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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. D.P. v. Wrangell General Hospital (5/19/00) sp-5274

D.P. v. Wrangell General Hospital (5/19/00) sp-5274

     Notice:  This opinion is subject to 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, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


D.P. and R.P.,                )
                              )    Supreme Court No. S-8024
             Appellants,      )
                              )    Superior Court No.
     v.                       )    1WR-95-30 CI
                              )
WRANGELL GENERAL HOSPITAL     )    O P I N I O N
and ELSIE HANSEN,             )
                              )
             Appellees.       )    [No. 5274 - May 19, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Wrangell,
                     Larry C. Zervos, Judge.


          Appearances: James W. McGowan, Sitka, Gregory
F. Cook, Douglas, for Appellants.  William T. Council, Juneau, for
Appellees.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          MATTHEWS, Chief Justice.      
          CARPENETI, Justice, dissenting.



I.   INTRODUCTION
          D.P. was diagnosed with schizophrenia and admitted to
Wrangell General Hospital.  The admitting orders stated that D.P.
should remain in the building.  Although D.P. remained under
periodic observation, she walked out of the hospital.  During her
brief absence, she had sexual relations with a man whom she
delusionally believed was either "Jesus" or "a prophet."  D.P. sued
the hospital and the duty nurse for negligence, and now appeals the
superior court's grant of a directed verdict for both defendants. 
Because we hold that reasonable jurors could differ concerning
whether the defendants breached their duty of care regarding D.P.,
we reverse the superior court's ruling and remand the case for
trial. 
II.  FACTS AND PROCEEDINGS
     A.   Facts
          D.P., 43, has a history of auditory hallucinations,
delusions, and other schizophrenic symptoms.  Medication has
generally enabled D.P. to control her condition.
          D.P. was treated by Dr. David McCandless, a Wrangell
general practitioner, and Kathy Koch and Mark Walker, mental health
professionals from Wrangell Mental Health Services.  In April 1992
Dr. Ulrich Schoettle, a clinical psychiatrist from Seattle, also
began seeing D.P. every other month.
          In the spring of 1994, D.P.'s caregivers became concerned
that she had stopped taking her medication.  By May she was
significantly more agitated and began to complain of physical
distress from the medication.  Despite Dr. Schoettle's recommend-

ation of a new antipsychotic drug, D.P. underwent further
deterioration by July and began to experience religious delusions. 
          Early on July 19, Dr. McCandless admitted D.P. to the
hospital, diagnosing her with "schizophrenia, psychotic decompen-

sation."  In his hospitalization order, Dr. McCandless wrote in
part as follows:
          Up as tolerated, should stay in building,
under observation/suicide precautions.

          . . . .

          For Agitation/Hallucinations/Danger to self or
Others
               -Haldol 5-10 mg + Ativan 1-2 mg IM 
                              Q4o prn[ [Fn. 1]]   OR AS Needed
               -Restraints prn only if danger to self or
                    others.

          When D.P. was admitted she was distraught and delusional. 
During the day D.P. was observed by four nurses, each on different
duty shifts.  The nurses' notes show that each nurse regularly
checked on D.P. at intervals ranging from a few minutes to two
hours.  D.P. slept intermittently throughout the day, refusing food
and medication.  She continued to have delusions and was distraught
and agitated.  At 4:00 p.m. Nurse Elsie Hansen came on duty. 
During Hansen's shift, D.P. was noticeably more active and
"cheerful," walking throughout the hallways and visiting another
room.  At 6:50 p.m. Hansen's notes indicate "[D.P. is] out in
hallway -- states she will walk to ER and then lay down in [her
room]."  At 6:55 p.m. Hansen went to check on D.P. but was unable
to locate her.  In the intervening five minutes, D.P. had walked
out of the hospital.
          Once outside the hospital, D.P. met a temporary forest
service worker.  In her delusional state, D.P. believed that he was
either "Jesus" or "the prophet."  D.P. and her new acquaintance
spoke for several hours, after which they engaged in sexual
relations in a local park.  At approximately 10:10 p.m., police
officers arrived and returned D.P. to the hospital.  The next day,
Dr. Schoettle had D.P. involuntarily committed to the Alaska
Psychiatric Institute (API).
     B.   Proceedings
          In June 1995 D.P. sued the hospital and Hansen
(collectively defendants) for negligence in failing to provide
"reasonable and attentive care, including, but not limited to,
adherence to physician's orders, regular monitoring and accurate
record-keeping."  She sought compensatory damages against both
defendants and punitive damages against Hansen individually. 
          The defendants answered, denying D.P.'s allegations of
negligence.  D.P. then submitted an interrogatory, requesting that
the defendants explain their denial of D.P.'s charge that "[n]o
effort had been made to restrain" D.P. from leaving the hospital.
The defendants replied:
               The Hospital's employees understood that
[D.P.] was not to be permitted to leave the Hospital facility.  The
nurse on duty checked on [D.P.] from time to time as the nurse felt
it was necessary under the circumstances at any particular time. 
See the medical records, and in particular the progress notes,
which document in part the contacts between Hospital employees and
[D.P.]. Had any Hospital employee known that it was [D.P.]'s
intention to leave the Hospital facility, she would not have been
allowed to do so.  Unfortunately, D.P. did leave the Hospital, but
not as a consequence of any failure on the part of any Hospital
employee to exercise reasonable care under the circumstances at
that time.

