lipid metabolism, and 

hemodynamic status to be frequently monitored. Pursuant to the order, Michael was 

receiving between 100 and 150 micrograms per kilogram per minute of Propofol.

Although Dr. Curnow had previously administered Propofol for short-term sedation and 

had participated in a team that used it for long-term sedation in one patient, he did not use 

the drug regularly in his practice.

Despite efforts to promote reattachment of the tissue, Michael‘s reimplantation 

ultimately failed. Dr. Griffiths removed the tissue on June 25, 2002, and Michael was 

returned to the ICU. To assist in Michael‘s recovery, Dr. Griffiths ordered that Michael 

continue to be sedated with Propofol and placed him on Fentanyl for pain management. 

Dr. Griffiths then ―signed off‖ of the case and Drs. Curnow and Reynolds resumed 

providing for Michael‘s care. Although Dr. Curnow originally intended to lower 

Michael‘s Propofol level, he decided to maintain the existing dose to lessen the pain 

Michael would experience when the dressings on the wound were changed. 

Once Michael was returned to the ICU, he began encountering various problems. 

His blood pressure and hemoglobin levels became very low, he experienced accelerated 

 

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In addition, he ordered that Michael be given a blood thinner, Heparin, and that medical leeches be used 

to improve blood flow to the reattached tissue.

5 An idiosyncratic reaction occurs when the patient becomes excited rather than sedated.
4

heart rates (ventricular tachycardia), and he began suffering from a high fever. A 

transfusion successfully treated the low hemoglobin levels, but did not assist with his low 

blood pressure or abnormal heart rate. As a result, Dr. Reynolds ordered additional tests 

and that Propofol be discontinued. The test results indicated Michael had metabolic 

acidosis (low albumin and calcium levels), which was successfully treated. Michael‘s 

ventricular tachycardia also temporarily ceased. 

Michael‘s improved condition did not last long. During an examination on the 

afternoon of June 27, a nurse discovered Michael‘s pupils were fixed and dilated. A 

computerized axial tomography (CT) scan was taken, revealing tissue death in Michael‘s 

cerebellar hemisphere, frontal lob, and several arterial distributions. It also indicated that 

Michael‘s brain was swollen and suffering from cytotoxic damage. Based on these 

findings, Michael was determined to be brain dead. He was subsequently removed from 

life support and passed away on June 28, 2002.

Dr. Glenn Groben, a forensic pathologist, conducted Michael‘s autopsy. 

According to Dr. Groben, Michael died from swelling of the brain (cerebral edema). He 

also noted evidence of lack of oxygen supply throughout the brain (global hypoxic 

changes). Aside from these abnormalities, the autopsy did not reveal any irregularities in 

Michael‘s other organs or systems.

On December 17, 2004, Mrs. Coombs brought a medical malpractice claim 

against Drs. Curnow and Griffiths (collectively ―the doctors‖). The case proceeded to a 

jury trial, commencing on September 4, 2007. At trial, it was undisputed that Michael 

died from cerebral edema—the sole issue was what caused the cerebral edema. Mrs. 

Coombs argued that the doctors‘ prolonged administration of Propofol was the cause of 

the cerebral edema. In support of her theory, Mrs. Coombs relied on the opinion of Dr. 

Gregory Hammer. Over the doctors‘ objections, the district court allowed Dr. Hammer to 

testify as an expert regarding the applicable standard of care, breach, and causation. 

According to Dr. Hammer, the doctors violated the applicable standard of care in Boise, 

Idaho in 2002, by ordering the long-term, high-dose use of Propofol to sedate a pediatric 

patient in the ICU. In Dr. Hammer‘s opinion, the doctors‘ negligent use of Propofol was 

the proximate cause of the cerebral edema that resulted in Michael‘s death. He testified 
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that the long-term, high-dose sedation with Propofol produced hypotension and lipemia,6

which, in combination with Michael‘s low hemoglobin levels, resulted in decreased 

blood flow and oxygen to the brain. The lack of oxygen, in turn, caused the cerebral 

edema. Dr. Hammer was the only expert to associate Propofol with Michael‘s death. The 

doctors‘ expert witnesses testified that it was not possible to determine the cause of the 

cerebral edema. 

After the close of evidence, the doctors filed motions for entry of a directed 

verdict. The district court reserved its rulings on the motions and submitted the case to 

the jury. The jury subsequently rendered a verdict against the doctors, finding them 

equally liable, and awarding Mrs. Coombs $750,000.00 in damages. According to the 

jury‘s special verdict, both doctors breached the applicable standard of care in treating 

Michael and their breach was the proximate cause of his death. 

On September 28, 2007, the doctors filed motions for judgment notwithstanding 

the verdict, which the district court granted on March 28, 2008. The court concluded that 

the doctors were entitled to judgment because there was ―no substantial evidence from 

which a reasonable jury could conclude that the long term use of [P]ropofol was the 

proximate cause of Michael Hall‘s cerebral edema.‖ In reaching its conclusion, the court 

pointed out that there was no scientifically reliable evidence indicating a link between 

long-term, high-dose Propofol use and cerebral edema resulting in death. Rather, the only 

cases connecting Propofol use with death involved Propofol Related Infusion Syndrome 

(PRIS). At the time of treatment, symptoms associated with PRIS included 

cardiovascular instability, evolving rhabdomyolysis,7decreasing renal function, and 

refractory metabolic acidosis—no documented cases involved cerebral edema alone. 

Because there were no peer-reviewed, published journal articles directly supporting Dr. 

Hammer‘s testimony, the court was unwilling to accept his opinion as reliable. In the 

absence of Dr. Hammer‘s testimony, the court concluded that there was not substantial 

and competent evidence to support the jury‘s verdict. 

Mrs. Coombs now appeals the district court‘s decision granting the doctors‘ 

motions for j.n.o.v. to this Court, arguing that there was substantial and competent 

 

6

―Lipemia,‖ ―hyperlipemia,‖ ―hyperlipidemia,‖ and ―lipidemia‖ are all terms used to describe a buildup of 

fatty acids in the blood, which impacts the energy generation of cells. 

7 Rhabdomyolysis is the breakdown and release of muscle fibers into the bloodstream.
6

evidence to support the jury‘s verdict. She contends that the district court impermissibly 

weighed the evidence in ruling on the motions and failed to draw all reasonable 

inferences in her favor. She asks this Court to reverse the district court‘s decision and 

remand the case with instructions to enter judgment in her favor consistent with the jury‘s 

verdict.

II.

The following issues are presented: (1) whether the district court may properly 

reconsider the admissibility of evidence on a j.n.o.v. motion; (2) whether there was 

substantial and competent evidence to support the jury‘s verdict; and (3) whether the 

doctors are entitled to attorney‘s fees on appeal. 

A.

In determining whether a district court should have granted a j.n.o.v. motion, this 

Court employs the same standard the district court used in ruling on the motion. Jeremiah 

v. Yanke Mach. Shop, Inc., 131 Idaho 242, 247, 953 P.2d 992, 997 (1998). An order 

granting a j.n.o.v. is appropriate when ―the facts are undisputed‖ and ―there can be but 

one conclusion as to the verdict that reasonable minds could have reached‖—namely, that 

the moving party should prevail. O’Neil v. Schuckardt, 112 Idaho 472, 480, 733 P.2d 

693, 701 (1986). On the other hand, a verdict will be upheld when it is supported by 

substantial and competent evidence. Jeremiah, 131 Idaho at 247, 953 P.2d at 997. 

