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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marsingill v. O'Malley (11/22/2002) sp-5643

Marsingill v. O'Malley (11/22/2002) sp-5643

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

VICKI MARSINGILL and          )
PAUL MARSINGILL,              )    Supreme Court No. S-9859
wife and husband,                  )
                              )    Superior Court No.
               Appellants,         )    3AN-95-9909 CI
                              )
          v.                  )    O P I N I O N
                              )
JAMES OMALLEY, M.D.,          )    [No. 5643 - November 22, 2002]
                              )
               Appellee.      )
                                                                )


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

          Appearances:  Robert H. Wagstaff, Law Offices
          of   Robert   H.  Wagstaff,  Anchorage,   for
          Appellant.  Donna  M. Meyers  and  Howard  A.
          Lazar, Delaney, Wiles, Hayes, Gerety, Ellis &
          Young, Inc., Anchorage, for Appellee.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Bryner,  and Carpeneti, Justices.  [Eastaugh,
          Justice, not participating.]

          BRYNER, Justice.


I.   INTRODUCTION

          One  night several months after having stomach surgery,

Vicki   Marsingill  called  her  surgeon,  Dr.   James   OMalley,

complaining  of  abdominal pain and nausea.  Dr. OMalley  advised

Marsingill  to go to the emergency room and offered to  meet  her

there,  but Marsingill said she felt better and declined  to  go.

Several  hours  later,  Marsingill  lost  consciousness  from  an

intestinal  blockage and suffered permanent injuries.  Marsingill

sued Dr. OMalley, claiming that he lacked the skill and knowledge

to  advise her properly and that the information he gave her over

the  telephone did not allow her to make an intelligent treatment

decision.   A  jury rejected these claims.  The  main  issues  on

appeal are whether the trial court erred in excluding evidence of

Dr.  OMalleys failure to pass tests for board certification as  a

surgeon and whether the jury instructions correctly described the

standard   for  deciding  whether  Dr.  OMalley  gave  Marsingill

adequate  information.  We find no abuse  of  discretion  in  the

courts  rulings excluding evidence but hold that the jury  should

have  been  instructed to use the reasonable patient standard  to

decide  if  Dr.  OMalley  gave Marsingill sufficient  information

about her condition and treatment choices.

II.  FACTS AND PROCEEDINGS

          In October 1994 Dr. OMalley performed surgery to remove

staples  that  another  surgeon had previously  placed  in  Vicki

Marsingills  stomach to facilitate weight loss.  By January  1995

Marsingill  had  recovered from the surgery and  was  cleared  to

return to work.

          While  dining  out  with a friend  on  the  evening  of

February 14, 1995, Marsingill suffered a sudden onset of illness,

was  in  pain,  felt nauseous, and was unable to eat,  so  [went]

home.   Her  pain  worsened  over the next  few  hours,  and  she

eventually asked her daughter to call Dr. OMalley.  Her  daughter

told  Dr.  OMalley  that  Marsingill looked  bad,  that  she  was

nauseous and in pain, that she was unable to burp or have a bowel

movement,  and  that  her stomach was as hard  as  a  rock.   Dr.

OMalley  then spoke directly with Marsingill, who sounded anxious

and  upset.  She informed him that she was having abdominal pain,

felt bloated, and could not burp.  Dr. OMalley advised Marsingill

that  he  could not evaluate her over the phone but that  if  she

felt  bad enough to call him at night she should go the emergency

room.   He repeated this advice several times but did not venture

any  opinion about the cause of Marsingills symptoms or tell  her

that  her  condition was potentially life-threatening or serious.

He left it up to her whether to seek emergency room treatment.

          When   Marsingill  asked  what  would  happen  at   the

emergency  room, Dr. OMalley informed her that the doctors  there

would  probably  take  x-rays and insert a  nasogastric  tube  to

relieve  the  pressure in her stomach.1  Dr.  OMalley  knew  that

Marsingill  had  previously had nasogastric tubes  inserted  and,

like  most patients, strongly disliked them.  Soon after  hearing

that she would likely need to have a nasogastric tube inserted if

she  went  to  the  emergency room, Marsingill  ended  the  call,

telling Dr. OMalley that she thought that she could burp and  was

feeling better.

          After hanging up, Marsingill told her daughter that she

was feeling better and would try to tough it out for awhile.  But

later that night Marsingills husband found her unconscious on the

bathroom floor.  Paramedics rushed her to the hospital, where  an

emergency  operation later revealed that she had  experienced  an

intestinal  blockage.   But by then the  obstruction  had  caused

Marsingill  to  go  into shock; as a result, she  suffered  brain

damage and partial paralysis.

