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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Zaverl v. Hanley (2/14/2003) sp-5665

Zaverl v. Hanley (2/14/2003) sp-5665

     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
                                

WILLIAM ZAVERL, Personal           )
Representative of the Estate of         )    Supreme Court No. S-
9312
Margaret M. Zaverl,           )
                              )    Superior Court No. 4FA-96-2281
CI
             Appellant,            )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5665 - February 14, 2003]
OWEN Q. HANLEY, M.D., and          )
JAMES B. BORDEN, M.D.,        )
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Raymond M. Funk, Judge, pro tem.

          Appearances:  Kenneth P. Ringstad, Paskvan  &
          Ringstad,  P.C.,  Fairbanks,  for  Appellant.
          Sanford  M.  Gibbs, Brown,  Waller  &  Gibbs,
          Anchorage, for Appellee Owen Q. Hanley,  M.D.
          John  J.  Tiemessen and Jason Weiner,  Clapp,
          Peterson  &  Stowers,  LLC,  Fairbanks,   for
          Appellee James B. Borden, M.D.

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

          EASTAUGH, Justice.


I.   INTRODUCTION

           Margaret  Zaverl's  estate sued her  surgeon  and  her

pulmonologist,  alleging  that  they  negligently  diagnosed  and

failed to treat her aortobronchial condition in 1994, causing her

death.   The  jury  returned a verdict for both  physicians.   At

trial  the  surgeon testified over the estate's  objection  about

matters his lawyer had instructed him not to address at his  pre-

trial  deposition.  Because it was error to permit this testimony

at  trial,  we  remand  for a determination  whether  this  error

prejudiced  the  estate's claims against  either  physician.   We

vacate  the  award of costs and attorney's fees assessed  against

the  individual  beneficiaries of the estate,  Margaret  Zaverl's

husband  and children, because they were not parties.  We  affirm

as to all other issues the estate raises on appeal.

II.  FACTS AND PROCEEDINGS

           Margaret  Zaverl coughed up a significant quantity  of

blood  on  October 2, 1994.1  She was taken to Fairbanks Memorial

Hospital   where   Dr.  Eric  Stirling,  an  emergency   medicine

specialist, examined her.  She reported that she had  coughed  up

and  vomited bright red blood and that she experienced  shortness

of  breath  and  wheezing.  Her medical history included  regular

cigarette  smoking,  a left thoracotomy for  coarctation  of  the

aorta2 at age seventeen, and removal of an anaerobic tumor of the

abdomen  in  early 1970.  Margaret was forty-five  years  old  in

1994.

           Dr.  Stirling  consulted  with  Dr.  James  Borden,  a

surgeon.   Dr. Borden performed a bronchoscopy which  "showed  an

apparent tumor in the bronchus to the right middle lobe and right

lower  lobe."  Dr. Borden could not remove the tumor  during  the

bronchoscopy.    The   fiberoptic  bronchoscope   showed   marked

inflammation  of  the tracheal wall and blood clots.   The  right

side of the bronchial tree appeared to be more inflamed than  the

left  - a condition which Dr. Borden found to be consistent  with

the presence of the suspected tumor.

           Dr.  Borden consulted with a Fairbanks internist,  Dr.

Kenneth  Starks.  Chest X-rays revealed that infiltrates obscured

the  lower  bases  of  Margaret's  lungs.   Dr.  Borden  admitted

Margaret to the hospital's intensive care unit, made arrangements

for  a  follow-up bronchoscopy, and arranged for her to  see  Dr.

Owen  Hanley,  a  pulmonologist,  when  Dr.  Hanley  returned  to

Fairbanks.   Margaret underwent a variety of tests  to  determine

the cause of her illness.  Dr. Hanley saw Margaret on October  6.

Dr.  Hanley was unable to ascertain immediately the cause of  her

massive  hemoptysis,3  and he recommended  another  bronchoscopy.