          D.P. interpreted this answer as an "ironclad" admission
of the existence of a duty of care, the standard of care, and the
breach of a duty of care.  Therefore, D.P. did not designate any
expert witnesses, choosing instead to rely solely on the
defendants' interrogatory answer.
          At a pretrial hearing held January 24, 1997, the superior
court ruled that expert testimony was required to establish the
standard of care and the breach of a duty of care.  At trial on
January 27, the court approved D.P.'s request to call defendants'
expert witness, Dr. Schoettle, to testify regarding these issues. 
          D.P. experienced difficulty eliciting information
favorable to her case from Dr. Schoettle.  She attempted to show
that Hansen breached a duty of care by violating Dr. McCandless's
"cut and dried" order to keep D.P. in the hospital.  Dr. Schoettle
testified that a physician's orders should be viewed holistically.
He explained that, as a whole, the specific instructions that D.P.
should remain in the building, under observation, and with suicide
precautions reflected a directive to "be attentive" to the patient,
requiring "general observation and supervision." 
          Dr. Schoettle further testified that hospitals should
maintain an "open door policy" for voluntary psychiatric patients,
attempting to normalize the patient's environment rather than
imposing artificial controls and restraints.  He testified that the
"[n]ormative community standards in hospitals for observations of
psychiatric patients are checking every 15 [] minutes to a half
hour."  Dr. Schoettle later clarified that only acutely suicidal
patents require observation every fifteen minutes.
          After D.P.'s examination of Dr. Schoettle, the defendants
moved for a directed verdict under Civil Rule 50, arguing that D.P.
had failed to establish either the standard of care or a breach of
duty.  D.P. argued that Dr. Schoettle's testimony proved that,
although some flexibility existed regarding the extent of
supervision necessary, none existed regarding whether to permit her
exit from the building.
          Although the superior court concluded that Dr.
Schoettle's testimony had not established a breach, it allowed D.P.
to reopen her direct examination of Dr. Schoettle to make this
inquiry.  After further questioning, Dr. Schoettle testified that
the nurses had executed Dr. McCandless's orders within the "norm of
community standards."  He stated:
          I don't see in -- in my professional opinion
that there was a miscommunication, a negligence, a nursing decision
where somebody made it on their own and -- and had some wild idea
or -- or did anything different than I would have expected any
nurse to do.  Sometimes patients walk out. 

Dr. Schoettle also testified that the nurses had observed D.P. with
adequate frequency.  But Dr. Schoettle acknowledged that the "fact
that the patient went out implies [negligence]," although he did
not believe that the nurses were negligent.  Dr. Schoettle
explained that an order to stay in the building is actually "an
assumed" order for any patient, psychiatric or otherwise.  He noted
that even in psychiatric wards, doors are often left unlocked or
open, and patients are allowed to commingle.
          The court concluded that Dr. Schoettle's testimony had
established the standard of care but failed to show a breach of
duty by either the hospital or Hansen.  It therefore directed a
verdict for the defendants and dismissed D.P.'s claims.
III. STANDARD OF REVIEW
          In reviewing the superior court's decision to grant a
directed verdict, we view the evidence in the light most favorable
to the nonmoving party. [Fn. 2]  We will affirm a directed verdict
only where reasonable jurors could not reach different conclusions.
[Fn. 3]
          Whether expert testimony is required to show a breach of
a duty of care represents a question of law to which we apply our
independent judgment.  We will adopt the rule of law most
convincing in light of precedent, reason, and policy. [Fn. 4] 
IV.  DISCUSSION
     A.   It Was Error to Require D.P. to Present Expert Testimony
as to the Breach of a Duty of Care.

