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Sweet v. Sisters of Providence (9/30/94), 881 P 2d 304
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
GARY AND BEVERLY SWEET, )
Individually and as Parents ) Supreme Court No. S-4830
and Next Friend of their ) Superior Court No.
Minor Son, JACOB SWEET, ) 3AN-87-8818 Civil
Appellants, ) O P I N I O N
v. ) [No. 4127 - September 30,
SISTERS OF PROVIDENCE IN )
WASHINGTON, a Washington )
non-profit corporation, d/b/a )
PROVIDENCE HOSPITAL; )
DANIEL TULIP, M.D., JAMES )
NESBITT, M.D., GERRY J. )
SCHRIEVER, M.D.; THE )
CHILDREN'S CLINIC, INC., )
a corporation; THE CHILDREN'S )
CLINIC, a partnership; and )
DOES 1 through 10, partners )
in THE CHILDREN'S CLINIC, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Brian C. Shortell,
Appearances: Patricia L. Zobel and John
T. Robertson, Staley DeLisio & Cook,
Anchorage for Appellants. James D. Gilmore,
Gilmore & Doherty, Anchorage, for Appellee
Sisters of Providence in Washington. David
F. Leonard and Marcus R. Clapp, Hughes,
Thorsness, Gantz, Powell & Brundin,
Fairbanks, for Appellees Daniel Tulip, M.D.,
James Nesbitt, M.D., and The Children's
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
MOORE, Chief Justice.
Jacob Sweet, an infant, allegedly sustained brain
damage while a patient at Providence Hospital in Anchorage.
Jacob's parents, Gary and Beverly Sweet (the Sweets), brought
this action against Providence Hospital (Providence) and Drs.
Daniel Tulip, James Nesbitt, Gerry J. Schriever and the
Children's Clinic (collectively referenced as "the doctors"),
claiming that the defendants' negligence caused Jacob's severe
brain injury. The Sweets also alleged that Providence's
inability to locate certain medical records precluded them from
proving medical negligence, and that they were entitled to
recover based on a claim of intentional or negligent spoliation
The jury's verdict was in favor of the defendants on
all claims. The Sweets' appeal addresses five main points of
error. We reverse and remand for a new trial based on the trial
court's failure to apply a rebuttable presumption of negligence
and causation on the Sweets' medical negligence claim, and the
court's failure to hold an evidentiary hearing as to whether an
administrative regulation should set the standard of care on the
Sweets' informed consent claim. We find no error in the court's
handling of issues related to the expert witnesses, and we vacate
the court's attorney's fee award.
Jacob Sweet is a young boy with a severe brain injury.
He suffers from profound mental retardation as well as cerebral
palsy and blindness. Jacob is confined to a wheel chair, and he
will almost certainly continue to depend upon around-the-clock
care for the rest of his life. The cause of Jacob's disabilities
is the subject of this lawsuit.
Jacob was born to Beverly and Gary Sweet on January 16,
1986, at Providence. Upon Jacob's birth, Dr. Tulip, an employee
of the Children's Clinic, became his pediatrician.1 Dr. Tulip
examined Jacob shortly after his birth and found nothing abnormal
about the infant's health.
The next day, Dr. Nesbitt, another Children's Clinic
physician, circumcised Jacob.2 The parties dispute whether
either Dr. Tulip or Dr. Nesbitt advised Beverly Sweet of the
risks and benefits of circumcising Jacob. The Sweets contend
that they were never advised they had any choice in deciding
whether Jacob should be circumcised. They state that, after Dr.
Tulip's examination of Jacob on the 16th, Nurse Marianne Rexford
presented Beverly with an index-size permit card to authorize
circumcision. Beverly stated that she had not discussed
circumcision with her husband or any physicians, but she signed
the authorization because she believed that all baby boys were
circumcised, and she was not aware she had a choice in the
Neither Nurse Rexford nor the doctors have any
independent recollection of talking with Beverly about Jacob's
circumcision. However, both Dr. Tulip and Dr. Nesbitt contend
that, prior to circumcising Jacob, they certainly would have
separately discussed the risks of circumcision with Beverly as
part of their usual practice in caring for newborn boys. They
also state that, as part of the usual practice of Providence's
nursery staff, Nurse Rexford or another nurse would have provided
Beverly with a document called the "Compton Sheet,"which
describes in detail the risks and benefits of, and alternatives
Jacob and Beverly were discharged from the hospital on
January 18, 1986. Over the next week, Gary and Beverly followed
the instructions they were given on how to care for the
circumcision site. On Saturday, January 25, one week after
Jacob's discharge, the Sweets called Dr. Tulip because Jacob had
become fussy and was vomiting. Beverly had also noticed that
Jacob's circumcision site appeared red and swollen and looked
different from the picture on the brochure outlining the proper
care of the site.
Dr. Tulip advised the Sweets to bring Jacob to
Providence, where he would meet them. Dr. Tulip met the Sweets
in the Emergency Room at approximately 11:00 p.m. Dr. Tulip
examined Jacob and determined that he had a localized infection
in his penis. Recognizing that infants are at higher risk of
developing potentially life-threatening systemic, or generalized,
bacterial infections of the entire body, Dr. Tulip decided the
most prudent approach was to admit the infant overnight to the
pediatrics ward so that he could receive IV antibiotic therapy.
There are numerous critical facts at issue regarding
Jacob's condition and treatment between the time he was admitted
to the pediatrics ward and the time he was transferred to the
neonatal intensive care unit (NICU) approximately 26 hours later,
at 2:15 a.m. on Monday, January 27. In addition to the
recollections of the parties, a number of different medical
records exist which set forth some specifics regarding Jacob's
care during this 26 hour period. These records include Dr.
