               IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 42540


LUCIA NAVO, an individual, SERENA        )
NAVO and NICHOLE NAVO, individuals       )
by and through Val Navo as guardian,     )
                                         )
      Plaintiffs-Appellants-             )          Boise, January 2016 Term
      Cross Respondents,                 )
                                         )          2016 Opinion No. 47
 v.                                      )
                                         )          Filed: April 26, 2016
 BINGHAM MEMORIAL HOSPITAL, an           )
 Idaho corporation,                      )          Stephen W. Kenyon, Clerk
                                         )
      Defendant-Respondent-              )
      Cross Appellant,                   )
                                         )
 and                                     )
                                         )
 RYAN SAYRE, an individual, and          )
 MATTHEW MONROE, an individual,          )
                                         )
      Defendants.                        )
________________________________________)

      Appeal from the District Court of the Seventh Judicial District of the
      State of Idaho, Bingham County. Hon. David C. Nye, District Judge.

      The district court’s grant of summary judgment and award of costs and
      attorney fees are vacated and the case remanded for further proceedings.

      Petersen Moss Hall & Olsen, Idaho Falls, attorneys for appellants.
      Nathan Olsen argued.

      Powers Tolman Farley, PLLC, Twin Falls, attorneys for respondent.
      Jennifer K. Brizee argued.
                             ____________________________

W. JONES, Justice
                                   I. NATURE OF THE CASE
      Lucia Navo, Serena Navo, and Nicole Navo (collectively “Appellants”) appeal from the
dismissal on summary judgment of a case arising out of the death of Ellery Navo (“Navo”)


                                              1
during a surgery at Bingham Memorial Hospital (“Respondent” or “BMH”). Appellants argued
that BMH was liable both for its own negligence and for the negligent actions of certified nurse
anesthetist Ryan Sayre (“Sayre”), an independent contractor who administered anesthesia
services at BMH. Appellants supported their claim that BMH itself had been negligent with
expert testimony from Dr. Samuel H. Steinberg (“Dr. Steinberg”). The district court held, inter
alia, that: (1) Dr. Steinberg’s testimony was inadmissible because Appellants had failed to
provide evidence that he was familiar with the relevant local standard of care; (2) Appellants had
failed to provide any evidence that BMH employees had acted negligently; (3) Appellants had
failed to plead that Sayre was an agent of BMH under a theory of apparent authority; (4) even if
Appellants had properly pleaded a theory of apparent authority, they failed to provide evidence
sufficient to create an issue of material fact; and (5) BMH was not entitled to discretionary costs,
including attorney fees.1
                             II. FACTUAL AND PROCEDURAL BACKGROUND
        On or about November 20, 2008, Navo suffered a broken ankle when he slipped exiting
his truck. On November 21, 2008, surgery was performed on Navo’s ankle, which included the
installation of a metal rod. Subsequently, Navo’s ankle became infected, and he was admitted to
BMH. Surgery to remove the metal rod was scheduled at BMH for December 20, 2008.
        On December 15, 2008, Navo signed a form entitled “Conditions of Admission to
Bingham Memorial Hospital” (the “Admission Form”). Part six of the Admission Form, entitled
“Legal Relationship Between Hospital and Physician,” reads as follows:
        I understand that, unless I am specifically otherwise informed in writing, all
        physicians furnishing services to me, including . . . anesthesiology providers . . .
        and the like are independent contractors and are not employees or agents of the
        hospital. I am under the care and supervision of my attending physician and it is
        the responsibility of the hospital and its staff including residents and/or students to
        carry out the instructions of my physician. It is my physician’s responsibility to
        obtain my informed consent, when required, for medical or surgical treatment,
        special diagnostic or therapeutic procedures, or hospital services rendered unto
        me under general or special instruction of my physician. I understand that there
        will be a separate charge for professional services, such as physician services. I
1
  As an aside, Appellants previously named Sayre as an additional defendant. Related to Appellants’ claim against
Sayre, Appellants presented expert witness testimony of Dr. Schulman, which was initially found to be inadmissible
by the district court. However, upon reconsideration, the district court held that Dr. Schulman’s testimony regarding
the standard of care of certified nurse anesthetists and the breach of that standard by Sayre was allowed under Idaho
Code sections 6-1012 and 6-1013. Later, as result of settlement, the parties stipulated to the dismissal, with
prejudice, of claims against Sayre. Therefore, the issues on appeal are related only to claims between Appellants and
BMH.