          The general rule in medical malpractice actions provides
that "the jury ordinarily may find a breach of professional duty
only on the basis of expert testimony." [Fn. 5]  "The primary
limitation to this rule is that expert testimony is not needed in
non-technical situations where negligence is evident to lay
people." [Fn. 6]  D.P. relies on this exception.
          The defendants rely primarily on cases discussing whether
the health care provider failed to recognize the suicidal or
elopement tendencies of the patient or failed to order appropriate
precautions. [Fn. 7]  These cases, however, are distinguishable
from the present situation because D.P. does not allege that
defendants failed to appreciate her mental health status, to
recognize a risk of harm to her, or to order reasonable
precautions.  She instead faults the defendants' failure to follow
the ordered precautionary measures.
          It remains far from clear that D.P.'s case should be
viewed as a "medical malpractice" action.  Most courts characterize
cases in which the plaintiff alleges a failure to adequately
supervise and safeguard the patient as involving "ordinary
negligence" issues. [Fn. 8]  Further, in Alaska, medical
malpractice actions are governed entirely by statute. [Fn. 9] 
Alaska Statute 09.55.536(a) sets forth specific procedural
requirements for medical malpractice cases.  Under this section,
either the parties must submit a malpractice claim to arbitration
or the court must appoint an expert advisory panel within twenty
days of the answer to the complaint.  Neither occurred here. 
Moreover, the superior court recognized that the parties had failed
to treat the action as one for medical malpractice. [Fn. 10]
          In Clary Insurance Agency v. Doyle, [Fn. 11] we
distinguished between medical malpractice issues and those
involving ordinary negligence:
                         Not every act of a professional requires
an instruction on the professional standard of care.  Meier v. Ross
General Hospital[ [Fn. 12]] illustrates the point.  Meier involved
a wrongful death action by the widow of a suicide victim who had
jumped through an unbarred second story window of a hospital.  The
court concluded that the case supported instructions on both
ordinary negligence and medical malpractice.  Issues relating to
improper medical diagnosis and chemotherapy treatment required an
instruction on the professional standard of care.  But the court
concluded that an instruction on ordinary negligence was
appropriate on the question of whether it was negligent to allow
the decedent, who was depressed and had previously slashed his
wrists, to wander freely around a hospital where there were no bars
on the windows.[ [Fn. 13]] 

The defendants unpersuasively rely on Nally v. Grace Community
Church of the Valley [Fn. 14] to distinguish Meier.  In Nally, a
young man who received informal pastoral counseling committed
suicide. [Fn. 15]  Nally simply declined to extend a duty of care
"to personal or religious counseling relationships in which one
person provided nonprofessional guidance to another seeking advice
and the counselor had no control over the environment of the
individual being counseled." [Fn. 16] 
          In view of the numerous authorities holding that a jury
may readily determine whether patients known to be a risk to
themselves have been adequately supervised, we hold that D.P.'s
claims do not raise "strict" medical malpractice issues requiring
expert testimony. [Fn. 17]  Whether the hospital exercised
reasonable care in supervising D.P. represents a factual question
for the jury's resolution under an ordinary negligence framework. 
We therefore hold that it was error to require D.P. to present
expert testimony regarding the hospital's alleged breach of its
duty of care.
     B.   It Was Error Not to Let D.P.'s Case Go to the Jury.

          D.P. contends that the superior court should have allowed
the jury to consider the testimony of Dr. Schoettle and lay
witnesses, in determining the issue of breach.
          The defendants respond that no reasonable juror could
have found that the defendants were negligent.  They emphasize that
the hospital is not a psychiatric hospital and lacks "any locked or
secure patient facilit[ies], rooms or wards."  The defendants also
stress that the standard of care did not require "constant
observation."  They argue that D.P. conceded both that the nurses
had flexibility in implementing the physician's orders [Fn. 18] and
that all except Hansen used reasonable care in observing D.P.  They
further note that Hansen discovered D.P.'s absence within five
minutes.
          The issues raised by the defendants concerning their use
of reasonable care in supervising D.P. warrant resolution by a
jury.  D.P.'s pleadings and proposed jury instructions raise
ordinary negligence issues.  Drawing all inferences in favor of
D.P. as the non-moving party, reasonable minds might differ as to
whether the hospital's efforts to supervise D.P. were adequate in
view of her known delusional condition.  We conclude that the case
should properly go to the jury under a theory of ordinary
negligence. 
     C.   The Defendants' Interrogatory Answer Is Admissible to
Show the Existence of a Duty of Care.