Substantial evidence is evidence of ―such sufficient quantity and probative value that 

reasonable minds could conclude that the verdict of the jury was proper.‖ Karlson v. 

Harris, 140 Idaho 561, 567, 97 P.3d 428, 434 (2004). Evidence may be substantial even 

though it is contradicted. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 658, 827 

P.2d 656, 671 (1992). 

In determining whether substantial evidence exists, this Court may not weigh the 

evidence, attempt to judge the credibility of the witnesses, or compare its factual findings 

with those of the jury. Hall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 324, 179 

P.3d 276, 287 (2008). Instead, the Court must review the evidence as a whole, drawing 

all inferences ―in the light most favorable to the non-moving party‖ and ―view[ing] the 

facts as if the moving party has admitted the truth of all the non-moving [party‘s]

evidence.‖ Jeremiah, 131 Idaho at 247, 953 P.2d at 997. The Court will ―not examine any 
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conflicting evidence presented by the moving party to refute the non-moving party‘s 

claims.‖ Karlson, 140 Idaho at 567, 97 P.3d at 434. Whether there was sufficient 

evidence to create an issue of fact for the jury is a pure question of law over which this 

Court exercises free review. O’Neil, 112 Idaho at 480, 733 P.2d at 701.

B.

The district court in this case admitted Dr. Hammer‘s testimony as evidence of the 

applicable standard of care, breach, and causation after concluding the ―threshold that is 

necessary for the admissibility of testimony in a medical malpractice case has been 

reached.‖ It did so over the doctors‘ strenuous objections.8 After admitting the evidence, 

the court did not strike it from the record or instruct the jury not to consider it. Instead, 

the district court essentially re-opened the record in ruling on the motions for j.n.o.v. and 

concluded Dr. Hammer‘s testimony was unreliable and, thus, inadmissible. In doing so, 

the court noted it was justified in ruling on the admissibility of Dr. Hammer‘s testimony 

at that point in the proceedings because it would have been too costly for the parties to 

―try the medical proof twice.‖ 

When considering whether to grant a motion for j.n.o.v., Idaho courts are bound 

by the record submitted to the jury. Although the United States Supreme Court has held 

that, under the Federal Rules of Civil Procedure, federal courts are not bound by the 

record submitted to the jury when considering whether judgment as a matter of law is

appropriate, that holding is not in accord with Idaho precedent and is not binding on this 

Court. See Weisgram v. Marley Co., 528 U.S. 440, 454 (2000). Under Idaho law, in 

moving for a j.n.o.v., the moving party admits the truth of all of the non-moving party‘s 

evidence. Hudson v. Cobbs, 118 Idaho 474, 478, 797 P.2d 1322, 1326 (1990). Once an 

expert‘s opinion is admitted, it is up to the trier of fact to weigh the opinion against any 

conflicting testimony. City of McCall v. Seubert, 142 Idaho 580, 585, 130 P.3d 1118, 

1123 (2006). The jury‘s weighing of conflicting, admitted opinions will not be secondguessed on appeal. Id. at 586, 130 P.3d at 1124. Moreover, while Idaho Code section 1-

1603 acknowledges a court‘s power ―[t]o amend and control its process and orders, so as 

to make them conformable to law and justice,‖ which includes the power to make the 

 

8 The doctors objected to the admissibility of Dr. Hammer‘s opinion in motions for summary judgment, as 

well as pre-trial motions in limine.
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record conform to the facts, a court does not have the power to amend the record to 

―correct a judicial error.‖ Donaldson v. Henry, 63 Idaho 467, 473, 121 P.2d 445, 447 

(1941). In light of these well-established legal principles, ruling on the admissibility of 

evidence at the j.n.o.v. stage of the proceedings is not permitted in Idaho.

Moreover, allowing courts to reconsider the admissibility of evidence at the 

j.n.o.v. stage of the proceedings is undesirable for several reasons. First, doing so would 

subject all previously admitted or excluded evidence to reconsideration, thereby placing 

the party who relied on the evidence at a substantial disadvantage. See Jackson v. 

Pleasant Grove Health Care Ctr., 980 F.2d 692, 696 (11th Cir. 1993). The disadvantages 

associated with allowing such reconsideration are aptly demonstrated by the proceedings 

in this case. In opposing the doctors‘ motions for summary judgment, Mrs. Coombs 

relied on Dr. Hammer‘s affidavit, which the district court ruled to be admissible expert 

testimony despite the doctors‘ objections. Before trial, the doctors renewed their 

objections to the testimony, but the objections were overruled by the district court. Each 

time Dr. Hammer‘s opinion was objected to, it was ruled admissible by the district court. 

As such, Mrs. Coombs relied on Dr. Hammer‘s testimony to establish her case before the 

jury. It was not until over six months after the jury rendered its verdict that the district 

court determined that Dr. Hammer‘s opinion was unreliable and granted the doctors‘ 

motions for j.n.o.v. Had the inadmissibility determination been made earlier, Mrs. 

Coombs may have had an opportunity to remedy the deficiency in her case by finding 

another expert. See Puckett v. Verska, 144 Idaho 161, 166, 158 P.3d 937, 942 (2007)

(holding that a district court may consider affidavits submitted in support of a request for 

reconsideration even when they are submitted after summary judgment has been 

granted); Jackson, 980 F.2d at 696 (―If evidence is ruled inadmissible during the course 

of the trial, the plaintiff has the opportunity to introduce new evidence. However, when 

that evidence is ruled inadmissible in the context of deciding a motion for JNOV, the 

plaintiff, having relied on the evidence already introduced, is unable to remedy the 

situation.‖), abrogated by Weisgram, 528 U.S. at 454. If Dr. Hammer‘s testimony is 

excluded on the motion for j.n.o.v., Mrs. Coombs would have no evidence to support her 

claim and would have no opportunity to re-establish her case. 
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Second, the issue of whether evidence was properly admitted is more 

appropriately suited for consideration in the context of a motion for a new trial. Kinser v. 

Gehl Co., 184 F.3d 1259, 1269 (10th Cir. 1999); see also Idaho R. Civ. P. 59. Idaho Rule 

of Civil Procedure 59(a) specifically permits the granting of a new trial based on 

insufficient evidence and errors in law occurring at trial.9Idaho R. Civ. P. 59(a). Granting 

a new trial, while not ideal for the party who prevailed before the jury, at least gives that 

party the opportunity to repair the deficiencies in its case.10 A j.n.o.v., on the other hand, 

forecloses the matter. As stated by the New Mexico Supreme Court:

A motion for [j.n.o.v.], like a motion for a directed verdict, does not raise 

questions relating to the competency or admissibility of evidence. 

