Idaho Medical Malpractice Summary

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Statutes of Limitations

The limitation period applicable to medical malpractice actions for injury or death is two years from the time the cause of action accrued. Idaho Code § 5-219(4) (1994). The general rule for professional malpractice is that the cause of action accrues at the time of the occurrence, act, or omission. Id. However, when the action concerns a foreign object, the cause of action accrues when the injured party knows or should have known of the injury, and the action may be commenced within two years of the act complained of or one year following the date of accrual, whichever is later. Id. When the action is for wrongful death, the action accrues and the two-year period begins to run at the time of death. Chapman v. Cardiac Pacemakers Inc., 105 Idaho 785, 673 P.2d 385 (1983). This statute has been held to be constitutional. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

If a claimant who is entitled to bring an action for personal injury or wrongful death is under the age of majority or is insane, the disability tolls the running of the limitations period. Idaho Code § 5-230 (Supp. 1997). The disability must exist at the time the cause of action accrued. Idaho Code § 5-235 (1994). However, the limitations period may not be tolled due to one’s minority or incompetency for more than six years. Idaho Code § 5-230 (Supp. 1997).

Contributory or Comparative Negligence

The contributory negligence of a claimant does not bar recovery if the claimant’s fault is less than the defendant’s fault. Idaho Code § 6-801 (1990). Idaho has adopted the “individual rule” form of contributory negligence: the claimant’s negligence is compared to each defendant’s negligence and the claimant is barred from recovery as to those defendants who are less negligent than he is. Id.; Beitzel v. City of Coeur d’Alene, 121 Idaho 709, 827 P.2d 1160 (1992). Where recovery is allowed, damages are diminished in proportion to the comparative responsibility attributable to the claimant. Id.

Joint and Several Liability

Idaho adheres to a modified version of common law joint and several liability. Idaho Code § 6-803 (1990). Where the tortfeasors were acting in concert or as agents or servants of one another, liability is joint and several. Id. In all other instances, liability among joint tortfeasors is several only. Id. When several, each party’s liability will equal his proportionate share of the total damages awarded. Id.


The right of contribution exists among joint tortfeasors (defined to include both those jointly and those severally liable). A tortfeasor is entitled to contribution when he has discharged the common liability or has paid more than his pro rata share. Idaho Code § 6-803 (1990). A joint tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from joint tortfeasors whose liability to the claimant was not extinguished by the settlement. Id.

Vicarious Liability

A hospital is only liable for the negligent acts or omissions of its employees and agents. Keyser v. St. Mary’s Hospital, 662 F. Supp. 191 (D. Idaho 1987). There appear to be no published cases in Idaho holding a hospital vicariously liable for a physician on the basis of ostensible agency.

Expert Testimony

In any medical malpractice action, the claimant must prove by direct expert testimony that the defendant negligently failed to meet the applicable community standard of health care practice. Idaho Code § 6-1012 (1990). If a claimant does not provide expert testimony, summary judgment will be granted. Badell v. Beeks, 115 Idaho 101, 765 P.2d 126 (1988).

Damage Caps

Non-economic damages for personal injury or wrongful death may not exceed $400,000. Idaho Code § 6-1603 (1990). The $400,000 cap has been adjusted on July 1 of each year since 1988 by the rate of increase in average wages in Idaho. Id. The limitation on non-economic damage awards is inapplicable to causes of action arising out of willful or reckless conduct and to causes of action arising out of acts constituting a felony under state or federal law. Id. It is also inapplicable to punitive damages. Idaho Code § 6-1604 (1990).

In addition, Idaho law gives judges more power than the law of most states to reduce damages that are “unsupported or unjustified.” Idaho Code § 6-807 (Supp. 1997).

Statutory Cap on Attorneys’ Fees

Idaho has no statutory cap on attorneys’ fees.

Periodic Payments

When future damages in a personal injury action exceed $100,000, the court may, in its discretion and at the request of either party, order the periodic payment of the future damages. Idaho Code § 6-1602 (1990). Unless the claimant agrees, periodic payments may not be ordered in a case involving an intentional tort, gross negligence, or an extreme deviation from reasonable standards of conduct. Id. A judgment payable by periodic payments constitutes a property right which is inheritable, divisible, and assignable. Id.

Collateral Source Rule

Judgment may be entered only for those damages that exceed compensation received from collateral sources. Evidence of the collateral payments is submitted to the trial judge after the verdict. Idaho Code § 6-1606 (1990). This rule does not include payments from federal benefit plans that are entitled to a lien on the judgment or from life insurance proceeds. Id.

Pre-Judgment Interest

Generally, pre-judgment interest is not awarded in tort cases, unless the damages are reasonably ascertainable. Davis v. Professional Business Services, 109 Idaho 810, 712 P.2d 511 (1985). Pre-judgment interest is allowed where the amount claimed is liquidated, or may be ascertained by mathematical computation. McGill v. Lester, 108 Idaho 561, 700 P.2d 964 (Ct. App. 1985). As a result, in the normal case pre-judgment interest will likely not be awarded in personal injury actions.

Patient Compensation Funds and Physician Insurance

Idaho does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.


A governmental entity (defined to include counties, cities, and licensed county and city hospitals) and its employees, acting within the scope of employment without malice or criminal intent, are immune from liability for any claim based on an act or omission of the employee in (a) the exercise of ordinary care in the execution or performance of a statute or (b) the exercise or performance of a discretionary function or duty. Idaho Code § 6-904 (1990). In particular, a governmental entity and its employees, acting within the course and scope of their employment without malice or criminal intent and without recklessness or willful and wanton conduct, will not be liable for any claim arising out of injury to a person receiving services from a hospital or similar facility. Idaho Code §§ 6-903 and 6-904A (1990). No governmental entity or its employees will be liable for punitive damages. Idaho Code § 6-918 (1990).

All claims against the state and its political subdivisions arising from acts or omissions of their employees acting within the scope of employment must be filed with the Secretary of State within 180 days from the date the claim arose or should have reasonably been discovered. Idaho Code § 6-905 (1990).

The state is required to purchase liability insurance to cover and protect itself from claims and civil lawsuits. Idaho Code §§ 6-919 to 6-926 (1990). The minimum amount of insurance the state must purchase to protect itself from personal injury or death claims is $500,000 per occurrence. Idaho Code§ 6-924 (1990). The claimant’s recovery may not exceed $500,000 unless the state chooses to purchase insurance in excess of that amount, in which case the amount of coverage becomes the damage limit. Idaho Code§ 6-926 (1990).


All medical malpractice injury or death cases must, as a condition precedent to bring suit, be presented to a hearing panel established by the Idaho state board of medicine. Idaho Code §§ 6-1001 to 1011 (1990). The proceedings before the panel are informal and nonbinding. Id. The findings and determinations of the panel are inadmissible in any civil action. Idaho Code § 6-1011 (1990).

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Revision Date: February 6, 1998