Margaret   was  discharged  on  October  8.   Dr.   Hanley   made

arrangements  for  a follow-up visit in ten  days  to  perform  a

computerized  axial  tomography  (CAT  or  CT)  scan   once   the

infiltrates had cleared from Margaret's lungs.

          When the doctors told Margaret that they were uncertain

what was causing her bleeding, she asked if the bleeding could be

related to her aorta repair.  There was evidence that the doctors

assured  Margaret that the bleeding was not related to her  aorta

repair.

           Margaret began to cough up blood again on the  evening

of  October  9.   Her  family  took  her  to  Fairbanks  Memorial

Hospital.  Margaret lost consciousness en route and died  at  the

hospital soon after.  Autopsy revealed that sections of the graft

on  her  aorta had adhered to the pulmonary parenchyma;4 some  of

the  tissue had died, leaving marked accumulation of blood in the

pulmonary parenchyma directly adjacent to the aortal graft.   The

autopsy  summary  concluded that this accumulation  "most  likely

represents the origin of the patient's severe hemoptysis."5

            Margaret's  husband,  William  Zaverl,  as   personal

representative  of her estate, filed a superior  court  complaint

against  Drs.  Borden and Hanley in October  1996.  The  superior

court  appointed  an  expert advisory panel  at  the  defendants'

request.   The  case proceeded to trial beginning  mid-May  1999.

The estate offered evidence that Drs. Hanley and Borden failed to

consider   Margaret's  prior  aorta  repair  in  diagnosing   her

condition, but the jury returned a verdict for both physicians.

           Drs.  Hanley and Borden moved for awards of costs  and

attorney's fees against William Zaverl as personal representative

of   Margaret's  estate  and  against  the  individual  statutory

beneficiaries  jointly  and severally.   The  court  granted  the

motion  and  awarded Dr. Hanley costs and fees of $57,824.52  and

Dr. Borden costs and fees of $67,149.40.  These joint and several

awards  were  against  the  estate, Margaret's  spouse,  and  her

children.   The  caption  on the final  judgment  names  "WILLIAM

ZAVERL,  Personal  Representative of the Estate  of  Margaret  M.

Zaverl."   But the final judgment states that it is  against  the

estate and the individually named statutory beneficiaries.

           This  appeal  followed.  William Zaverl is  the  named

appellant, acting as personal representative of the estate.

III. DISCUSSION

          A.   It Was an Abuse of Discretion To Permit Dr. Borden
          To  Testify at Trial on Topics He Refused To Discuss at
          His Deposition.
          
          The estate argues that it was an abuse of discretion to

allow  Dr.  Borden's trial lawyer to question him at trial  about

topics  his  attorney  instructed  him  not  to  discuss  at  his

deposition.   We  agree,6 and remand to  the  superior  court  to

determine the effect of this error.

          1.   Dr. Borden testified at trial about matters he refused to
               address at his deposition.
               
           At  Dr.  Borden's pre-trial deposition,  the  estate's

lawyer  asked  Dr. Borden, "Did Margaret Zaverl die  because  the

connection  between  the massive hemoptysis and  her  history  of

prior  aortic  repair was not diagnosed?"  Dr. Borden's  attorney

objected and instructed Dr. Borden not to answer:

          I  object to the form of the question.   He's
          not  an expert in that area . . . .  He's not
          going  to testify as an expert in that  area,
          and I won't allow him to testify on this - on
          the speculation of something nobody will ever
          know  and  he's not a cardiovascular surgeon,
          cardiac  thoracic surgeon, so he's not  going
          to answer that question.
          
When  the  estate's attorney asked Dr. Borden what  treatment  he

would  have  provided  if the aortobronchial  fistula7  had  been

diagnosed, Dr. Borden's attorney stated:

          I'm  going  to  instruct him not  to  answer.
          He's  not  going  to speculate  on  something
          which  he  did  not do. . . .   He's  not  an
          expert.   I'm not going to offer  him  as  an
          expert   in   the   area  of   cardiovascular
          treatment and handling of aortic breakdown, I
          mean breakdowns of coarctation repairs of the
          aorta.
          
