Idaho Jury Finds Family Doctor Missed a Girl's Hip Dysplasia Across Five Well-Baby Exams

A girl born five weeks early in September 2008 was seen by Dr. Scott Shappard, an osteopathic family doctor, for five well-baby examinations between November 2008 and October 2009. Her mother raised the same concerns at each of them, in conversation and in writing: a skin fold on the baby's leg that did not match the other side, legs that looked unequal in length, and later, walking on tiptoe on one leg only. According to the evidence at trial, the asymmetrical fold was present at all five visits. Dr. Shappard did not treat any of it as a warning sign, and told the mother tiptoe walking was normal until age two.

The girl had developmental dysplasia of the hip, a malformation of the joint that is far easier to treat when it is caught early. When she began to walk, she had trouble. Her parents took her to an orthopedic specialist, Dr. Stanley Waters, twice in 2010; he recognized the condition but did not tell them she needed immediate treatment. In May 2012 another physician measured a leg-length difference of an inch and a half, ordered x-rays at once, and performed open reduction surgery that August, when she was four years old. He testified the results had been good so far, with a risk of major complications later. A pediatric orthopedic surgeon called by the family testified she would probably develop arthritis in her 30s or 40s, eventually need a hip replacement, and be limited to sedentary work. A vocational expert, relying on medical opinions, put the likely number of hip replacements over her lifetime at two to three.

The parents sued Dr. Shappard, Genesis Medical Center, Saint Alphonsus Regional Medical Center and others in Ada County District Court. Dr. Waters settled before trial but stayed on the verdict form so the jury could apportion fault. Senior District Judge Gerald F. Schroeder presided, and the jury heard evidence for nearly two weeks. Dr. David Butuk, a medical expert for the family, testified that repeated parental complaints of this kind are a 'big red flag' that the standard of care requires a physician to act on. The defense used a published diagnostic algorithm to argue that Dr. Shappard had followed correct procedures.

By special verdict, the jury found that Dr. Shappard fell below the standard of care and acted recklessly. It assigned 80 percent of the fault to him and 20 percent to Dr. Waters. It awarded $289,000 for noneconomic harm and $750,000 for economic loss, which covered past and future medical care and reduced future earnings, a total of $1,039,000. With Dr. Waters out of the case, the providers' 80 percent share came to $831,200. The court entered judgment against them for $847,974.46; the opinion does not itemize the amount above that share.

The defendants asked the trial court to correct the verdict, order a new trial or enter judgment in their favor despite it. They argued that two jurors had told defense counsel the noneconomic and economic figures were inadvertently swapped on the form, that the article containing the algorithm should have gone to the jury room, and that the jury should not have been instructed on recklessness alongside negligence. The district court denied each motion.

Rossman Law Group represented the family, and Eric S. Rossman argued the appeal. The Idaho Supreme Court affirmed on September 28, 2016. It held that the jurors' affidavits could not be used to alter the verdict under Idaho Rule of Evidence 606(b), that keeping the article out of the jury room was not an abuse of discretion, that the jury instructions were proper, and that the lost future earnings award rested on substantial and competent expert evidence. Because the noneconomic award fell below Idaho's statutory cap and negligence alone supported the judgment, the recklessness finding had no legal effect on the outcome. Calling the appeal little more than a request to reweigh the evidence, the court awarded the family its attorney fees and costs on appeal.