Tulip's notes regarding Jacob's care, Dr. Roy Davis' notes
following Jacob's prolonged seizure, or "crash,"late in the
evening of January 26, all laboratory test results over the
course of Jacob's stay at Providence, his NICU records,
physician's orders, discharge summary and radiology and EEG
Other medical records are missing and could not be
located after an exhaustive search by the parties. The missing
records include Jacob's narrative nursing notes, a medication
sheet, a graphic record, and a nursing care flow sheet for
Sunday, January 26 (collectively referenced as "the nursing
records"). The narrative nursing notes typically would reflect
the nurses' assessments of the patient, detailed observations
which are updated every four hours, any communications with the
patient's parents or doctors, and the records of treatment and
doctor visits. These notes have been called the "eyes and ears
of the doctor." The medication sheet would indicate all
medication given to the patient, including the dose, sequence and
time given. The sheet would provide evidence as to whether and
when a doctor's orders were actually carried out. The graphic
record contains information regarding body temperature, pulse,
respiration, blood pressure, body weight and all bodily inputs
and outputs. The nursing care flow sheet records matters such as
the patient's appetite and the amount of formula consumed.
The missing nursing records are the subject of the
Sweets' cause of action against Providence for spoliation of
evidence. It is undisputed that the records were available at
the time Jacob was transferred to NICU. There is no contention
that the records were missing during any critical moments of
Jacob's stay, or that his care was adversely affected as a result
of absent records. The Sweets claim that the missing records
precluded them from succeeding on their medical negligence
claims, and that as a result they were entitled to a conclusive
presumption of negligence.
Events over the course of Sunday, January 26
Given the lack of nursing records setting forth the
precise nature and timing of events during the day of January 26,
the parties dispute a number of facts. The Sweets contend that
Beverly returned to Providence the morning of Sunday, January 26
at approximately 8:00 or 8:30 a.m. While holding Jacob, Beverly
noticed what she called a "stiffening spell"in which Jacob
forcefully arched his back, rolled his eyes and turned red in the
face. The spell lasted a few seconds. Beverly stated that she
suspected the spell was caused by Jacob's pain in urinating, and
that she reported it to the nurse. She also reported it to Dr.
Tulip when he came in at approximately 10:00 a.m.
According to the Sweets, after Dr. Tulip left the room,
Beverly observed two more stiffening spells and noticed that
Jacob appeared to be shivering. She reported this to the nurse
on duty, and again to Dr. Tulip when he returned at noon. As the
afternoon progressed, Beverly stated the stiffening spells became
more frequent, occurring approximately every 45 minutes to an
hour between the hours of 2:00 p.m. and 9:00 p.m. She remembers
describing these episodes to the nurse on duty at around 3:00
The Sweets contend that, at around 7:00 p.m., Gary
called for the nurse when Jacob had a stiffening spell while
being held by Gary. According to the Sweets, the nurse asked if
Jacob had been fluttering his eyes during the spell. When Gary
responded that he had, the nurse said she would call the doctor
Dr. Tulip testified that he felt Jacob's condition on
Sunday morning was improved from that of the night before. He
recalled that Beverly informed him of a movement that troubled
her when he visited Jacob around noon. He otherwise did not
recall that anyone informed him of Jacob's "stiffening spells"
between Sunday morning and Sunday evening.3 However, Dr. Tulip
stated that he became aware during his noon visit that Jacob had
lost interest in feeding and that his temperature had dropped.
As a result of this information, Dr. Tulip stated that he ordered
lab tests to investigate the possibility that Jacob had a
Dr. Tulip denied receiving a call from a nurse at 7:00
p.m. informing him of Jacob's possible seizures. He remembered
receiving a call at around 9:00 p.m. in which the nurse reported
two movements that she thought were normal infant movements.
Nonetheless, Dr. Tulip stated that in response he ordered three
procedures to ensure that Jacob's condition was stable. He
ordered that (1) an apnea monitor be attached to Jacob to detect
Jacob's heartbeat and respiration, and to notify the nurses if
there was a delay between breaths or a drop in heart rate below
certain intervals; (2) Jacob's IV fluids be increased; and (3) an
electroencephalogram ("EEG") be performed the next morning to
monitor Jacob's brain activity for possible indication of
seizures. The Sweets allege that, after an apnea
monitor was attached to Jacob, its alarm sounded several times,
each correlating with a stiffening spell. However, the nurse on
duty simply turned down the buzzer because it was disturbing
other patients. Moreover, they claim that at 11:30 p.m., Nurse
Dawn Pope discovered that Jacob's IV was not working. Without
the nursing records, it is impossible to tell how long the IV had
been inoperative before Nurse Pope became aware of it. The
Sweets assert that Nurse Pope did not return to restart the IV
until shortly after 1:00 a.m., so it was not functioning for at
least an hour and a half.
At around midnight, Dr. Tulip reviewed Jacob's chart
and ordered lab tests for the following morning. He later
crossed out that order and requested immediate tests. He also
ordered that Jacob's IV flow rate be increased. The Sweets
contend that, although Nurse Pope became aware of this order at
12:30, she did not immediately restart the IV even though it had
not been operating for at least an hour.
Around 1:00 a.m. on January 27, Jacob experienced what
the parties refer to as "the crash." Again, however, their
recollection of events differs substantially. The Sweets allege
that Dr. Tulip entered Jacob's room around 1:00 a.m. and told
Beverly that Jacob was "a sick little boy." He stated he wanted
to take a spinal tap and would move Jacob to a treatment room for
that purpose. According to the Sweets, once Jacob was in the
treatment room, he had another stiffening spell, which Dr. Tulip
recognized as a seizure. Dr. Tulip immediately treated the
situation as an emergency and requested that Dr. Roy Davis, a
neonatologist who was in the hospital, be called in to assist.
