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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Trombley v. Starr-Wood Cardiac Group P.C. (6/16/00) sp-5288

Trombley v. Starr-Wood Cardiac Group P.C. (6/16/00) sp-5288

     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
                                 


BARBARA TROMBLEY and          )
DALE TROMBLEY, SR.,           )    Supreme Court No. S-8780
                              )
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-93-9169 CI
                              )
STARR-WOOD CARDIAC GROUP, PC, )    O P I N I O N
DOCTORS RICHARD A. ANSCHUETZ, )
AFTAB AHMAD, HAZEM BARMADA,   )
and HAROLD H. RANDECKER, JR., )
Individually,                 )
                              )
             Appellees.       )    [No. 5288 - June 16, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances:  Robert C. Erwin, Law Offices of
Robert C. Erwin, and Roberta C. Erwin, Wade & De Young, Anchorage,
for Appellants.  Matthew K. Peterson, Thomas V. Van Flein, Clapp,
Peterson & Stowers, LLC, Anchorage, for Appellees Starr-Wood
Cardiac Group and Dr. Ahmad.  John M. Conway, Jerome H. Juday,
Atkinson, Conway & Gagnon, for Appellees Drs. Randecker and
Barmada.


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


          MATTHEWS, Chief Justice.





I.   INTRODUCTION
          Barbara and Dale Trombley sued Starr-Wood Cardiac Group
and its employees Drs. Aftab Ahmad, Hazem Barmada, and Harold
Randecker for medical malpractice.  The superior court granted
summary judgment on all claims in favor of the defendants.  We
reverse with respect to Barbara Trombley's claims, as there are
genuine issues of material fact.  But we affirm with respect to
Dale Trombley's claim for loss of consortium, as Barbara Trombley
was married to another man at the time of the alleged malpractice,
and no consortium claim may be maintained under such circumstances.
II.  FACTS AND PROCEDURAL HISTORY
     A.   Facts
          In late August or early September 1991, Barbara Trombley
(Trombley) began to experience shortness of breath and chest pain.
[Fn. 1]  Her doctor found an arterial blockage and, realizing that
she was at risk for a heart attack, scheduled surgery for a few
days later.  Doctors from the Starr-Wood Cardiac Group were
selected to perform the surgery.  When Dr. Storm Floten and Dr.
Randecker explained to Trombley how the surgery would proceed, she
requested that any vein harvested from her leg be taken from her
left leg, because she had a prior history of phlebitis (blockage of
the veins) in her right leg.  Her doctors assured her that they
would use a vein from her left leg.  The surgery was eventually
performed on October 8, 1991, not by Dr. Floten (who was originally
scheduled to do it), but by Drs. Ahmad and Barmada, with Dr.
Randecker assisting.
          A total of three grafts were needed to treat Trombley's
heart.  Two of the grafts -- one used to bypass the right coronary
artery and one on the left anterior descending artery -- were
successful.  The third graft, bypassing the first diagonal, which
is also known as the ramus intermedius, closed up or failed, if it
was bypassed at all.  Trombley's expert claims that during this
portion of the surgery Dr. Ahmad bypassed an incorrect vessel, a
smaller vessel known as the second diagonal.  This claim is, in
part, difficult to prove given the non-detailed nature of the
operative notes.
          Also, during the surgery, the vein used for the grafts
was harvested from Trombley's right leg, not her left one as she
had requested.  She was never given an explanation as to why the
right leg had been used.  The incision was from her knee to her
groin, and after surgery the skin was lapped over rather than
stitched together.  This incision eventually became infected. 
Trombley underwent plastic surgery to remove dead tissue from the
wound and to stitch up the incision. 
          Trombley did not recover well from her heart surgery. 
She had trouble breathing and returned to the hospital for a week,
where she was diagnosed with an arterial fibrillation problem.  She
had three angioplasties between February of 1992 and December of
1994.  During this period, she was often tired and suffered from
severe chest pains. 
     B.   Proceedings    
          Barbara and Dale Trombley filed this medical malpractice
suit in October 1993.  The defendants filed a motion for partial
summary judgment to dismiss Dale Trombley's claim for loss of
consortium, since the Trombleys were not married when Barbara's
surgery and post-operative care were performed.  The trial court
granted this motion, finding that Barbara Trombley "was in fact
married to Keith Bradrick" on the day the surgery took place. 
          The defendants filed motions for summary judgment on the
remaining claims based primarily on the argument that the plain-

