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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42519

JEFFERY A. BAKER,

Plaintiff-Appellant,

v.

ST. LUKE’S REGIONAL MEDICAL 

CENTER,

Defendant-Respondent.

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2015 Unpublished Opinion No. 561

Filed: July 20, 2015

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Timothy Lee Hansen, District Judge. 

Judgment dismissing complaint for medical malpractice, affirmed.

Jeffery A. Baker, Boise, pro se appellant. 

Gjording Fouser, PLLC; Trudy Hanson Fouser; Randall L. Schmitz, Boise, for 

respondent. 

________________________________________________

GUTIERREZ, Judge

Jeffery A. Baker appeals pro se from the judgment of the district court dismissing his 

medical malpractice complaint after granting summary judgment to St. Luke’s Regional Medical 

Center and after denying Baker’s motion for reconsideration. For the reasons that follow, we 

affirm.

I.

FACTS AND PROCEDURE

This case concerns Baker’s allegation of medical malpractice with respect to his 

daughter, Gracelynn. According to documents in the record, Gracelynn, who was less than three 

months old, was admitted to St. Luke’s in an unresponsive state on May 10, 2010. She died days 

later on May 14. Baker was arrested on May 17, apparently under suspicion for the murder of 

Gracelynn. In April 2013, Baker was found guilty of the first degree murder of Gracelynn in the 
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perpetration of an aggravated battery.1

 From the record, it appears that the prosecution’s theory 

of the case asserted that Gracelynn died from shaken baby syndrome.

In September 2013, more than three years after Gracelynn died, Baker filed a pro se 

complaint against St. Luke’s, listing as plaintiffs Gracelynn and himself, as the parent of 

Gracelynn. That complaint alleged what it delineated as four claims. The first claim asserted 

medical malpractice when St. Luke’s improperly placed Gracelynn’s endotracheal tube; Baker 

explained that he discovered this claim in September 2011 when he received a copy of a 

deposition of a professor and neuroradiologist. The second claim averred that one of St. Luke’s 

doctors falsely reported medical evidence about Gracelynn’s death. Specifically, that the doctor 

testified in Baker’s criminal trial that Gracelynn had a torn brain stem. The third claim explained 

that St. Luke’s did not report “the hypoxic brain insult caused by the defendant’s negligence to 

any authority investigating possible causes [(of death)] related to this case.” The last claim noted 

that Gracelynn actually had central vein thrombosis. 

St. Luke’s filed a motion to dismiss, asserting that Baker had failed to state a claim upon 

which relief could be granted because the statute of limitations barred the claim. Baker 

responded by filing an affidavit, acknowledging that he knew of the incorrect placement of the 

endotracheal tube in September 2011, but averring that he did not know “of the defendants lying 

about a torn brain stem” until April 2013. The district court, after a hearing on the motion,2

entered an order granting summary judgment to St. Luke’s, explaining that it had considered 

Baker’s affidavit in reaching its decision. In that order, the court treated Baker’s complaint as 

alleging one claim of medical malpractice, but also averring that the fraudulent concealment 

exception to the general statute of limitations rule applied. It found that Baker’s claim was 

barred by the statute of limitations and determined that even if the fraudulent concealment 

exception applied, Baker’s complaint was still filed beyond the statute of limitations.

After the court entered a judgment dismissing the complaint, Baker filed what he entitled 

a motion to alter or amend the judgment. Both parties then filed memoranda, affidavits, and 

exhibits in support of or in opposition to the motion. The district court treated the motion as a 

 1 According to Baker, his first trial ended in a mistrial, but his second trial ended in a guilty 

verdict.

2 For the first time, Baker argued at the hearing on the motion to dismiss that the doctrine 

of equitable estoppel barred St. Luke’s from asserting the statute of limitations.
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motion for reconsideration and, following a hearing, entered an order denying the motion. In 

that order, the court addressed Baker’s assertion that equitable estoppel applied, but found that 

Baker had not made a prima facie showing of equitable estoppel; it also determined that even if 

Baker had made a prima facie showing, equitable estoppel would not apply because Baker had 

an adequate time to pursue his legal remedies prior to the running of the statute of limitations. 

