Kozlowski v. Rush , 121 Idaho 825 ( 1992 )

BISTLINE, Justice.

This case involves an allegation of medical malpractice against Dr. Robert Rush, M.D. (“Rush”), Bannock Regional Medical Center and Bannock County (“Bannock”). The plaintiffs allege that Rush’s and Bannock's negligence prior to and during the delivery of Stephanie Skiba resulted in brain damage to Stephanie. The plaintiffs in the actions are Stephanie Skiba, Piotr Skiba, the father and next friend of Stephanie, and Krzysztof Kozlowski, the personal representative of the estate of Zofia Skiba (Stephanie’s mother) (“the Skibas”).

When Zofia M. Skiba became pregnant she was forty, overweight, and had been fighting cancer for many years. When she was admitted to the hospital prior to delivery she was seen by Rush. Two weeks prior, Rush had undergone surgery on his right shoulder. Rush was advised to avoid active abduction and flexion for six weeks. He appeared at the hospital with his arm in a sling and had to take the arm out of the sling before he could use the forceps which were required to deliver Stephanie.

Rush failed to detect that Stephanie would be an extraordinarily large (macrosomic) baby. Macrosomic babies are at a high risk for injury during the birth process. A problem known as shoulder dystocia occurred during the delivery. Shoulder dystocia occurs when the baby’s head is delivered, but its shoulders are too big to come out. Stephanie was born “dusky” or “blue” in color and required “bagging” with oxygen. Shortly after birth, she developed tremors in the left hand, respiratory neurosis, and left facial palsy. Nevertheless, Stephanie was allowed to go home with her mother.

Later Stephanie had a seizure and was admitted to the hospital. Thereafter, she was diagnosed as having permanent and irreversible brain damage.

The plaintiffs presented evidence that the brain damage was caused by the birth trauma. The plaintiffs’ expert testified that Rush’s actions fell below the local area standard of care by failing to follow Zofia’s pregnancy more carefully. In particular, Rush failed to assess the fetal condition prior to labor by means of a biophysical profile and failed to determine the size of the fetus by using ultrasound technology. If he had done so, he would have known Stephanie was macrosomic and could have taken steps to avoid the shoulder dystocia, possibly by delivering Stephanie by cesarean section. The opinion of the plaintiffs’ expert was that Rush was not capable of performing a cesarean section himself because of his recent shoulder surgery.

Rush and Bannock presented evidence that the damage occurred prior to birth, probably sometime between the 24th to 35th weeks of gestation. Moreover, Rush testified that his shoulder injury did not affect his ability to delivery Stephanie. Both Rush and a nurse who was present during the delivery testified that there were no signs which called for the administration of oxygen to the mother.

After a three and one half week trial, a jury returned a verdict in favor of Rush and Bannock, finding no negligence on the part of either party. The Skibas filed a motion for judgment n.o.v., or in the alternative, for a new trial. The trial judge issued a memorandum ruling denying the motions.

The Skibas appeal from the judgment and the denial of the motion for a new trial. Bannock appeals from the trial court’s refusal to award it costs and from the order awarding costs to the Skibas.

ISSUE 1. DID THE TRIAL COURT ABUSE ITS DISCRETION BY STRIKING THE TESTIMONY OF THE SKI-BAS’ EXPERT WITNESS REGARDING THE NEED FOR ULTRASOUND AND/OR BIOPHYSICAL TESTING?

The Skibas argue that the district court erred by striking their expert’s testimony that the local standard of care was violated when Rush failed to determine that Stephanie was a macrosomic baby which could have been accomplished by the use of ultrasound or biophysical testing. We review challenges to evidentiary rulings under the abuse of discretion standard. State v. Terry, 98 Idaho 285, 287, 561 P.2d 1318, 1320 (1977).

The court struck the testimony because it found that the Skibas’ expert had not familiarized himself with and did not establish what the local standard of care was in Pocatello at the time of Stephanie’s birth. We are not persuaded.

The relevant statutes are I.C. § 6-1012 and § 6-1013 which provide:

6-1012. Proof of community standard of health care practice in malpractice case.—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, without limitation, any dentist, physicians’ assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, 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 of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning. Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any. If there be no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered. As used in this act, the term ‘community’ refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.

