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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gerber v. Juneau Bartlett Memorial Hospital (5/19/00) sp-5276

Gerber v. Juneau Bartlett Memorial Hospital (5/19/00) sp-5276

     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.


MARK GERBER II,               )
                              )    Supreme Court No. S-8964
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1JU-97-989 CI
HOSPITAL,                     )
                              )    [No. 5276 - May 19, 2000]
             Appellee.        )

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.

          Appearances: Gary Foster, Law Office of Gary
Foster, Fairbanks, for Appellant.  Michael L. Lessmeier, Lessmeier
& Winters, Juneau, for Appellee.

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

          FABE, Justice.

          Mark Gerber brought a medical malpractice claim against
Juneau Bartlett Memorial Hospital for injuries to his sciatic nerve
allegedly resulting from an improper injection.  Without
interviewing Gerber, an expert advisory panel determined that
Gerber had received proper care.  Relying upon the panel's
uncontradicted findings, the superior court granted summary
judgment.  Because the panel was not required to interview Gerber,
and because Gerber did not submit any admissible evidence rebutting
the panel's finding of proper care, we affirm the superior court's
decision granting summary judgment.
          On May 2, 1995, Mark Gerber sought treatment for a rash
in the emergency room of the Juneau Bartlett Memorial Hospital.  A
physician examined Gerber and prescribed a Benadryl injection.  A
nurse then administered the Benadryl injection into Gerber's right
buttock.  The injection caused injury to the sciatic nerve and
resulted in symptoms in Gerber's right leg and foot.
          In April 1997 Gerber filed a medical malpractice
complaint in superior court against the hospital.  An expert
advisory panel was requested by the hospital and appointed by the
superior court.  The parties agreed to stay all activity of the
panel until April 20, 1998 so that the parties could collect
deposition testimony, medical records, reports of medical
consultants, and medical literature.  While Gerber presented no
such material to the panel, he did request on April 20 that the
panel interview him.  The panel did not personally interview
          The panel filed its report with the superior court on
June 9.  The report concluded that the nurse "appropriately carried
out the order given by the physician."  The report further stated
that unskillful care did not cause the injury:  "Documentation
indicates the injection was given in the proper anatomical
location, right ventrogluteal muscle.  The injury is a known
potential, although rare, complication of a properly administered
          In September the hospital moved for summary judgment. 
Gerber filed an opposition, arguing that the injection was
administered in an improper location. [Fn. 1]  He further contended
that he had been unable to "communicate the location of the nurse's
injection into his buttock to the expert advisory panel."  But
Gerber failed to submit any affidavit evidence from himself or
medical professionals contesting the conclusions of the expert
advisory panel.  Instead he argued that the expert advisory panel
report was not sufficient to support summary judgment because the
panel failed to interview him.
          The superior court granted summary judgment in favor of
the hospital.  The court reasoned that under the applicable rules,
"the panel does not have to interview people on request."  Gerber
          This court reviews a decision granting summary judgment
de novo. [Fn. 2]   This court will affirm a grant of summary
judgment if, "construing all reasonable inferences in favor of the
nonmoving party, there are no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law." [Fn.
          This court also reviews matters of statutory
interpretation de novo. [Fn. 4]  In interpreting a statute, the
court's objective is to give effect to the legislative intent with
due regard for the meaning that the provision's language conveys to
others. [Fn. 5]  Where the statute's meaning appears "clear and
unambiguous . . . the party asserting a different meaning bears a
correspondingly heavy burden of demonstrating contrary legislative
intent." [Fn. 6]
     A.   The Expert Advisory Panel Need Not Interview a Party Upon
          Gerber argues that Civil Rule 72.1 and public policy
require that the expert advisory panel interview a party upon
request.  The hospital contends that such interviews are not
mandatory but merely optional; the panel has the discretion whether
to conduct the requested interview.
          Civil Rule 72.1 governs expert advisory panels in medical
malpractice actions.  Under Civil Rule 72.1(f)(2), "[a]ny party may
request the panel to interview any person or party."  Gerber argues
that this provision requires the panel to interview him.  He
reasons that this provision renders interviews mandatory because
Rule 72.1 does not permit the evidence to be submitted by
          The text of Rule 72.1 bears no indication that interviews
are mandatory upon a party's request.  While a party "may request"
an interview under Rule 72.1(f)(2), Rule 72.1 imposes no explicit
requirement that the panel grant such an interview.  This stands in
stark contrast to paragraphs (a) and (b) regarding panel 
appointment.  Under these provisions, a party "may request" that
the court appoint a panel. [Fn. 7]  If a party requests the
appointment, then the court "shall nominate" a panel. [Fn. 8]  Rule
72.1 contains no similar mandatory language with respect to panel
          Alaska Statute 09.55.536 further indicates the optional
nature of panel interviews.  Under subsection (b)
          [t]he expert advisory panel may compel the
attendance of witnesses, interview the parties, physically examine
the injured person if alive, consult with the specialists or
learned works they consider appropriate, and compel the production
of and examine all relevant hospital, medical, or other records or
materials relating to the health care in issue.[ [Fn. 9]]