                                                         2
         understand that the hospital does bill for some professional fees; but some
         professional fees are not included in the hospital’s bill and will be billed
         separately by the physician/provider.
(Emphasis added).
         On December 17, 2008, Navo was given an Anesthesia and Procedure Consent Form,
which he signed. The Anesthesia and Procedure Consent Form did not expressly indicate
whether anesthesia services were being provided by BMH or by an independent contractor. It
stated that “I understand that there will be a fee for this anesthetic or procedure and that it will be
in addition to the hospital or other physician’s fee . . . ” The Anesthesia and Procedure Consent
Form was printed on BMH letterhead, which contained the BMH logo and contact information.
         On December 20, 2008, Navo underwent surgery at BMH. Anesthesia was administered
by Sayre, who is a Certified Registered Nurse Anesthetist (“CRNA”) and an employee of
Blackfoot Anesthesia Services. During the surgery, Sayre administered anesthesia by way of a
“spinal.” Shortly after the anesthesia was administered, Navo’s blood pressure, heart rate, and
oxygen levels dropped. Sayre converted the spinal anesthesia to a general anesthesia and Navo
was stabilized enough that surgery could continue. However, when the surgery was completed,
nurses were unable to revive Navo. Navo remained non-responsive until his death on December
30, 2008.
         On December 29, 2010, Appellants filed a complaint (the “Complaint”) against BMH,
Monroe2, and Sayre, alleging that: (1) Sayre and BMH and each of their “agents” had failed to
exercise medical judgment in line with the local standard of care during the surgery, which was
the proximate cause of Navo’s death; and (2) BMH failed to exercise reasonable care in the
hiring, training, and supervision of its “employees,” which was the proximate cause of Navo’s
death.
         At no point does the Complaint expressly set forth a theory of agency by which BMH
would be liable for Sayre’s negligence. The Complaint does, however, specifically include the
term “and their agents” in alleging BMH’s liability for negligence during the operation. It does
not specify who BMH’s agents are.
         BMH did not file an answer to the Complaint. Instead, BMH moved for summary
judgment on the basis that Appellants could not establish a breach of the local standard of care
2
 Matthew Monroe (“Monroe”) was another nurse anesthetist who had worked on Navo during the surgery. After the
Complaint was filed it became evident that Monroe had not yet provided any services to Navo at the time the harm
occurred. Accordingly, Monroe was dismissed as a defendant.

                                                       3
by any BMH employee. In its Motion for Summary Judgment, BMH argued that: (1)
“[Appellants] must prove a breach of the applicable standard of health care practice in order to
prove negligence in a medical malpractice case. See Idaho Code Section 6-1012”; (2) Appellants
had not provided any evidence that BMH employees had acted outside of the standard of care;
and (3) Sayre and other CRNAs were not, and never had been, employees of BMH.
        On January 18, 2012, Appellants filed an opposition to BMH’s Motion for Summary
Judgment. Appellants argued that: (1) the testimony of Dr. Steinberg created an issue of material
fact as to whether BMH’s failure to institute policies and procedures for the administration of
anesthesia by independent contractors had violated the local standard of care; and (2) BMH was
liable for negligence committed by Sayre under a theory of apparent authority.
        In his affidavit and report, Dr. Steinberg testified that BMH had violated standards
promulgated by the Joint Commission on Accreditation of Hospitals, an independent non-profit
organization that accredits and certifies nearly 21,000 health care organizations across the United
States. Specifically, Dr. Steinberg alleged that BMH had violated the following language:
        LD.1.10—“The hospital identifies how it is governed. The hospital has
        governance with ultimate responsibility and legal authority for the safety and
        quality of care, treatment, and services.”

        LD.1.30—“The hospital complies with applicable law and regulation.”

        LD.2.20—“Each hospital program, service, site or departments has effective
        leadership.”

        LD.3.50—“Care, treatment, and services provided through contractual agreement
        are provided safely and effectively.”

Dr. Steinberg’s affidavit also indicated that he had familiarized himself with Idaho Code section
54-1402, Idaho Administrative Code section 16.13.14 [sic]3, and Idaho Administrative Code
section 23.01.01.
        In his report, Dr. Steinberg attested to his knowledge of the local standard of care as
follows:
        Joint Commission standards are widely accepted in the United States as the
        standard of care for the provision of inpatient hospital care, and describe the
        accountability and responsibility of hospital leaders in the delivery of care at their
        facilities. Joint Commission standards require that hospital leaders establish a

3
  Idaho Administrative Procedures Act section 16.13.14 does not exist. It is evident that Dr. Steinberg intended to
state that he had reviewed Idaho Administrative Procedures Act section 16.03.14.

                                                        4
           governance structure and management systems to oversee that appropriate rules,
           regulations, infrastructure, credentialing, and communication processes are in
           place to deliver high quality and safe care to their patients. The hospital is further
           required to establish systems to monitor the effectiveness of care and to correct
           any deficiencies. Ultimately, the hospital is responsible for the oversight of all
           professional services provided by medical staff, employees, and any others that it
           credentials or contracts with to practice at the hospital. Joint Commission
           standards are also frequently used by the federal Centers for Medicare and
           Medicaid to determine compliance with the requirements of these programs, and
           are also used and accepted as the standard of care for hospital licensure in many
           states, including Idaho, and Bingham Memorial Hospital is accredited by the Joint
           Commission and must therefore comply with their standards. I have also spoken
           with Judith Nagel, RN, Associate Director of the Idaho State Board of Nursing on
           January 11, 2011 to affirm that the community standards in rural hospitals in
           Idaho regarding nurse anesthesia programs is similar to standards in place across
           the country that I am familiar with.
           Shortly thereafter, BMH moved to strike the report and affidavit of Dr. Steinberg on the
ground that Dr. Steinberg was not competent to testify under Idaho Rule of Evidence 702. BMH
argued that Dr. Steinberg had not provided a foundation of “actual knowledge” of the local
community standard of care in Blackfoot, Idaho, in December of 2008, on which to base his
testimony—as is required under Idaho Code sections 6-1012 and 6-1013. More specifically, Dr.
Steinberg was required to, at a minimum, inquire of local specialists to determine whether the
community standard of care in Blackfoot, Idaho, differed from the national standard with which
he was familiar. Dr. Steinberg’s statement that he had spoken to Judith Nagel to familiarize
himself with the community standards was insufficient, BMH argued, because Judith Nagel
herself was not familiar with the community standard of care in Blackfoot.4
           On February 27, 2012, the district court granted BMH’s motion to strike Dr. Steinberg’s
testimony. The district court reasoned first that:
           Dr. Steinberg’s affidavit is without adequate foundation. He does not establish
           that he has actual knowledge of what the standard of care is in Blackfoot as it
           existed in December 2008. Furthermore, his alleged consultation with Nagel is
           also insufficient. He does not indicate that Nagel has actual knowledge of what
           the standard of care is in Blackfoot or how she became familiar with it.