          Marsingill  eventually filed suit against Dr.  OMalley,

asserting  four  claims,  only  two  of  which  currently  remain

relevant:  (1)  that  the doctor lacked skill  and  knowledge  in

general surgery and, as a result, committed malpractice by giving

Marsingill incompetent advice when she called about her  symptoms

and  (2) that the doctor had breached his duty to give Marsingill

enough information to enable her to make an informed choice about

going to the emergency room for treatment.

          To  meet her burden of proving that Dr. OMalley  lacked

knowledge  and  skills  as  a  surgeon,  Marsingill  planned   to

introduce  evidence that he had repeatedly failed tests  for  AMA

board  certification  in general surgery.  Marsingill  maintained

that  this evidence was relevant to prove that Dr. OMalley lacked

the  requisite  degree of skill and knowledge and  that  it  also

          would be admissible to impeach defense testimony and to establish

the basis for her own experts opinions.

          But  in a pretrial motion, Dr. OMalley asked the  trial

court to exclude all evidence regarding his medical education and

training  except  evidence  that he had  graduated  from  medical

school,  completed a medical degree, and was not Board Certified.

In  support  of  his  pretrial motion, Dr.  OMalley  argued  that

evidence  of  his  failed  attempts at  board  certification  was

inadmissible character evidence and could not be properly used to

show  either  a general lack of skill or an act of negligence  on

any particular occasion.

          The  trial judge granted Dr. OMalleys motion to exclude

the  evidence  and  instructed  both  parties  not  to  introduce

evidence  of  the  details  pertaining to  Dr.  OMalleys  medical

education   background.   On  several  occasions   during   trial

Marsingill  moved  to introduce evidence regarding  Dr.  OMalleys

lack  of  board  certification, arguing that the  doctor  or  his

expert  witnesses had opened the door to a broader  inquiry  into

his background.  The court denied each of these motions.

          The  expert testimony at trial focused on the  symptoms

of post-surgical bowel obstructions and the appropriate course of

action  for  a  physician to take in response to a patients  call

complaining  of  these symptoms.  Six medical  experts  testified

three  for  Marsingill  and  three for  Dr.  OMalley   about  the

appropriateness  of Dr. OMalleys advice during  the  February  14

telephone  call  from  Marsingill.  Their opinions  were  sharply

divided.

          Marsingills  experts  Drs. Battle, Modlin,  and  Ravden

uniformly  agreed  that  Dr.  OMalleys  actions  fell  below  the

accepted  standard  of  care.  They particularly  criticized  Dr.

OMalleys   failure   to  communicate  to  Marsingill   the   true

seriousness of her situation, the extent of the risk  she  faced,

and the importance of getting immediate help.  Additionally, they

questioned  Dr.  OMalleys  professional  judgment  in  needlessly

telling  Marsingill  that  she would likely  be  treated  with  a

nasogastric  tube  if  she decided to go to the  emergency  room.

Because installing such tubes involves a painful procedure,  they

emphasized,  a  competent physician who  wanted  to  encourage  a

patient  to seek emergency room treatment would not have  offered

up the prospect of being treated with a nasogastric tube.

          In   contrast,  however,  Dr.  OMalleys  experts   Drs.

Gardiner,  Macho,  and  Moossa   uniformly  disagreed  with  this

assessment, insisting that on the whole Dr. OMalley had  provided

very   good  care.   Dr.  Gardiner,  for  example,  described   a

physicians  duty  during  a phone call  as  being  very  limited,

concluding  that  Dr.  OMalley had done everything  necessary  to

fulfil  that  duty.  Dr. OMalleys experts also  were  adamant  in

expressing  their  view  that the doctor had  acted  properly  in

simply  advising Marsingill to go to the emergency room,  without

engaging  her in a speculative discussion of the possible  causes

of  her  symptoms.   While acknowledging that  Marsingills  prior

abdominal  surgeries  placed  her  at  heightened  risk  for   an

intestinal obstruction and that the symptoms she described on the

telephone   were  consistent  with  such  an  obstruction,   they

emphasized that a physician cannot accurately diagnose a  patient

over the telephone and concluded that the doctor therefore had no

obligation  to  speculate.   Dr.  OMalleys  experts   also   took

exception  to the claim that it was improper for him  to  mention

the  likelihood of Marsingills being treated with  a  nasogastric

tube  at the emergency room.  To the contrary, they claimed,  Dr.

OMalley  acted appropriately by giving Marsingill an  honest  and

accurate  answer to her question about what she could  expect  if

she went to the emergency room.

          In  the course of their testimony, the expert witnesses

also  gave  divergent opinions about the scope  of  a  physicians

ethical  duty  to  give patients sufficient information  to  make

intelligent treatment decisions.  Section 8.08 of the AMA Code of

Medical Ethics addresses this duty of disclosure, providing:  The

patients right of self-decision can be effectively exercised only

if   the  patient  possesses  enough  information  to  enable  an

intelligent  choice.   Marsingills experts  maintained  that  Dr.