In contrast to the term "shall," the term "may" generally denotes
permissive or discretionary authority and not a mandatory duty.
[Fn. 10]  Thus, the plain language of AS 09.55.536(b) permits but
does not require the panel to interview witnesses.  Like Civil Rule
72.1, AS 09.55.536 contains no provision that requires the panel to
interview a party.
          Alaska case law also supports the hospital's position
that the panel is not required to interview a party.  In Keyes v.
Humana Hospital Alaska, Inc., [Fn. 11] this court determined that
AS 09.55.536(b) "does not . . . establish a hearing-type procedure
by which the parties dictate what evidence the panel considers."
[Fn. 12]  Therefore, the panel has the discretion to select the
evidence it will consider in its evaluation.
          Due process concerns do not compel a contrary
interpretation.  In Keyes, this court upheld AS 09.55.536 against
a procedural due process challenge. [Fn. 13]  While recognizing
that the "crux of due process is an opportunity to be heard and the
right to adequately represent one's interests," the court
determined that procedural safeguards are not required for the
panel's evaluation. [Fn. 14]  The court reasoned that the parties
are given full opportunity to litigate their positions before the
court and likened the panel report to the opinion of a neutral
expert. [Fn. 15]  Under this reasoning, Gerber is incorrect in his
assertion that interviews must be mandatory to afford parties their
"day in court."
          Alaska Statute 09.55.536(e) reinforces the procedural
safeguards available in court to the parties:
          The report of the panel with any dissenting or
concurring opinion is admissible in evidence to the same extent as
though its contents were orally testified to by the person or
persons preparing it.  The court shall delete any portion that
would not be admissible because of lack of foundation for opinion
testimony, or otherwise.  Either party may submit testimony to
support or refute the report.  The jury shall be instructed in
general terms that the report shall be considered and evaluated in
the same manner as any other expert testimony.  Any member of the
panel may be called by any party and may be cross-examined as to
the contents of the report or of that member's dissenting or
concurring opinion.
Gerber thus had the opportunity to "submit testimony to . . .
refute the report" in his opposition to the summary judgment
motion.  As we observed in Keyes:  "Nothing in the statute
precludes the parties from presenting the evidence and arguments
concerning the merits of the case that they would have presented in
the absence of the pre-trial panel review." [Fn. 16]
          Moreover, Rule 72.1 explicitly permits a party to present
evidence to the panel.  While Rule 72.1 does not specifically
mention affidavits, Rule 72.1(e)(5) appears to contemplate them:
"[T]he panel . . . shall keep copies of all written statements the
panel may receive or take, whether from witnesses, consultants, or
other sources."  Rule 72.1 explicitly permits parties to submit
medical records, medical reports from independent consultants, and
medical literature. [Fn. 17]  Furthermore, under Rule 72.1(c)(7),
each party must submit to the panel certain initial disclosures
required by Rule 26(a)(1), including "the factual basis of each of
its claims or defenses." [Fn. 18]
          In sum, we conclude that our prior case law and the
statutory and rule provisions clearly indicate the discretionary
nature of the expert panel interview, and that due process concerns
do not mandate a different result.  While we emphasize that
interviewing the injured party may often constitute good practice,
the decision whether to conduct the interview lies within the sound
discretion of the expert advisory panel.  Therefore, we affirm the
superior court's ruling that the expert advisory panel was not
required to interview Gerber.
     B.   The Superior Court Properly Granted Summary Judgment on
          the Basis of the Expert Advisory Panel Report.
          The superior court determined that, in light of the panel
report, there existed no genuine issue of material fact and
therefore granted the hospital's motion for summary judgment.
          Under Alaska law, when the expert advisory panel makes a
finding of proper care and the plaintiff claiming negligence
presents no contradictory evidence in response to a summary
judgment motion, the health care provider is entitled to judgment
as a matter of law.  In Kendall v. State, Division of Corrections,
[Fn. 19] we confronted a medical malpractice case similar to the
present one.  The expert advisory panel determined that Kendall had
received proper care. [Fn. 20]  The defendants successfully moved
for summary judgment on the basis of the panel's report. [Fn. 21] 
On appeal, we concluded that the superior court properly considered
the panel report in granting summary judgment. [Fn. 22] 
Furthermore, we determined that the panel's conclusion that Kendall
received proper care "was sufficient to establish the absence of a
genuine issue as to negligence." [Fn. 23]  Because Kendall
presented no evidence, such as expert affidavits, to rebut this
conclusion, we upheld the grant of summary judgment. [Fn. 24]
          In the present case, the expert advisory panel determined
that Gerber received proper care:  It concluded that the medical
injury was not "caused by unskillful care" and that "the injection
was given in the proper anatomical location."  Gerber failed to
submit in conjunction with his opposition brief an expert affidavit
or any other evidence contradicting the panel's conclusion.  Thus,
under Kendall, Gerber has failed to raise a genuine issue of fact
as to negligence and the superior court properly granted summary
          Because the expert advisory panel is not required to
interview a party upon request, and because Gerber failed to submit
any evidence of substandard medical care, we AFFIRM the superior
court's grant of summary judgment on the basis of the panel report.