4
    In conjunction with its motion to strike, BMH submitted the affidavit of Judith Nagel; stating that:
           I do not recall making any statements to Dr. Steinberg about community standards for nurse
           anesthetists or for hospitals either in Idaho or other states. Furthermore, I do not have actual
           knowledge of the local community standard of health care practice that applied to BMH or nurse
           anesthetists in Blackfoot, Idaho, in December 2008.

                                                             5
       On March 12, 2012, Appellants moved for the district court to reconsider its decision.
Attached to that motion, Appellants provided an additional affidavit from Dr. Steinberg, in which
he specified that he was familiar with the standard of care in the service area of BMH (the
Eastern Idaho Region) as it existed in 2008. He explained that while he had been unable to find a
hospital administrator in the Eastern Idaho Region who would speak to him, the Idaho Board of
Nursing regulates the provision of anesthesia services for all of Idaho, and so Judith Nagel was
the proper person to consult with regard to the local standard of care.
       In their memorandum in support, Appellants argued that the local standard of care in
Blackfoot had been replaced with a national standard of care with which Dr. Steinberg was
familiar.
       On July 24, 2012, the district court held that the supplemental affidavit of Dr. Steinberg
was not sufficient to show that the court had made an error such that reconsideration would be
proper—“[t]his court is not convinced that simply showing governmental regulations are in place
is an independent means whereby a plaintiff can show that a national standard of care has
replaced a local standard of care,” especially where the regulations in question govern the
“organization, personnel, and utilization of the health care provider” rather than the actual
administration of care.
       Because Dr. Steinberg’s testimony was not admissible, Appellants lacked the necessary
support for their claim that BMH had violated the local standard of care by failing to institute
policies and procedures for the administration of anesthesia by independent contractors.
Accordingly, the claim was dismissed on summary judgment.
       In support of its argument that Sayre was BMH’s agent under a theory of apparent
authority, Appellants cited the following facts: (1) the BMH website indicates that Steve
McClellan, the owner of Blackfoot Anesthesia Services, is the “Manager” of the “Anesthesia
Department,” when in actuality BMH has no Anesthesia Department and Steve McClellan
manages the CRNAs at Blackfoot Anesthesia Services who work with BMH as independent
contractors; (2) forms used by the CRNAs were on BMH letterhead; and (3) BMH runs frequent
advertisements on radio, television, and in print advertising health care services, which do not
expressly state that certain services at BMH are provided by independent contractors.
       BMH responded that: (1) Appellants had failed to plead that BMH was liable for Sayre’s
negligence under an agency by apparent authority “cause of action,” and therefore were

                                                 6
precluded from pursuing that “cause of action”; and (2) Appellants cannot show that Navo
reasonably believed that Sayre was an agent of the hospital because he had signed the Admission
Form which explicitly stated that he was aware that anesthesia providers were not agents of
BMH.
        On May 31, 2013, the district court entered an order determining that Appellants had
failed to adequately plead apparent authority in the Complaint. The court reasoned that “the key
issue in determining the validity of a complaint is whether the adverse party is put on notice of
the claims brought against it.” The inclusion of the phrase “and their agents” in the Complaint
was not enough to put BMH on notice that Appellants would be arguing that Sayre was BMH’s
agent under a theory of apparent authority. The court concluded that “even a hyper-vigilant
attorney would be unable to decipher this as a possible apparent authority cause of action.”
        The district court further held that BMH had not held Sayre out as its agent. It cited the
Admission Form as evidence that BMH took appropriate steps to alert the public that anesthesia
providers were independent contractors and not employees or agents. Conversely, the district
court held that the Anesthesia and Procedure Consent Form submitted by Appellants was not
enough to create an issue of material fact. To hold that the BMH logo on that form was enough
to create apparent authority would “require more than a liberal inference in [Appellants’] favor[;]
it would require an extreme supposition.” Indeed, the court noted that the Anesthesia and
Consent Form actually cut the opposite direction because it contained notice that anesthesia
services were billed apart from BMH’s hospital bills.
        Finally, the district court held that there had not been any showing that Navo had actually
believed that Sayre was an agent of BMH. It noted that Appellants “have failed to present even a
mere scintilla of evidence on Ellery Navo’s belief that Sayre was rendering services on behalf of
BMH.”
        On June 14, 2013, BMH filed a motion for attorney fees and costs. On June 28, 2013,
Appellants submitted an objection to BMH’s motion for attorney fees and costs and served that
motion on its adverse parties. However, that objection was not filed with the court until July 1,
2013. On August 21, 2013, the district court denied BMH’s motion for costs and attorney fees
without prejudice because not all of the parties’ claims had been resolved and, accordingly, it did
not have jurisdiction to grant attorney fees. On August 15, 2014, BMH renewed its motion for
costs and attorney fees. Appellants filed their objection that same day. The district court