6-1013. Testimony of expert witness on community standard.—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 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.

Since the passage of these statutes in 1976, this Court has had several occasions to construe their meanings, of which Buck v. St. Clair, 108 Idaho 743, 746-47, 702 P.2d 781, 784-85 (1985), was a forerunner. Therein we said:

I.C. § 6-1013 also provides that a competent expert witness who resides elsewhere can testify if he has adequately familiarized himself with the local standard of care. The trial court ruled that Dr. Broms had not adequately familiarized himself with the local standard of care for Boise. We believe this was incorrect. By virtue of their training, board-certified specialists are familiar with the local standard of care which is equivalent to the national standard of care. In order to meet the requirement of I. C. § 6-1013(c) showing adequate familiarization a specialist must demonstrate two elements: first, that he is board-certified in the same specialty as that of the defendant-physician; this demonstrates knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question. Second, an out-of-the-area doctor must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained. In the instant case, Dr. Broms testified that he was a board-certified obstetrician-gynecologist, that he was familiar with the standard of care through regular reading of regional and national medical journals, and that he was familiar with the local standard of care. Dr. Broms obtained his familiarity with the local standard through his specialty training combined with his questioning of Dr. Roberge, a Caldwell board-certified obstetrician-gynecologist who told Dr. Broms that the local standard of care was equivalent to the national standard of care. At that point Dr. Broms possessed actual knowledge of the applicable said community standard as required by I.C. § 6-1013(c). Furthermore, we believe this degree of inquiry was adequate. Had Dr. Broms been told there was not a uniform standard, then further investigation would have been merited. However, Dr. Broms had every reason to believe the statement of a Caldwell obstetrician-gynecologist that there was a national standard of care for physicians practicing in this specialty. Upon learning this, further inquiry was not warranted.

Subsection (c) of I.C. § 6-1013 specifically provides that this section shall not be used to prohibit or preclude a competent witness from adequately familiarizing himself with the standards and practices of an area. Dr. Broms testified he was a board-certified obstetrician-gynecologist who had inquired of a local board-certified obstetrician-gynecologist who told him the local standard was the same as the national standard. Hence, his testimony should not have been precluded. Dr. Broms demonstrated his familiarity with the specialty and with the local standard of care which does not deviate from the national standard of care for this specialized area of practice. Nothing more needed to be done to qualify Dr. Broms’ testimony.

Buck, 108 Idaho at 746, 702 P.2d at 784 (emphasis added).

Although limited by subsequent decisions, the holding in Buck has not been overruled. Even though some of Buck was characterized as dicta in Grimes v. Green, 113 Idaho 519, 522, 746 P.2d 978, 981 (1987), the italicized portion of the quote above was quoted by the Court as being the core holding of Buck.¹ Grimes, 113 Idaho at 521, 746 P.2d at 980.

This case is similar to Buck. Dr. Friedman, the Skibas’ expert, was a board certified obstetrician-gynecologist (“ob-gyn”) who was on a sabbatical leave from his position as the head of the Department of Obstetrics and Gynecology at the Beth Israel Hospital in Boston and his professorship at the Harvard Medical School. In an effort to determine the local area standard of care, he read the deposition of Rush, the depositions of several nurses, spoke to a board certified ob-gyn who was practicing in Pocatello at the same time Stephanie was born, and read the deposition of Dr. V. Gene Rufi who is another board-certified ob-gyn practicing in Pocatello.

The trial court in granting the defendants’ motion to strike Friedman’s testimony, held that the doctor’s preparations did not show that he knew what the standard of care was in Pocatello in 1985 explaining tersely that “Dr. Rufi was asked many questions in his deposition ... but nowhere was he asked, that I know of, is this the standard in the community. The magic words.”

In actuality, however, the transcript of Rufi’s deposition clearly discloses that Rufi’s testimony established that the local standard of care for board certified obgyns in Pocatello in 1985 was the same as the national standard:

Q: In relation to the local standard of practice for board certified obstetricians as it existed at that time frame, i.e., what should a reasonable and prudent doctor with your specialty do under the same or similar circumstances, was that standard in any respect lower in this community than it was for board certified physicians practicing elsewhere, i.e. using the national standard?