Dr. Borden did not answer these questions at his deposition.

            At  trial,  near  the  end  of  Dr.  Borden's  direct

testimony,  his  trial attorney asked Dr. Borden  if  he  had  "a

fairly good understanding of what's necessary to repair . . .  an

aortobronchial  fistula  such  as  Margaret  Zaverl  had."    The

estate's  attorney objected.  He argued that when  he  asked  Dr.

Borden   the  same  question  at  the  deposition,  Dr.  Borden's

deposition attorney instructed Dr. Borden not to answer  and  not

to speculate about something he did not do and something that did

not  occur.  When the trial court stated that a motion to  compel

would  have been the way to deal with the attorney's instruction,

the  estate's attorney indicated that he had understood counsel's

statement at the deposition to mean that Dr. Borden would not  be

offered as an expert on these topics.

          The trial court overruled the estate's objections.  The

court  reasoned  that  Dr. Borden was a general  surgeon,  not  a

cardiovascular surgeon who does such repairs or who is an  expert

in repairing such conditions.  The court stated that Dr. Borden's

knowledge in 1994 "is an important issue" and "to the extent he's

a  defendant in this case, as to the standard of care he gave, it

appears to the court relevant and admissible for those issues  to

be discussed with him, by both sides."  The court also noted that

the estate would have an opportunity to cross-examine.

            Dr.  Borden  then  testified  that  he  did  have  "a

reasonably  good understanding" of aortobronchial  fistulae.   He

proceeded  to testify at some length about particular nuances  of

diagnosing  and  treating this condition.  Dr.  Borden  testified

that  he  wished  he  had  thought of "this  particular  kind  of

fistula,"  even  though  "these other smart  guys  wouldn't  have

thought  about it."  Nonetheless, he concluded that his treatment

of  Margaret,  including his failure to detect the fistula  which

may have caused her hemoptysis, did not fall below the applicable

standard of care.

          2.   Dr. Borden should not have been permitted to testify to
               matters he refused to discuss at his deposition.
               
          The estate argues on appeal that it was error to permit

Dr.  Borden  to testify at trial about matters he was  instructed

not  to  discuss  at  his  deposition.8The  estate  asserts  that

discovery was thwarted when Dr. Borden's attorney instructed  him

at   his  deposition  not  to  respond  to  questions  concerning

detection and repair of aortobronchial fistulae, stated  that  he

would  not offer him as an expert on the detection and repair  of

aortobronchial  fistulae, and then questioned  him  on  precisely

those areas at trial without giving advance notice of his changed

intentions.   The  estate  relies on  Yukon  Equipment,  Inc.  v.

Gordon,9 which upheld a trial court's exclusion of testimony  not

described in interrogatory answers.

           Dr.  Borden responds that he was not qualified to give

testimony  on  aortobronchial fistulae when the estate  took  his

deposition  in August 1997, but was qualified to do  so  when  he

testified  at trial in May 1999.  Dr. Borden distinguishes  Yukon

Equipment  on  the  theory  that he  did  not  fail  to  disclose

information, as the witness did in Yukon Equipment.   Dr.  Borden

asserts that he simply did not have the information to answer  at

his deposition but did at trial.

           We  conclude that the estate was affirmatively led  to

believe  that Dr. Borden would not express opinions at  trial  on

matters  beyond  the  expertise of a general  surgeon,  and  more

specifically,  that  Dr.  Borden  would  not  testify  about  the

treatment of aortobronchial fistulae.  Dr. Borden never disclosed

his intention to testify at trial about what he had learned since

his  deposition,  about  surgery  a  general  surgeon  would  not

perform, or in reliance on expertise he acquired after his lawyer

disclaimed that expertise at Dr. Borden's deposition.10  Assuming

that  Dr. Borden's inconsistent positions were the result  of  an

innocent misstep not meant to unfairly disadvantage the estate,11

we  nonetheless  agree  with  the  estate  that  the  purpose  of

discovery  was  thwarted.  The opportunity  to  cross-examine  at

trial was no substitute for pretrial discovery in this case.12

           Dr.  Borden asserts that the estate should have raised

any  objection  to the deposition by filing a motion  to  compel.