tiffs' expert testimony had failed to establish negligence.  The
superior court granted these motions, stating:
          [T]here is no expert testimony on some of the
fundamental elements of plaintiffs' claims of medical malpractice.
. . .

               Although there is expert testimony from
Dr. Anastassiou that the defendants' treatment of the plaintiff was
negligent or below the acceptable standard of care, he does not
testify that the treatment in any way caused the damages for which
the plaintiff seeks to recover.

          The Trombleys filed a motion to reconsider and the court
ordered further briefing.  After reviewing this briefing, the court
affirmed its previous order and supplemented it with a memorandum
of law and facts. 
          The Trombleys appeal. 
III. DISCUSSION
     A.   Standard of Review  

          We review grants of summary judgment de novo. [Fn. 2] 
"We will uphold summary judgment only if the record presents no
genuine issues of material fact and the moving party was entitled
to judgment on the law applicable to the established facts." [Fn.
3]  "The proffered evidence is to be viewed in the light most
favorable to the party opposing the motion." [Fn. 4]  The
non-moving party is entitled to have "all reasonable inferences of
fact drawn in its favor." [Fn. 5]
     B.   The Trial Court Erred in Granting Summary Judgment
Because There Were Genuine Issues of Material Fact.
          Alaska Statute 09.55.540 establishes the burden of proof
in a medical malpractice action.  It requires that the plaintiff
establish (1) the standard of care or skill in the act complained
of; (2) that the defendant lacked this skill level or failed to
exercise this care; and (3) that this failure or lack of skill was
the proximate cause of the plaintiff's injuries. [Fn. 6]  Our
decision in Kendall v. State, Division of Corrections [Fn. 7] held
that expert testimony is needed to establish a medical malpractice
claim:
               In medical malpractice actions . . . the
jury ordinarily may find a breach of professional duty only on the
basis of expert testimony.  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. 8]]        
          The trial court granted summary judgment against the
Trombleys because there was a "lack of expert testimony in [their]
case as to the crucial elements of a medical malpractice claim."
Trombley argues that this ruling was erroneous because her experts'
testimony established the necessary elements for her allegations
(1) that the arterial bypass operation was negligently performed
and (2) that the post-operative care of the donor site on her leg
was negligent.  We agree with Trombley and reverse summary judgment
for each of the doctors.
          1.   There are triable issues of fact as to Dr. Ahmad's
conduct.

          In order to defeat summary judgment, Trombley must
establish that there are material questions of fact as to whether
a mistake was made, negligently causing injuries.  
          There is expert testimony that a mistake was made by Dr.
Ahmad in bypassing the ramus intermedius.  Drs. Peter Anastassiou
and David Kurzrock testified that the second diagonal had been
bypassed instead of the first.  They reached these conclusions
based on the "tenting" of the artery and because they had accounted
for all of the grafts.  Dr. Richard Anschuetz also suggested that
the wrong vessel may have been bypassed.
          Dr. Ahmad argues that there is no expert testimony
establishing that, assuming such a mistake was made, it would have
been negligent.  However, Dr. Ahmad's own testimony establishes
this point.  At Dr. Ahmad's deposition, the following colloquies
occurred:
                    Q:   And you weren't about to admit that you
                    goofed, are you?
                    A:   I did not goof. I'm a very experienced
                    surgeon. I do the right thing when I put
                    something on the chart.  I bypassed the ramus
                    intermedius.  I know the ramus intermedius as
                    well as he does.  And the bypass that he
                    thought I did it, that artery, no surgeon in
                    the world would even have considered that
                    artery to be bypassed because it was a tiny,
                    less than half-a-millimeter artery.
                    
