A doctor ‘botched’ her hernia repair. Idaho’s Supreme Court must decide what to do

In June 2017, Julene Dodd visited her primary care doctor for shortness of breath and chest pain.

She thought her breathing difficulties might have been caused by allergies. Her doctor prescribed an inhaler, but it didn’t help. A month later, she was referred to Saint Alphonsus Medical Center in Nampa. A chest scan revealed that a large hiatal hernia was putting pressure on one of her lungs.

In August, she was admitted to the hospital for an elective surgery to repair it. But the overnight stay turned into a year-long struggle to survive.

Dodd says the “botched” procedure at Saint Alphonsus led to numerous, life-threatening medical issues that ultimately left her with end-stage renal, or kidney, disease. She now undergoes kidney dialysis three times a week.

She and her husband, William Dodd, hired a Boise lawyer to sue for medical malpractice. But that only brought more woes, as the lawyer failed to file her case in time, causing it to be dismissed. So the Dodds hired a second lawyer to file a second lawsuit, this one against the first lawyer, alleging legal malpractice. That case failed, too, on procedural grounds, prompting the second lawyer to fault the judge who ruled against his suit. The lawyer also condemned the legal system in Idaho for consistently ruling in favor of lawyers in legal-malpractice cases.

Now it’s up to the Idaho Supreme Court to decide what to do.

Patient deteriorates after surgery

Before Dodd’s hernia repair, hospital staff ran a series of tests to confirm the results of the chest scan. Dr. Forrest Fredline, a doctor of osteopathic medicine at Saint Alphonsus, performed an endoscopy, a procedure that uses a thin tube and a tiny camera to look inside the body.

He had told Dodd, then 65 years old, that if the hernia was too large, he would refer her to another doctor, according to Dodd’s lawsuit against the physician and Saint Alphonsus. But upon seeing the hernia, Fredline believed it was a size he could manage, the lawsuit said.

A hiatal hernia is a common condition, especially in older adults, that occurs when part of the stomach bulges into the chest, according to the Mayo Clinic . The Dodds’ second attorney, Angelo Rosa of Rosa PLLC in Boise, told the Idaho Statesman that the surgery to fix Dodd’s hernia should have been a simple procedure.

The day of the procedure, Fredline used a laparoscope to see inside Dodd and to repair the hernia with the aid of a tool in a tube attached to the laparoscope. Fredline noticed a “small tear” in her right lung, surgical notes show. He continued with the surgery because her airway pressures didn’t change, the lawsuit says.

He then inserted a portion of reconstructive tissue into her abdomen. But as he tried to stitch her up, a “small portion of the needle” broke off into her abdomen, and the fragment was “unable to be located,” Fredline wrote in the surgical notes. He decided it was too “inconsequential” to pose a danger and continued with the procedure.

Afterward, he told Dodd that the operation was more difficult than he thought it would be, according to the lawsuit. Her condition quickly deteriorated.

Patient suffers abdominal pain, sepsis

Despite Dodd persistently complaining of pain, Fredline ordered staff to administer a series of enemas so that she would have a bowel movement before being discharged, according to the lawsuit. But the enemas didn’t work.

After each enema, Dodd’s abdominal pain worsened.

The lawsuit said Fredline had “nicked” Dodd’s small intestine during the surgery, causing her abdomen to fill with feces, which, exacerbated by the repeated enemas, led to sepsis, a life-threatening condition where the body has a sudden and extreme response to an infection, according to the National Institutes of Health .

Dodd was placed on a ventilator and transferred to the intensive care unit. She suffered acute respiratory failure and swelling so severe that it turned her toes black, the lawsuit said.

Instead of being discharged a day or two after surgery, as was planned, she spent about four weeks at the hospital undergoing other operations.

Several months later, on March 8, 2018, she finally returned home. But her troubles didn’t stop there.

Dodd had to have at-home health care assistance for three months because she couldn’t go to the bathroom, shower and move around by herself, according to the lawsuit. Even now, years later, her life has not returned to normal. She used to garden, manage a farm and take care of horses — things she’s no longer capable of doing, the lawsuit said. And she had to retire from her career as an insurance broker.

”The ordeal — which began with Dr. Fredline’s incompetently performed surgery followed by the development of sepsis resulting from post-operative enemas, and Saint Alphonsus’ refusal to take corrective actions until the sepsis brought me to the edge of death — rendered me unable to work due to exhaustion, the inability to mentally focus, and the inability to sit or stand for any length of time,” Dodd said in a declaration filed in court.

The Idaho Statesman sought to ask Saint Alphonsus Health System questions about this case, including whether Fredline is still employed by Saint Alphonsus, whether he’s still performing procedures like the one he did on Dodd, and whether the hospital or its insurer offered to settle with Dodd in response to the alleged malpractice.

A spokesperson said the health system had no comment. Fredline did not respond to a message left for him at the Nampa hospital seeking comment.

Fredline is still listed as a provider on Saint Alphonsus’ website . His areas of specialization include hiatal hernia repair.