Beverly testified that she told Dr. Tulip that Jacob had been
making the same movements all day.
Dr. Tulip remembers events differently. He recalled
that, around 1:00 a.m., he was examining Jacob in Jacob's room.
At that time, he saw Jacob have a seizure. He then moved Jacob
into the treatment room, where Jacob had a second prolonged
seizure known as the "crash."
Once Jacob began having his prolonged seizure in the
treatment room, Dr. Tulip attempted to restart Jacob's IV so that
anti-convulsant medication could be administered. When Dr. Davis
arrived several minutes later, Jacob was being given oxygen by
mask and bag, and he was blue and mottled in color. Dr. Davis
therefore established a first priority of intubating Jacob so
that he could be artificially respirated. The next priority was
to restart the IV, which was achieved with some difficulty.
Jacob was then given blood volume to relieve shock and anti-
convulsant medication through the IV.
Within a minute or two after the medications were
administered, the seizure was controlled. Since Jacob was in the
treatment room for about an hour, the seizure may have lasted
from twenty minutes to one hour. Dr. Tulip estimated it lasted
between twenty and forty minutes. Throughout the prolonged
seizure, the doctors contend that Jacob's heartbeat did not stop,
he was never in shock, he was not dehydrated, and he never lapsed
into a coma. They assert that the seizure did not result in any
permanent brain damage.
Around 2:15 a.m., Jacob was transferred to the NICU.
Although Jacob continued to have seizures in the NICU, the
doctors stated that he recovered quickly. He was discharged from
the hospital on February 9, and examined again by Dr. Tulip on
February 14. Although Dr. Tulip noted that Jacob was at risk for
developmental delays, he was not aware of Jacob's significant
brain damage until after this lawsuit was filed.
Course of Proceedings
In 1987, the Sweets filed suit against Providence and
the doctors.4 The Sweets alleged that the defendants had failed
to obtain their informed consent before circumcising Jacob. They
further alleged that the defendants were medically negligent in
failing to adequately monitor Jacob's condition and to promptly
diagnose and treat his bacterial infection and seizures, which
resulted in his brain damage. The Sweets claimed that the
infection from Jacob's circumcision site led to a generalized
systemic infection or to meningitis, which directly or indirectly
caused his brain damage. Upon discovering that Jacob's nursing
records were missing, the Sweets later amended their complaint to
include allegations of intentional and/or negligent spoliation of
evidence against Providence.
At trial, the Sweets' experts testified that Jacob's
brain damage was the result of hypoxic ischemia, or reduced blood
flow coupled with reduced oxygen in the blood supply, during
Jacob's prolonged seizure in the treatment room. They opined
that Jacob's seizures, and his "crash,"were caused by a systemic
bacterial infection seeded from Jacob's circumcision site.
Moreover, they testified that, regardless of whether Jacob's
seizures were caused by a systemic bacterial infection arising
from his circumcision site or by some other cause such as viral
infection, Jacob's injury would have been avoided if the infant
had been promptly transferred to NICU where his seizures would
have been observed and controlled before the crash, thereby
avoiding any brain injury. The Sweets' experts also contended
that, had Providence personnel restarted Jacob's IV in a
reasonable amount of time on the night of January 26, it would
have been operable at the time of the crash, and Jacob's
prolonged seizure would have been controlled before any brain
The defendants argued that Jacob's seizures were not
caused by a systemic infection seeded from his circumcision site,
and that his prolonged seizure did not cause him to stop
breathing long enough to result in his significant brain damage.
Although the defense experts believed that the cause of Jacob's
disabilities could not have been hypoxic ischemia, they did not
necessarily agree as to what did cause his injuries. The most
prevalent theory amongst the defense experts was that a viral
infection was at fault.
The jury rendered a verdict in favor of Providence and
the doctors as to all issues. The trial court subsequently
entered judgment against the plaintiffs and awarded Providence
and the doctors $150,000 each in attorney's fees. Following this
court's decision in Bozarth v. Atlantic Richfield Oil Co., 833
P.2d 2 (Alaska 1992), the trial court reconsidered its attorneys'
fee order, but it later upheld its original awards.
On appeal, the Sweets allege that the trial court
erroneously (1) handled their spoliation of evidence claims
against Providence; (2) instructed the jury regarding their claim
of lack of informed consent to the circumcision; (3) permitted an
excessive number of defense experts to testify; (4) refused to
allow the Sweets to cross-examine certain defense experts using
deposition testimony of other, non-testifying defense experts;
and (5) awarded excessive attorney's fees.
A. SPOLIATION OF EVIDENCE
The Sweets contend that Providence's spoliation of
evidence stripped them of their ability to successfully prosecute
their medical negligence causes of action against Providence and
the doctors. On appeal, they claim that Providence breached its
duty to create and preserve three types of required medical
records: (1) signed informed consent records regarding the
circumcision performed on Jacob;5 (2) the nursing records for
January 26; and (3) a contemporaneously created record of Jacob's
"crash" in the treatment room. The Sweets argue that
Providence's breach of duty with respect to these records
impaired their ability to prove medical negligence, and they were
entitled to judgment as a matter of law on their spoliation
To account for the missing nursing records, Judge
Shortell shifted the burden of proof to Providence on the issues
of its duty and breach in providing medical care to Jacob.
However, the burden remained on the Sweets to establish that any
medical negligence was the legal cause of Jacob's injuries. The
court additionally instructed the jury regarding negligent and
intentional spoliation of evidence and allowed the jury to
determine whether the missing records rendered the Sweets unable
to pursue their negligence claims.