                         . . . .
                    
                    A:   And if a vessel which is half a
                    millimeter in diameter, if you open that
                    vessel to put a bypass, number one, you would
                    not be able to put a bypass, and secondly, you
                    might even cause some more damage to the
                    heart, and it may end up it bleeding and all
                    kinds of complications. 
                         So any surgeon with some experience would
                    not even dare to open up a small vessel which
                    is half a millimeter in diameter.
                         . . . .
                         So, it's impossible, it's almost
                    impossible, and this kind of negligence, I
                    can't say it never happens, but if it happens,
                    it's -- it's a shame.
                    
                         . . . .
                    
                    Q:   Now, you say it would have been
                    impossible to bypass the second diagonal?
                    A:   Right.
                         . . . .
                    Q:   And when you said before it can happen,
                    you didn't mean that?
                    A:   What I meant, that somebody would make a
                    mistake, a gross mistake.
                         . . . .
                    Q:   And if you did that, it would be a gross
                    mistake, wouldn't it?
                    A:   If I did that, yes.
                    
                    This testimony shows that if Dr. Ahmad had bypassed the
wrong artery, it would have been a negligent act.  The combination
of Trombley's medical experts' testimony that the wrong artery was
bypassed with Dr. Ahmad's testimony that such a mistake would be
negligent establishes a triable issue of fact as to whether Dr.
Ahmad made a negligent mistake.  
          Expert testimony also establishes a question of fact as
to whether bypassing the wrong artery, if it occurred, was a
proximate cause of Trombley's damages.  Dr. Colman Ryan observed
that Trombley would not have had her post-surgical symptoms and
ischemia if the diagonal had been properly bypassed.  Dr.
Anastassiou observed that, as a result of the improper bypass,
additional invasive procedures, such as the angioplasties, were
needed to improve the patient's condition.  He concluded that the
failure to bypass the ramus intermedius resulted "in recurrence of
anginal symptoms in this patient." 
          Because there was sufficient evidence to create genuine
issues of material fact as to mistake, negligence, and causation
with respect to Dr. Ahmad's conduct, summary judgment was
incorrectly granted in his favor.
          2.   There are triable issues of fact with respect to
Dr. Barmada's conduct.

          During the surgery, Dr. Barmada had the role of first
assistant to Dr. Ahmad.  In that role, he was said to have stood
approximately "one inch" from Dr. Ahmad and helped Dr. Ahmad with
every step of the bypass process.  He held open the arteries while
Dr. Ahmad stitched the vein into place.  Dr. Barmada testified that
"there is no difference between [myself and Dr. Ahmad].  We just --
basically these jobs, we swapped around, you know, because we were
all so very capable of doing these things."
          The standard of care for a first assistant surgeon must
be determined on the facts of each individual case. [Fn. 9]  In
this case, not only was Dr. Barmada an integral part of the
surgical team and a full participant in the bypass procedure, but
he also possessed the same level of skill and training as the lead
surgeon, Dr. Ahmad.  As a cardiac surgeon, Dr. Barmada was fully
qualified to perform the bypass surgery.  This fact, combined with
his vital role on the surgical team, subjects him to the same
standard of care as Dr. Ahmad.
          The issue of the standard of care for an assistant
surgeon under similar circumstances was addressed in Malbrough v.
Hamsa. [Fn. 10]  In that case, Dr. Hamsa, an assistant surgeon,
claimed that he was not liable for complications that developed
during a laminectomy because he was an orthopedic surgeon rather
than a neurosurgeon and because he did not actually perform the
surgery. [Fn. 11]  Arguing that the plaintiff had failed to
establish the duties or degree of care required of an orthopedic
surgeon who serves as a surgical assistant, Dr. Hamsa appealed the
trial court's finding of liability. [Fn. 12]  But based on Dr.
Hamsa's direct involvement with the surgical procedure, during
which he helped to surgically scrape the disc, and testimony that
the techniques used by neurosurgeons and orthopedic surgeons in
performing this particular surgical procedure are "no different
insofar as their specialities are concerned," [Fn. 13] the
appellate court concluded that "the standard of care for Dr. Hamsa
was the same as for [the lead neurosurgeon]." [Fn. 14]
          When Dr. Barmada moved for summary judgment, he argued in
a conclusory fashion that no evidence connected him with anything
that went wrong and that plaintiff's expert only implicated Dr.
Ahmad.  In opposition, Trombley quoted the Barmada deposition
passages that say that there is no difference between Dr. Barmada
and Dr. Ahmad.  Trombley also quoted the expert's report that
implicated "Dr. Ahmad and his associates."  In reply, Dr. Barmada
did not (a) explain his deposition testimony that permitted an
inference that he and Dr. Ahmad shared responsibility for the
cardiac aspects of the surgery, (b) distinguish his duties from
those of Dr. Ahmad, or (c) assert any facts permitting an inference
that there had been a discrete division of responsibility between
Drs. Ahmad and Barmada as to any aspect of the surgery.
          In light of Dr. Barmada's description of his responsibil-