OMalley  had violated Section 8.08 by failing to give her  enough

information to make an intelligent choice about whether  to  seek

emergency  room  treatment.  As already mentioned,  Dr.  OMalleys

experts  took the opposite view, maintaining that the doctor  had

satisfied his duty simply by advising Marsingill that she  should

go to the emergency room for an examination.

          Dr.  OMalley himself shifted positions: when  initially

questioned about his obligations under Section 8.08, he testified

that  the provision applies to Mrs. Marsingill.  It doesnt really

apply  to  me.   But  he later reconsidered,  acknowledging  that

Section  8.08  applied  to his conduct  that  he  did  have  [an]

obligation  to give [Marsingill] enough information so  that  she

could  make an intelligent choice as to whether she should go  to

the emergency room.

          At  the  conclusion of trial, Marsingill proposed  jury

instructions covering her alternative theories of liability  that

Dr.  OMalley committed malpractice by lacking adequate skill  and

knowledge to enable him to respond appropriately to her telephone

call and that he breached his duty to give her enough information

to  enable  her to make an informed decision about going  to  the

emergency room for examination and treatment.

          With  respect  to  the second of  these  theories   Dr.

OMalleys   alleged  breach  of  Section  8.08s  duty  to   inform

Marsingills proposed instruction would have required the jury  to

decide  the sufficiency of Dr. OMalleys communications  from  the

standpoint of a reasonable patient in Marsingills position.   But

the   trial  court  rejected  the  proposed  reasonable   patient

instruction,  instead directing the jury to measure Dr.  OMalleys

compliance  by  relying  exclusively  on  the  expert   testimony

addressing  his  compliance with a general surgeons  professional

standard of care.

          After  the  jury  returned a verdict in  favor  of  Dr.

OMalley, Marsingill filed this appeal.

III.      DISCUSSION

     A.   Evidentiary Claims

          Marsingill  based her malpractice claim partly  on  the

theory  that Dr. OMalley lacked the requisite skills and  ability

to  recognize the likely cause of her symptoms and extent of  the

risk  that she consequently faced; he thus negligently failed  to

communicate  the  urgency  of  her  receiving  immediate  medical

attention.2   On appeal, Marsingill asserts that the trial  court

prevented her from proving this theory when it excluded  relevant

evidence  revealing  that  Dr.  OMalley  had  repeatedly   failed

examinations for board certification in surgery.3

          Rule 402 of the Alaska Rules of Evidence provides that,

[w]ith   certain   exceptions,   [a]ll   relevant   evidence   is

admissible. 4 But among the recognized exceptions to this rule of

general   admissibility,  the  rules  of   evidence   incorporate

provisions  allowing  courts to exclude relevant  evidence  whose

probative  value is outweighed by its potential to  prejudice  or

confuse  the  jury5 and evidence of character  or  conduct  whose

primary  purpose is to show that [a] person acted  in  conformity

therewith on a specific occasion.6

          Here,  Marsingill correctly posits that Alaskas medical

malpractice  statute  allows  a  finding  of  liability  when   a

physicians  lack of skill or knowledge proximately causes  injury

to  a  patient;7  but she incorrectly reasons that  Dr.  OMalleys

failure to achieve board certification is relevant and admissible

to  prove that a specific defect in knowledge or skill caused him

to injure Marsingill on the occasion at issue.

          Since  licensed  physicians  are  allowed  to  practice

surgery  in  Alaska  without  board certification,  a  physicians

inability to pass one or more board certification tests does  not

necessarily  tend  to  prove that the physician  lacks  minimally

necessary   surgical  skills  or  knowledge.    Thus,   even   if

          Marsingills expert witnesses might have been willing to testify

as  to  their  personal opinion that a competent general  surgeon

should  possess  knowledge and skill necessary to  receive  board

certification,  the  trial court correctly recognized  that  this

testimony would be irrelevant under Alaska law.  For by  adopting

as  a  matter of public policy a medical licensing standard  that

authorizes   physicians  to  perform  general   surgery   without

obtaining board certification, Alaska law establishes a  baseline

standard  that precludes expert witnesses from dictating  a  more

rigorous certification requirement.8

          To  prevail  on her malpractice claim, then, Marsingill

needed  to  make a more particularized showing that  Dr.  OMalley

lacked  specific  knowledge or skills that  a  competent  surgeon

would need regardless of board certification.  Notably, the trial

court  gave  Marsingill  broad  latitude  to  ask  questions  and

introduce  evidence for the purpose of showing that  Dr.  OMalley

did not know the common signs and symptoms of a bowel obstruction

and  that  this  particular  lack of  knowledge  fell  below  the

accepted  standard of professional competence.   Her  ability  to

introduce  this  evidence gave Marsingill  ample  opportunity  to

present  her  malpractice  claim to the  jury.   Considering  the

totality  of the circumstances, we hold that it was not an  abuse

of  discretion to grant Dr. OMalleys pretrial motion  to  exclude

evidence  of  his  failed attempts to pass  the  test  for  board

certification in general surgery.