The court, again, found that the complaint was filed beyond the statute of limitations and 

determined that even if the fraudulent concealment exception applied, Baker’s complaint was 

still filed beyond the applicable statute of limitations. The court reentered a judgment dismissing 

Baker’s complaint, and Baker appeals.

II.

ANALYSIS

On appeal, Baker argues that the district court erred by granting summary judgment to 

St. Luke’s. We first note that summary judgment under Idaho Rule of Civil Procedure 56(c) is 

proper only when there is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law. On appeal, we exercise free review in determining whether a 

genuine issue of material fact exists and whether the moving party is entitled to judgment as a 

matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 

1986). When assessing a motion for summary judgment, all controverted facts are to be liberally 

construed in favor of the nonmoving party. Furthermore, the trial court must draw all reasonable 

inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 

Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 

876 P.2d 154, 156 (Ct. App. 1994).

The party moving for summary judgment initially carries the burden to establish that 

there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of 

law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden 

may be met by establishing the absence of evidence on an element that the nonmoving party will 

be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 

1994). Such an absence of evidence may be established either by an affirmative showing with 

the moving party’s own evidence or by a review of all the nonmoving party’s evidence and the 

contention that such proof of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134 

Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been 
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established, the burden then shifts to the party opposing the motion to show, via further

depositions, discovery responses or affidavits, that there is indeed a genuine issue for trial or to 

offer a valid justification for the failure to do so under I.R.C.P. 56(f). Sanders, 125 Idaho at 874, 

876 P.2d at 156. 

The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c), 

which is identical in all relevant aspects to I.R.C.P. 56(c), stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary 

judgment, after adequate time for discovery and upon motion, against a party who 

fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden of proof 

at trial. In such a situation, there can be “no genuine issue as to any material 

fact,” since a complete failure of proof concerning an essential element of the 

nonmoving party’s case necessarily renders all other facts immaterial. The 

moving party is “entitled to judgment as a matter of law” because the nonmoving 

party has failed to make a sufficient showing on an essential element of her case 

with respect to which she has the burden of proof. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and 

reasoning of Celotex have been adopted in Idaho. Dunnick, 126 Idaho at 312, 882 P.2d at 479. 

Baker initially asserts that the district court erred by disregarding the separate claims in 

his complaint. The district court characterized the complaint as asserting one claim of medical 

malpractice with other averments in support of the fraudulent concealment exception and the 

doctrine of equitable estoppel (discussed by Baker at a later hearing). Baker, however, does not 

cite to the record where he objected to the district court’s characterization of the complaint. We 

will, therefore, not address this issue on appeal because Baker has not demonstrated that he 

preserved this issue through an objection in the district court. See Idaho Appellate Rule 35(a)(6) 

(requiring parties to cite to the record that they rely upon for their argument); see also Sanchez v. 

Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991) (explaining that, generally, issues not 

raised below may not be considered for the first time on appeal).

Baker’s primary contention on appeal is that the district court erred by determining that 

the statute of limitations barred his claim. Baker maintains that the cause of action did not 
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accrue until 2013 and further asserts that the fraudulent concealment exception applies. He also

argues that equitable estoppel applied to St. Luke’s assertion of the statute of limitations.3

A. Statute of Limitations

Unless an exception applies, medical malpractice actions are subject to a two-year statute 

of limitations that arises after the cause of action accrues.4 I.C. § 5-219(4); Stuard v. Jorgenson, 

150 Idaho 701, 704, 249 P.3d 1156, 1159 (2011). The cause of action accrues when there is 

“some damage” from the act, omission, or occurrence complained of. Stuard, 150 Idaho at 704-

05, 249 P.3d at 1159-60. “In many medical malpractice cases, the damage occurs 

contemporaneously with the negligent act.” Hawley v. Green, 117 Idaho 498, 502, 788 P.2d 

1321, 1325 (1990). But in some cases, the Idaho Supreme Court has recognized that “the 

damage may not occur until some time after the negligent act.” Id. Hence, the Court has utilized 

an analytical tool to determine whether some damage has occurred in these cases by examining 

whether the fact of injury was objectively ascertainable. Stuard, 150 at 705, 249 P.3d at 1160. 

