                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 42519

JEFFERY A. BAKER,                                  )    2015 Unpublished Opinion No. 561
                                                   )
          Plaintiff-Appellant,                     )    Filed: July 20, 2015
                                                   )
v.                                                 )    Stephen W. Kenyon, Clerk
                                                   )
ST. LUKE’S REGIONAL MEDICAL                        )    THIS IS AN UNPUBLISHED
CENTER,                                            )    OPINION AND SHALL NOT
                                                   )    BE CITED AS AUTHORITY
          Defendant-Respondent.                    )
                                                   )

          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.
                                                  2
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

                                                 6
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.




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