                                                 7
reviewed BMH’s motion on the merits and declined to grant discretionary costs and attorney
fees.
        On September 15, 2014, Appellants filed an appeal of the Judgment. On November 10,
2014, BMH filed a cross-appeal of the district court’s Judgment on Costs and Fees.
                                      III. ISSUES ON APPEAL
1.      Did the district court abuse its discretion by striking Dr. Steinberg’s testimony?
2.      Did the district court err in holding that Appellants were barred from arguing apparent
        authority in response to BMH’s motion for summary judgment?
3.      Did the district court err in granting summary judgment to BMH on the finding that no
        issue of material fact existed as to whether Sayre was BMH’s agent under a theory of
        apparent authority?
4.      Did the district court abuse its discretion in denying BMH’s motion for costs and attorney
        fees?
5.      Is either party entitled to attorney fees and costs on appeal?
                                    IV. STANDARD OF REVIEW
1.      Evidentiary rulings are reviewed for abuse of discretion.
        “A district court’s evidentiary rulings will not be disturbed by this Court unless there has
been a clear abuse of discretion.” Mattox v. Life Care Centers of America, Inc., 157 Idaho 468,
473, 337 P.3d 627, 632 (2014) (citing McDaniel v. Inland Nw. Renal Care Grp.-Idaho, LLC, 144
Idaho 219, 222, 159 P.3d 856, 859 (2007)).
        In applying the abuse-of-discretion standard, this Court asks three questions: (1) whether
the lower court rightly perceived the issue as one of discretion; (2) whether the court acted within
the boundaries of such discretion and consistent with any legal standards applicable to specific
choices; and (3) whether the court reached its decision by an exercise of reason. Id.
2.      Determinations on summary judgment are reviewed under the same standard of review
        used by the district court.
        “On appeal from the grant of a motion for summary judgment, this Court utilizes the
same standard of review used by the district court originally ruling on the motion.” Arregui v.
Gallegos-Main, 153 Idaho 801, 804, 192 P.3d 1000, 1003 (2012). Summary judgment is proper
when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Id.



                                                  8
          When considering whether the evidence shows a genuine issue of material fact, the trial
court must liberally construe the facts and draw all reasonable inferences in favor of the non-
moving party. Id. However, “[A] mere scintilla of evidence or only slight doubt as to the facts is
insufficient to withstand summary judgment; there must be sufficient evidence upon which a jury
could reasonably return a verdict resisting the motion.” Harpole v. State, 131 Idaho 437, 439,
958 P.2d 594, 596 (1998). “[A] moving party is entitled to summary judgment when the
nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case on which that party will bear the burden of proof at trial.” Thomson
v.   Idaho     Ins.   Agency,    Inc., 126    Idaho    527,   530–31,     887    P.2d   1034,    1037–38
(1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
3.        Denials of discretionary costs and attorney fees are reviewed for abuse of discretion.
          Awards and denials of costs and attorney fees by the district court are reviewed for an
abuse of discretion. Hoagland v. Ada County, 154 Idaho 900, 907, 303 P.3d 587, 594 (2013).
                                               V. ANALYSIS
     A.       The district court did not abuse its discretion by refusing to admit Dr.
              Steinberg’s expert testimony.
          Idaho Code section 6-1012 establishes that a plaintiff in a medical malpractice action
must provide expert testimony showing that the defendant health care provider negligently failed
to meet the applicable standard of health care practice in the community as such standard existed
at the time and place of the alleged negligence:
                  In any case, claim or action for damages due to injury to or death of any
          person, brought against any physician and surgeon or other provider of health
          care, including . . . nurse anesthetist[s] . . . or any person vicariously liable for the
          negligence . . . such claimant or plaintiff must, as an essential part of his or her
          case in chief, affirmatively prove by direct expert testimony and by a
          preponderance of all the competent evidence, that such defendant then and there
          negligently failed to meet the applicable standard of health care practice of the
          community in which such care allegedly was or should have been provided, as
          such standard existed at the time and place of the alleged negligence . . . .
I.C. § 6-1012.
          Idaho Code section 6-1013 establishes that a plaintiff’s proposed expert must have actual
knowledge of the local standard of healthcare practice as such standard existed at the time and
place of the alleged negligence. I.C. § 6-1013.
                  The applicable standard of practice and such a defendant’s failure to meet
          said standard must be established in such cases by such a plaintiff by testimony of