We address the questions arising from the Sweets'
claims of error on this issue as follows:
1. The trial court erred in refusing to shift the
burden of proof as to causation on the Sweets' medical
As discussed above, Judge Shortell shifted the burden
of proof to Providence on the issues of its duty and breach on
the Sweets' medical negligence claim. However, the court refused
to shift the burden of proof as to causation. The burden
remained on the Sweets to establish that medical negligence was
the legal cause of Jacob's injuries. The Sweets argue that
Providence should have borne the burden of proving that Jacob's
injures were not caused by the hospital's negligence. We agree.
Just as the missing records may have impaired the
Sweets' ability to prove medical negligence, they would in the
same way impair the Sweets' ability to prove a causal connection
between any negligence and Jacob's injuries. It is for this very
reason that a number of courts in other jurisdictions have
created a rebuttable presumption shifting the burden of
persuasion to a health care provider who negligently alters or
loses medical records relevant to a malpractice claim. See Welsh
v. United States, 844 F.2d 1239, 1246-47 (6th Cir. 1988); Public
Health Trust v. Valcin, 507 So. 2d 596, 599-601 (Fla. 1987);
Bondu v. Gurvich, 473 So. 2d 1307, 1313 n.5 (Fla. Dist. App.
1984); Thor v. Boska, 113 Cal. Rptr. 296, 303 n.8 (Cal. App.
1974) (dicta); see also DeLaughter v. Lawrence Cty. Hosp., 601
So. 2d 818, 821-22 (Miss. 1992) (imposing presumption that
missing records would contain evidence unfavorable to the
While the cases cited above each involve different
nuances, we believe that the appropriate approach is that
announced by the Florida Supreme Court in Valcin, 507 So. 2d at
599-601. In Valcin, the plaintiffs claimed that a surgeon
negligently performed a tubal ligation. However, the lack of an
operative report by the surgeon impaired the plaintiffs' ability
to prove negligence. Id. at 597. The Florida Supreme Court
approved of the trial court's use of a rebuttable presumption
shifting the burden of producing evidence to the hospital. Id.
at 599. In reaching this result, the court made several
observations with which we agree.
First, the court required a preliminary determination
of the potential importance of the missing records before burden
shifting should take place: "[W]e point out that upon remand the
trial court should consider the existence or adequacy of any
operative note . . . and determine whether or not the absence of
an adequate note sufficiently hinders plaintiff's ability to
proceed, thus shifting the burden of producing evidence on the
merits of the claim."6 Id. at 601. The court relied on Alaska
authority in establishing this requirement:
In other words, a plaintiff must
first establish to the satisfaction of the
court that the absence of the records hinders
his ability to establish a prima facie case.
In Patrick v. Sedwick, 391 P.2d 453, 457
(Alaska 1964), for example, the Alaska
Supreme Court noted that "it was incumbent
upon the appellee surgeon to have described
accurately and fully in his report of the
operation everything of consequence that he
did and which his trained eye observed during
the operation . . . . If these requirements
had been met the report would . . . more
likely . . . have supplied sufficient facts
to have permitted expert witnesses to testify
on the question of negligence."
Id. at 599.
Second, the Valcin court noted that burden shifting
should only occur when the essential medical records are missing
through the negligence or fault of the adverse party. Id. In
this regard we conclude that the Sweets had established the
applicability of the doctrine of negligence per se.
In Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971), this
court set forth the factors to guide the trial court in
determining whether the violation of a statute or regulation
supports a finding of negligence per se. See also Bachner v.
Rich, 554 P.2d 430, 440-41 (Alaska 1979). In doing so, we
adopted the rules set forth in the Restatement (Second) of Torts
286, 288A and 288B (1965). Ferrell, 484 P.2d at 263. Under
the Restatement approach, the trial court must first determine
whether the conduct at issue falls within the scope of the
statute or regulation by applying the criteria set out in
In the present case, the trial court properly ruled
that Providence had a duty to maintain Jacob's nursing records.
This duty is established by statute and regulation, as well as by
the Joint Commission on the Accreditation of Hospitals (JCAH),
the accrediting commission for Providence. See AS 18.20.085
(requiring records retention); 7 Alaska Administrative Code
12.770(c)(6), (d) (requiring hospitals to keep medical records,
including nurses' notes, and to protect against their loss); 42
C.F.R. 482.24 (1992) (requiring retention of medical records,
including nursing notes); 1986 JCAH Accreditation Manual for
Hospitals. These provisions are explicit that such records shall
be prepared and maintained, and they are sufficient to set the
standard of care. From the JCAH Accreditation Manual, it is
clear that one of the purposes of the records retention
requirement is "[t]o assist in protecting the legal interest of
the patient, the hospital, and the practitioner responsible for
the patient." 1986 JCAH Accreditation Manual 126.96.36.199. We
conclude that the statute and regulations mandating medical
records retention also were designed in part to prevent the loss
of evidence potentially essential to the pursuit or defense of a
medical malpractice claim. Cf. Rodgers v. St. Mary's Hospital,
597 N.E.2d 616, 619 (Ill. 1992) (state x-ray retention act which
specifically addressed potential litigation was designed to
protect patient's legal interests).8
Based on the above, we believe that the trial court
erred in determining that the doctrine of negligence per se was
not applicable. However, we note that on remand, the jury must
be permitted to assess Providence's argument that its violation
of the records retention requirement was excused. See Ferrell,
484 P.2d at 263-64 (adopting the Restatement (Second) of Torts
288A); Restatement (Second) of Torts 288A(2)(c) (the violation
of a legislative enactment is excused when the actor is unable
after reasonable diligence or care to comply). Providence bears
the burden of affirmatively proving the defense of excuse.
Ferrell, 484 P.2d at 266.