Therefore, in considering a motion for [j.n.o.v.], the evidence must be 

taken as it existed at the close of the trial, and evidence admitted over 

objection cannot be excluded nor can evidence be included which was 

improperly rejected. Whether competent or incompetent, all evidence 

submitted to the jury must be considered by the court in ruling on a motion 

for [j.n.o.v.], and such a judgment cannot be entered on a diminished 

record after the elimination of incompetent evidence. The proper remedy 

for disposing of evidence erroneously admitted during the course of the 

trial is a new trial where motion therefor has been made.

. . . 

If, after the return of the verdict, the court had been of the opinion that it 

was based upon incompetent testimony erroneously admitted during the 

course of the trial, the court had no alternative but to grant a new trial 

rather than the motion for [j.n.o.v.].

Townsend v. United States Rubber Co., 392 P.2d 404, 406–07 (N.M. 1964). 

Third, it seems paradoxical that a court could conclude, at the j.n.o.v. stage, that 

previously admitted evidence was actually inadmissible even though the court deemed 

the evidence admissible for purposes of summary judgment and at trial. See Idaho R. 

Evidence 104 (directing district courts to make preliminary determinations regarding the 

qualifications of witnesses). Under such circumstances, the district court has been given 

several previous opportunities to become familiar with the substance of the evidence and 

 

9 The qualification of an expert ―is a preliminary question of law‖ and, thus, it is more appropriately 

addressed in the context of a motion for a new trial. Kinser v. Gehl Co., 184 F.3d 1259, 1269 (10th Cir. 

1999).

10 Here, however, there is no record of either party filing a motion for a new trial or of the court granting 

such a motion.
10

determine whether it was admissible. Allowing reconsideration of the evidence on a 

j.n.o.v. motion only creates greater expense for the parties by requiring them to try the 

evidence several times—during summary judgment proceedings, motions in limine, at 

trial, and then in the j.n.o.v. proceedings. It also forces the parties to participate in an 

unnecessary trial. In addition, in denying a motion for summary judgment, a district court 

acknowledges that admissible evidence exists, creating a genuine issue of material fact 

for the jury. Weeks, 143 Idaho at 837–38, 153 P.3d at 1183–84 (2007) (―Admissibility of 

evidence within depositions and affidavits in support or in opposition to a motion for 

summary judgment is a threshold question to be addressed before a court can determine 

the outcome of the summary judgment motion.‖). Accordingly, the summary judgment 

stage would be a more appropriate time to address the reliability of an expert‘s opinion, 

as opposed to six months after the jury renders its verdict, which happened here. The 

reliability of expert testimony should be determined before submitting the case to the 

jury. 

Our holding, precluding courts from reconsidering the record submitted to the 

jury, promotes certainty and fairness. See Kinser, 184 F.3d at 1267. As the Tenth Circuit 

stated:

This rule promotes certainty: litigants need not supplement conditionally 

admitted evidence, perhaps unnecessarily; and district courts need not 

speculate as to what other evidence might have been offered if the 

evidence had been excluded at trial. The rule promotes fairness: punishing 

a litigant for the court‘s erroneous admission of evidence is unfair; and the 

remedy of a new trial is available to put both sides on an equal footing.

Id. Therefore, we hold that trial courts may not reconsider the record submitted to the 

jury when determining the propriety of a j.n.o.v. 

C.

The district court went on to hold that the jury‘s verdict was not supported by 

substantial and competent evidence. The court first determined that Dr. Hammer‘s 

testimony was scientifically unreliable, primarily because it was not supported by 

scientific studies. The court then concluded that there was no substantial and competent 

evidence in the record to support the verdict. 
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Mrs. Coombs argues the district court erred in concluding that she did not present 

scientifically reliable evidence establishing that the negligent administration of Propofol 

was the cause of Michael‘s death. She contends the court ignored the foundation of Dr. 

Hammer‘s opinion and improperly weighed the evidence presented at trial. According to 

Mrs. Coombs, Dr. Hammer‘s opinion was supported by basic medical principles and, 

therefore, the absence of peer-reviewed articles was irrelevant. Alternatively, she 

maintains the lack of articles establishing a link between long-term, high-dose Propofol 

use in pediatric patients and death is to be expected given the ethical constraints 

associated with testing Propofol in pediatric patients.

The doctors argue that Mrs. Coombs failed to present reliable evidence 

establishing causation between the administration of Propofol and Michael‘s death. They 

argue that scientific or specialized knowledge was necessary to assist the trier of fact in 

determining whether long-term sedation with Propofol caused Michael‘s death. 

According to the doctors, Dr. Hammer‘s opinion was pure speculation and, therefore, 

would not assist the trier of fact in reaching its conclusion. In making this argument, they 

point out that, at the time they treated Michael, there was no medical research directly 

supporting Dr. Hammer‘s opinion that Propofol could cause death due to cerebral edema 

alone. Even if the medical evidence Dr. Hammer relied on had been available, they 

contend it did not support his ultimate conclusion. 

In treating a patient, a provider is not obligated to provide optimal care or employ 

the highest degree of skill. Dekker v. Magic Valley Reg’l Med. Ctr., 115 Idaho 332, 334, 

766 P.2d 1213, 1215 (1988). ―Negligence on the part of a physician consists in his doing 

something which he should not have done, or in omitting to do something which he 

should have done.‖ Willis v. W. Hosp. Ass’n, 67 Idaho 435, 442, 182 P.2d 950, 954 

(1947). The plaintiff must show more than a mere possibility that a provider may have 

been negligent. Id. 

In addition to proving a provider failed to use ordinary care, the plaintiff must 

demonstrate that the provider‘s ―failure to use ordinary care was the proximate cause of 

damage to the plaintiff.‖ Pearson v. Parsons, 114 Idaho 334, 339, 757 P.2d 197, 

202 (1988). ―[T]he mere fact that [a procedure does] not result in a favorable outcome 

does not establish—or even constitute evidence of—negligence or proximate causation.‖ 
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Campbell v. United States, 904 F.2d 1188, 1194 (7th Cir. 1990). To establish proximate 

cause, a plaintiff must demonstrate that the provider‘s negligence was both the actual and 

legal (proximate) cause of his or her injury. Munson v. Dep’t of Highways, 96 Idaho 529, 

531, 531 P.2d 1174, 1176 (1975). Actual cause ―is a factual question focusing on the 

antecedent factors producing a particular consequence.‖ Id. 

Legal cause, on the other hand, ―focuses upon legal policy in terms of whether 

responsibility will be extended to the consequences of conduct which has occurred.‖ Id. 

Legal cause only exists when ―it [is] reasonably foreseeable that such harm would flow 

from the negligent conduct.‖ Cramer v. Slater, 146 Idaho 868, 875, 204 P.3d 508, 

515 (2009). The relevant inquiry is ―whether the injury and manner of the occurrence are 

 ̳so highly unusual that we can say, as a matter of law that a reasonable [person], making 

an inventory of the possibilities of harm which his conduct might produce, would not 

have reasonably expected the injury to occur.‘‖ Id. (quoting Doe v. Sisters of the Holy 

Cross, 126 Idaho 1036, 1041, 895 P.2d 1229, 1234 (Ct. App. 1995)). Proximate cause in 

medical malpractice cases involving more than one possible cause of injury will be 

established if it is shown that the defendant‘s conduct ―was a substantial factor in 

bringing about the injury suffered by the plaintiff.‖ Munson, 96 Idaho at 531, 531 P.2d at 

1176. This may be proven by direct evidence or by showing a ―chain of circumstances 

from which the ultimate fact required to be established is reasonably and naturally 

inferable.‖ Weeks, 143 Idaho at 839, 153 P.3d at 1185. ―The question of proximate cause 

is one of fact and almost always for the jury.‖ Cramer, 146 Idaho at 875, 204 P.3d at 515. 