                                                      9
       one (1) or more knowledgeable, competent expert witnesses, and such expert
       testimony may only be admitted in evidence if the foundation therefor is first laid,
       establishing (a) that such an opinion is actually held by the expert witness, (b) that
       the said opinion can be testified to with reasonable medical certainty, and (c) that
       such expert witness possesses professional knowledge and expertise coupled with
       actual knowledge of the applicable said community standard to which his or her
       expert opinion testimony is addressed; provided, this section shall not be
       construed to prohibit or otherwise preclude a competent expert witness who
       resides elsewhere from adequately familiarizing himself with the standards and
       practices of (a particular) such area and thereafter giving opinion testimony in
       such a trial.
I.C. § 6-1013 (emphasis added).
       An out-of-area expert witness may provide expert testimony only after adequately
familiarizing himself or herself with the applicable community standard of care. Id. There is
abundant Idaho Supreme Court precedent as to how an out-of-area expert may familiarize
himself or herself with the local community standard of care. Recently, this Court opined that:
       The guiding question is simply whether the affidavit alleges facts which, taken as
       true, show the proposed expert has actual knowledge of the applicable standard of
       care. In addressing that question, courts must look to the standard of care at issue,
       the proposed expert’s grounds for claiming knowledge of that standard, and
       determine—employing a measure of common sense—whether those grounds
       would likely give rise to knowledge of that standard. The obligation to
       demonstrate actual knowledge of the local standard of care is not intended to be
       “an overly burdensome requirement....” Frank v. E. Shoshone Hosp., 114 Idaho
       480, 482, 757 P.2d 1199, 1201 (1988). Nor is the standard static and firmly rooted
       in past medical practices. Standards of care are sensitive to evolving changes in
       the way health care services are delivered in the various communities of our State.
       Indeed, the Court has recognized that “governmental regulation, development of
       regional and national provider organizations, and greater access to the flow of
       medical information,” have provided “various avenues by which a plaintiff may
       proceed to establish a standard of care....”Suhadolnik v. Pressman, 151 Idaho 110,
       121, 254 P.3d 11, 22 (2011).
Mattox v. Life Care Centers of America, Inc., 157 Idaho 468, 474, 337 P.3d 627, 633 (2014).
   “One method for an out-of-area expert to obtain knowledge of the local standard of care is by
inquiring of a local specialist.” Mattox at 476, 337 P.3d at 635 (quoting Dulaney v. St. Alphonsus
Reg’l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002)). “When this method is employed,
the affidavit must provide adequate reason to believe that the local specialist interviewed has
actual knowledge of the applicable standard of care.” Id. at 476, 337 P.3d at 635. For example, in
Dulaney this Court held that expert testimony from an out-of-area emergency room physician
was properly excluded where he failed to provide any evidence that the local physician
                                                10
specializing in internal medicine whom he had consulted actually had knowledge of the local
standard of care regarding the discharge of patients from local emergency rooms. 137 Idaho at
166, 45 P.3d at 822. Likewise, in Arregui v. Gallegos-Main, a plurality of this Court concluded
that in a medical malpractice case brought against a chiropractor, testimony from an out-of-area
expert who allegedly consulted with a local chiropractor was properly excluded where that
expert failed to identify the local chiropractor, did not describe his chiropractic practice, and did
not explain how he became familiar with the local standards of care. 153 Idaho at 809, 291 P.3d
at 1008. Alternatively, in Mattox, this Court held that an out-of-area nurse had satisfied the actual
knowledge requirement where she had consulted both with a local doctor and an associate
professor teaching in the practical nursing program at Lewis-Clark State College, to familiarize
herself with the local standard of care for nursing in Lewiston, Idaho. 157 Idaho at 479, 337 P.3d
at 638.
   An additional method by which an out-of-area expert in a medical malpractice case may
satisfy the actual knowledge requirement is by demonstrating familiarity with a statewide or
national standard of care that has superseded the local standard of care. For example, in Hayward
v. Jack’s Pharmacy Inc., this Court found that the local standard of care regarding treatment of
patients in a nursing home had been replaced by state and federal standards of care. This Court
opined that because
          nursing homes are required to follow federal and state guidelines relating to
          patient care, including the prescription of pharmaceuticals, and . . . are responsible
          when those standards are not met . . . . [I]t follows that the standard of care for a
          physician treating a patient in a nursing home would be governed by those
          [federal and state guidelines].
141 Idaho 622, 628, 115 P.3d 713, 719 (2005).
   Likewise, in Mattox this Court found that an expert had satisfied the actual knowledge
requirement in a malpractice action, where that expert proved her familiarity with:
          [(1) federal regulations that] govern the certification of long-term and skilled
          nursing facilities in the Medicare and Medicaid programs[,] . . . [and] require such
          facilities to develop a comprehensive care plan that includes measurable
          objectives and timetables to meet a residents [sic] medical, nursing, and mental
          and psychosocial needs, . . . [and provide that] [e]ach resident must receive and
          the facility must provide the necessary care and services to attain or maintain the
          highest practicable physical, mental, and psychological well-being, in accordance
          with the comprehensive assessment and plan of care . . . [including] adequate
          supervision and assistance devices to prevent accidents; [and (2) IDAPA rules
          requiring that a] patient/resident plan of care shall be developed in writing upon
                                                   11
       admission of the patient/resident . . . which reflect[s] the patient’s needs, [and
       that] nursing services shall be provided to assure that each patient/resident
       receives care necessary to meet his total needs . . . including patient protection.
157 Idaho at 478–79, 337 P.3d at 637–38.
   It is crucial to note, however, that not all state or federal regulations are the type that can
replace a local standard of care. “Only regulations that concern the ‘physical administration of
health services’ can replace a local standard of care for purposes of Idaho Code sections 6-1012
and 6-1013.” Id. at 478, P.3d at 637 (citing McDaniel at 223, 159 P.3d at 860). In McDaniel this
Court held that familiarity with federal regulations prescribing health and safety requirements for
facilities providing dialysis and/or kidney transplantation services of patients with end-stage
renal disease could not suffice as familiarity with the local standard of care for an expert alleging
that defendant negligently failed to ensure that an adequate supply of bicarbonate was available
for a dialysis session. 144 Idaho at 222, 159 P.3d at 859. This Court explained that:
                There is a marked difference between regulations that govern the physical
       administration of health care services to patients and those that govern other
       aspects of a health care provider’s practice, such as organizational, personnel, and
       utilization requirements. Hayward does not stand for the proposition that a
       national standard of care is automatically implicated simply because the federal
       government has created some general regulatory scheme for a given area of
       medicine. Where the promulgated regulations do not concern the administration
       of health care services, the principles delineated by this Court in Hayward are
       inapplicable.
Id. at 223, 159 P.3d at 860.
       There are two ways that Dr. Steinberg could have shown actual knowledge such that he
would be qualified to testify in accordance with Idaho Code section 6-1012: (1) he could have
familiarized himself with the local standard of care by learning about that standard from another
physician who was himself or herself familiar with the local standard of care; or (2) he could
have shown that the local standard of care had been replaced by a national or statewide standard
of care contained in a state or federal regulation.
       First, we hold that the district court was correct in finding that in and of itself, Dr.
Steinberg’s conversation with Judith Nagel was not sufficient to give him actual knowledge of
the local standard of care in Blackfoot in December of 2008. In order for Judith Nagel to have
familiarized Dr. Steinberg with the standard of care, she would have had to herself be familiar
with that standard of care. Appellants fail to produce any evidence that Judith Nagel was familiar
with the local standard of care in Blackfoot in December of 2008.