Third, the Valcin court also noted that the presumption
created by burden shifting is rebuttable, but it is not a
"vanishing presumption." Valcin, 507 So. 2d at 600-01. As the
If the plaintiff is in fact sufficiently
"hindered" by the absence of an operative
note, odds are that the defendant's
production of some evidence of nonnegligence
will not place the plaintiff in a better
position. Testimony based on the selective
recollections of the surgeon and his staff
would be considered "substantial"enough to
"burst the bubble," thus keeping the
presumption from the jury. Plaintiff could
rarely prove negligence by a preponderance of
the evidence when the presumption has given
him nothing more than the self-serving
testimony of the defendant.
Id. at 600 (citations omitted). Instead, the type of rebuttable
presumption which should apply "affects the burden of proof,"
shifting the burden to the party against whom the presumption
operates to prove the non-existence of the fact presumed. Id. at
601. The Valcin court continued:
"When evidence rebutting such a presump
tion is introduced, the presumption does not
automatically disappear. It is not overcome
until the trier of fact believes that the
presumed fact has been overcome by whatever
degree of persuasion is required by the
substantive law of the case." Rebuttable
presumptions which shift the burden of proof
are "expressions of social policy," rather
than mere procedural devices employed "to
facilitate the determination of the
[This type of] presumption shifts
the burden of proof, ensuring that the issue
of negligence goes to the jury. This
interpretation appears to best implement
public policy that adequate operative notes
Id. at 600-601 (quoting Caldwell v. Division of Retirement, 372
So. 2d 438, 440 (Fla. 1979)).
Applying these observations to the present case, we
hold that the trial court should have adopted a rebuttable
presumption that Providence was medically negligent in treating
Jacob and that this negligence legally caused Jacob's injuries,
absent a jury finding that Providence's failure to maintain
Jacob's records was excused. Based on the record, there can be
no question that the January 26 nursing records would contain
material and substantial evidence of Providence's conduct with
respect to Jacob. The absence of this information clearly
hinders the Sweets' ability to proceed. Further, Providence bore
the responsibility of preserving Jacob's records. Consequently,
a presumption of its negligence and causation was justified.
This presumption may be rebutted by a preponderance of the
evidence showing that Providence was not negligent in treating
Jacob or that any such negligence did not cause Jacob's brain
As a practical matter, then, the jury must first assess
Providence's excuse for the lost records. If Providence does not
establish that its loss of the records was excused, the jury
instructions must reflect that the burden remains on Providence
to affirmatively disprove medical negligence and causation. If,
on the other hand, the jury is satisfied that Providence's
failure to maintain the nursing records was excused, the jury
instructions should reflect that the Sweets bear the burden of
proving that the defendants committed medical negligence, and
that such negligence legally caused Jacob's injuries.9
2. Shifting the burden of proof makes it unnecessary
to separately instruct on the tort of spoliation.
We next deal with issues concerning the Sweets' indepen
dent tort claim of spoliation. We recognized the tort of spoli
ation relating to the intentional destruction of records in Hazen
v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986). Hazen
relied strongly on Smith v. Superior Court, 198 Cal. Rptr. 829
(Cal. Dist. App. 1984), the leading case on intentional
spoliation of evidence. See Pati Jo Pofahl, Note, Smith v.
Superior Court: A New Tort of Intentional Spoliation of Evidence,
69 Minn. L. Rev. 961 (1985). As the Smith case makes clear, the
tort of intentional spoliation is a tort borne of necessity: "for
every wrong there is a remedy." Smith, 198 Cal. Rptr. at 832.
Although there are certainly cases like Hazen which
merit a cause of action for intentional spoliation, we do not
believe this is such a case. Based on the record, we see
insufficient evidence from which a reasonable person could
conclude that Providence lost or destroyed Jacob's January 26
nursing records with the intent to disrupt the Sweets'
prospective civil action. Accordingly, a jury instruction as to
intentional spoliation was not legally supportable, and we
consider only the Sweets' claim of negligent spoliation.
In keeping with the Smith rationale, a number of other
courts have recognized that negligent destruction of records may
give rise to an independent tort of spoliation. See Pirocchi v.
Liberty Mutual Ins. Co., 365 F. Supp. 277, 280-82 (E.D. Penn.
1973); Velasco v. Commercial Bldg. Maintenance Co., 215 Cal.
Rptr. 504, 506 (Cal. App. 1985); Bondu v. Gurvich, 473 So. 2d at
1313. However, it is our view that, in the present case, the
remedy of burden shifting is a sufficient response to the loss or
destruction of the records. Other courts have reached the same
conclusion. See, e.g., Miller v. Montgomery County, 494 A.2d
761, 768 (Md. Spec. App. 1985) ("[T]he remedy for the alleged
spoliation would be appropriate jury instructions as to
permissible inferences, not a separate and collateral action.").10
We need not decide in this case whether the recognition of a
separate tort of negligent destruction of evidence would ever be
appropriate, for example, against a third party not associated
with the underlying lawsuit. We are satisfied that an adequate
remedy for the spoliation of Jacob's records is provided by the
burden shifting discussed in part 1, above.
B. INFORMED CONSENT
Alaska Statute 09.55.556 sets forth the elements of a
cause of action regarding informed consent. It states in part:
(a) A health care provider is
liable for failure to obtain the informed
consent of a patient if the claimant
establishes by a preponderance of the
evidence that the provider has failed to
inform the patient of the common risks and
reasonable alternatives to the proposed
treatment or procedure, and that but for that
failure the claimant would not have consented
to the proposed treatment or procedure.