But  no  pretrial motion to compel was necessary to preserve  the

estate's trial objection that Dr. Borden could not testify  about

things  he refused to discuss at his deposition.  The estate  was

not  obliged to anticipate that Dr. Borden might claim  at  trial

that he now knew more than he did when he treated Margaret Zaverl

or when he was deposed.  Only if the estate had been given reason

to  think Dr. Borden intended to address the foreclosed topics at

trial would it have been required to file a motion to compel.  So

far  as  we  can determine, Dr. Borden apparently did not  reveal

that  intention  until  his trial lawyer  began  asking  him  the

disputed  questions  at  trial.   Having  followed  his  lawyer's

deposition  instruction not to testify about certain topics,  Dr.

Borden  had to live with that decision absent fair notice to  the

estate.

            The  issue is not whether Dr. Borden was eligible  to

express  any  opinions, but whether he could do so on  topics  he

refused to discuss at his deposition.13  In Miller v. Phillips, a

medical  malpractice  case, we thought it  significant  that  the

Millers  had  received  Dr. Newton's affidavit  setting  out  the

substance of his opinions "well before trial."14  Here, the estate

had  no  advance notice that Dr. Borden would offer the  disputed

testimony  or  rely  on  expertise  he  had  disclaimed  at   his

deposition.  There is no reason in this situation to permit  such

undisclosed opinions.

           Under  the  circumstances, it was error to permit  Dr.

Borden  to testify at trial about relevant topics he declined  to

discuss  at  his  deposition.15        The estate's  reply  brief

discusses  the issue in terms usually applied to the doctrine  of

estoppel,  although  its  briefs do not  explicitly  invoke  that

doctrine  by  name.  The doctrine of quasi-estoppel "precludes  a

party  from  taking  a  position inconsistent  with  one  .  .  .

previously  taken  where circumstances render  assertion  of  the

second  position unconscionable."  Jamison v. Consol. Util.,  576

P.2d  97,  102  (Alaska 1978); see also John's Heating  Serv.  v.

Lamb, 46 P.3d 1024, 1040-41 (Alaska 2002) (holding quasi-estoppel

not  applicable when party taking inconsistent position  did  not

gain  anything  from  original  position,  third  party  did  not

sufficiently rely on either position, and first position was  not

based  on  full knowledge of facts).  We do not consider  whether

Dr.  Borden's disputed trial testimony should have been estopped,

because  the estate raised the estoppel issue for the first  time

in  its reply brief.  See Danco Exploration, Inc. v. State, Dep't

of  Natural Res., 924 P.2d 432, 434-35 n.1 (Alaska 1996)  ("[N]ew

arguments  presented  for  the first time  in  reply  briefs  are

considered waived.").

          3.   We remand to the trial court to determine whether the error
               was harmless.
               
           The  circumstances that convinced the trial court that

the   disputed  evidence  was  relevant  and  not  redundant   or

speculative preclude us from saying as a matter of law  that  the

error  of  allowing  the  testimony was harmless.   Dr.  Borden's

testimony  was important evidence bearing on liability.   It  was

offered  by  a  treating physician who was also a  defendant  and

whose  credibility and candor may have been critical to the  jury

trying  to decide whether he breached the applicable standard  of

care.  He described the quality of his care favorably, apparently

applying  the  knowledge he acquired after his deposition.   This

permitted  him  to address the medical issues  in  a  light  most

favorable to himself and to increase his stature as a witness.

          The effect of this error is not clear.  We consequently

asked  the parties for supplemental briefing on how the testimony

affected the case against each defendant physician.