                                                  12
        Second, we hold that the local standard of care for anesthesia services in Blackfoot in
December of 2008 had not been replaced by a national or statewide standard of care with which
Dr. Steinberg was familiar (either the Joint Commission standards or any of the other statutes
that Dr. Steinberg claimed to have reviewed).
        In his affidavit, Dr. Steinberg opined that BMH violated the following Joint Commission
Standards:
         LD.1.10—“The hospital identifies how it is governed. The hospital has
        governance with ultimate responsibility and legal authority for the safety and
        quality of care, treatment, and services.”

        LD.1.30—“The hospital complies with applicable law and regulation.”

        LD.2.20—“Each hospital program, service, site or departments has effective
        leadership.”

        LD.3.50—“Care, treatment, and services provided through contractual agreement
        are provided safely and effectively.”

        On review, it is clear that these Joint Commission Standards do not provide a coherent
standard of care that a hospital could look to for guidance in the administration of anesthesia
services. For a federal or statewide regulation to replace a local standard of care, that regulation
must provide actual concrete guidance with respect to the activities it purports to govern.
Generalities requiring “compliance with the law,” “effective leadership,” and that services be
provided “safely” and “effectively” are, as a practical matter, not sufficient to replace a local
standard of care.
        In addition to the Joint Commission Standards, Dr. Steinberg indicated that he had
reviewed certain Idaho Code and Idaho Administrative Code provisions. These provisions
contain the following relevant language:
        I.C.§ 54-1402—“Advanced Practice Registered Nurse means a registered nurse
        licensed in this state who has gained additional specialized knowledge, skills and
        experience through a program of study recognized or defined by the board. . . .
        [and] shall include . . . certified registered nurse anesthetist[s].”

        IDAPA 16.13.14 [sic]5—“Policies and procedures shall be approved by the
        medical staff and the administration of the hospital. These written policies shall

5
  Despite being cited by both Dr. Steinberg and Appellants, it appears that IDAPA 16.13.14 does not exist. It is
evident from Dr. Steinberg’s affidavit that he actually reviewed IDAPA 16.03.14. In his affidavit Dr. Steinberg
refers to this chapter of the IDAPA broadly; presumably he intended to reference subsection 390 regarding
anesthesia services.

                                                      13
         include as least . . . a. Designation of persons permitted to give anesthesia, types
         of anesthetics, preanesthesia, and post anesthesia responsibilities; and
         b. Preanesthesia physical evaluation of a patient by an anesthetist, with the
         recording of pertinent information prior to surgery together with the history and
         physical and preoperative diagnosis of a physician; and c. Review of patient
         condition immediately prior to induction; and d. Safety of the patient during
         anesthetic period; and e. Record of events during induction, maintenance, and
         emergence from anesthesia including: i. Amount and duration of agents; and ii.
         Drugs and IV fluids; and iii. Blood and blood products. f. Record of post-
         anesthetic visits and any complications shall be made within three (3) to forty-
         eight (48) hours following recovery; and g. There shall be a written infection
         control procedure including aseptic techniques, and disinfection or sterilizing
         methods.”

         IDAPA 23.01.016

         We hold that Idaho Code section 54-1402 does not provide a standard of care at all. The
Idaho Code requires only that CRNAs pursue a program of recognized study, but it does not
regulate the provision of services by CRNAs after they have completed such a program.
         IDAPA 16.03.14, on the other hand, is not completely dissimilar to the standard of care
in Mattox, which this court held had replaced the local standard of nursing home care. Mattox,
157 Idaho at 479, 337 P.3d at 632. However, there is one crucial difference between the two. In
Mattox, the federal standards at issue required nursing care facilities to create individual plans of
care for each patient and then required those facilities to follow each plan of care so as to provide
for the individual patient’s safety and well-being. Id. Accordingly, the standards in Mattox
governed the actual administration of care, even if they left the creation of each plan of care to
the hospital. Id. IDAPA 16.03.14, on the other hand, does not itself establish rules governing the
actual administration of care, but instead requires that medical staff and hospital governance
approve their own policies and procedures. While the policies and procedures approved by each
individual hospital might themselves govern the actual administration of care, the IDAPA
requirement that policies and procedures exist is organizational in nature. Therefore, in
accordance with this Court’s decision in McDaniel, IDAPA 16.03.14 cannot serve to replace a
local standard of care because it does not govern the actual provision of care in Idaho hospitals.
         In sum, the district court did not act outside of its discretion when it held that: (1) Dr.
Steinberg’s conversation with Judith Nagel was not sufficient to show that he had acquired actual

6
 Chapter 01 contains a number of subsections. Dr. Steinberg’s affidavits and Appellants’ briefs do not indicate
which subsections, if any, are relevant to the local standard of care, and it is not evident from an independent review.