          D.P. argues that the superior court erred by refusing to
characterize the defendants' interrogatory answer as an admission
of both the existence of a duty and the breach of that duty. 
Specifically, D.P. asserts that the court erred by labeling this
evidence as "discovery" rather than "proof," arguing that it should
have been "weighed in the analysis of defendants' motion for a
directed verdict."
          Civil Rule 33(c) provides that answers to interrogatories
"may be used to the extent permitted by the rules of evidence." 
The defendants' answer in the present case bears directly upon the
hospital's duty of care and should have been admitted for that
purpose.  We therefore hold that the interrogatory answer is
admissible on the issue of the defendants' duty of care. [Fn. 19] 

V.   CONCLUSION
          We REVERSE the directed verdicts in favor of the
defendants and REMAND this case for a new trial utilizing an
ordinary negligence framework.
CARPENETI, Justice, dissenting.
I.   INTRODUCTION
          This medical malpractice case raises the question whether
a hospital staff exercised care consistent with professional
medical standards of restraint and supervision for a psychiatric
patient.  In such cases, Alaska law requires expert testimony to
establish a breach of the standard of care before the plaintiff can
recover.  Because plaintiff offered no such testimony, even when
notified by the trial court that it was required, I would affirm
the trial court's decision to dismiss the case.
II.  DISCUSSION
          The burdens of proof in a medical malpractice action in
Alaska are set out in AS 09.55.540:
          (a) In a malpractice action based on the
negligence or wilful misconduct of a health care provider, the
plaintiff has the burden of proving by a preponderance of the
evidence

          (1) the degree of knowledge or skill possessed
or the degree of care ordinarily exercised under the circumstances,
at the time of the act complained of, by health care providers in
the field or specialty in which the defendant is practicing; 

          (2) that the defendant either lacked this
degree of knowledge or skill or failed to exercise this degree of
care; and

          (3) that as a proximate result of this lack of
knowledge or skill or the failure to exercise this degree of care
the plaintiff suffered injuries that would not otherwise have been
incurred.

          (b) In malpractice actions there is no
presumption of negligence on the part of the defendant.

Therefore, it was D.P.'s burden to provide evidence establishing
the applicable medical standard of care, the defendants' breach of
that standard of care, and that the breach caused her injuries.
[Fn. 1]  Moreover, as D.P. concedes, this court has previously
followed the  well-established rule that "[i]n medical malpractice
actions the jury ordinarily may find a breach of professional duty
only on the basis of expert testimony." [Fn. 2] 
     A.   D.P.'s Case Was a Medical Malpractice Action as That Term
Is Used in AS 09.55.540 and .550.
     
          The court concludes that D.P.'s claims do not raise 
"'strict' medical malpractice" issues [Fn. 3] and that "[i]t
remains far from clear . . . that D.P.'s case should be viewed as
a 'medical malpractice' action." [Fn. 4]  I disagree.  Both the
broad statutory use of the term "medical malpractice" and the
commonly recognized legal definition of "malpractice" favor an
application that covers lawsuits like D.P.'s.
          The definitions section of the statutory chapter
governing medical malpractice claims contains individual
definitions indicative of the breadth of services and types of
health service providers that the legislature intended that chapter
to cover.  For instance, AS 09.55.560(4) defines "professional
negligence" as "a negligent act or omission by a health care
provider in rendering professional services."  And AS 09.55.560(5)
defines "professional services" to include a "service provided by
a health care provider that is within the scope of services for
which the health care provider is licensed."  Finally, AS
09.55.560(1) defines "health care provider" to include: "a nurse
. . . ; a physician . . . ; a hospital . . . ; [and] an employee of
a health care provider acting within the course and scope of
employment."  Taken together, the only conclusion to be drawn from
these definitions is that sections 09.55.540 and .550 must apply to
a broad range of actions taken in the provision of medical
services.  These services comfortably include the supervision of
psychiatric patients in a hospital.
          Similarly, the common definition of "malpractice" is: 

          Professional misconduct or unreasonable lack
of skill.  This term is usually applied to such conduct by doctors,
lawyers, and accountants.  Failure of one rendering professional
services to exercise that degree of skill and learning commonly
applied under all the circumstances in the community by the average
prudent reputable member of the profession with the result of
injury, loss or damage to the recipient of those services or to
those entitled to rely upon them.[ [Fn. 5]]

          Given the broad definition commonly applied to
"malpractice" and the similarly broad statutory definitions in our
statutes on "medical malpractice,"  I cannot agree that D.P.'s
claim is one of "ordinary negligence" and not one of "medical
malpractice."  Accordingly, to the degree that the court suggests
that D.P.'s claim that she was entitled to "reasonable and
attentive care, including, . . . adherence to physician's orders"
was not a claim of medical malpractice, I cannot agree.
     B.   The Notion of "Ordinary Negligence" Is Not Applicable
Within the Context of a Professional Negligence Action.