           The  estate  argues that the error  was  not  harmless

because  the jury could have relied on Dr. Borden's testimony  to

decide that Dr. Borden's treatment was not negligent.  The estate

also  contends  that because Dr. Borden testified  that  Margaret

Zaverl's  overall treatment was not substandard, the  jury  could

have  relied on Dr. Borden's testimony to absolve Dr.  Hanley  of

liability.

           Dr.  Borden's  supplemental response is two-fold:  the

jury  was  not misled, because he admitted that he did  not  have

knowledge of these fistulae when he treated Margaret Zaverl;  and

his  testimony  about  the standard of  care  only  "echoed"  the

testimony  of  his expert witness, Dr. Joseph Stapleton  Coselli.

Dr.  Borden  implies  that  because  the  estate's  attorney  was

prepared to cross-examine Dr. Coselli, the estate's attorney also

must  have  been prepared to cross-examine Dr. Borden.   Further,

Dr.  Borden  asserts  that  the jury could  have  found  and  was

encouraged  to find an absence of negligence in reliance  on  Dr.

Coselli's  testimony, without considering Dr. Borden's  testimony

on  the standard of care.  Dr. Borden also contends that his  own

testimony was relevant because he was the only witness who  could

discuss what he knew when he treated Margaret Zaverl and that his

testimony  was  not  speculative because he spoke  from  his  own

knowledge.

           He  also argues that the estate was not prejudiced  by

the testimony because the estate's lawyer was given wide latitude

to  examine Dr. Borden on exactly when he acquired his  knowledge

and  could easily emphasize to the jury that Dr. Borden  did  not

have this knowledge when he treated Margaret Zaverl.

           Finally, Dr. Borden concludes that the testimony  only

affected  himself, not Dr. Hanley, and that even if the testimony

had  been excluded, there was more than enough evidence regarding

the relevant standard of care to support the jury's verdict.

           Dr.  Hanley simply argues that he was not affected  by

Dr.  Borden's testimony because the jury was instructed that  Dr.

Hanley  was to be held to a distinct standard of care and because

he   had  his  own  experts  to  establish  that  standard.    He

consequently  asserts  that  he did  not  rely  on  Dr.  Borden's

testimony at all.

           We  cannot say, even after the supplemental  briefing,

that  the  error was harmless.  We therefore remand to the  trial

court   to   determine  the  effect  of  admitting  the  disputed

testimony.   Having  heard the evidence admitted  at  trial,  the

trial court is in the best position to consider the effect of Dr.

Borden's  disputed  trial opinions in the context  of  the  other

evidence,  those deposition passages submitted to the  jury,  the

opinions of other experts, and other trial events, including  the

parties' arguments to the jury.  Remand will give the parties the

best  opportunity  to  explore whether the error  prejudiced  the

estate's  claims against either defendant or was harmless.   This

may  be  a  fact-intensive inquiry that requires more flexibility

than  the appellate forum permits.  It may depend on the  tactics

the parties employed at trial.

          B.    The  Court  Did  Not  Err in  Refusing  To  Admit
          Evidence  and Instructing on the Standard of  Care  for
          Medical Specialists.
          