                                                          14
knowledge of the local standard of care; and (2) the statewide and national standards cited by Dr.
Steinberg had not replaced the local standard of care for the purposes of Idaho Code section 6-
1012.
   B.      The district court erred in holding that Appellants were barred from arguing
           apparent authority in response to BMH’s motion for summary judgment.
   The district court held that BMH cannot be held liable for Sayre’s conduct because
Appellants failed to properly plead the theory of apparent authority.
   “A cause of action not raised in a party’s pleadings may not be considered on summary
judgment nor may it be considered for the first time on appeal.” Maroun v. Wyreless Sys.,
Inc., 141 Idaho 604, 613, 114 P.3d 974, 983 (2005).
        Idaho Rule of Civil Procedure 8(a) provides:
                A pleading which sets forth a claim for relief, whether an original claim,
        counterclaim, cross-claim, or third-party claim, shall contain (1) if the court be of
        limited jurisdiction, a short and plain statement of the grounds upon which the
        court’s jurisdiction depends, (2) a short and plain statement of the claim showing
        that the pleader is entitled to relief, and (3) a demand for judgment for the relief to
        which he deems himself entitled.
IRCP 8(a). However, “[t]he technical rules of pleading have long been abandoned in Idaho, and
the ‘general policy behind the current rules of civil procedure is to provide every litigant with his
or her day in court.’” Brown v. Pocatello, 148 Idaho 802, 807, 220 P.3d 1164, 1169 (2010)
(quoting Clark v. Olsen, 110 Idaho 323, 325, 715 P.2d 993, 995 (1986)). This approach has
likewise been adopted with regard to affirmative defenses; “[t]his Court has interpreted IRCP
8(c) as requiring affirmative defenses to be plead, but without identifying the consequences for
failing to do so.” Patterson v. Idaho Dep’t of Health & Welfare, 151 Idaho 310, 316, 256 P.3d
718, 724 (2011). This Court continued, “[t]herefore . . . a party does not waive an affirmative
defense for failing to raise it in the initial answer, so long as it is raised before trial and the
opposing party has time to respond in briefing and oral argument.” Id. Accordingly, when
reviewing a pleading, this Court should focus on ensuring “that a just result is accomplished,
rather than requiring strict adherence to rigid forms of pleading.” Seiniger Law Office, P.A. v. N.
Pac. Ins. Co., 145 Idaho 241, 246, 178 P.3d 606, 611 (2008). “The purpose of a complaint is to
inform the defendant of the material facts upon which the plaintiff rests the action.” Clark v.
Olsen, 110 Idaho 323, 325, 715 P.2d 993, 995 (1986). Accordingly, “the key issue in
determining the validity of a complaint is whether the adverse party is put on notice of the claims


                                                  15
brought against it.” Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 427, 95 P.3d 34, 45
(2004).
          In its decision, the district court opined that “even a hyper-vigilant attorney would be
unable to decipher [the Complaint] as [containing] a possible apparent authority cause of action.”
Not only does the district court underestimate the competence of Idaho attorneys, but it
mischaracterizes apparent authority as a theory giving rise to a cause of action.
          Apparent authority is a theory by which an agency relationship arises between a principal
and a third-party. It is one of only three theories of agency available under Idaho law. One
consequence of an agency relationship is that the principal becomes liable for the torts
committed by the agent within the scope of agency. However, apparent authority is not itself a
cause of action; rather, it is a legal theory through which agency arises.
          “Under notice pleading, a party is no longer slavishly bound to stating particular theories
in its pleadings.” Seiniger Law Office, 145 Idaho at 246, 178 P.3d at 611. Rather, a party is
required to state an underlying cause of action and the facts from which that cause of action
arises. In the Complaint, Appellants sufficiently stated the underlying cause of action in Count 1,
when it stated that “defendants, as providing health services to the public, owed the plaintiffs’
decedent, Ellery Navo, and the plaintiffs, as heirs, a duty of care” and “that duty of care required
that the defendants and their agents failed [sic] to exercise their best medical judgment and
render care consistent with the local standard of care.”
          Clearly defendants stated a cause of action for negligence. It is further evident from the
inclusion of the term “agents,” that Appellants were seeking to hold BMH liable for the
negligence of its agents. BMH’s failure to expressly denote Sayre and Monroe as agents is not
fatal. A reasonable attorney would presume that Sayre and Monroe, as independent contractors
and the only other named defendants, would be viewed by Appellants as agents of BMH. This is
further evidenced from the fact that the Complaint alleges that “Ellery’s condition was not
properly monitored or managed by the [sic] Monroe, Sayre and other Bingham Memorial
personnel.”
          Accordingly, the Complaint was sufficient to put defendants on notice that Appellants
sought to hold BMH liable for Sayre and Monroe’s actions. Indeed, BMH evidently recognized
this possibility—in its motion for summary judgment it addressed at length why BMH was not
liable for the torts of Sayre and Monroe. If BMH’s attorneys were not on notice that Appellants