Nothing in Idaho Code sections 6-1012 or 6-1013 requires that proximate cause 

be proved by expert testimony—those statutes only address the applicable standard of 

care and breach of that standard. See Sheridan v. St. Luke’s Reg’l Med. Ctr., 135 Idaho 

775, 785, 25 P.3d 88, 98 (2001). As such, the admission of testimony to prove proximate 

cause in medical malpractice cases is governed solely by the Idaho Rules of Evidence. Id. 

Although the Idaho Rules of Evidence do not require expert testimony to establish 

causation in medical malpractice cases, such testimony is often necessary given the 

nature of the cases. Expert testimony is generally required because ―the causative factors 

are not ordinarily within the knowledge or experience of laymen composing the jury.‖ 

Flowerdew v. Warner, 90 Idaho 164, 170, 409 P.2d 110, 113 (1965). 
13

Under the rules, expert opinion testimony is only admissible when ―the expert is a 

qualified expert in the field, the evidence will be of assistance to the trier of fact, experts 

in the particular field would reasonably rely upon the same type of facts relied upon by 

the expert in forming his opinion, and the probative value of the opinion testimony is not 

substantially outweighed by its prejudicial effect.‖ Ryan v. Beisner, 123 Idaho 42, 47, 844 

P.2d 24, 29 (Ct. App. 1992); see also Idaho R. Evidence 702, 703, & 403. ―[E]xpert 

opinion which is speculative, conclusory, or unsubstantiated by facts in the record is of 

no assistance to the jury in rendering its verdict, and therefore is inadmissible.‖ Ryan, 123 

Idaho at 46–47, 844 P.2d at 28–29; see also Idaho R. Evidence 702. Testimony is 

speculative when it ―theoriz[es] about a matter as to which evidence is not sufficient for 

certain knowledge.‖ Karlson v. Harris, 140 Idaho 561, 565, 97 P.3d 428, 432 (2004).

Conversely, expert testimony will assist the trier of fact when the reasoning or 

methodology underlying the opinion is scientifically sound and ―based upon a 

 ̳reasonable degree of medical probability‘‖—mere possibility is insufficient. Bloching v. 

Albertson’s, Inc., 129 Idaho 844, 846–47, 934 P.2d 17, 19–20 (1997) (quoting Roberts v. 

Kit Mfg. Co., 124 Idaho 946, 948, 866 P.2d 969, 971 (1993)). 

In determining whether expert testimony is admissible, a court must evaluate ―the 

expert‘s ability to explain pertinent scientific principles and to apply those principles to 

the formulation of his or her opinion.‖ Ryan, 123 Idaho at 46, 844 P.2d at 28. 

Admissibility, therefore, depends on the validity of the expert‘s reasoning and 

methodology, rather than his or her ultimate conclusion. Id. at 46–47, 844 P.2d at 28–29. 

So long as the principles and methodology behind a theory are valid and reliable, the 

theory need not be commonly agreed upon or generally accepted. Weeks, 143 Idaho at 

838, 153 P.3d at 1184. While the court must ―distinguish scientifically sound reasoning 

from that of the self-validating expert, who uses scientific terminology to present 

unsubstantiated personal beliefs,‖ it may not ―substitute its judgment for that of the 

relevant scientific community.‖ Ryan, 123 Idaho at 46, 844 P.2d at 28. 

Relevant considerations in determining whether the basis of an expert‘s opinion is 

scientifically valid include ―whether the theory can be tested and whether it has been 
14

subjected to peer-review and publication.‖

11 Weeks, 143 Idaho at 838, 153 P.3d at 1184; 

see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Other indicia of 

reliability include ―the close oversight and observation of the test subjects, the 

prospectivity and goal of the studies, . . . the presence of safeguards in the technique, . . . 

analogy to other scientific techniques whose results are admissible, . . . the nature and 

breadth of inferences drawn, . . . the extent to which the basic data are verifiable by the 

court and jury, . . . [the] availability of other experts to test and evaluate the technique, 

[and] the probative significance of the evidence in the circumstances of the case.‖ State v. 

Konechny, 134 Idaho 410, 417–18, 3 P.3d 535, 542–43 (Ct. App. 2000); see also 

Daubert, 509 U.S. at 589–94 (1993) (noting also the potential rate of error and general 

acceptance of the theory). 

An expert‘s opinion does not meet the requisite standard of reliability when it is 

based on the mere temporal connection between the administration of a drug and a 

particular consequence. Swallow v. Emergency Med. of Idaho, P.A., 138 Idaho 589, 593, 

67 P.3d 68, 72 (2003). In Swallow, a patient suffered a heart attack after taking an 

erroneously prescribed dose of Cipro. Id. at 591, 67 P.3d at 70. The district court 

excluded the plaintiffs‘ proffered expert testimony regarding causation between Cipro 

and the heart attack and the plaintiffs appealed. Id. On appeal, this Court upheld the 

district court‘s evidentiary ruling on the ground that the expert‘s opinion was unreliable. 

Id. at 592–93, 67 P.3d at 71–72. Because there was no evidence that an overdose of Cipro 

could cause a heart attack, and because the expert‘s opinion was based on statistically 

insignificant information and ―the mere temporal connection between the drug and a 

certain consequence,‖ the opinion was not reliable enough to be considered by the jury.12

Id. 

 

11 However, ―[i]n instances of  ̳a rare occurrence‘ where there are few opportunities for scholarly research, 

the lack of published studies should not bar otherwise scientifically valid testimony.‖ Weeks, 143 Idaho at 

838–39, 153 P.3d 1180, 1184–85. The reasoning behind admitting expert opinions under such 

circumstances is that there may be justifiable reasons for the lack of research on a subject. Id.