          After  the  trial  court granted Dr. OMalleys  pretrial

motion to exclude this evidence, Marsingill repeatedly sought its

admission  during  the  course  of trial,  maintaining  that  Dr.

OMalley and his experts opened the door to its use to impeach and

contradict   their  testimony.   The  trial  court   consistently

declined  to  admit the evidence.  Marsingill now challenges  the

trial courts rulings, renewing the arguments she raised below.

          We begin by acknowledging that Marsingills arguments on

these  points  present  close issues.  As  already  noted  above,

          courts generally disfavor admission of evidence showing that a

defendant failed board certification tests when that evidence  is

affirmatively offered to prove lack of professional knowledge  or

skill.   But  courts  also  recognize that  considerably  greater

latitude  exists to admit such evidence through cross-examination

or  in  rebuttal when it counteracts affirmative defense evidence

introduced  to  show  a  special degree of  skill,  knowledge  or

relevant  expertise.9   Yet at the same  time,  appellate  courts

addressing issues of admissibility in this area have consistently

emphasized  the  need  for great deference to  the  trial  courts

superior  ability to determine whether particular evidence  would

have been more probative than prejudicial in a given case.10

          Here,  Marsingill first claimed that Dr. OMalley opened

the  door  during  a portion of his own testimony  that  occurred

shortly  after one of Marsingills expert witnesses who  was  from

England  Dr. Modlin  had finished testifying.  When asked  if  he

was  board  certified by the American College  of  Surgeons,  Dr.

OMalley  answered: No, Im not.  He then added,   Neither  is  Dr.

Modlin.   Marsingill  argued  that, in  giving  this  unsolicited

response,  Dr. OMalley unfairly attempted to portray  himself  as

being  equally qualified with Dr. Modlin, when in fact Dr. Modlin

is  board certified in the United Kingdom and thus is accepted by

the  American  College of Surgeons as having  the  equivalent  of

board certification in the United States.

          Although the trial court denied Marsingills request  to

refute   Dr.   OMalleys  unsolicited  response  with  examination

concerning his failures to pass the board certification test, the

court  did  expressly allow Marsingill to correct any  misleading

impression  through further questioning about the nature  of  Dr.

Modlins United Kingdom board certification and by confirming that

Dr. OMalley had no comparable qualifications.

          Marsingill  argues that Dr. OMalleys  statement  was  a

gratuitous and improper attempt to mislead the jury.  Since  this

is one reasonably possible view of the statement, the trial court

          might have had discretion to allow inquiry into Dr. OMalleys

board failures.  But the trial courts alternative approach to the

issue  effectively  prevented  Dr.  OMalley  from  creating   any

misleading  impression; and at the same time  it  avoided  taking

recourse  in  a  remedy that would have answered one  impropriety

with yet another.  On balance, we cannot say that the trial court

abused  its discretion in finding that Dr. OMalley did  not  open

the door in this instance.

          Marsingill  also  attempted  to  introduce  the   board

certification  evidence  to impeach what  she  claimed  were  Dr.

OMalleys  attempts  to portray himself as extensively  qualified.

Specifically, Dr. OMalley testified on direct examination that he

had  operating privileges at all area hospitals and  covered  for

virtually every surgeon in Anchorage; that he directed  both  the

trauma  center at Alaska Regional Hospital and the burn  unit  at

Providence  Hospital;  that  he received  out-of-state  referrals

based  on his expertise with burn patients; and that he had  been

contacted by the television program NOVA about filming a  segment

on  treating  frostbite patients.  Marsingill  argued  that  this

testimony   went  far  beyond  [Dr.  OMalleys]  basic   licensure

qualifications,  that it affirmatively raised the  issue  of  Dr.

OMalleys  general  expertise as a surgeon, and  that  it  thereby

entitled  Marsingill to impeach these claims by  questioning  Dr.

OMalley about his repeated failures to become board certified.

          Dr.  OMalley  rejoined that his testimony  simply  gave

general  background  information and would not  be  perceived  as

asserting   any  extraordinary  level  of  skill;  moreover,   he

emphasized, the special expertise that he described  was  in  the

area  of  treating  frostbite, not in gastro-intestinal  surgery.