Lawyer takes Dodd’s malpractice case

During her stay at Saint Alphonsus in Nampa, Dodd’s second lawsuit said, she was approached by Rory Jones of Jones Williams Fuhrman Gourley, a Boise law firm, who proposed that he represent her in a medical malpractice lawsuit against the hospital for failing to competently treat her.

A couple of months later, they signed a contingent fee agreement.

Jones had represented Dodd in a divorce case about two decades earlier, though they hadn’t spoken since, and he had known her brother for many years, according to the second lawsuit.

But Jones failed to file the $5 million lawsuit until four days after the statute of limitations had expired, according to Rosa’s opening brief in Dodd’s appeal to the Supreme Court. Idaho law gives residents two years from the time the alleged malpractice occurred to file actions to recover damages for professional malpractice or personal injuries.

Six days before that deadline, Jones’ firm filed an application for a prelitigation hearing with the Idaho State Board of Medicine. The board concluded that neither Fredline nor Saint Alphonsus had committed medical malpractice.

“Although it is rare, it is a known recognized complication of hiatal hernia repair that a patient’s jejunum can be compromised during the course of the surgical procedure,” the board said.

The jejunum is the middle part of the small intestine. The board said the fact that Julene’s jejunum was so compromised was not, “in and of itself … indicative of a violation of the local standard of care notwithstanding the significant medical problems it created post-surgery,” the brief said.

Jones, meanwhile, allegedly communicated with other attorneys as if the case was still viable. Simultaneously, he avoided contact with the Dodds, failing to provide them with updates or return their phone calls and emails about the case’s progress, according to the brief.

In May 2020, Dodd said, Jones admitted his error and urged her to file a legal malpractice case, saying his insurance would pay her.

So the Dodds hired another Boise attorney, Angelo Rosa, to file the second lawsuit accusing Jones and his firm of legal malpractice.

Dodd undergoes dialysis, mostly sleeps

Rosa told the Statesman by phone that Dodd spent two years on a transplant list before a kidney became available to her this summer. But she had to turn it down, he said.

“They couldn’t afford even the Medicare copay,” Rosa said.

The Dodds survive on William Dodds’ income as a long-haul truck driver. According to Rosa, the cost of the transplant procedure is about $500,000. Medicare would pay 80%. Anti-rejection medications would cost Dodd over $1,500 a month for the rest of her life.

The couple contend that they suffered physical, emotional and financial damage as a result of medical and legal malpractice. They say Jones’ negligence cost them their claims for damages against Fredline and Saint Alphonsus.

Boise judge sides with lawyer, dismisses Dodd’s case

Ada County District Judge Cynthia Yee-Wallace, who presided over the legal malpractice case in Boise, dismissed it for procedural reasons.

Yee-Wallace excluded the testimony of Dodd’s medical expert, Dr. Fred Simon, on the basis that he could not speak to the community standard of care in Nampa, and granted a motion from Jones for summary judgment, meaning the court decides the case without holding a jury trial.

Idaho law requires plaintiffs who bring a medical malpractice claim to provide expert testimony that shows the provider didn’t meet the applicable standard of health care. In order to testify, the expert must have knowledge of the community standard of care at the time and place of the alleged malpractice, Yee-Wallace said in her decision .

In expert submissions, Simon said he had consulted with a local surgeon and that there was no distinction between the community standard and the national standard.

Yee-Wallace wrote that Simon’s statements weren’t enough to demonstrate his familiarity with the standard of care for general surgeons in Nampa, where Dodd’s surgery and postoperative care occurred. Rosa said during a hearing that there “is no unique Nampa, Idaho, method for performing this care,” according to a court reporter’s transcript.

Simon said he was licensed by the Idaho State Board of Medicine for 34 years and was a general and trauma surgeon at Portneuf Medical Center in Pocatello from 2016 to 2018, during the time of Dodd’s hernia repair. He said he was also certified by the American Board of Surgery in general surgery.

The Dodds appealed Yee-Wallace’s decision to the Idaho Supreme Court. Rosa said he wants the case to return to the district court level.

“I want to put Julene in front of a jury,” Rosa said. “I want people to understand that their health care community has to be accountable. That their legal community owes them a duty of care. She is the example of what happens when professionals are not held accountable.”

Medical certifications, standard of care draw questions

In the hearing before the Supreme Court on Sept. 9, the justices asked Rosa pointed questions about why Simon was deemed unqualified to provide testimony in the case.

Chief Justice G. Richard Bevan said that because the legal malpractice case is based on the medical malpractice case, or “a case within a case,” as he put it, Rosa has to show two things: that Fredline was negligent and that he failed to meet the appropriate community standards of care.

The justices inquired about the differences between a doctor of osteopathic medicine and a doctor of medicine, and the differences in standards of health care between Ada and Canyon counties. Simon is a doctor of medicine, while Fredline is a doctor of osteopathic medicine.

The licensing requirements for the two degrees are the same, but doctor of osteopathic medicine programs take a more holistic approach and typically involve additional training on the musculoskeletal system, according to the American Medical Association .

Rosa noted that both are licensed by the Idaho State Board of Medicine. But the justices sought to understand the different certifications granted to Simon and Fredline.