A: No.

Q: ... Are you familiar with the Handbook of Standards by the American College of Obstetricians and Gynecologists? A: Yes.

Q: And is that reflective of what the standard of practice was in this community in 1985?

A: Yes.²

Rufi Deposition, 7-8.

Friedman testified that he was also familiar with the above-mentioned Handbook of Standards and that, at the time Stephanie was born, Rush acted below the prevailing national standard of care for board certified ob-gyns because he failed to conduct a biophysical profile or use ultrasound to determine fetal size.

Thus, under Buck and the cases which follow it, the trial court erred in striking Friedman’s testimony about the use of biophysical profiles and ultrasound. Friedman knew that Rufi stated in his deposition that the local standard of case in 1985 was the same as the national standard of care, with one irrelevant exception. Friedman had personal knowledge that in 1985 the national standard of care mandated the use of biophysical profiles and ultrasound in cases like the one at bar. This in combination was enough to lay the foundation for Friedman’s opinion that Rush’s treatment was below the local standard of care in Pocatello in 1985.

Bannock and Rush cite to those of our opinions wherein we held that a proper foundation for expressing an opinion as to the local standard of care had not been laid. In the cases of Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 334, 766 P.2d 1213, 1215 (1988); Frank v. East Shoshone Hosp., 114 Idaho 480, 481, 757 P.2d 1199, 1200 (1988); and Pearson v. Parsons, 114 Idaho 334, 337, 757 P.2d 197, 200 (1988), this Court held that the expert affidavits in question did not satisfy the foundational requirements of I.C. § 6-1012 and § 6-1013. However, those three cases are distinguishable in that the affidavits in question made absolutely no reference to any knowledge of the applicable standard of care. The expert doctors had not been prepared by involved counsel to inquire as to the applicable standard.

The case of Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989), can also be distinguished for the same reasons. In Strode, this Court held that plaintiffs expert affidavit failed to show that the expert had become familiar with the applicable standard. The expert made no attempt to inquire of a local doctor as to the standard of care. The expert affidavit stated:

The standard of care for a board certified orthopedic surgeon in Boise is that set by the American Academy of Orthopedic Surgeons and is the same standard under which I practice in Chicago, Illinois. I am, therefore, familiar with what is expected of a board certified orthopedic surgeon in Boise.

Strode, 116 Idaho at 215, 775 P.2d at 107. This Court applied the Buck rule, stating the following:

If he is board certified in the same specialty, he must, at a minimum, inquire of a local specialist to determine whether the local community standard varies from the national standard for that board certified specialty____ Dr. Hall’s affidavit shows no effort to obtain information regarding the local standard of care and, as the trial court noted, are conclusory statements which are incapable of objective evaluation by anyone____ Consequently, there was no showing of a genuine issue of fact which must be tried. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985).

Strode, 116 Idaho at 216, 775 P.2d at 108.

The most recent decision of this Court dealing with I.C. § 6-1012 and § 6-1013 is Gubler v. Boe, 120 Idaho 294, 815 P.2d 1034 (1991). There, the majority stated it was clear that the plaintiff's expert, Dr. Tune, had only familiarized himself with the Pocatello community standard of care as of 1988, not 1983, the year of the alleged malpractice. The Court also rejected the appellants’ argument that the combined testimony of the expert and the defendant doctor established the local standard of care. The Court noted:

[Tjhere was no showing by direct expert testimony that, from the information that Dr. Boe had, his treatment of Jake Gubler violated the local standard of care. Nor was there any direct expert testimony that ‘it was a violation of the standard of care for Dr. Boe not to be aware of these facts under the circumstances of the case,’____

Gubler, 120 Idaho at 298, 815 P.2d at 1038.

In this case, Friedman read the deposition of Rufi wherein Rufi said that the 1985 Pocatello standard of care was the same as the national standard of care with one irrelevant exception. Rufi had personal knowledge of this because he was practicing in the Pocatello area in 1985. Friedman testified that he was familiar with the national standard of care for board certified obgyns in 1985 and that under the national standards, because Rush should have been aware that Stephanie was a macrosomic baby, he should have taken appropriate measures to prevent shoulder dystocia. Because Friedman’s efforts in becoming knowledgeable as to the requisite standard of care in the Pocatello community met the requirements of I.C. § 6-1012 and § 6-1013, we hold that the court abused its discretion by striking Friedman’s testimony. Such error was prejudicial to the plaintiffs’ case.