           The  estate argues that errors prevented the jury from

holding  Dr.  Borden to the standard of care of a  specialist  in

thoracic and vascular surgery, rather than the lower standard  of

care  of  a general surgeon.  Thus, it asserts that it was  error

not  to admit into evidence medical directories and Yellow  Pages

advertisements  listing  Dr. Borden as a  vascular  and  thoracic

surgeon.   It  further  asserts that the jury  should  have  been

instructed  that Dr. Borden held himself out as a  specialist  in

thoracic and vascular surgery and that a specialist's failure  to

use the care and skill practiced in that specialty is negligence.16

           Dr.  Borden responds that he is only a general surgeon

and that he testified that he was board certified only in general

surgery.   He  argues  that he has only had  some  experience  in

thoracic and vascular surgery and that he should not be  held  to

the standard of care of a specialist because he never represented

to  Margaret Zaverl that he was a specialist in those areas.   He

argues  that his training, knowledge, and skill did not  rise  to

the  level of a specialist and that it would have been  error  to

give  the  estate's proposed jury instruction  or  to  admit  the

advertisements.  He argues that his testimony on his  experiences

in  those areas was sufficient to inform the jury of the standard

by  which he should be judged.  Because the estate was allowed to

cross-examine Dr. Borden at trial about his experiences  and  his

listings  and  advertisements, Dr. Borden argues that  the  trial

court did not err in determining that admitting the listings  and

advertisements into evidence would be irrelevant and cumulative.17

           Physicians  who hold themselves out to the  public  as

having  specialized  knowledge or  skill  must  be  held  to  the

standard   of   care   of   specialists   with   those   enhanced

qualifications.18  It does not matter whether the  physician  led

any  specific  patient  to have an actual  expectation  that  the

physician would exercise a greater level of skill, so long as the

physician  has  taken "affirmative steps" to present  himself  or

herself to the public as a specialist.19

           But we discern no reversible error with respect to the

evidence or the instructions.  Dr. Borden defended on the  theory

that  regardless  of  specialty, skill,  training,  or  place  of

practice,  no  physician  - even a specialist  in  cardiovascular

surgery  -  would  have correctly diagnosed and treated  Margaret

Zaverl's  condition.   Thus he relied  on  the  opinions  of  Dr.

Coselli,  a prominent cardiovascular surgeon who practiced  at  a

teaching hospital in Houston, Texas.20  Dr. Borden likewise relied

on  his  own testimony, discussed above in Part III.A, expressing

the  same  opinion  based  on his post-treatment  research.   Dr.

Borden's  closing argument did not attempt to defend on a  theory

that  a  general surgeon was not required to do what  specialists

could do.

           We  therefore  conclude that it was not  an  abuse  of

discretion to exclude the listings and advertisements.21  We also

conclude that, given the nature of Dr. Borden's defense,  it  was

not  error  to  reject  the proposed instruction.   The  proposed

instruction  correctly stated the law.22  But it was  unnecessary

because, as seen above, Dr. Borden's defense did not rest on  the

proposition that, as a general surgeon, he should be  held  to  a

lower standard of care than thoracic, vascular, or cardiovascular

surgeons.

           Of  course,  should  the trial court's  resolution  on

remand  of the Borden testimony issue require retrial,  the  case

may  be  in  a  different posture, requiring the trial  court  to

revisit these evidentiary and instructional issues.

          C.    The  Court Did Not Err in Refusing To Strike  the
          Expert Advisory Panel.
          
           The  estate  argues  that the members  of  the  court-

appointed three-member expert advisory panel were biased  because

they  had  social relationships with the defendants or had  prior

knowledge  of  the  case or opinions about it.   It  consequently

argues  that  rule,  statute, or due process required  the  trial

court  to disqualify each member.  It also argues that the  panel

violated the procedural requirements of AS 09.55.536 in producing

its report.23

           The  estate sued Drs. Hanley and Borden in 1996.   The

defendants asked the court to appoint an expert advisory panel.24

Drs.   Steven  Kilkenny,  Tim  Coalwell,  and  Beth  Baker   were

ultimately  nominated.   Dr.  Borden  notified  the   court   and

plaintiff  in  June 1997 that the law firm representing  him  was

also representing Dr. Kilkenny in an unrelated matter.  Dr. Baker

disclosed in June 1997 that she may have previously discussed the

case  because  she  thought it had been  "presented"  at  a  1994

meeting  she  attended.   The estate  did  not  object  to  these

possible  conflicts  of interest, and in August  1997  the  trial

court  entered an order appointing these three physicians to  the

panel.   In June 1998 Dr. Borden notified the court and plaintiff

that  the  law  firm representing him was also  representing  Dr.

Coalwell in an unrelated matter.