A medical license , granted by a state, is a minimum requirement for practicing medicine. A certification by a board in a specialized medical field declares that a physician has more advanced expertise in that field than a medical license requires.

“It appears that Dr. Fredline is certified by a different board than Dr. Simon. Please speak to that,” Justice Colleen D. Zahn said to Rosa.

Fredline is certified by the American Osteopathic Association. Simon is certified by the American Board of Surgery.

Rosa, in some of his responses to the justices, indicated that he believed the issue of certification had superseded the central issue of the case and the harm that Dodd suffered.

“How they’re licensed is important,” Rosa said. “But certainly the more relevant consideration is their ability to testify to the applicable standard of care and to analyze physicians’ conduct in relation to that standard. If the national standard of care does apply, and it does, then the parsing out between Nampa and Ada County is an artificial distinction. There is no difference.”

Lawyer’s lawyer defends the Boise judge

Jones’ attorney, Gary L. Cooper of Cooper & Larsen in Pocatello, said in his oral argument that Rosa failed to bring forth an expert knowledgeable about the community standard of care in Nampa. He said it would be “sketchy” to “put a D.O. up against an M.D.”

“You better be really certain that it’s the same standard of care,” Cooper said.

Justice Gregory W. Moeller questioned Cooper as to why a national standard of care wouldn’t apply. Regarding the laparoscopic hiatal hernia repair, Moeller said, “We’re talking about a fairly, at least it seems to me, routine procedure.”

Cooper said, “I don’t know the answers to those questions.”

He then attempted to appeal to the justices by slamming Rosa’s criticism of Yee-Wallace, the Ada County district judge. Rosa had written in the appeal that Yee-Wallace’s move to strike Simon as an expert “displays a shocking failure to follow the law and apply the facts.”

“They tried to minimize Judge Yee-Wallace as if she’s a freshman who doesn’t know her way around a courtroom and doesn’t know how to read the law and various other things,” Cooper said.

He said Yee-Wallace was “absolutely right” to strike Simon’s testimony. He called the appeal frivolous.

Cooper declined to comment on the case when reached by the Statesman by phone, citing pending litigation. He said that Jones was out of the country and that he wouldn’t advise Jones to comment, either.

Dodd’s new lawyer says inexperienced judge erred

Rosa said in an interview with the Statesman that, setting aside the consequences for his client and her health, he didn’t believe the lower-court ruling followed the conventions of judicial discretion or dealt with the issues in a way that’s consistent with the law. He said Yee-Wallace was a freshman judge who had been on the bench for only a year.

“I really believe that if these issues were resolved or consigned to a more experienced judge, and a judge who may perhaps have understood the big picture better, I think that there might have been a different outcome,” Rosa told the Statesman. “Certainly, I think the ruling would have been more reasoned.”

Moeller also took issue with Rosa’s comments about Yee-Wallace’s experience and asked him to address it near the end of his oral argument.

“It just appears to me that this is kind of a gratuitous, pejorative attack on a respected trial judge here in the 4th District, ” Moeller said. “You refer to her as a freshman. You imply multiple times that she’s unfit, intimidated, that she’s blindly deferential … . It kind of reads like a temper tantrum, and you’re not asking us to do anything about it.”

Rosa responded, in part, to say that his disagreement isn’t with Yee-Wallace but with her ruling and the reasoning for it, “if you can call it reasoning.” It wasn’t intended as a personal attack, he added.

He told Moeller that he trusts judicial officers to render fair, impartial and reasoned decisions, but that the Dodds didn’t get one from Yee-Wallace.

Yee-Wallace did not return a phone message requesting comment.

Idaho requires malpractice insurance for lawyers, not doctors

Rosa said in his opening brief that the relationship between the bench and bar in Idaho is unusually close. Had the case moved forward, it would have presented an opportunity to hold a Boise attorney liable for soliciting a medical malpractice case and then failing to pursue it in a timely matter, he said.

Rosa told the Statesman that legal malpractice is a taboo subject in the Idaho State Bar.

“There have been no decisions favoring a client in any legal malpractice matter before the appellate courts in Idaho for at least 30 years,” he said. “Malpractice insurance was only mandatory starting in 2018.”

Idaho and Oregon are the only states that require private-practice lawyers to carry malpractice insurance, though more than a dozen require some form of malpractice insurance disclosure, according to the American Bar Association .

No federal law requires physicians to have medical malpractice insurance, but over a dozen states require some amount of coverage. Idaho is not one of them. Some physicians may need to have it anyway, as many hospitals require doctors with visiting privileges to carry medical malpractice insurance.

What’s next

Oral arguments at the Sept. 9 hearing ended after about an hour and 15 minutes.

Bevan said the Supreme Court would take the matter under advisement. A decision is expected within the next six months.

Vaccine-skeptic doctor on Boise-area health board let his medical license lapse. Now this

Health care shortage ‘has plagued Idaho for years.’ Here’s what U of I is doing about it

New ‘wide-sweeping’ Idaho law gives parents rights to access therapy notes, withhold care