ISSUE 2. SHOULD THE TRIAL COURT HAVE PERMITTED VOIR DIRE EXAMINATION ABOUT THE EFFECT OF INSURANCE COMPANY ADVERTISEMENTS REGARDING THE SO-CALLED “MEDICAL MALPRACTICE CRISIS” ASSUMING THAT PLAINTIFFS MADE A SHOWING THAT THE JURY POOL MAY HAVE BEEN EXPOSED TO SUCH ADVERTISEMENTS?

In a question of first impression in Idaho, the Skibas argue that they should have been able to question the potential jurors on voir dire as to whether they had been exposed to any advertisements from insurance companies regarding the so-called “medical malpractice crisis” or “insurance crisis.” The Skibas sought the court’s permission to inquire of the potential jurors as to the extent of their exposure to insurance industry advertisements or articles. The request was based on their assertion that the insurance industry had been attempting to influence public opinion with advertisements to the effect that verdicts favoring plaintiffs were causing insurance rates to rise, increasing the cost of medical care, and causing doctors to stop practicing medicine. The court deferred ruling on the motion and then later, in a written order, informed counsel “that plaintiffs may go into the subject of malpractice lawsuits, that fact and that fact alone. The plaintiff cannot go into the insurance crisis or even mention insurance.” Upon the record before this Court, it is difficult to discern the basis of the trial court’s ruling. The comments made during the argument on the motion indicate that the court denied the motion because it believed there was a blanket prohibition against any mention of insurance in front of the jury: “Well the problem I see, Mr. Meyers [plaintiffs’ counsel], you know, in Idaho, it’s pretty clear that there is not to be any mention of insurance during trial.” Later, the following exchange occurred:

THE COURT: I have always been of the opinion that counsel ought to have a pretty free rein in selecting a jury, because that’s obviously a very critical stage of the trial, but the way our rules are now, I mean you go into this insurance business, then there isn't going to be a person in this courtroom, if they had any doubt that insurance coverage existed here, they won’t after you get through questioning them.

MR. MEYERS: I hope you believe me when I say that isn’t my purpose.

THE COURT: Well, I know it’s not your purpose, but, you know until Idaho wants to recognize insurance, you know—I don’t know what to do right now, so we’ll take it up later.

There is no further discussion of the issue on the record; nor is there any indication that the subject was later taken up. A written ruling later issued by the court does not articulate the reason it denied the Skibas’ motion.

The decision of the trial court in permitting or refusing the asking of questions relating to insurance companies is a matter of the court’s discretion. Unless abused, that discretion will not be disturbed upon appeal. Owen v. Burcham, 100 Idaho 441, 444, 599 P.2d 1012, 1015 (1979).

Bannock and Rush argue we should follow the state courts which have forbidden such questioning or held the exclusion of such was not an abuse of discretion. See, e.g. Maness v. Bullins, 19 N.C.App. 386, 198 S.E.2d 752, 753 (1973) (error to allow such questioning when form of question clearly conveys information that defendant is insured); Brockett v. Tice, 445 S.W.2d 20, 22-23 (Tex.Civ.App.1969) (same as Maness ); Murrell v. Spillman, 442 S.W.2d 590, 591 (Ky.Gt.App.1969) (no abuse of discretion in excluding such questioning); Butcher v. Main, 426 S.W.2d 356, 360 (Mo. 1968) (same as Murrell); Speet v. Bacaj, 237 Va. 290, 377 S.E.2d 397, 399 (1989) (no error in excluding questioning about insurance crisis because any mention of insurance in front of jury is forbidden); Russo v. Birrenkott, 770 P.2d 1335, 1338 (Colo.App. 1989) (no abuse of discretion in excluding such questioning); Leonard v. Parrish, 420 N.W.2d 629, 634 (Minn.App.1988) (same as Russo). The underlying rationale of all these cases is that such questioning improperly puts the question of whether the defendant is insured before the jury. The Skibas argue we should follow the recent Texas cases on the subject which have permitted such questioning. Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705 (Texas 1989); National County Mut. Fire Ins. Co. v. Howard, 749 S.W.2d 618 (Tex.App.1988), reh’g denied (1988). In Babcock, the court held that the refusal to allow the requested voir dire examination amounted to a denial of the plaintiff’s constitutional right to a fair and impartial jury. 767 S.W.2d at 709. In National County, the court held it was not error for the trial court to have permitted such questioning. 749 S.W.2d at 621. The Skibas also argue that insurance companies should not be able to hide behind the rule prohibiting comments about insurance companies, while at the same time actively and substantially engaging in advertising with the motive of influencing potential jurors in their favor.