The  trial  court found this argument persuasive and declined  to

allow   impeachment  through  evidence  of  Dr.  OMalleys   board

failures.

          It  is  a close question whether Dr. OMalleys testimony

exceeded  the scope of the superior courts pretrial order,  which

limited  the  scope of testimony that both parties could  present

covering  Dr.  OMalleys  education  and  training.   Thus,  while

inquiring  into  Dr.  OMalleys board  failures  would  have  been

permissible as impeachment, we again must conclude that the trial

court  did  not  abuse  its broad discretion  in  excluding  that

evidence.  Under Evidence Rule 403, the trial court bears primary

responsibility  for  determining  admissibility  of  evidence  by

balancing  its probative value evidence against its potential  to

create  undue  prejudice  and  confusion.   Since  the  areas  of

expertise  that Dr. OMalley mentioned on direct examination  were

not germane to the areas at issue in Marsingills claim, we cannot

say  as  a  matter of law that the probative value of Marsingills

proposed impeaching evidence outweighed its potential for causing

prejudice and confusion.

          Finally,   Marsingill   sought   to   use   the   board

certification  evidence  to  impeach various  statements  by  Dr.

OMalleys  experts  regarding Dr. OMalleys general  qualifications

particularly  an  opinion  expressed by  Dr.  Gardiner  that  Dr.

OMalley is not deficient in knowledge or skills and an opinion by

Dr.  Moossa that Dr. OMalley has the requisite level of  surgical

skill,  as well as the judgment and knowledge to handle difficult

problems.   But  as with the previous evidentiary decisions,  the

trial  courts  broad discretion to assess the  admissibility  and

likely  prejudicial impact of evidence precludes us  from  saying

that the court abused its discretion.11

     B.   Jury  Instructions Concerning the Standard for Deciding
          Breach of Duty To Disclose
          
          Marsingill  next claims that the trial court  erred  in

rejecting  her proposed jury instructions regarding Dr.  OMalleys

duty  to  give  her adequate information during the  February  14

phone  call.   As  previously mentioned, Marsingill  pursued  two

alternative  theories of liability at trial that remain  relevant

on  appeal.  Under the first theory, she claimed that Dr. OMalley

lacked  sufficient knowledge and skill to advise her properly  as

to  her treatment choices and that these deficiencies caused  him

          to commit malpractice by giving her deficient advice.  Under the

second theory, Marsingill claimed that a physician owes a duty to

give  patients  enough information to make intelligent  treatment

choices.  Marsingill claimed that Dr. OMalley breached this  duty

of  disclosure  by  failing to adequately inform  her  about  the

potential seriousness of her symptoms and the risks of failing to

seek immediate examination and emergency room treatment.

          Marsingill proposed separate jury instructions covering

these  theories.   Her  proposed instruction  on  her  claim  for

failure  to inform would have directed the jury that the question

whether  Dr.  OMalley  breached his duty to give  her  sufficient

information  must  be  measured  from  the  standpoint   of   the

reasonable  patient.  The trial court rejected  this  instruction

and  instead  used  a  single instruction for  both  the  medical

malpractice  theory  and duty-to-inform  theory.   Although  this

instruction  advised  the  jury of  the  separate  factual  basis

underlying  each of Marsingills theories, it effectively  treated

both  as  medical  malpractice  claims,  requiring  the  jury  to

determine  whether  Dr.  OMalley had given Marsingill  sufficient

evidence  to  meet his duty to inform by relying  exclusively  on

expert  testimony concerning whether the doctors advice  breached

the  professional  standard of care.  Marsingill  challenges  the

trial  courts  ruling,  asserting  that  the  reasonable  patient

standard should have governed the jurys determination of  whether

Dr.  OMalley breached his duty to give her enough information  to

make an intelligent treatment choice.12  We agree.

          Marsingills  alternate  theory  of  liability  did  not

question   the  competency  of  any  medical  care  or  treatment

administered by Dr. OMalley and so did not depend on  whether  he

breached the professional standard of care that governs a general

surgeon;  rather  it questioned the adequacy of  the  information

that  he  disclosed  concerning Marsingills   treatment  options,

asserting that the doctor owed her a duty of disclosure and  that

he   breached   this   duty.   Our  decisions   have   previously

          distinguished between the standard that governs a physicians duty

to  render  adequate  care  and  the  standard  that  governs   a

physicians  duty  to  disclose or inform.   We  first  noted  the

distinction in Pedersen v. Zielski:

          The physician-patient relationship is one  of
          trust.    Because  the  patient   lacks   the
          physicians expertise, the patient  must  rely
          on    the   physician   for   virtually   all
          information about the patients treatment  and
          health.   A  physician therefore  undertakes,
          not  only to treat a patient physically,  but
          also  to  respond fully to a patients inquiry
          about  his  treatment,  i.e.,  to  tell   the
          patient  everything that a reasonable  person
          would want to know about the treatment.[13]
          
          Elaborating  further on this distinction in  Korman  v.