12 The expert was uncertain whether Cipro had either of the effects necessary to cause a heart attack, there 

were no studies indicating that it did, the Physicians‘ Desk Reference merely indicated that less than 1% of 

patients in a clinical study suffered heart attacks that may or may not have been related to the drug, and he 

was not sure of the exact role the drug would play in causing a heart attack. Swallow, 138 Idaho at 592–93, 

67 P.3d at 71–72.
15

However, expert testimony linking the administration of a drug to a certain 

consequence does not need to be directly supported by medical evidence so long as the 

―expert . . . is able to determine conclusively the effect the medication had on the 

patient.‖ Weeks, 143 Idaho at 838, 153 P.3d at 1184. In Weeks, a patient died after 

medications were infused into her brain through a catheter that was intended to drain 

excess fluid from the brain. Id. at 836, 153 P.3d at 1182. The patient‘s family brought a 

medical malpractice claim against the hospital. Id. The district court excluded the 

plaintiffs‘ proffered expert testimony that indicated the infusion was a substantial factor 

in causing the patient‘s death. Id. 837, 153 P.3d at 1183. The plaintiffs appealed to this 

Court, which held the expert‘s testimony should have been admitted. Id. at 838, 153 P.3d 

at 1184. The Court reasoned that, although research had not been done on the exact type 

of occurrence or the effects of administering medication in the particular manner, the 

expert‘s opinion was admissible because it was not based merely on speculation or a 

temporal occurrence. Id. at 839, 153 P.3d at 1185. Instead, it was based on the doctor‘s 

experience and research. Id. The Court stated: 

While there is no exact known effect of the combination of chemicals 

infused into [the patient‘s] brain, there is scientifically reliable evidence 

regarding the effect of increased intracranial pressure. [The expert] based 

a portion of his opinion, dealing with the mechanical effect of the 

increased amount of fluid in [the patient‘s] brain, upon such scientifically 

reliable information. However, he testified that these effects could not be 

separated from the effects of the medications, for which there is no peerreviewed, published information.

Weeks, 143 Idaho at 839, 153 P.3d at 1185. As such, the opinion was admissible even 

though the expert was ―unable to determine the exact effect‖ the medication had on the 

patient. Id. 

Here, the district court, in ruling on the doctors‘ motions for j.n.o.v., concluded 

that Dr. Hammer‘s testimony did not meet the standards of scientific reliability. It pointed 

out that there were no studies available in 2002 connecting Propofol use with death 

caused by cerebral edema absent any other signs of PRIS. In fact, there were no studies 

showing Propofol even caused PRIS.13 Because Propofol had been in use for a substantial 

 

13 Even if there were, Michael did not experience any of the hallmarks of the syndrome. Michael did 

experience acidosis at one point during sedation, but it responded to treatment with sodium bicarbonate and 
16

period of time, the court regarded the lack of the studies as very significant. In addition, 

the data in the only source Dr. Hammer relied on that was available in 2002, the 

Physicians‘ Desk Reference (PDR), was statistically insignificant14 and did not identify 

cerebral edema as a cause of death associated with Propofol. The other source Dr. 

Hammer relied on was not published until 2003 and, therefore, was irrelevant to the 

doctors‘ treatment of Michael in 2002. Finally, the other experts who testified at trial 

indicated that it was not possible to determine the cause of Michael‘s cerebral edema.

Concluding that causation could not be established solely from the temporal association 

between the use of a drug and a negative health consequence, the court held that Dr. 

Hammer‘s testimony was unreliable. Although it did not explicitly state it was doing so, 

the court effectively ruled Dr. Hammer‘s testimony as to breach and causation 

inadmissible and, therefore, concluded there was no evidence to support the jury‘s 

verdict.15

We conclude that Dr. Hammer‘s testimony was sufficiently reliable to sustain the 

jury‘s verdict. At trial, Dr. Hammer testified that his opinion was based on basic 

principles of medicine that he learned in medical school and while working in the ICU.

Dr. Hammer is a board certified pediatrician and anesthesiologist with a sub-board in 

pediatric critical care medicine. He is also a professor of anesthesiology and pediatrics at 

Stanford Medical School. He has authored between 70 and 80 journal articles, a book, 

and 25 to 30 textbook chapters on various subjects including the use of Propofol, the 

post-operative use of anesthesia in children, and the use of anesthesia in pain 

management treatment. His professional focus is on pediatric pharmacology, or drug 

disposition in children. Based on these facts, it is reasonable to conclude Dr. Hammer 

was familiar enough with basic principles of medicine to form his opinion.

 

thus was not the type of refractory acidosis associated with PRIS. No other signs of PRIS were discovered 

during Michael‘s autopsy. Instead, the autopsy indicated that Michael was in ―good condition‖ and was not 

suffering from any disease or sickness.

14 The court‘s finding of statistical insignificance related to a study noted in the PDR where 9% of critically 

ill pediatric patients in the ICU who were sedated with Propofol died compared to only 4% of similar 

patients sedated with ―standard sedative agents.‖ The court concluded the study was statistically 

insignificant ―to establish a causal, rather than an associational link between the use of [P]ropofol and the 

deaths.‖ It based its conclusion on the testimony of Dr. Reed, the author of the study.

15 The court did not, however, reconsider its ruling regarding Dr. Hammer‘s qualification to testify as to the 

applicable standard of care.
17

There was also evidence that Dr. Hammer was familiar with the use of Propofol 

in pediatric patients for post-operative treatment. Dr. Hammer testified that he works 

primarily in the ICU and in the operating room doing pediatric anesthesia. He indicated 

that he is familiar with post-operative treatment and works with various pediatric surgical 

specialists, including plastic surgeons and general pediatric surgeons. Dr. Hammer 

himself has used Propofol for short-term sedation of children and has read several articles 

over the years regarding the use of Propofol. Based on his acquired knowledge and 

review of the Diprivan entry in the PDR, Dr. Hammer concluded the doctors‘ negligent 

administration of Propofol was the proximate cause of Michael‘s death.

In light of these facts, Dr. Hammer‘s opinion as to the cause of Michael‘s death 

was scientifically reliable. See Weeks, 143 Idaho at 837, 153 P.3d at 1183 (holding that a 

medical doctor‘s ―education, specialized knowledge, and thirty years of experience 

establishes that he met the test outlined in I.R.E. 702 to establish him as an expert‖). 

Although his opinion was not directly supported by any peer-reviewed articles, that 

support is not a necessary finding for scientific reliability. See Thomson v. Olsen, 147 

Idaho 99, 108, 205 P.3d 1235, 1243 (2009) (holding that the lack of specific language in 

medical literature on a subject is not dispositive). Dr. Hammer explained that there were 

no articles directly supporting his opinion because ―[t]here would be nothing interesting 

or new about that to publish.‖ In addition, he indicated he was not aware of anyone who 

used Propofol for long-term, high-dose sedation of pediatric ICU patients and, thus, there 

were no instances of such use to study. This testimony is consistent with the ethical 

considerations associated with testing potentially lethal doses of medication on pediatric 

test subjects. In any event, according to Dr. Hammer, there were several articles 

establishing connections between each cause and effect in the chain of events that led to 

his conclusion. Specifically, there were studies indicating Propofol was toxic and tended 

to cause hypotension, which, in turn, could cause cerebral edema. Thus, like the 

testimony at issue in Weeks, there was direct scientific evidence to support Dr. Hammer‘s 

opinion. Unlike the situation in Swallow, Dr. Hammer did not rely solely on the temporal 

proximity between the administration of Propofol and Michael‘s death. Instead, he was 

able to provide a scientific explanation of the effect Propofol had on Michael and how it 

caused his death. He explained the chain of circumstances leading to the cerebral edema 
18

and the large role Propofol played in those events. Accordingly, under Weeks and 

Swallow, Dr. Hammer‘s testimony was sufficiently reliable to prove the doctors‘ 

negligence proximately caused Michael‘s death. 