          I also disagree with the court's conclusion that it is
appropriate to allow a jury to resolve D.P.'s claim "under an
ordinary negligence framework." [Fn. 6]  Implicit in this
conclusion is the view that the individual acts that in the
aggregate comprise any given medical service may be finely parsed
into those acts judged under the rubric of ordinary negligence and
those acts judged under the rubric of professional negligence. 
California, with its similar statutory scheme for medical
malpractice, has rejected this approach. [Fn. 7] 
          Moreover, the logic underlying the parsing approach to
acts by health care providers is flawed because "ordinary
negligence" is not applicable in a professional negligence case. 
The court relies on Meier v. Ross General Hospital, [Fn. 8] a
California case, for the proposition that "ordinary negligence" can
exist in a medical malpractice setting. [Fn. 9]  But as the
California Supreme Court recently explained in Flowers v. Torrance
Memorial Hospital Medical Center, [Fn. 10] 
          whether the cause of action is denominated
"ordinary" or "professional" negligence or both, ultimately only a
single standard can obtain under any given set of facts and any
distinction is immaterial . . . . 

               . . . [A] defendant has only one duty,
measured by one standard of care, under any given circumstances.
[Fn. 11]

That court then went on to further explain that when courts allow
seemingly obviously negligent acts to supplant the need for expert
testimony to establish the appropriate standard of care, their
"reasoning confuses the manner of proof by which negligence can or
must be established and the character of the negligence itself."
[Fn. 12] 
          The logic of Flowers and the cases that follow it is
persuasive.  There cannot be two standards of care that apply to
one person for the same act at the same time -- one "professional"
and one "ordinary."
          The allegedly negligent act at issue in this case took
place during the provision of professional medical services.  In
these circumstances, AS 09.55.540 requires proof of the applicable
standard of care and proof of a breach of that standard of care. 
Because there was no expert testimony, the plaintiff's case was
insufficient unless an exception to the rule could be found.
     C.   Reliance on the Common Knowledge Exception Is Not
Appropriate in This Case.

          The court finds an exception -- the "common knowledge
exception" -- to the rule that expert testimony is needed to
establish the standard of care.  But that exception is incompatible
with our statutory framework.  Moreover, even if the common
knowledge exception does not conflict with AS 09.55.550, it is
inappropriate to apply it on the facts of this case.  
          1.   The common knowledge exception is not compatible
with AS 09.55.550.

          The common knowledge exception has been explained as
applying "when a layperson is able to say as a matter of common
knowledge and observation that the consequences of professional
treatment were not such as ordinarily would have followed if due
care had been exercised." [Fn. 13]  That is, the type of injury
incurred could not have happened in the absence of negligence.  But
AS 09.55.550 provides, in part, that "[t]he jury shall be . . .
instructed that injury alone does not raise a presumption of the
health care provider's negligence or misconduct."  
          The common knowledge exception therefore allows the
inference of negligence to be drawn from the proved existence of
injury under a broad set of possible circumstances within the
knowledge and observation of the general populace.  This is,
however, essentially a working definition of "presumption." [Fn.
14]  Since AS 09.55.550 explicitly requires the court to instruct
the jury that "injury alone does not raise a presumption of . . .
negligence," application of the common knowledge exception is
inconsistent with Alaska law. 
          2.   Even if generally applicable, the common knowledge
exception should not be applied on the facts of this case.