Mallin,14 we noted that Alaskas informed consent statute15 requires

physicians   to   disclose  the  common  risks   and   reasonable

alternatives  to a proposed treatment or procedure but  fails  to

specify  what  standard  governs  the  scope  of  the  disclosure

requirement.16   After  observing  that  the  law   traditionally

measured  a  physicians  duty  to disclose  by  the  professional

standard in the field, Korman rejected that approach in favor  of

the  modern  trend of case law, which measure[s]  the  physicians

duty  of  disclosure by what a reasonable patient would  need  to

know in order to make an informed and intelligent decision.17

          Korman  went on to hold that expert testimony does  not

play  a  determinative  role  in the context  of  the  reasonable

patient rule: Under this modern view, expert testimony concerning

the  professional  standard  of disclosure  is  not  a  necessary

element of the plaintiffs case because the scope of disclosure is

measured from the standpoint of the patient.18  Emphasizing that a

physician  must  disclose those risks which  are  material  to  a

reasonable  patients  decision  concerning  treatment,19   Korman

borrowed from the Louisiana Supreme Courts decision in Hondroulis

v.  Schuhmacher20  to  explain that,  although  expert  testimony

remains  relevant  in  narrowing the  field  of  risks  that  are

potentially  material,  materiality  itself  must  ultimately  be

          judged by asking what a reasonable patient would want to know:

               The  determination of materiality  is  a
          two-step  process.   The  first  step  is  to
          define  the existence and nature of the  risk
          and  the likelihood of its occurrence.   Some
          expert  testimony is necessary  to  establish
          this  aspect  of materiality because  only  a
          physician   or  other  qualified  expert   is
          capable  of judging what risk exists and  the
          likelihood  of  its occurrence.   The  second
          prong  of  the materiality test  is  for  the
          trier   of   fact  to  decide   whether   the
          probability of that type of harm  is  a  risk
          which a reasonable patient would consider  in
          deciding  on  treatment.   The  focus  is  on
          whether  a reasonable person in the  patients
          position  would  attach significance  to  the
          specific  risk.  This determination does  not
          require expert testimony.[21]
          
          In  the  present case, Marsingill insists that  Kormans

reasonable patient rule  not the professional standard of care in

the  field  governed the scope of Dr. OMalleys duty to  give  her

enough information to enable her to make an intelligent treatment

decision.22  Dr. OMalley responds that neither Korman nor Alaskas

informed consent law should extend to this case because the  duty

of  disclosure  they describe simply does not  apply  unless  the

physician   recommends  or  proposes  a  specific  treatment   or

procedure.23  According to Dr. OMalley, in the present case, [t]he

factual  predicate  for  the  . . . duty  to  disclose,  i.e.,  a

recommended treatment or procedure is totally absent.  Hence, Dr.

OMalley  contends, Marsingills theory that Dr. OMalley failed  to

adequately  appreciate  and communicate the  seriousness  of  her

condition   was   properly  included  in  the  ordinary   medical

negligence instruction.

          But  on the particular facts of this case, Dr. OMalleys

position  is  unpersuasive.  We assume for present purposes  that

Dr.  OMalley  is  correct in asserting that  Korman  and  Alaskas

implied  consent statute both extend only to situations involving

recommendations  for specific medical procedures  and  treatment.

Yet  when  Marsingill called Dr. OMalley on the night of February

          14, she was seeking a recommendation for treatment of her

abdominal pain and distress.  Uncontradicted evidence establishes

that  Dr.  OMalley  advised her to go to the emergency  room  for

treatment  that  would likely entail having  a  nasogastric  tube

inserted into her stomach.  And despite Dr. OMalleys argument  to

the contrary, the record supports the conclusion that this advice

amounted to a recommendation for treatment.24

          Furthermore,  there  was  evidence  that  Dr.   OMalley

acquiesced  in  Marsingills decision not to go to  the  emergency

room.    In  the  context  of  a  pre-existing  patient/physician

relationship   involving  post-operative   care,   a   physicians

recommendation to do nothing in the face of threatening  symptoms

is  the  equivalent of a treatment recommendation and  should  be

accompanied  by a duty of disclosure.  A physicians  acquiescence

in  a  patients  decision  not  to seek  treatment  in  the  same

circumstances  should likewise be regarded  as  equivalent  to  a

treatment recommendation subject to the same duty.