Mrs. Coombs further contends that there was substantial and competent evidence 

to support the jury‘s verdict that the doctors‘ prolonged administration of Propofol was 

negligent.16 Specifically, Mrs. Coombs argues the doctors were negligent because they 

were unfamiliar with using the drug for long-term sedation of children and failed to 

research such use, misused the drug, dismissed warnings from a nurse about using the 

drug, did not ask the anesthesiologist to check on Michael after the surgery or ask his 

advice regarding long-term sedation, failed to notice the distress Michael was in while on 

Propofol, failed to relieve the distress by discontinuing Propofol, and failed to control 

Michael‘s extremely low blood pressure. According to Mrs. Coombs, the doctors‘ 

negligent administration of Propofol was the proximate cause of Michael‘s death.

The doctors argue that there was no evidence they were negligent or that their 

negligence caused Michael‘s death. They point out that, at the time they were treating 

Michael, there were no reported medical data showing Propofol had ever caused death 

from cerebral edema alone, describing cerebral edema associated with PRIS, or 

indicating that long-term, high-dose use of Propofol in children may be fatal in the 

absence of the signs of PRIS. As such, they contend Mrs. Coombs failed to meet her 

burden as to both breach and causation.

The district court concluded Mrs. Coombs did not present sufficient evidence to 

support the jury‘s verdict.17 After weighing the expert testimony admitted at trial, the 

court concluded Mrs. Coombs failed to prove that the doctors‘ negligence was the actual 

cause of Michael‘s death. Because Dr. Hammer‘s hypothesis had not been tested, the 

court reasoned there was not substantial evidence for the jury to conclude the doctors‘ 

long-term administration of Propofol caused Michael‘s death. Alternatively, it concluded 

that even if there was evidence of proximate cause, there was no evidence the doctors 

breached the applicable standard of care. It reasoned there was no evidence indicating 

 

16 She does not dispute the use of the drug during surgery or immediately thereafter.

17 In the court‘s view, the evidence presented was ―grossly insufficient.‖ Yet it denied the doctors‘ motions 

for summary judgment on the grounds that Dr. Hammer‘s testimony created a genuine issue of material fact 

for the jury.
19

Propofol created the risk of cerebral edema absent the other signs of PRIS. Thus, the 

doctors were under no obligation to monitor for cerebral edema and they acted in 

accordance with the standard of care by monitoring for the known signs of PRIS. 

As mentioned above, the district court‘s grant of a j.n.o.v. will only be upheld if it 

is supported by substantial and competent evidence. Jeremiah, 131 Idaho at 247, 953 

P.2d at 997. Because Dr. Hammer‘s testimony was properly part of the record to be 

considered by the jury, there was substantial and competent evidence to support the jury‘s 

verdict. Dr. Hammer testified that he held an opinion regarding the doctors‘ failure to 

meet the standard of care, that he could testify to his opinion with reasonable medical 

certainty, and that he had actual knowledge of the applicable community standard of care 

in Boise, Idaho, in 2002. He further testified that it was his opinion that the doctors 

breached the applicable standard of care and that their negligence was the proximate 

cause of Michael‘s death.

Dr. Hammer testified that the applicable standard of care for the long-term 

administration of Propofol in pediatric ICU patients in Boise, Idaho, in 2002, was the 

same as the national standard. Under that standard, doctors prescribing Propofol should 

be aware of the consequences of the drug and its indications for use and should not use 

the drug ―overnight or for more prolonged periods, say, exceeding 12 hours.‖ In the 

uncommon event prolonged administration is necessary, it should be done ―under very 

proscribed dosing and very close monitoring of a variety of laboratory tests.‖ In addition, 

no more than 67 micrograms per kilogram per minute were recommended for long-term 

use. 

In regards to Dr. Griffiths‘ violation of the standard of care, Dr. Hammer testified 

that Dr. Griffiths was:

principally . . . responsible for the use of Propofol in a relatively high dose 

for a prolonged period of time in a critically ill child without titrating or 

modifying the dose of the drug when the blood pressure was low, for 

example, and when there were signs of organ toxicity, and also did not 

meet the standard of care with respect to ordering lab tests that would 

serve to monitor organ toxicity related to Propofol over time.18

 

18 He also testified Dr. Griffiths breached the standard by not asking Dr. Smagula more specifics on longterm Propofol use. 
20

Dr. Hammer testified he had the same opinion with respect to Dr. Curnow because he 

―was sharing responsibility for the child.‖ According to Dr. Hammer, Dr. Curnow 

violated the standard of care by choosing Propofol ―in the dose used, for the duration of 

time used, without appropriate laboratory monitoring and adjustments in the dose, 

according to what was happening with the child over time.‖ 

Next, Dr. Hammer testified that, in his medical opinion, the doctors‘ negligent 

administration of Propofol was the proximate cause of Michael‘s death. In reaching his 

conclusion, Dr. Hammer thoroughly analyzed the role Propofol played in causing 

Michael‘s death. He noted three consequences of long-term Propofol use that contributed 

to the cerebral edema that resulted in Michael‘s death. First, he testified that Propofol 

tends to cause blood pressure to drop below a safe threshold, if ―not used very carefully,‖ 

by depressing heart function and dilating blood vessels, arteries, and veins.19 In pediatric 

patients, this was especially problematic given their size, age, and ―physiologic 

circumstances‖ because it results in inadequate blood flow to ―vital organs in the body, 

including the brain.‖ Low blood pressure (hypotension) associated with ―Propofol can 

cause and . . . exacerbate hypoxic ischemia‖ resulting from an ―inadequate amount of 

blood, and therefore, oxygen delivery to cells.‖ Consequently, when a patient on Propofol 

experiences low blood pressure, the infusion rate should be decreased.

Second, administering Propofol over a prolonged period of time (over twelve 

hours) could result in the build up of lipids, or fat, in the blood. Because Propofol is ―not 

very soluble in the blood,‖ it is mixed with an emulsion that contains significant amounts 

of fat that is administered with the drug through an I.V. Administering the drug over a 

prolonged period of time causes the fat in the patient‘s blood stream to rise.20 When the 

fat breaks down, it produces dangerous fatty acids, causing lipidemia and fatty acid 

toxicity, which poisons mitochondrion and damages the cells. As Dr. Hammer explained:

[W]hen there‘s a lot of fatty acids, the mitochondrion, which are the little 

machines inside the cells that produce energy for the cells, don‘t function 

normally, so they may suppress energy production in the cell, and that 

energy source, which is called ATP, is very vital for the cells to stay alive 

 

19 Although Dr. Hammer admitted other sedatives could also decrease blood pressure (Versed and 

morphine), the decrease would not be to the same degree or have such an impact on heart contractility. 

20 Prolonged administration is problematic because ―the toxicity and adverse effects associated with 

Propofol are related to the dose and the duration of the administration, so the lower the dose and for the 

shorter the duration, the safer the drug is.‖
21

and do all the things that they do that require energy. So fatty acids may 

actually suppress energy production in cells and cause cells to 

malfunction.