Footnote 1:

     In his opposition to the summary judgment motion, Gerber also
took issue with the use by the hospital and the expert advisory
panel of the term "ventrogluteal muscle."  While the anatomy texts
cited by Gerber do not refer to such a muscle, Gerber concedes that
this term refers to "the region of the upper, outside of the
gluteus or buttock."

Footnote 2:

     See Chijide v. Maniilaq Ass'n of Kotzebue, 972 P.2d 167, 170
(Alaska 1999).

Footnote 3:


Footnote 4:

     See State, Dep't of Revenue, Child Support Enforcement Div. v.
Green, 983 P.2d 1249, 1252 (Alaska 1999).

Footnote 5:

     See Marlow v. Municipality of Anchorage, 889 P.2d 599, 602
(Alaska 1995).

Footnote 6:

     Gossman v. Greatland Directional Drilling, Inc., 973 P.2d 93,
96 (Alaska 1999) (quoting University of Alaska v. Tumeo, 933 P.2d
1147, 1152 (Alaska 1997)).

Footnote 7:

     Alaska R. Civ. P. 72.1(a).

Footnote 8:

     Alaska R. Civ. P. 72.1(b)(1).

Footnote 9:

     AS 09.55.536(b) (emphasis added).

Footnote 10:

     Compare Fowler v. City of Anchorage, 583 P.2d 817, 820 (Alaska
1978) ("Unless the context otherwise indicates, the use of the word
'shall' denotes a mandatory intent.") with Rutter v. State, 963
P.2d 1007, 1008 (Alaska 1998) and State, Dep't of Transp. & Pub.
Facilities v. Sanders, 944 P.2d 453, 457-58 (Alaska 1997).

Footnote 11:

     750 P.2d 343 (Alaska 1988).

Footnote 12:

     Id. at 348.

Footnote 13:

     See id. at 352-55.

Footnote 14:

     Id. at 353.

Footnote 15:

     See id.

Footnote 16:

     Id. at 348.    

Footnote 17:

     See Alaska R. Civ. P. 72.1(c).

Footnote 18:

     Alaska R. Civ. P. 26(a)(1)(A).

Footnote 19:

     692 P.2d 953 (Alaska 1984).

Footnote 20:

     See id. at 954.

Footnote 21:

     See id. at 955.

Footnote 22:

     See id.

Footnote 23:


Footnote 24:

     See id.  See also McWain v. Tucson Gen. Hosp., 670 P.2d 1180,
1182-83 (Ariz. App. 1983) (holding that, in case of alleged injury
to sciatic nerve caused by injection, plaintiff was required to
submit evidence of substandard care in order to survive summary
judgment where expert panel found non-negligence); Cherokee County
Hosp. Auth. v. Beaver, 345 S.E.2d 904, 907-08 (Ga. App. 1986)
(affirming denial of summary judgment where nonmovant plaintiff
submitted own affidavit regarding location of injection and expert
affidavit regarding proper locations of intramuscular injections
into buttock); Bialer v. St. Mary's Hosp., 427 P.2d 957, 958-59
(Nev. 1967) (affirming summary judgment where plaintiff failed to
present evidence that defendants deviated from standard of care in
administering intramuscular injection into buttock).