The Sweets assert that administrative regulations
promulgated by the Alaska Department of Health and Social
Services clarify that informed consent requires signed informed
consent.11 Because Providence and the doctors did not obtain
signed informed consent documents prior to circumcising Jacob,
the Sweets claim the defendants were negligent per se. The trial
court rejected the Sweets' argument that the regulation set the
appropriate standard of care for tort liability purposes. We
reverse the court's ruling as insufficiently supported by the
evidence, since the court did not hold an evidentiary hearing to
establish whether 7 AAC 12.120 was or was not obscure and could
be fairly interpreted to set the standard of care.
In determining whether to formulate a negligence per se
instruction based on the violation of a statute or regulation,
our cases rely on the guidelines set forth in the Restatement
(Second) of Torts 286, 288A, 288B (1965). Ferrell v. Baxter,
484 P.2d 250, 263-65 (Alaska 1971). Under the Restatement
approach, the trial court must make an initial legal
determination whether the conduct at issue falls within the scope
of the statute or regulation by applying the criteria set out in
286 of the Restatement. Id.; State Mechanical, Inc. v. Liquid
Air, Inc., 665 P.2d 15, 18 (Alaska 1983); see supra note 8. If
the criteria of 286 are met, the trial court may adopt the law
as the standard of reasonable behavior. However, under 286,
the trial court retains discretion to refuse to adopt the law as
the standard of care. Ferrell, 484 P.2d at 263-64; Bachner, 554
P.2d at 440-41 & nn.11-12. For example, rejection of the
legislative enactment is appropriate when the law is so obscure,
unknown, outdated, or arbitrary as to make its adoption as a
standard of reasonable care inequitable. State Mechanical, 665
P.2d at 18-19; Ferrell, 484 P.2d at 264-65; see also Restatement
(Second) of Torts 288A(2)(b) (1965).
The defendants argued to the trial court that 7 AAC
12.120(c) should not define the standard of care because its
reference to signed informed consent was obscure and unknown in
the medical community. They further argued that the Sweets did
not present any evidence in their case-in-chief to justify a
negligence per se instruction. As a result, the defendants had
not presented any evidence, as they otherwise would have, to show
that physicians were largely unaware of the regulation, and that
it was not the standard practice to obtain signed informed
consent to procedures like circumcisions. For this reason, the
defendants argued, it would be inequitable to allow the
regulation to define the standard of care.
The court apparently accepted the defendants' arguments
without further inquiry. This constituted error. Based on the
Sweets' allegations, there was an issue whether the regulation's
requirement of signed informed consent was in fact obscure and
unknown. Because the trial court did not adequately investigate
this issue in an evidentiary hearing, there was an insufficient
factual basis from which to conclude that the regulation either
was or was not obscure and whether it could be fairly interpreted
to set the standard of care. Accordingly, we reverse the court's
ruling on this issue and remand for an evidentiary hearing.
C. NUMBER OF EXPERT WITNESSES AND JURY CONFUSION12
Prior to trial, the court determined that there was
adversity of interest between Providence and the doctors, and
they therefore should be treated as separate defendants. As a
result, each defendant was permitted to call its own expert
witnesses. The Sweets argue on appeal that Providence and the
doctors shared common interests, and they joined together to form
a single defensive unit. Accordingly, the court should have
limited their number of experts regarding the standard of care
and causation. The Sweets additionally argue that the
defendants' experts as to causation served more to confuse than
to assist the jury, because they offered conflicting views as to
the cause of Jacob's brain damage. We reject both claims of
The Sweets rely on Alaska Evidence Rule 702 to support
their contentions. The rule provides:
(a) If scientific, technical, or
other specialized knowledge will assist the
trier of fact to understand the evidence or
to determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
(b) No more than three expert
witnesses may testify for each side as to the
same issue in any given case, unless the
judge permits an additional number of
witnesses to testify as experts.
Number of Experts
Long before the trial in this case, the Sweets moved to
limit or strike some of the experts designated on the defendants'
preliminary witness lists. During trial, the Sweets apparently
renewed their motion. Following a discussion of the issue,
counsel for the defendants asserted that a number of the experts
on their lists would not be called at trial. With that
assurance, the court determined that it could address this issue
as the trial proceeded, and it would limit the defendants'
experts only if it saw undue repetition in their testimony. The
court also noted that there would be no repetition problem if a
number of experts testified only to the limited areas within
their particular specialties. In this conference, the court
referenced Evidence Rule 702(b) and properly noted that it had
discretion to allow more than three experts per issue.
Over the course of the trial, the defendants jointly
called eleven physician expert witnesses regarding causation and
the standard of care. The plaintiffs called five physician
experts on those issues. During the trial, the court did not
step in to limit any repetitious expert testimony presented by
the defendants, nor do the Sweets cite to any place in the record
where they requested that the court do so.13
Standing alone, the disparity in numbers of experts
does not establish an abuse of the court's discretion. Moreover,
we see no error in the trial court's decision to allow the
defense experts to testify with the warning that the court would
not tolerate repetitive testimony. The Sweets have not shown any
reversible error on this issue.
We similarly reject the Sweets' claim of jury
confusion. It is true that defense experts who testified as to
causation offered some differing theories regarding what could
have, and what could not have, caused Jacob's brain damage.
Those witnesses also acknowledged that Jacob's case was an
extremely difficult one on which the experts could reasonably
differ. In fact, three defense experts could not opine as to the
cause of Jacob's brain damage within a reasonable degree of
medical certainty. However, the other defense experts generally
agreed that a form of viral infection most likely caused Jacob's
injury. Significantly, each expert testified that the cause of
Jacob's problems was probably not hypoxic ischemia, as alleged by
We see no reversible error arising from the partially
conflicting views of several experts called by the defendants.
This case was a very complicated one, involving a number of
theories regarding causation.14 The defense experts agreed on the
crucial issue from the defendants' point of view: that Jacob's
injuries did not arise from the causes alleged by the Sweets.