Third, Propofol interferes with the mitochondrial function directly and, therefore, 

―decreases the amount of ATP . . . that cells produce.‖ When this occurs, it diminishes 

the integrity of the cell by preventing it from pumping water out, resulting in the cell 

becoming swollen and potentially dying. Dr. Hammer explained long-term Propofol use 

causes:

mitochondrial dysfunction, lack of energy production, cellular swelling or 

edema, and potentially cell death, especially if those cells are in a closed 

compartment like the head, the brain swells, then the pressure inside the 

head goes up, and that becomes a runaway cycle of swelling, pressure, 

death, et cetera.

In Dr. Hammer‘s opinion, these disadvantages of long-term Propofol use 

combined and were ―the No. 1 factor‖ in causing Michael‘s death. Dr. Hammer did not, 

however, attribute Michael‘s death to PRIS.21 Instead, it was his opinion that the wellestablished adverse effects of Propofol, including hypotension and its resulting adverse 

effects on the organs, hyperlipidemia, and the toxic effects of high levels of triglycerides 

in the bloodstream caused the child‘s death. He testified in relevant part:

I think the arrhythmias and the brain swelling were both caused by the 

same process, which is hypoxia ischemia, and cellular injury, toxicity.

So I think there was a period of injury to those organs and other organs in 

the body because of inadequate blood flow, inadequate or low 

hemoglobin, and also, I think, toxic effects of the Propofol combined.

. . . .

The Propofol definitely caused or contributed to the low blood pressure 

hypotension. The Propofol definitely caused the lipemia, and in all 

likelihood, caused toxicity to cells in the body. The low hemoglobin was 

caused by bleeding from the surgical site.

. . . .

Propofol caused or contributed significantly to the hypotension, and 

therefore, decrease in blood flow to vital organs in the body, including the 

brain, the heart, the liver, and other vital tissues.

 

21 According to Dr. Hammer, PRIS ―relates to a specific mitochondrial toxicity; not the absence of oxygen 

or glucose delivered to the mitochondrion related to hypotension.‖
22

It also caused the lipemia that in all likelihood contributed to his demise 

because of the fatty acids that would be produced. And in all likelihood, 

the Propofol also had a negative effect on the energy generation of cells in 

the body.

And these are all in combination, especially with the low hemoglobin that 

the Propofol did not cause, but these events taking place simultaneously 

all resulted like a triple or quadruple whammy, where they all resulted in 

diminished oxygen delivery to the brain, which ultimately caused the brain 

swelling, and also in the body, for which there‘s evidence, so I think all 

these things happened together in a predictable way to produce his death.

The low hemoglobin, again, was caused by bleeding. I would emphasize 

that in the presence of bleeding and the low blood pressure that‘s caused 

or contributed to by the bleeding itself, one would have to be particularly 

mindful of the Propofol-related drop in blood pressure, so if a person is 

bleeding and their hemoglobin is low and their blood pressure is low, 

that‘s the time to decrease the Propofol or turn it off.

. . . .

I think almost every article about Propofol or every textbook reference to 

Propofol indicates that Propofol causes hypotension, or may cause 

hypotension, and there are textbook chapters and lots of other articles 

written about the association between hypotension and hypoxia ischemia 

of the brain and subsequent brain swelling and brain death. So Propofol 

causes hypotension, hypotension is associated with hypoxia ischemia, 

hypoxia ischemia is associated with cerebral edema. So it goes without 

saying, for physicians, at least, that Propofol can cause that series of 

events leading to cerebral edema. 

By failing to adequately monitor and account for the disadvantages associated 

with long-term, high-dose Propofol use, Dr. Hammer testified that the doctors breached 

the applicable standard of care. Dr. Hammer noted that Michael‘s blood pressure was 

critically low for long periods of time. He indicated such low blood pressure was a 

danger signal that should have been, but was not, responded to by lowering the Propofol 

dose. Michael‘s high fever exacerbated the danger associated with the low blood pressure 

because it was well known at that time that fever increases the need for blood flow to the 

brain. In addition, the heart arrhythmias Michael experienced were likely caused by 

ischemia, which provided the doctors with an additional indication of oxygen deprivation 

associated with low blood pressure. In Dr. Hammer‘s opinion, Propofol should have been 

stopped or the dosage lowered once the tissue was detached and when the fever set in
23

because, at that point, Michael did not need to be immobilized.22 Doing so would have 

resolved the hypotension Michael was experiencing. Alternatively, even assuming the 

high dosage of Propofol being administered was necessary, the doctors should have given 

Michael another medication to increase his blood pressure.

In addition to their failure to account for Michael‘s low blood pressure, Dr. 

Hammer testified that the doctors should have taken additional measures to monitor 

Michael and respond to the conditions revealed by such monitoring. First, he testified that

the physicians acted negligently by setting and maintaining a minimum order of Propofol 

with no caveats for low blood pressure or lipidemia. Even after a nurse indicated to Dr. 

Curnow that there were consequences of using Propofol under the circumstances, he did 

not change the order. Second, they should have monitored the muscle enzyme (CK)

levels inside Michael‘s cells, which would have been indicative of muscle damage 

associated with Propofol.23 Third, because Michael was receiving four to six times the 

amount of lipids Dr. Hammer thought were justified under the circumstances, the doctors 

should have also measured triglyceride levels daily. Neither doctor, however, ordered 

either to be monitored. Fourth, Michael should have received additional glucose because 

his levels were at less than half of what was required. Administering more glucose was 

necessary to provide energy that would prevent lipids from breaking down and creating 

toxic fatty acids. Fifth, Dr. Hammer indicated Propofol should have been periodically

―lightened up‖ to make sure Michael was responsive and neurologically intact. For all of 

these reasons, and in light of warnings contained in the PDR,

24 Dr. Hammer concluded 

 

22 Michael was receiving a general anesthetic dose of 100 to 150 micrograms per kilogram of Propofol per 

minute over a period of four days. Dr. Hammer testified:

I don‘t see any indication for keeping the child under general anesthesia during this time, 

and there were lots of indications for decreasing the dose or turning the drug off 

altogether over time, so that the dose that was used was excessive and was not adjusted 

according to basic abnormalities that were observed, or should have been observed.

23 The autopsy, however, indicated Michael did not suffer from rhabdomyolysis, the muscle damage 

associated with Propofol.

24 The warnings cautioned against the use of Propofol to sedate pediatric patients in the ICU and identified 

the drug‘s adverse effects. Relevant passages of the PDR indicate:

[T]itration to clinical response and daily evaluation of sedation levels are important 

during use of [Propofol] for ICU sedation, especially of long duration.

. . .
24

that the doctors negligently administered Propofol to Michael and that their negligence 

was the proximate cause of his death.

In light of this evidence, the district court‘s decision, granting the doctors‘ 

motions for j.n.o.v., invaded the province of the jury. Although the doctors point to 

evidence in the record tending to contradict Dr. Hammer‘s opinion, the jury was entitled 

 

With medical ICU patients or patients who have recovered from the effects of general 

anesthesia or deep sedation, the rate of administration of 50mg/kg/min or higher may be 

required to achieve adequate sedation. These higher rates of administration may increase 

the likelihood of patients developing hypotension.

. . .

[Propofol] is not indicated for use in Pediatric ICU sedation since the safety of this 

regimen has not been established.

. . .