          As  we  have previously mentioned, Section 8.08 of  the

AMA Code of Medical Ethics gives rise to a duty of disclosure  in

such   situations,  requiring  that  patients  be  given   enough

information  to  enable an intelligent choice.   All  six  expert

witnesses  at  trial agreed that this duty to inform  applied  in

Marsingills  case.   Indeed, even Dr. OMalley conceded  that  the

duty  attached, expressly acknowledging that he had an obligation

to give [Marsingill] enough information so that she could make an

intelligent  choice as to whether she should go to the  emergency

room.   Hence,  no  one  disagreed  that  a  duty  of  reasonable

disclosure existed  that Dr. OMalley did in fact have a  duty  to

give  Marsingill enough information to make an intelligent choice

about immediately going to the emergency room for treatment;  the

only  significant disagreement centered on issues concerning  the

scope and breach of the duty to inform.25

          Yet   these  are  precisely  the  issues  that   Korman

describes  as  lying outside the realm of professional  expertise

          and as falling within the fact-finding powers that the reasonable

patient  rule assigns to lay jurors.  In denying the request  for

an  instruction  on  the reasonable patient standard,  then,  the

superior court deprived Marsingill of her right to have the  jury

decide  the  issue directly, from the standpoint of a  reasonable

patient.   The  court  instead required the jury  to  filter  its

decision  through  the experts views of what patients  should  be

told.   Because  the  instructions hinged  the  determination  of

breach entirely on the testimony of competing experts rather than

on  the common sense and experience of the jury, we must conclude

that giving those instructions amounted to reversible error.26

IV.  CONCLUSION

          The  judgment is VACATED, and this case is REMANDED for

a  new  trial  on  Marsingills claim for breach of  the  duty  to

provide  enough  information to allow her to make an  intelligent

treatment  choice.   On remand, the jury must  be  instructed  to

decide the claim from the standpoint of a reasonable patient.27



_______________________________
     1     Inserting a nasogastric tube involves placing  a  tube
through  the patients nose, down the back of the throat into  the
esophagus, and into the stomach.

     2     AS  09.55.540(a)  defines the elements  of  a  medical
malpractice claim in Alaska:

          (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.
          
     3     We  review decisions excluding evidence for  abuse  of
discretion.  Anchorage Nissan, Inc. v. State, 941 P.2d 1229, 1238
n.17 (Alaska 1997); Agostinho v. Fairbanks Clinic Pship, 821 P.2d
714,  716 n.2 (Alaska 1991).  An abuse of discretion occurs  only
when  we  are  left  with a definite and firm  conviction,  after
reviewing  the whole record, that the trial court  erred  in  its
ruling.  Peter  Pan Seafoods v. Stepanoff, 650 P.2d  375,  378-79
(Alaska 1982).

     4    Cummings v. Sea Lion Corp., 924 P.2d 1011, 1017 (Alaska
1996)  (quoting Alaska R. Evid. 402).  Rule 401 defines  relevant
evidence as 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.

     5    Alaska R. Evid. 403.

     6    Alaska R. Evid. 404(b); accord Alaska R. Evid. 404(a).

     7     Trombley v. Starr-Wood Cardiac Group PC, 3  P.3d  916,
918, 920 (Alaska 2000).

     8     See  Jackson v. Buchman, 996 S.W.2d 30, 34 (Ark. 1999)
([B]oard certification is not required by law to practice surgery
in  Arkansas.  Accordingly, the legal standard of care set out in
[the Arkansas malpractice statute] is in no way affected by board
certification.).

     9     See, e.g., Campbell v. Vinjamuri, 19 F.3d 1274, 1277 &
n.2  (8th Cir. 1994); Gipson v. Younes, 724 So. 2d 530, 532 (Ala.
Civ.   App.  1998)  ([W]hen  a  physician  sued  for  malpractice
testifies  as  an  expert, the fact that he had  failed  a  board
certification  examination is relevant to his credibility  as  an
expert.);  McCray v. Shams, M.D., 587 N.E.2d 66,  70  (Ill.  App.
1992) (stating that failure to pass boards was material issue  in
examination of expert witness because it bore on whether she  was
qualified to meet the standards of the specialty).

     10     See  Gipson,  724 So. 2d at 533 (We have  reviewed  a
number  of decisions from other jurisdictions in which the courts
have been required to determine whether a physician who testifies
as  an expert witness may be cross-examined about his failure  to
pass  a  board  certification exam.  The decisions are  virtually
unanimous in upholding the trial courts determination  regardless
of   whether  the  determination  resulted  in  admission  or  in
exclusion of the evidence.).

     11     See,  e.g.,  Campbell, 19 F.3d  at  1277;  Hinson  v.
Clairemont  Cmty.  Hosp., 267 Cal. Rptr. 503, 510-12  (Cal.  App.
1990).

