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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.