ities as first assistant, his proximity to and ability to observe
Dr. Ahmad during the surgery, and his level of training and
expertise as a cardiac surgeon, any failure on Dr. Barmada's part
to inform Dr. Ahmad that the wrong vessel was being bypassed could
be found negligent.  Therefore, it was inappropriate to grant
summary judgment in favor of Dr. Barmada.  
          3.   There is a triable issue of fact as to Dr.
Randecker's conduct.

          Dr. Randecker's role during the surgery was to harvest
the vein from Trombley's leg.  After the surgery, he was in charge
of post-operative care of Trombley.  The testimony presents a
material question of fact as to whether Dr. Randecker's treatment
of Trombley's leg was negligent. 
          Soon after the surgery, Trombley's leg became infected,
according to Drs. Starr and Anschuetz and the physical therapist. 
Dr. Randecker did not notice the infection, despite Trombley's
complaints that her leg hurt and the redness and seeping of the
wound.  When Trombley returned to the hospital because her leg was
smelling and seeping, Dr. Randecker told her that it would heal and
prescribed no treatment.  Trombley consulted Dr. Anschuetz, who
prescribed whirlpool treatments and trimming to remove the dead
tissue from the infected leg.  Trombley followed this course of
treatment.  Eventually plastic surgery was performed on the wound. 
          Dr. Anastassiou testified that Dr. Randecker's care was
"a breach in the postoperative care on this patient," relating to
"the discovery and management of the wound infection."  Mary
Williams, the Providence Hospital nurse who did the trimming, told
Trombley that she had "never seen such a mess come out of a simple
cut on the leg."
          The testimony of Dr. Anastassiou suffices to establish a
negligent breach of duty.  It and Williams's statement imply that
the breach caused, at least, damage associated with delay in the
healing of the wound.
     C.   The Trial Court Properly Dismissed Dale Trombley's Loss
of Consortium Claim.
          At the time of her surgery on October 8, 1991, Barbara 
Trombley was married to Keith Bradrick.  Bradrick was a long-time
sufferer from Alzheimer's disease and was living in a critical care
facility.  Dale Trombley, who was recently widowed after forty-five
years of marriage, and Barbara met in 1990 and eventually became
romantically involved.  They began cohabiting in September of 1991.
Meanwhile, Barbara continued to visit Bradrick and at some level
personally provided care for him. [Fn. 15]  Barbara divorced
Bradrick in early May of 1992 and married Dale a few days later. 
          Dale claims that his premarital relationship with Barbara
is entitled to protection in the law of torts.  Specifically, he
claims that he was a "de facto" spouse at the time of the alleged
malpractice and as such is entitled to loss of consortium damages.
          Dale's claim is almost completely unsupported by
precedent.  There are two related rules that bar his claim.  The
first is that when a person is injured and then marries, the new
spouse has no consortium claim.  "[A]n injury occurring prior to
the marital relationship cannot give rise to a claim for loss of
consortium." [Fn. 16]  "Where the injured person received his or
her injury prior to marriage, the other spouse upon marriage has no
cause of action for loss of consortium of his or her previously
injured marriage partner, even though they were engaged to be
married at the time of the injury." [Fn. 17]  Second, unmarried
cohabitants do not have consortium claims for their partners'
injuries which occur during cohabitation. [Fn. 18]  Dale takes
issue with this, the second rule.
          Butcher v. Superior Court [Fn. 19] is the case upon which
Dale places primary reliance.  In that case, an intermediate
appellate court in California held that "an unmarried cohabitant
may state a cause of action for loss of consortium by showing that