We first note that the district court was mistaken when it stated that there is an absolute bar to evidence of insurance. I.R.E. provides:

Rule 411. Liability insurance.—Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness, (emphasis added)

Even prior to the adoption of I.R.E. 411, we have held that evidence of insurance is admissible if it tends to show bias on the part of a witness. Curtis v. Ficken, 52 Idaho 426, 432, 16 P.2d 977, 978 (1932). We have also allowed evidence of insurance if relevant to prove a material issue in the case. Brown v. Jerry’s Welding & Construction Co., 104 Idaho 893, 896, 665 P.2d 657, 660 (1983); Tucker v. Union Oil Co. of California, 100 Idaho 590, 596, 603 P.2d 156, 162 (1979).

Although the Rules of Evidence are not applicable to voir dire examination, I.R.E. 411 expresses our recognition that the probative value of such evidence may outweigh its prejudicial effect when it is offered to show the bias or prejudice of a witness. If anything, the prejudicial effect of the admission of evidence that a party is insured is greater than the prejudicial effect of allowing a party to mention insurance advertisements during voir dire. The comments of counsel are not evidence and juries are instructed as to that fact as a matter of course.

In Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979), an attorney asked prospective jurors whether they, or any of their relatives, were employed by or owned stock in any casualty insurance company. We held that such voir dire examination was “permissible if made in good faith with the intent to expose bias and not for the purpose of informing the jury about the existence of the defendant’s insurance.” Owen, 100 Idaho at 444, 599 P.2d at 1015. Owen merely restated well-established law in Idaho going as far back as 1929:

The general rule is as stated in Arnold v. California Portland Cement Co., 41 Cal.App. 420, 183 P. 171:

‘It is entirely proper for counsel to ask the jurors such questions as may be reasonably necessary to ascertain whether they are free from a bias or interest that may affect their verdict. To this end, it is proper for counsel, in good faith, to ask of each juror whether he is interested as an agent or stockbroker or otherwise in a specific casualty company. Or he may be asked the broad question whether he is interested in any insurance company insuring against liability for negligence ... But counsel must take pains to propound such questions in such a manner as not necessarily to convey the impression that the defendant is in fact so insured.’

Faris v. Burroughs Adding Mach. Co., 48 Idaho 310, 317, 282 P. 72, 74 (1929) (citations from Arnold omitted). Our case law is distinctive because it has never found error in allowing a party to examine potential jurors about insurance matters in order to determine whether they are biased against plaintiffs.³

In light of the our long established case law, the Skibas’ argument above, and the policy reflected in I.R.E. 411, we believe the approach taken in Sutherlin v. Fenenga, 111 N.M. 767, 810 P.2d 353, 362 (Ct.App.1991), to be the best resolution of the competing' interests noted above. The court there held:

We believe that the proper rule ... is that a party may properly make a good faith inquiry into such issue on voir dire, subject to appropriate limitations imposed by the trial court, and upon a proper showing that members of the prospective jury panel may have been exposed to media accounts concerning allegations about the effect of jury awards on insurance costs.

Sutherlin, 810 P.2d at 362.