Specifically, the Court has examined whether there is “objective medical proof [that] would 

support the existence of an actual injury.” Davis v. Moran, 112 Idaho 703, 709 n.4, 735 P.2d 

1014, 1020 n.4 (1987); accord Stuard, 150 Idaho at 705, 249 P.3d at 1160.

In this case, there is no genuine issue of material fact as to the timeliness of the 

complaint. Baker’s complaint is based on his assertion that an endotracheal tube was improperly 

positioned in Gracelynn on May 10, 2010, and on May 11, 2010. This is the act complained of, 

and it appears to be Baker’s contention that the improperly placed tube was the cause of 

Gracelynn’s death. Because Gracelynn died on May 14, “some damage” to Gracelynn would 

have occurred at the latest on May 14. Thus, the cause of action would have accrued at the latest 

on May 14, 2010. Even accounting for the I.C. § 6-1005 tolling for the prelitigation screening 

panel, Baker’s complaint, filed more than three years later in September 2013, was filed beyond 

the statute of limitation.

 3 In his reply brief, it appears that Baker also challenges the denial of his motion to 

augment the record. However, this Court will not consider issues raised for the first time in the 

appellant’s reply brief. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).

4 Prior to commencing a medical malpractice action, a plaintiff is also required to file a 

request with a prelitigation screening panel. I.C. § 6-1001. The applicable statute of limitations 

is tolled and does not “run during the time that such a claim is pending before [the] panel and for 

thirty (30) days thereafter.” I.C. § 6-1005.
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Baker, however, argues that “objective medical proof of an actual injury” was not 

available until April 2013 when an expert witness testified during his criminal trial that it was her 

opinion that Gracelynn’s death was caused by oxygen deficiency. Yet, this assertion is 

irrelevant, because the damage does not need to be ascertainable to the plaintiff. Hawley, 117 

Idaho at 503, 788 P.2d at 1326. “Whether there was some damage, or whether that damage was 

objectively ascertainable, does not depend upon the knowledge of the injured party.” Lapham v. 

Stewart, 137 Idaho 582, 587, 51 P.3d 396, 401 (2002); accord Davis, 112 Idaho at 709, 735 P.2d 

at 1020. The test to determine whether the damage is objectively ascertainable is useful “where 

the functional defect (and its symptomology) does not occur at all until a later time.” Davis, 112 

Idaho at 708, 735 P.2d at 1019. For instance, the Idaho Supreme Court discussed radiation, 

noting that “a given dose of radiation may or may not set into motion the chain of events which 

leads to the real injury some years later.” Id. at 709, 735 P.2d at 1020. But for Gracelynn, who

is the injured party, “some damage” would have occurred to her at the latest by her death and the 

injury would have been objectively ascertainable between the alleged act and her death. 

One of the exceptions to the general statute of limitations rule for medical malpractice 

cases--the fraudulent concealment exception--is asserted by Baker. This exception applies 

“when the fact of damage has, for the purpose of escaping responsibility therefor, been 

fraudulently and knowingly concealed from the injured party by an alleged wrongdoer standing 

at the time of the wrongful act, neglect or breach in a professional or commercial relationship 

with the injured party.” I.C. § 5-219(4). Under the exception, the cause of action accrues “when 

the injured party knows or in the exercise of reasonable care should have been put on inquiry 

regarding the condition or matter complained of.” Id. The “condition or matter complained of” 

refers to “the condition which ultimately is alleged to constitute the malpractice or negligence of 

the doctor.” Reis v. Cox, 104 Idaho 434, 438, 660 P.2d 46, 50 (1982). If the exception applies, 

the statute of limitations requires that the action be commenced by the later of (a) one year from 

when the cause of action accrues under the exception or (b) two years after the act, occurrence, 

or omission complained of (disregarding the exception). I.C. § 5-219(4).

Even if Baker made a prima facie showing of fraudulent concealment, the cause of action 

would have still accrued when he knew of the act that was alleged to constitute the malpractice. 