the nonmarital relationship is both stable and significant." [Fn.
20] But  Butcher was disapproved of by the Supreme Court of
California in Elden v. Sheldon, [Fn. 21] and it seems that no
jurisdiction now holds that unmarried cohabitants are entitled to
maintain loss of consortium claims.     
          In declining to expand consortium claims to unmarried
cohabitants, the court in Elden noted that the courts have adhered
to a bright line in this area because of "the intangible nature of
the loss, the difficulty of measuring damages, and the possibility
of an unreasonable increase in the number of persons who would be
entitled to sue for the loss of a loved one." [Fn. 22]  The court
also relied on "the state's interest in promoting the
responsibilities of marriage and the difficulty of assessing the
emotional, sexual and financial relationship of cohabiting parties
to determine whether their arrangement was the equivalent of a
marriage . . . ." [Fn. 23]
          Justice Broussard filed a strong dissent in Elden. [Fn.
24]  Briefly, his reasons, and the reasons given by the court in
Butcher, are as follows: First, the common law is an "ever-changing
malleable body of law distinguished by its ability to adapt to
changing times and issues." [Fn. 25]  Second, the "relationship of
unmarried cohabitants bears every resemblance to the spousal
relationship, including the sexual aspect absent from other
relationships, except that the relationship has not been solemnized
by a formal marriage ceremony." [Fn. 26]  Third, the significant
numbers of unmarried cohabitants in society make such a
relationship reasonably foreseeable to the tortfeasor. [Fn. 27] 
Fourth, the
          [l]egislature has granted unmarried
          cohabitants the equivalent legal rights
          provided marital couples in the fields of
housing, credit and family relations.  Depriving unmarried persons
of compensation for injuries in tort no more advances the state's
interest in marriage than would restrictions on their acquisition
of housing or credit.  The trend . . . is toward removing legal
distinctions based on marital status that serve only to burden the
unmarried without advancing some corresponding societal interest.[[Fn. 28]]

          Whether spousal consortium claims should be extended to
unmarried cohabitants as a general matter is not an easy issue to
resolve.  There are reasonable arguments on both sides.  But we
need not resolve that issue here, for in this case one of the
cohabitants was married.  Here, if we were to accept appellants'
argument, there would be a real possibility that two spouses, one
legal, the other de facto, would have valid consortium claims.  In
this circumstance we believe that the reasons not to recognize
consortium claims of unmarried cohabitants expressed by the
majority in Elden are magnified and clearly counsel against
departure from the rule that legal marriage is a requirement for
spousal consortium claims.
          For these reasons we conclude that the superior court did
not err in granting summary judgment in favor of appellees with
respect to Dale Trombley's loss of consortium claim.
     D.   We Do Not Resolve the Sweet Issue.
          Relying on our decision in Sweet v. Sisters of Providence
in Washington, [Fn. 29] Trombley claims that the trial court erred
because it failed to address whether the operative notes were so
inadequate as to hinder her ability to prove her case.  The
defendants argue that Trombley did not raise this claim until her
motion for reconsideration.
          Because we are remanding this case for a new trial on the
merits, we do not resolve the question of whether the request for
a Sweet determination was untimely.  On remand, based on a timely
request, the findings required by Sweet can be made.  
     E.   The Trial Court Erred in Granting Summary Judgment on the
Informed Consent Issue.
     