This testimony reasonably could have assisted the jury in
understanding the evidence and/or in determining the causation
question, and meets the standard required by Evidence Rule
702(a). The trial court did not abuse its discretion in refusing
to exclude certain experts because they disagreed as to some
theories of causation.
D. CROSS-EXAMINATION OF DEFENSE EXPERTS
The Sweets next argue that they should have been
permitted to cross-examine the defendants' experts at trial using
deposition testimony of any experts listed as trial witnesses by
the defendants, regardless of whether those experts were actually
called to testify at trial.15
In their opening brief, the Sweets frame this issue as
one of their right of access to experts designated as trial
witnesses. They imply that the court's ruling was based on a
determination that the defendants had a proprietary right to
their experts' opinions. We clarify that the Sweets were not
denied the right to call or rely upon any experts as their own
witnesses during their case-in-chief. Rather, the Sweets'
complaint is that they were denied free and full use of certain
deposition testimony to cross-examine the opposing party's
The defendants responded to the Sweets' proposal by
arguing that if the Sweets referenced expert testimony by defense
witnesses who were not presented at trial and whose opinions
seemed to contradict those of the testifying experts, the jury
would be improperly led to believe that the defendants were
suppressing adverse evidence. See Healy v. Counts, 100 F.R.D.
493, 496 (D. Colo. 1984). The defendants also argued that the
case would be unduly prolonged because the defendants would then
call those experts as witnesses to testify to their full opinions
and to clarify that the defendants had nothing to hide.
The trial court ruled that the Sweets might be able to
cross-examine defense experts with depositions from other defense
experts, even if those experts were probably not going to be
called at trial, as long as the Sweets laid a proper foundation.
To lay an appropriate foundation, the court ruled that the Sweets
must request a hearing out of the jury's presence. At that time,
the court could weigh the probative value of the deposition
testimony at issue against its danger of unfair prejudice or
confusion, and against considerations of undue delay and waste of
time. See Alaska R. Evid. 403. It could also assess whether the
testifying witness was aware of the deponent and the deponent's
testimony, and whether the witness had relied on that information
in drawing his or her conclusions. However, the court was clear
that the Sweets could always present any witness with a
hypothetical question based on deposition testimony without
identifying the source of the hypothetical opinion, or the fact
that it came from an expert retained by the defendants.
In their briefs, the Sweets do not acknowledge the
court's ruling requiring a hearing or an evidentiary foundation.
They argue that, under Alaska Civil Rule 32(a)(3), they had an
unrestricted right to use deposition testimony in cross-
examination, and it was error for the court to impose any
limitation on that right.16 We disagree with this view.
It is well established that trial courts have the right
to ensure that proffered evidence meets certain legal thresholds
before it may be used at trial. For instance, a court may
inquire into whether certain evidence is relevant and material,
and whether it merits exclusion under Alaska Evidence Rule 403.
It is also proper for the court to ensure that foundational
requirements will be satisfied. It is entirely appropriate to
require a hearing out of the jury's presence to investigate such
In this case, the Sweets' proposed use of limited
deposition testimony from defense experts who would not appear at
trial presented substantial dangers of unfair prejudice to the
defendants, as well as jury confusion, undue delay and waste of
time. Without an investigation into the specific testimony to be
used for cross-examination, there was also no indication whether
the Sweets could lay a proper foundation for the deposition
testimony. Accordingly, the trial court properly refused to
allow the Sweets unlimited use of certain depositions for cross-
examination, but instead required a hearing to assess the
specific facts of each situation.
In their briefs on appeal, the Sweets do not
specifically identify any deposition statements from non-
testifying experts that they would have used to cross-examine the
defendants' testifying experts. The court stated numerous times
that it could not rule definitively to exclude any evidence
unless it held a hearing on the precise testimony to be used in
cross-examination. Despite this, there is no indication that the
plaintiffs ever requested a hearing. For this reason, it is
impossible to effectively review the Sweets' claims, and this
argument on appeal is waived. See Alaska R. Evid. 103(a)(2)
(requiring an offer of proof to preserve objection when evidence
is excluded from trial); Adamson v. University of Alaska, 819
P.2d 886, 889-90 (Alaska 1991) (failure to make an offer of proof
constitutes waiver of claim of error).
E. ATTORNEY'S FEES17
Following the jury's verdict, Judge Shortell awarded
Providence and the doctors partial attorney's fees under Civil
Rule 82. He awarded $150,000 to each of the two defendants, plus
post-judgment interest.18 After the dissenting opinion was
published in Bozarth v. Atlantic Richfield Oil Co., 833 P.2d 2, 5
(Alaska 1992), the superior court reconsidered the question
whether the fee award was so great as to impose "an intolerable
burden on a losing litigant which, in effect, denies the
litigant's right of access to the courts." Id. at 6 (Matthews,
J., dissenting). Upon weighing the Sweets' evidence and
arguments, the court determined that its original awards did not
actually or in effect deny the Sweets access to the courts. The
court therefore reinstated its original fee awards.
In light of our rulings on the spoliation and informed
consent issues, we vacate the attorney's fee awards. Following
the retrial of this case, the revised version of Rule 82 which
became effective on July 15, 1993 will govern the attorney's fees
to be awarded.
In summary, we reverse and remand the issue of
Providence's alleged negligent spoliation of evidence for a
retrial. We also vacate the court's ruling that 7 AAC 12.120
should not set the standard of care regarding written informed
consent to Jacob's circumcision, since, in the absence of an
evidentiary hearing, there was an inadequate factual basis for
this conclusion. We affirm the claims of error regarding the
expert witnesses, and vacate the attorney's fees awards.