          There are two theories under which the hospital could
have become liable to D.P.  First, either Dr. McCandless or Dr.
Schoettle, or both, could have been professionally negligent in
prescribing D.P.'s course of treatment and care.  But D.P. did not 
allege any failing by either of her doctors.  Accordingly, the
hospital and nursing staff are not liable to D.P. for shortcomings
attributable to Dr. McCandless's treatment and supervision order,
[Fn. 15] unless there were changed circumstances that should have
alerted the nursing staff to take appropriate action. [Fn. 16] 
D.P. therefore cannot rely on any claim that suggests alternative
methods of physical, supervisory, or narcotic restraint should have
been ordered or implemented because these decisions were within the
doctors' exclusive province of professional responsibility.
          Second, and relevant to the common knowledge exception,
D.P.'s nurses may have been professionally negligent in
implementing Dr. McCandless's flexible treatment order.  But, as
with a doctor's professional judgments, a failure in care arising
out of a nurse's discretionary actions implicates professional
negligence.  As the court in Sabol v. Richmond Heights General
Hospital [Fn. 17] stated:
          The law of medical negligence imposes on
physicians engaged in the practice of medicine a duty to employ
that degree of skill, care and diligence that a physician or
surgeon of the same medical specialty would employ in like
circumstances.  Likewise, nurses are persons of knowledge and skill
and must employ that degree of care and skill that a nurse of
ordinary care, skill and diligence would employ in similar
circumstances.[ [Fn. 18]]

Thus, to support this theory D.P. had to provide expert testimony
establishing the appropriate standard of care of a professional
nurse operating under similar circumstances, [Fn. 19] unless the
proper level of supervision and restraint of a psychiatric patient
was peculiarly within the common knowledge of the average citizen. 
That it was not in this case is evident by reviewing Flowers, which
makes clear the strictly limited range of the common knowledge
exception:
               In this regard, this court has on
numerous occasions articulated the general rule applicable in
negligence cases arising out of the rendering of professional
services: "The standard of care . . . is a matter peculiarly within
the knowledge of experts; it presents the basic issue in a
malpractice action and can only be proved by their testimony,
unless the conduct required by the particular circumstances is
within the common knowledge of the layman." The "common knowledge"
exception is principally limited to situations in which the
plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when
a layperson "is able to say as a matter of common knowledge and
observation that the consequences of professional treatment were
not such as ordinarily would have followed if due care had been
exercised."  The classic example, of course, is the X-ray revealing
a scalpel left in the patient's body following surgery.[ [Fn. 20]]

This is clearly not such a case.  The measures which a nurse might
appropriately take to monitor a paranoid schizophrenic patient, and
to dissuade such a patient from leaving should that be her obvious
intent, and to attempt to restrain her in the event persuasion was
unsuccessful, are not obvious to the lay person. [Fn. 21] 
          Moreover, Alaska has legislatively nullified the doctrine
of res ipsa loquitur in medical malpractice cases. [Fn. 22]  Yet
under D.P.'s theory of the case, the fact that she got outside the
building indicates that there was a breach of the standard of care. 
This argument is virtually indistinguishable from res ipsaloquitur.  
Moreover, "proof of a bad result or mishap is no
evidence of lack of skill or negligence." [Fn. 23]  D.P.'s
conclusion therefore leaps two steps -- the standard of care and
breach -- when only one is implicated by the fact of her leaving
the building.  The first step, and the step on which D.P.'s case
falters, is the question of the standard of care.  What was the
applicable standard of care for the nursing staff to protect D.P.
from herself?  What was the staff required or permitted to do --
and what was it precluded from doing -- in fulfilling its duty to
her?
          Laypersons cannot accurately answer that question without
expert assistance.  Both Alaska law and the realities of
decisionmaking lead to that conclusion.  Whether Nurse Hansen's
checking up on D.P. five minutes after seeing her in the hallway
(and discovering she was gone) was commensurate with the
professional standards of a nurse in Wrangell General Hospital
supervising a psychiatric patient is surely an issue outside the
common knowledge of laypersons.
     D.   D.P.'s Claims Were Properly Dismissed Because She Failed
to Produce Evidence to Support a Breach of the Duty of Care
Established by Dr. Schoettle's Testimony.
  
          Finally, D.P.'s negligence claim fails on the alternative
basis that even when the evidence is viewed in the manner most
favorable to her, it does not support a claim that Nurse Hansen
failed to properly supervise D.P. under the standard of care set
out in Dr. Schoettle's testimony -- the only evidence produced at
trial on that subject.
          Dr. Schoettle's uncontradicted testimony established that
"the nursing notes do not suggest any negligence whatsoever on the
part of the nursing staff."  Since D.P. did not provide documentary
evidence or her own witness (expert or not) to testify on this
claim, Dr. Schoettle's testimony established the standard of care
and that there was no breach of that standard by the nurses'
actions.  Accordingly, D.P. did not made out a prima facie case of
professional negligence against the nursing staff.
III. CONCLUSION
          Alaska law required D.P. to present expert testimony to
establish that the hospital or its staff violated standards of
professional care while she was under their control.  Because she
did not do so, I would affirm the trial court.  I would not allow
this medical malpractice case to proceed under an "ordinary
negligence" framework.  I therefore dissent.