          Trombley's informed consent claim is based on the
doctors' decision to harvest a vein from her right leg rather than
her left.  Trombley told her doctors that she did not want a vein
harvested from her right leg because of her history of phlebitis.
The doctors agreed to harvest a vein from her left leg.  At no time
did the doctors discuss with her the possibility of harvesting a
vein from the right leg.  Dr. Ahmad explained that he decided to
harvest from her right leg despite the history of phlebitis because
the operating room was set up for a right leg harvest.  Dr. Ahmad
acknowledged that Trombley's consent to a right leg harvest should
have been obtained.  But he also testified that he had not been
told of Trombley's wishes concerning harvesting only from the left
leg, and there was no chart note to that effect.
          "The informed consent claim is based on the principle
that every human being of adult years and sound mind has a right to
determine what shall be done to his or her own body." [Fn. 30] 
Trombley thus had a right to insist that her right leg not be used
as a harvest site.  If her right leg was used in the absence of her
actual or implied consent, a battery may have been committed for
which she may be entitled to actual, or nominal, damages. [Fn. 31] 

          Although Trombley pled a failure to obtain informed
consent claim in her second amended complaint and alleged in detail
the facts concerning her insistence that the left rather than the
right leg be used as the donor site of the vein, the defendants'
motions for summary judgment do not separately deal with her
informed consent claim.  The defendants' primary argument is that
Trombley's experts did not establish that the defendants' conduct
fell below the applicable standard of care. 
          A party moving for summary judgment has the burden of
making a prima facie showing that there are no genuine issues of
material fact. [Fn. 32]  This burden was not met with respect to
Trombley's informed consent claim, for the elements of that claim
were not even discussed. 
          The defendants argue that the informed consent argument
is waived because Trombley did not mention it in her opposition to
the motion for summary judgment, or her motion for reconsideration,
or her points on appeal.  But our review of the record indicates
that Trombley did reiterate the facts of her claim in the verified
statement of the facts which she submitted in opposition to the
motion for summary judgment.  She referred to her "repeated and
urgent request" that the vein be taken from her left leg "which was
cavalierly ignored by the surgical team consisting of Drs. Ahmad,
Barmata [sic] and Randecker."  It is true that Trombley did not
label the claim to which these facts applied as a failure to obtain
her consent.  This would have been helpful.  But she was not
obligated to do so, for the defendants had not made the required
prima facie showing negating the existence of her claim. [Fn. 33] 
Thus, the burden to demonstrate the existence of facts requiring a
trial was not shifted to Trombley. 
          One of Trombley's points on appeal was that the court
erred in granting summary judgment in favor of the defendants. 
This is broad enough to encompass the summary judgment on her
informed consent claim.  Further, it is no longer true that points
not listed in a statement of points on appeal will not be
considered on appeal.  Instead, the rule is that failure to state
points in the statement of points is not in itself a waiver so long
as the point is adequately briefed and the court can address it
"effectively without reviewing untranscribed portions of the
electronic record." [Fn. 34]  These conditions are met in this
case.  For these reasons the informed consent claim has not been
waived.
          The defendants also claim that the informed consent claim
is legally insufficient.  But this argument was not made below, is
not well developed on appeal, and is in part fact dependent, and
the facts on which it depends are not well focused.  Under these
circumstances, we decline to consider this argument. 
     F.   The Trial Court Should Correct the Judgment Regarding
Dale Trombley's Attorney's Fees.

          Dale Trombley initially argued that the attorney's fees
award against him should be reduced, but the defendants point out
that they had already stipulated to such a reduction, and the trial
court amended the award in accordance with the stipulation. 
Evidently, an amended judgment reflecting this reduced amount has
not been entered.  The trial court should enter such a judgment on
remand.
IV. CONCLUSION
          For the foregoing reasons, the trial court's grant of
summary judgment is REVERSED and REMANDED except with respect to
the loss of consortium claim.  The trial court should enter an
amended judgment with respect to the attorney's fees against Dale
Trombley.