This rule is consonant with the Texas cases cited to us by the Skibas. The Texas courts have allowed questioning about the “insurance crisis,” emphasizing the importance of the plaintiffs right to have an unbiased jury and the difficulty of selecting unbiased witnesses after extensive public discussion of the effect of personal injury suits on insurance premiums rates and the availability of insurance. However, in both of those cases, the court was aware of possible exposure to such advertisements. In Babcock v. Northwest Memorial Hospital, the court noted that “[a]t the time of trial, tort reform and the debate concerning the alleged ‘liability insurance crisis’ and ‘lawsuit crisis’ were the subject of much attention.” 767 S.W.2d 705, 708 (Tex.App.1988). The same is true in National County Mut. Fire Ins. Co. v. Howard, 749 S.W.2d at 621.

While we do not know whether the insurance companies involved here, were among those who have advertised, we do note that any prohibition against comments regarding insurance would be a shield, not a sword. It would be manifestly unfair for insurance companies to use their substantial resources in order to persuade the public through the media that juries should not award or should award less in damages, while protesting that it would be too prejudicial to let the plaintiffs inquire of potential jurors whether the advertisements have biased them against plaintiff suits in general. The insurance companies have injected the issue of the effect of lawsuits on insurance into the public consciousness. Their purpose served by opening the door to the “insurance crisis” debate, they cannot now expect to slam it shut in the face of plaintiffs who hope to discover the effect of the advertisements on the potential jurors in their case. If the tables were turned in this case, and the plaintiff’s bar had launched a media campaign to increase jury awards in Bannock County by showing in graphic detail various personal injuries and the long term effect of same on the victims, we are convinced that the defendants in this case would demand the opportunity to determine whether any of the potential jurors had been biased against defendants in general by the exposure.

The approach we announce today is also consistent with our prior case law which balances the inherent possibility of prejudice from evidence of insurance with the recognition that such evidence is relevant to show bias. Trial courts can minimize any prejudice to the defendants by offering to give a cautionary instruction based on Idaho Civil Pattern Jury Instruction 101.⁴ Historically this Court has expressed its confidence that juries will follow such a cautionary instruction. Barry v. Arrow Transp. Co., 83 Idaho 41, 46, 358 P.2d 1041, 1044-45 (1960); Burns v. Getty, 53 Idaho 347, 352-54, 24 P.2d 31, 32-33 (1933).

Although we hold that, under the proper circumstances and subject to the limitations of the trial court, a party may inquire whether jurors have been exposed to media accounts of a “medical malpractice crisis” or an “insurance crisis,” we conclude that there has not been a sufficient showing here that the potential jurors may have been exposed to such advertisements. Here, unlike in the Texas cases, there is no evidence to show that there had been advertisements from insurance companies in Bannock County.

As remand is necessary because of our resolution of the standard of care issue, the plaintiffs will have another opportunity to demonstrate to the court that potential jury members may have been exposed to such advertisements. If such a showing is made, the trial court should allow the plaintiffs to voir dire about the effect of the advertisements, if any, on the venire members.

For the reasons above, we reverse and remand for a new trial. Because of our resolution of the local standard of care issue, we need not reach the other issues raised by the appellants and cross-appellant. Costs to plaintiffs-appellants.

JOHNSON and McDEVITT, JJ., concur.

1 . The italicized portion was authored by Chief Justice Shepard, repeating what was written by Justice Bistline in Buck, joined by Justices McFadden and Huntley.

2 . Later in the deposition, Rufi qualified his statement that there were no local exceptions to the national standard of care. He noted that it was not part of the local standard of care to be able to set up an operating room to perform a cesarean section within the board standard of thirty minutes. That standard was not always possible to meet because of a shortage of anestheologists. This single local deviation from the national standard of care is not relevant in this case.

3 . In Clark v. Alloway, 67 Idaho 32, 170 P.2d 425 (1946), the Court did not reach the issue of whether the trial court abused its discretion in refusing to allow plaintiffs counsel to inquire whether any of the potential jurors were stockholders in insurance companies because that issue was not adequately addressed in the appellant’s brief. 67 Idaho at 39, 170 P.2d at 429.

4 . I.D.J.I. 101 could be easily modified to fit this type of case. For example:

No insurance company is a party to this action. You must refrain from any inference, speculation or discussion about insurance.

Any questions that were asked in the examination of prospective jurors about an interest in a casualty insurance company [or about exposure to certain advertisements from Insurance companies] were for the sole purpose of discovering the possibility of a biased viewpoint.

The modified portion of the instruction is in brackets and in boldface type.