Baker’s complaint and affidavit state that he was aware of the condition or matter complained 

of--the improperly placed endotracheal tube--in September 2011. Thus, the cause of action under 
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the exception would have accrued at that time, and the statute of limitations would have run in 

May 2013. Accounting for the I.C. § 6-1005 tolling for the prelitigation screening panel, Baker’s 

complaint in September 2013 was filed beyond the statute of limitations that would apply, even 

if Baker made a prima facie showing of fraudulent concealment. Although Baker asserts that St. 

Luke’s concealed, presumably until April 2013, the “fact of the danger of injury resulting from 

the ‘extreme hypoxia’ that resulted from the malpositioned ET tube,” this assertion is inapposite 

because Baker knew of the condition or matter complained of in September 2011.

B. Equitable Estoppel

Finally, Baker contends that equitable estoppel bars St. Luke’s from asserting the statute 

of limitations defense. Equitable estoppel is the only nonstatutory bar to the statute of limitations 

defense. City of McCall v. Buxton, 146 Idaho 656, 663, 201 P.3d 629, 636 (2009). It bars the 

defendant from “asserting the statute of limitations as a defense for a reasonable time after the 

party asserting estoppel discovers or reasonably could have discovered the truth.” Id. at 664, 21 

P.3d at 637. In order to make a prima facie case of equitable estoppel, the plaintiff must show 

four elements:

(1) a false representation or concealment of a material fact with actual or 

constructive knowledge of the truth; (2) that the party asserting estoppel did not 

know or could not discover the truth; (3) that the false representation or 

concealment was made with the intent that it be relied upon; and (4) that the 

person to whom the representation was made, or from whom the facts were 

concealed, relied and acted upon the representation or concealment to his 

prejudice.

J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 534, 887 P.2d 1039, 1041 (1994).

According to Baker’s appellate brief, St. Luke’s falsely represented Gracelynn’s cause of 

death as shaken baby syndrome or abusive trauma when a doctor testified at Baker’s criminal 

trial that Gracelynn died from a brainstem infarction “when in fact, no such injury was 

discovered.” Baker further explains that he did not know of the truth until “testimony by a 

qualified expert” was produced in April 2013. And finally, Baker avers that his defense at his 

criminal trial would have been different had St. Luke’s disclosed the improper placement of the 

endotracheal tube. 

Even assuming that Baker made a prima facie showing of the first two elements of 

equitable estoppel, Baker did not make a prima facie showing of the third and fourth elements. 

Here, the false representation alleged by Baker related to testimony made at his criminal trial and 
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relied on by the State, not by Baker. And, in any event, equitable estoppel bars the defendant 

from asserting the statute of limitations as a defense for a reasonable time after the plaintiff 

discovers or reasonably could have discovered the truth. Here, Baker admitted that he knew of 

the incorrect placement of the endotracheal tube in September 2011, before the statute of

limitations ran, and he did not file his complaint until September 2013. This timeframe 

amounted to more than a reasonable time for Baker to exercise due diligence and commence a 

medical malpractice action. Cf. Ferro v. Society of St. Pius X, 143 Idaho 538, 544, 149 P.3d 813, 

819 (2006) (concluding that equitable estoppel did not apply because Ferro reasonably should 

have known of the circumstances and he “did not proceed with due diligence in filing [the]

lawsuit”); Knudsen v. Agee, 128 Idaho 776, 779, 918 P.2d 1221, 1224 (1996) (“Knudsen knew of 

the wiretapping prior to the running of the statute of limitations with adequate time prior to the 

running of the statute of limitations for her to have pursued her legal remedies.”).

III.

CONCLUSION

In this case, there is no genuine issue of material fact with respect to the timeliness of the 

complaint. St. Luke’s was entitled to judgment as a matter of law because Baker’s complaint 

was filed beyond the statute of limitations, even if the fraudulent concealment exception applied. 

Moreover, Baker did not make a prima facie showing that equitable estoppel applied. 

Accordingly, we affirm the judgment of the district court dismissing Baker’s complaint. Costs, 

as a matter of right, are awarded to St. Luke’s. I.A.R. 40.

Chief Judge MELANSON and Judge GRATTON CONCUR.