                            FOOTNOTES


Footnote 1:

     "Prn" is medical shorthand for "as needed."


Footnote 2:

     See Fairbanks N. Star Borough v. Lakeview Enters., Inc., 897
P.2d 47, 53 n.5 (Alaska 1995).


Footnote 3:

     See id.


Footnote 4:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). 


Footnote 5:

     Kendall v. State, Div. of Corrections, 692 P.2d 953, 955
(Alaska 1984) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194,
200 (Alaska 1980)).


Footnote 6:

     Id.


Footnote 7:

     See, e.g., Rudy v. Meshorer, 706 P.2d 1234, 1236-38 (Ariz.
App. 1985) (requiring expert testimony to show that psychiatrist
"was negligent in his determination that [decedent] was not
suicidal"); Dimitrijevic v. Chicago Wesley Mem'l Hosp., 236 N.E.2d
309, 313 (Ill. App. 1968) (requiring expert testimony to determine
"whether defendant doctors failed to exercise ordinary skill and
care in not characterizing decedent as a suicidal risk"); Kanter v.
Metropolitan Med. Ctr., 384 N.W.2d 914, 916 (Minn. App. 1986)
(recognizing that expert testimony would assist trier of fact in
determining whether nurse should have recognized patients'
"potential [suicidal] tendencies"). 


Footnote 8:

     See, e.g., Meier v. Ross Gen. Hosp., 445 P.2d 519, 523, 529
(Cal. 1968) (where decedent leapt from hospital window, alleged
failure to supervise involved only "ordinary negligence" issues
since it did not concern "the propriety of any controverted medical
diagnosis or treatment"); Paulen v. Shinnick, 289 N.W. 162, 164
(Mich. 1939) (where patient leapt from window, "whether [attendant]
should have locked the screen . . . or [] taken some other
precaution to prevent plaintiff's escape, is not a question on
which a jury requires the advice of trained psychiatrists");
Stallman v. Robinson, 260 S.W.2d 743, 745, 749 (Mo. 1953) (where
decedent hung herself with her nightgown, expert testimony not
required to determine "whether the patient was reasonably
safeguarded and protected, in the circumstances in view of her
known condition" because case was not "strictly speaking a
malpractice case"); Kent v. Whitaker, 364 P.2d 556, 557 (Wash.
1961) (action was "not a malpractice case" where patient with known
suicidal tendencies strangled herself with plastic tubing while
unattended in locked room because it did not concern "improper
diagnosis or negligent treatment" but rather "failure of the
specific duty of exercising reasonable care to safeguard and
protect a patient with known suicidal tendencies from injuring
herself").  But see Reifschneider v. Nebraska Methodist Hosp., 387
N.W.2d 486, 488-89 (Neb. 1986) (where emergency room patient fell
from hospital cart, court refused to find that laypersons could
determine whether hospital had duty to restrain or supervise
patients on carts).


Footnote 9:

     See AS 09.55.530-.560.


Footnote 10:

     The court, however, did rely on AS 09.55.540 in requiring D.P.
to present expert testimony.


Footnote 11:

     620 P.2d 194 (Alaska 1980).


Footnote 12:

     445 P.2d 519 (Cal. 1968).


Footnote 13:

     Doyle, 620 P.2d at 200.


Footnote 14:

     763 P.2d 948 (Cal. 1988).


Footnote 15:

     Id. at 950-52.  


Footnote 16:

     Id. at 957.


Footnote 17:

     D.P.'s arguments for the hospital's breach of its duty involve
issues of ordinary custodial care of patients, not specialized care
that requires the use of medical judgment:  Did the hospital
monitor the front door properly? Did the staff take reasonable
precautions to prevent D.P. from leaving?  We note, however, that
in so far as D.P. intends to argue issues that involve specialized
medical decisions -- such as the appropriate level of physical
restraints or medication -- she can do so only through expert
testimony. 


Footnote 18:

     D.P. admitted that the nurses have "all the discretion in the
world" as to how closely to observe D.P. and what precautions to
take, but argued that "[t]he one issue they don't have discretion
about is keeping her in the hospital or out of the hospital."