Patients should be continuously monitored for early signs of significant hypotension 

and/or bradycardia. Treatment may include increasing the rate of intravenous fluid, 

elevation of lower extremities, use of pressor agents, or administration of atropine.

. . . 

Since [Propofol] is formulated in an oil-in-water emulsion, elevations in serum 

triglycerides may occur when [Propofol] is administered for extended periods of time.

Patients at risk of hyperlipidemia should be monitored for increases in serum 

triglycerides or serum torbidity. Administration of [Propofol] should be adjusted if fat is 

being inadequately cleared from the body. A reduction in the quantity of concurrently 

administered lipids is indicated to compensate for the amount of lipid infused.

In pediatric patients, administration of fentanyl concomitantly with [Propofol] may result 

in serious bradycardia.

[Propofol] is not indicated for use in pediatric patients for ICU sedation . . . for surgical, 

nonsurgical or diagnostic procedures as safety and effectiveness have not been 

established.

. . . 

In one multicenter clinical trial of ICU sedation in critically ill pediatric patients that 

excluded patients with upper respiratory tract infections, the incidence of mortality 

observed in patients who received [Propofol] was 9%, while that for patients who 

received standard sedative agents was 4%. While causality has not been established, 

[Propofol] is not indicated for sedation in pediatric patients until further studies have 

been performed to document its safety in that population.

. . . .

Dosage and rate of administration should be individualized and titrated to the desired 

effect, according to clinically relevant factors including preinduction and concomitant 

medications, age, ASA physical classification, and level of debilitation of the patient.

[Propofol] should be individualized according to the patient‘s condition and response, 

blood lipid profile, and vital signs.

Evaluation of level of sedation and assessment of CNS Function should be carried out 

daily throughout maintenance to determine the minimum dose . . . required for sedation.

Safety and dosing requirements for induction of anesthesia in pediatric patients have only 

been established for children 3 years of age or older.
25

to rely on his opinion and weigh the conflicting evidence in the record. Based on the 

testimony outlined above, there was substantial and competent evidence to support the 

jury‘s verdict.

D.

Both doctors request attorney fees on appeal pursuant to Idaho Code section 12-

121. Under Idaho Code section 12-121, a court may award attorney fees to the prevailing 

party in a civil action. I.C. § 12-121. Because neither of the doctors is a prevailing party 

on this appeal, they are not entitled to an award of attorney‘s fees under the statute. 

III.

Accordingly, we vacate the j.n.o.v. and remand for entry of judgment pursuant to 

the jury verdict effective as of September 17, 2007. 

Chief Justice EISMANN, and Justices BURDICK AND W. JONES CONCUR.

HORTON, J., specially concurring.

I join in the Court‘s decision in all respects, save for Part II (C). I join in the 

conclusion stated in that section of the opinion in which the Court holds that there was 

substantial evidence to support the jury‘s verdict. However, I am unable to join in the 

analysis contained in that section to the extent that it evaluates the admissibility of the 

evidence presented by Mrs. Coombs. In view of the conclusion that there was substantial 

evidence supporting the jury‘s verdict, the discussion of the admissibility of the evidence 

considered by the jury is merely dicta. Further, by engaging in the analysis of the 

admissibility of the evidence, I believe that the Court‘s decision repeats the error 

committed by the trial court and creates potential confusion. 

By way of explanation, I start with the trial court‘s ruling on the doctors‘ motion 

for j.n.ov. The trial court‘s memorandum opinion began by stating the applicable legal 

standards governing a motion for j.n.o.v. The trial court correctly stated the standard of 

reviewing governing such motions. However, when addressing whether substantial 

evidence supported the jury‘s verdict, the trial court relied upon a statement found in 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the 

United States Supreme Court held that in the federal courts, there are ―conventional 
26

devices‖ available to the courts to address situations involving ―shaky but admissible 

evidence.‖ Id. at 596. The Daubert court identified directed judgments and summary 

judgment as such devices. Id. In Idaho, a motion for j.n.o.v. is simply treated as a 

delayed motion for a directed verdict, and the same standards are applied. Leavitt v. 

Swain, 133 Idaho 624, 628, 991 P.2d 349, 353 (1999); Quick v. Crane, 111 Idaho 759, 

764, 727 P.2d 1187, 1192 (1986). It appears to me that the source of the trial court‘s 

error was applying standards applicable to federal courts in reaching its decision. 

In this state, the appellate courts and the trial courts apply an identical standard in 

evaluating a motion for j.n.o.v. Quick, 111 Idaho at 764, 727 P.2d at 1192. As noted in 

Part II (B) of the decision, Idaho courts are ―bound by the record‖ and may not 

retrospectively deem evidence presented to the jury to have been inadmissible and then, 

based upon a consideration of the remaining evidence, determine whether there was 

substantial evidence supporting the verdict. This stands in stark contrast to the federal 

approach, wherein the appellate courts are permitted to do otherwise. Weisgram v. 

Marley Co., 528 U.S. 440, 457 (2000) (holding ―that the authority of courts of appeals to 

direct the entry of judgment as a matter of law extends to cases in which, on excision of 

testimony erroneously admitted, there remains insufficient evidence to support the jury‘s 

verdict‖). 

The trial court‘s reliance on the procedural principle articulated in Daubert

explains why the trial court analyzed the sufficiency of the evidence presented to the jury 

in terms of the admissibility of that evidence, ultimately concluding that the evidence was 

not reliable and therefore did not constitute substantial evidence upon which the jury‘s 

verdict could rest. This was error. I believe that the portion of this Court‘s opinion that

similarly addresses the admissibility of Dr. Hammer‘s opinion testimony replicates that 

error and potentially creates confusion as to the standard of review applicable to motions 

for a direct verdict or j.n.o.v. 

By moving for j.n.o.v., the doctors ―necessarily admitted the truth of all of the 

plaintiffs‘ evidence and every legitimate inference that could be drawn therefrom in the 

light most favorable to the plaintiff.‖ Quick, 111 Idaho at 763, 727 P.2d at 1191 (citing 

Stephens v. Stearns, 106 Idaho 249, 252-53, 678 P.2d 41, 44-45 (1984)). In my view, the 

critical facts identified in Part II (C) that require this Court to uphold the jury‘s verdict 
27

are simply these: (1) Dr. Hammer expressed and explained his opinion that the 

administration of Propofol was the cause of Michael‘s death; and (2) Dr. Hammer 

expressed and explained his opinion that the doctors breached the applicable standard of 

health care practice. This was substantial evidence; once presented to the jury, it was up 

to the jurors to accept or reject Dr. Hammer‘s opinions, as ―[w]eighing the testimony of 

expert witnesses is uniquely within the competence of the trier of fact.‖ City of McCall v. 

Seubert, 142 Idaho 580, 585, 130 P.3d 1118, 1123 (2006) (quoting Rueth v. State, 103 

Idaho 74, 78, 644 P.2d 1333, 1337 (1982)).25 

 

25 Indeed, our standard jury instruction advises jurors: ―The law does not require you to believe all of the 

evidence admitted in the course of the trial. As the sole judges of the facts, you must determine what 

evidence you believe and what weight you attach to it.‖ IDJI 1.00.