REVERSED and REMANDED.
1 On the date of Jacob's birth, Drs. Nesbitt and
Schriever, who are board certified pediatricians, owned the
Children's Clinic. Dr. Tulip was not board certified at the time
and was an employee of the Clinic. The Clinic expected Dr. Tulip
to perform according to the same standard of care required of a
board certified pediatrician.
2 Dr. Nesbitt performed the circumcision because Dr.
Tulip did not do circumcisions at that time. Following the
circumcision, Dr. Nesbitt was not involved in Jacob's care.
3 Testifying about Beverly's descriptions of Jacob's
movement with the benefit of hindsight, Dr. Tulip stated that the
"shivering spells"were probably seizures. Dr. Tulip testified
that seizures in infants are subtle and hard to identify,
particularly when observed by a lay person who is only relaying
information to medically trained persons.
4 Dr. Schriever was dismissed as a party defendant prior
5 The informed consent issue is addressed separately
infra at II.B.
6 This determination of the relevance of the missing
records is a threshold finding to be made by the trial court.
7 Section 286 provides:
The court may adopt as the standard of
conduct of a reasonable man the requirements
of a legislative enactment or an
administrative regulation whose purpose is
found to be exclusively or in part
(a) to protect a class of persons
which includes the one whose interest is
(b) to protect the particular
interest which is invaded, and
(c) to protect that interest
against the kind of harm which has resulted,
(d) to protect that interest
against the particular hazard from which the
Restatement (Second) of Torts 286 (1965); see also Ferrell, 484
P.2d at 263.
8 Notably, Providence has not disputed its duty to
maintain Jacob's nursing records. Rather, Providence argued that
it exercised reasonable diligence to maintain the nursing records
and that the records were not lost as a result of its negligence.
9 The Sweets also argue that Providence breached its duty
to create signed inform consent documents and a contemporaneously
created record of the "crash"in the treatment room. For
purposes of remand, we note that the burden shifting approach
outlined above would be equally applicable in the context of the
breach of a duty to create records. See Patrick v. Sedwick, 391
P.2d 453 (Alaska 1964) (applying rebuttable presumption of
negligence where doctor failed to make sufficiently detailed
10 For a discussion of the alternatives to adopting a
spoliation tort, see Lawrence Solum & Stephen Marzen, Truth and
Uncertainty: Legal Control of the Destruction of Evidence, 36
Emory L.J. 1085 (1987) (discussing alternative to spoliation
tort); Comment, Philip A. Lionberger, Interference with
Prospective Civil Litigation by Spoliation of Evidence: Should
Texas Adopt a New Tort, 21 St. Mary's L.J. 209, 216-229 (1989)
(discussing treatment of spoliation of evidence in jurisdiction
not adopting a separate tort and noting alternative remedies
available); Abney, Spoliation & Future Civil Actions: Slowing
the Rush to a Novel Tort, The National Law Journal, Feb. 2, 1987,
at 38, col. 1 (arguing that adequate remedies already exist if
spoliator is party to the underlying suit).
11 The Department of Health and Social Services' regulations
pertaining to General Acute Care Hospitals include one reference
to signed informed consent. That regulation states in part:
7 AAC 12.120. SURGICAL SERVICE.
. . . .
(c) Before a surgical procedure
begins, either the surgeon or the person
responsible for administering anesthesia, and
the surgical supervisor or his designee shall
confirm the patient's identity and the site
and side of the body to be operated upon, and
ascertain that the patient's medical record
contains a complete history and physical
examination for the current admission,
appropriate current screening tests based on
the needs of the patient, and signed informed
consent for the surgery. In the case of an
emergency, the history and physical
examination requirements are waived.
7 AAC 12.120(c) (emphasis added).
12 The trial court's decision to admit expert testimony lies
within the court's sound discretion and is reviewable only for an
abuse of discretion. Colt Indus. Operating Corp. v. Frank W.
Murphy Mfr., 822 P.2d 925, 932 (Alaska 1991); D.H. v. State, 561
P.2d 294, 296-97 (Alaska 1977).
13 The only subsequent discussion regarding witnesses cited
by the parties involves the question whether testifying experts
could be impeached with the opinions of other testifying or non-
testifying experts. That issue is addressed separately infra.
14 As Providence summarizes it, the issues surrounding
causation included questions such as whether Jacob's brain damage
could have resulted from (1) a systemic bacterial infection
seeded from Jacob's circumcision site; (2) a systemic bacterial
infection which caused Jacob's seizures which, in turn, caused
brain damage; (3) a viral infection; (4) a white brain matter
disease or hereditary disease; and (5) Jacob's seizures,
independent of hypoxia.
15 The Sweets further contend that at trial they should have
been allowed to use certain admissions against the defendants'
interests that were made by the defendants' experts in
depositions, regardless of whether those experts actually
testified at trial. However, the Sweets do not identify which
deposition statements constituted admissions against interest,
nor do the parties cite to any discussion in the record regarding
reliance on certain statements as admissions. It does not appear
that the trial court considered this argument or made any ruling
on it. Accordingly, this claim is waived.
16 Civil Rule 32(a)(3) states in part that, subject to the
rules of evidence, the deposition of a witness may be used by any
party for any purpose, if the court finds that the witness is at
a greater distance than 100 miles from the place of trial, or is
out of the state.
17 This court will review attorney's fee awards for an abuse
of discretion. Malvo v. J.C. Penney Co., 512 P.2d 575, 586-87
(Alaska 1973). An abuse of discretion exists when the trial
court's determination is manifestly unreasonable. Id.
18 The doctors incurred actual attorney's fees of $330,899.
Providence incurred fees of roughly $326,289. Therefore, the
defendants were awarded 45% and 46% of their actual fees,