                            FOOTNOTES


Footnote 1:

     In reviewing the grant of a summary judgment, this court is
required to take that view of the facts that most favors the
opponent to the motion.  Our recitation of the facts in this
opinion is made from that perspective.


Footnote 2:

     See Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).


Footnote 3:

     Karen L. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 953 P.2d 871, 873 (Alaska 1998) (quoting
Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994) (internal
quotations omitted)).


Footnote 4:

     Husky Oil N.P.R. Operations, Inc. v. Sea Airmotive, Inc., 724
P.2d 531, 533 (Alaska 1986) (citation omitted).  


Footnote 5:

     Karen L., 953 P.2d at 873.


Footnote 6:

     See AS 09.55.540(a).


Footnote 7:

     692 P.2d 953 (Alaska 1984).


Footnote 8:

     Id. at 955 (internal quotations and citation omitted)
(alteration in original).


Footnote 9:

     See Kelly v. Riverside Med. Ctr., 499 So. 2d 1135, 1137 (La.
App. 1986) (concluding that the liability of an assistant surgeon
is to be decided on the facts of each particular case).


Footnote 10:

     463 So. 2d 639, 646-47 (La. App. 1985); see also Jines v.
Abarbanel, 77 Cal. App. 3d 702, 711 (Cal. App. 1978) (applying the
same standard of care to the chief surgeon and his assistant where
the doctors described themselves as a "team who had worked together
in the past" and discussed what was best for the patient).


Footnote 11:

     Malbrough, 463 So. 2d at 646-47.


Footnote 12:

     Id. at 646.


Footnote 13:

     Id. 


Footnote 14:

     Id. at 647.


Footnote 15:

     She stated that when she first placed him in the care facility
in June of 1990 she "fed him, dressed him, bathed him, changed
diapers, stayed up all night at times, and did all the things [she]
could to enable him to have as good a life as possible under the
circumstances." 


Footnote 16:

     Angelet v. Shivar, 602 S.W.2d 185, 185 (Ky. App. 1980)
(citations omitted).


Footnote 17:

     Sawyer v. Bailey, 413 A.2d 165, 166 (Me. 1980).


Footnote 18:

     See Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988).


Footnote 19:

     188 Cal. Rptr. 503 (Cal. App. 1983).


Footnote 20:

     Id. at 512.


Footnote 21:

     758 P.2d 582, 590 (Cal. 1988).


Footnote 22:

     Id. at 589.


Footnote 23:

     Id. at 589-90.


Footnote 24:

     Id. at 590-95 (Broussard, J., dissenting).


Footnote 25:

     Butcher, 188 Cal. Rptr. at 507; see also Elden, 758 P.2d at
594 (Broussard, J., dissenting) (arguing that lack of precedent
does not justify refusal to extend loss of consortium claims to
unmarried cohabitants).


Footnote 26:

     Butcher, 188 Cal. Rptr. at 508.


Footnote 27:

     See id. at 510; see also Elden, 758 P.2d at 591 (Broussard,
J., dissenting).


Footnote 28:

     Elden, 758 P.2d at 592 (Broussard, J., dissenting) (footnote
omitted) (emphasis added).


Footnote 29:

     895 P.2d 484, 491-92 (Alaska 1995).


Footnote 30:

     Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993) (quoting
Hondroulis v. Schuhmacher, 553 So. 2d 398 (La. 1989)).


Footnote 31:

     See Restatement (Second) of Torts sec.sec. 18-20 (1965); W.
Page
Keeton et al., Prosser & Keeton on the Law of Torts sec. 9, at 39
(5th
ed. 1984).


Footnote 32:

     See French v. Jadon, 911 P.2d 20, 23 (Alaska 1996).


Footnote 33:

     See id. 


Footnote 34:

     Alaska R. of App. P. 204(e).