     12     The  sufficiency of proposed jury instructions  is  a
legal  question  to  which  we apply  our  independent  judgment.
Fairbanks  N. Star Borough v. Kandik Constr. Inc., 795 P.2d  793,
797 (Alaska 1990), vacated in part on other grounds, 823 P.2d 632
(Alaska  1991); Chenega Corp. v. Exxon Corp., 991 P.2d  769,  775
(Alaska  1999) (A legally erroneous instruction warrants reversal
only when it prejudices a party  that is, when substantial rights
of  the  parties  were  affected or  the  error  had  substantial
influence. ) (internal citations omitted).

     13    822 P.2d 903, 909 (Alaska 1991).

     14    858 P.2d 1145 (Alaska 1993).

     15    See AS 09.55.556(a).

     16    Korman, 858 P.2d at 1148.

     17    Id. at 1148-49.

     18    Id. at 1149.

     19    Id.

     20    553 So. 2d 398 (La. 1989).

     21     Korman, 858 P.2d at 1149 (quoting Hondroulis, 553 So.
2d at 412).

     22     Marsingill also cites California cases in support  of
her  position,  primarily Truman v. Thomas, 611  P.2d  902  (Cal.
1980), and Cobbs v. Grant, 502 P.2d 1 (Cal. 1972).

     23     Dr.  OMalley discusses cases from California and  New
Jersey  in  support of this proposition.  See,  e.g.,   Arato  v.
Avedon,  858 P.2d 598, 605 (Cal. 1993);  Scalere v. Stenson,  260
Cal.  Rptr. 152 (Cal. App. 1989); Farina v. Klaus, 754 A.2d 1215,
1223-24 (N.J. Super. 1999); Eagel v. Newman,  739 A.2d 986,  989-
90 (N.J. Super. 1999).

     24     Dr.  OMalley asserts that one of Marsingills experts,
Dr. Ravden, admitted that simply going to the hospital is neither
a  treatment or procedure.  Yet this argument neglects to mention
that Dr. Ravden expressly identified nasogastric intubation as  a
procedure used in the treatment of a bowel obstruction.

     25     The consensus of testimony agreeing that this duty of
disclosure arose in the present setting makes it unnecessary  for
us  to  determine whether Alaskas informed consent statute  would
have  independently  encompassed the duty had  Section  8.08  not
applied.

     26    Dr. OMalley cursorily argues that if any error occurred
on  this  point  it  was harmless because the factual  similarity
between  Marsingills  medical malpractice  and  failure-to-inform
theories  of  liability rendered any difference between  the  two
theories immaterial.  But this argument is unpersuasive, for,  as
Korman  expressly  recognizes, the differences in  the  standards
that govern the jurys determination of breach make these theories
significantly  different.  Although Dr. OMalley further  contends
that  Marsingill conceded that she could argue her theory  within
the confines of the general medical malpractice instruction, this
argument misstates the concession:  While acknowledging that  the
malpractice instruction actually given allowed her to  argue  her
factual   theory,  Marsingill  specifically  objected  that   the
instruction  would deprive her of the right to  have  her  theory
decided under the correct legal standard.

     27    Because our decision on the standard for determining a
breach of the duty to disclose requires a remand for retrial,  we
need  not  resolve  Marsingills remaining claims  of  error.   To
provide  appropriate  guidance on remand, however,  we  think  it
necessary to comment on two aspects of the remaining claims.

          First, Marsingill argues that reversible error occurred
when Dr. OMalleys trial counsel argued in his closing argument to
the   jury  that  plaintiff  is  asking  you  to  basically  take
everything  hes worked for his whole life, to ruin his reputation
as a physician.  Thats unbelievable.  Although we need not decide
if  this comment amounted to reversible error, we believe that it
could readily have been understood as an improper suggestion that
a  judgment  awarding damages against Dr. OMalley  would  not  be
covered by his insurance.

          Second, Marsingill argues that the superior court erred
in  denying  her motion for a new trial, which was based  on  the
jurys   alleged  confusion  regarding  an  aspect  of  the   jury
instructions.   Because  this issue  emerged  from  a  post-trial
interview  with  jurors conducted by a paralegal who  worked  for
Marsingills  trial  counsel and was supported by  the  paralegals
affidavit,  we  take  this opportunity  to  remind  counsel  that
Evidence  Rule  606(b) flatly prohibits parties from  questioning
jurors as to any matter influencing their deliberations except on
the  question  whether  extraneous  prejudicial  information  was
improperly brought to the jurys attention or whether any  outside
influence  was improperly brought to bear upon any juror.  Alaska
R.   Evid.   606(b)   (emphasis  added).    The   rule   likewise
categorically  bars the receipt of evidence of any  statement  by
the  juror  concerning a matter about which the  juror  would  be
precluded from testifying.