                                                  16
would attempt to hold BMH liable for Sayre’s and Monroe’s negligence, then it makes little
sense that BMH would address them in its motion for summary judgment.
      C.      The district court erred in finding that no genuine issues of material facts existed
              as to whether Sayre was BMH’s agent under a theory of apparent authority.
           We now look to whether there are genuine issues of material facts regarding whether
BMH’s conduct led Navo to reasonably believe that Sayre was acting on BMH’s behalf, and
further, whether Navo accepted Sayre’s services under the reasonable belief that such services
were rendered on behalf of BMH.
           “[A] hospital may be found vicariously liable under Idaho’s doctrine of apparent
authority for the negligence of independent personnel assigned by the hospital to perform
support services.” Jones v. Health S. Treasure Valley Hosp., 147 Idaho 109, 116, 206 P.3d 473,
480 (2009).
           The standard for apparent authority stated in section 2.03 of the Restatement
           (Third) of Agency and section 429 of the Restatement (Second) of Torts has two
           essential elements: 1) conduct by the principal that would lead a person to
           reasonably believe that another person acts on the principal’s behalf, i.e., conduct
           by the principal ‘holding out’ that person as its agent; and 2) acceptance of the
           agent’s service by one who reasonably believes it is rendered on behalf of the
           principal.
Id.
           In order to survive summary judgment, Appellants must present evidence to the court
sufficient to create an issue of material fact as to each of the two elements of apparent authority.
In reviewing the evidence presented by Appellants, this Court is required to make every
inference in favor of the Appellants, but it cannot view bare assertions without evidence as
sufficient to create an issue of material fact.
           With respect to the first element, Appellants allege that the Admission Form, which was
on BMH letterhead, led Navo to reasonably believe Sayre was BMH’s agent. The subsection
titled “Legal Relationship Between Hospital and Physician” of the Admission Form only
references physicians as being “independent contractors . . . not employees or agents of the
hospital.” Notably, the legal relationship between BMH and CRNAs is not addressed; therefore,
it is reasonable to interpret the Admission Form as having no apparent bearing on the
relationship between Sayre, a CRNA not a physician, and BMH. Furthermore, the Anesthesia
and Procedure Consent Form does not affirmatively state that Sayre is not BMH’s agent; rather,
it merely states, on BMH letterhead, that “I understand that there will be a fee for this anesthetic

                                                   17
or procedure and that it will be in addition to the hospital or other physician’s fee . . . .” The fact
that the anesthetic fee is separate from that of the hospital or other physician’s fee may imply
that Sayre is not an employee or agent of BMH; however, such an interpretation is not consistent
with the requirement to draw all reasonable inferences in Appellant’s favor. It would be equally
reasonable for a jury to find that Navo believed Sayre was an agent or employee of BMH due to
the fact that it was not expressly stated otherwise on the Anesthesia and Procedure Consent
Form.
        Turning to the second element, there is a genuine issue of material fact regarding whether
Navo accepted Sayre’s services under the reasonable belief that such services were rendered on
behalf of BMH. BMH contends that the signed Admission Form demonstrates that Navo
understood Sayre was not an employee or agent of BMH. However, as stated above, it would be
reasonable for a factfinder to believe that the Admission Form has no bearing on the legal
relationship between BMH and CRNAs. Further, it could be argued that Navo signed the
Anesthesia and Procedure Consent Form with the belief that Sayre was acting as BMH’s agent.
That is, by signing the Anesthesia and Procedure Consent Form, which did not affirmatively
state that Sayre was not BMH’s agent, Navo may have accepted Sayre’s services with the belief
that Sayre was acting as BMH’s agent.
        In support of its holding that a hospital may be found vicariously liable under Idaho’s
doctrine of apparent authority for the negligence of independent personnel, this Court quoted the
Illinois Supreme Court as follows:
        [I]t is the hospital, and not the patient, which exercise [sic] control not only over
        the provision of necessary support services, but also over the personnel assigned
        to provide those services to the patient during the patient’s hospital stay. To the
        extent the patient reasonably relies upon the hospital to provide such services, a
        patient may seek to hold the hospital vicariously liable under the apparent agency
        doctrine for the negligence of personnel performing such services even if they are
        not employed by the hospital.
Jones, 147 Idaho at 114, 206 P.2d at 478 (emphasis in original) (quoting York v. Rush-
Presbyterian-St. Luke’s Medical Center, 222 Ill.2d 147, 305 Ill.Dec. 43, 854 N.E.2d 635 (2006)).
Here, drawing all reasonable inferences in Appellant’s favor, genuine issues of material facts
exist regarding whether BMH’s conduct led Navo to reasonably believe that Sayre acted on
BMH’s behalf and whether Navo accepted Sayre’s services under the reasonable belief that such



                                                  18
service was rendered on behalf of BMH. Accordingly, we vacate the district court’s summary
judgment order and remand for further proceedings.
   D.      There is no prevailing party because this Court vacated the grant of summary
           judgment. Therefore, analyzing BMH’s cross-appeal is no longer necessary.
        This Court’s decision vacating the grant of summary judgment means there is no
prevailing party. BMH’s cross-appeal fails because it is not a prevailing party at this time. For
the same reason, we vacate the award of costs and attorney fees to BMH.
   E.      No party is entitled to attorney fees on appeal.
        Attorney fees under Idaho Code section 12-121 are only appropriate where the entire
appeal was “pursued frivolously, unreasonably, and without foundation.” Snider v. Arnold, 153
Idaho 641, 645, 289 P.3d 43, 47 (2012). All parties’ arguments were cogent, well researched, and
had at least some foundation. Accordingly, no party is entitled to attorney fees on appeal.
        Appellants are entitled to costs on appeal as the prevailing party.
                                         VI. CONCLUSION
        We vacate the district court’s grant of summary judgment and award of costs and
attorney fees and remand for further proceedings. Costs on appeal to appellants.
        Chief Justice J. JONES and Justices EISMANN, BURDICK and HORTON, CONCUR.




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