Footnote 19:

     See Alaska R. Evid. 402 ("All relevant evidence is admissible"
unless otherwise provided); Alaska R. Evid. 401 ("Relevant evidence
means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."). 




                      FOOTNOTES   (Dissent)


Footnote 1:

     See AS 09.55.540.


Footnote 2:

     Kendall v. State, Div. of Corrections, 692 P.2d 953, 955
(Alaska 1984) (ellipsis omitted) (quoting Clary Ins. Agency v.
Doyle, 620 P.2d 194, 200 (Alaska 1980)).


Footnote 3:

     Slip Op. at 11.


Footnote 4:

     Slip Op. at 8.


Footnote 5:

     Black's Law Dictionary 959 (6th ed. 1990) (defining
"malpractice").


Footnote 6:

     Slip Op. at 11.


Footnote 7:

     See Bellamy v. Superior Court, 57 Cal. Rptr. 2d 894, 900-01
(App. 1996):

          Some . . . tasks may require a high degree of
skill and judgment, but others do not.  Each, however, is an
integral part of the professional service being rendered.  Trying
to categorize each individual act or omission, all of which may
occur within a space of a few minutes, into "ordinary" or
"professional" would add confusion in determining what legal
procedures apply if the patient seeks damages for injuries suffered
at some point during the course of the examination or therapy.  We
do not see any need for such confusion or any indication the
Legislature intended MICRA's applicability to depend on such fine
distinctions. (Footnote omitted.)


Footnote 8:

     445 P.2d 519 (Cal. 1968).


Footnote 9:

     Slip Op. at 8-9.


Footnote 10:

     884 P.2d 142 (Cal. 1994) (in banc).


Footnote 11:

     See id. at 146 (footnote omitted). 


Footnote 12:

     Id. at 147.


Footnote 13:

     Id. (footnote and internal quotation marks omitted) (quoting
Engelking v. Carlson, 88 P.2d 695 (Cal. 1939)).


Footnote 14:

     See Blacks Law Dictionary 1203 (7th ed. 1999) (defining
"presumption" as "[a] legal inference or assumption that a fact
exists, based on the known or proven existence of some other fact
or group of facts"); see also Commentary to Alaska Rule of Evidence
301(a), second paragraph (defining "presumption").


Footnote 15:

     See Dimitrijevic v. Chicago Wesley Mem'l Hosp., 236 N.E.2d
309, 314 (Ill. App. 1968) (holding that hospital was under no duty
to take precautions not ordered by the attending physician); State
v. Washington Sanitarium and Hosp., 165 A.2d 764, 766 (Md. App.
1960) (stating that "[i]t was not incumbent upon the nurses and
attendants to apply restraints or supervision which the attending
physician" did not order); Sabol v. Richmond Heights Gen. Hosp.,
676 N.E.2d 958, 960 (Ohio App. 1996) (holding that the hospital was
not liable where its staff provided the protective measures ordered
by the attending physician to prevent suicide).


Footnote 16:

     See Washington Sanitarium, 165 A.2d at 766. 


Footnote 17:

     676 N.E.2d 958.


Footnote 18:

     Id. at 960 (emphasis added) (citations omitted).


Footnote 19:

     See Hitch v. Ohio Dep't of Mental Health, 683 N.E.2d 38, 45
(Ohio App. 1996); Payne v. Milwaukee Sanitarium Found., Inc., 260
N.W.2d 386, 390-91 (Wis. 1977) ("Where the patient requires
professional nursing or professional hospital care, then expert
testimony as to the standard of that type of care is necessary.") 
(citation omitted).


Footnote 20:

     884 P.2d at 147 (emphasis added) (footnote and citations
omitted).


Footnote 21:

     See Baker v. United States, 226 F. Supp. 129, 132 (S.D. Iowa
1964) ("It is particularly recognized in the treatment of mental
patients that diagnosis is not an exact science. . . . Further the
objective is treatment not merely incarceration.  Treatment
requires the restoration of confidence in the patient.  This in
turn requires that restrictions be kept at a minimum.  Risks must
be taken or the case left as hopeless.") (emphasis added)
(citations omitted), aff'd, 343 F.2d 222 (8th Cir. 1965).


Footnote 22:

     See Priest v. Lindig, 583 P.2d 173, 175-76 & n.7 (Alaska 1978)
(citation omitted).


Footnote 23:

          Dimitrijevic v. Chicago Wesley Mem'l Hosp., 236 N.E.2d
309, 312 (Ill. App. 1968).