           The  panel never met in person, but the panelists each

issued  a report on November 20, 1997.  Dr. Baker summarized  the

three  reports.  In February 1999 the estate moved to strike  the

entire  panel  and its report, alleging that all three  panelists

were biased and had failed to confer in person or submit a single

report, in alleged violation of the requirements of AS 09.55.536.

The trial court denied these motions in March 1999.

           The  estate argues on appeal that it was error not  to

order  the panel and its reports struck.  Drs. Borden and  Hanley

respond by contending, among other things, that the estate waived

any challenge by waiting over a year to object to the panel.

            We  agree  with  Drs.  Borden  and  Hanley  that  the

objections to the panel and its opinions were raised too late and

were therefore waived.25  The estate knew no later than June 1997

of  possible conflicts as to two members and no later  than  June

1998 of a possible conflict as to the third member.  Nonetheless,

the  estate did not take the depositions of panelists until early

February 1999, about three months before trial was to begin.  The

estate  filed its objections to the panel and its findings  about

eighteen  months  after the panel was appointed,  about  fourteen

months  after it issued its report, and about three months before

trial.  By then it was impossible to appoint a new panel and  the

delay  potentially  would have prejudiced the  defendants.   This

likely  would have meant submitting the case to the jury  without

any advisory report.26

           Nothing about the grounds for objections under  Alaska

Civil  Rule  72.1  or AS 09.55.536 precludes their  rejection  as

untimely.   And  due process is not inconsistent  with  requiring

litigants to raise timely procedural and substantive objections.

           Given  the patent untimeliness of the estate's motions

to  strike  the panel and its reports, the court did not  err  by

denying them.  We consequently do not need to decide whether  the

estate's motions were meritorious.

          D.   The Court Did Not Err by Allowing Dr. Halvorsen To
          Testify About the Standard of Care.
          
           The  trial court accepted Dr. Robert Halvorsen  as  an

expert  in  diagnostic radiology.  According to the  estate,  Dr.

Halvorsen  stated in his deposition that he was  not  capable  of

testifying to the standard of care of thoracic surgeons,  general

surgeons, or pulmonologists.  The estate argues that it was error

to  permit  Dr.  Halvorsen to testify  at  trial  that  the  care

provided  by  Drs. Hanley and Borden "was well within  acceptable

medical standards."27

          Dr. Hanley argues that Dr. Halvorsen did not testify to

the  general standard of care provided by the defendants, as  the

estate  contends.  Dr. Hanley asserts that Dr. Halvorsen  instead

testified  to  the  standard of care from the  perspective  of  a

radiologist.

          Dr. Halvorsen testified:

          I believe the care provided of Mrs. Zaverl by
          Drs. Hanley, Borden and Starks as well as the
          care provided by Fairbanks Memorial Hospital,
          was well within acceptable medical standards.
          The    physicians   used   the    appropriate
          radiographic   modalities    as    well    as
          bronchoscopy to exclude the diagnosable cause
          of hemoptysis.  Unfortunately, she died of  a
          rare  condition that could not  be  diagnosed
          with   the  facilities  available  to   those
          physicians.   Think that there is information
          on  these. The chest x-ray and on the CT that
          would  have  guided these physicians  at  the
          time  they were involved in the care of  this
          patient  in  1994 away from a diagnosis  that
          actually turned out to be a correct diagnosis
          that was proved on autopsy.
          
According  to Dr. Hanley, the context of Dr. Halvorsen's  remarks

demonstrates  that  Dr. Halvorsen was only testifying  about  the

standard  of care for diagnosis based on radiological techniques.

The estate's reply brief does not respond to these arguments.

           The  estate has not shown that the trial court  abused

its  discretion by allowing Dr. Halvorsen to discuss the standard

of  care  applicable when a physician uses radiological tools  to

diagnose  a patient.  Dr. Halvorsen had the expertise to  discuss

this  subject and was properly admitted as an expert  to  express

such  an  opinion.  The estate had a fair opportunity  on  cross-

examination to clarify the scope of Dr. Halvorsen's expertise and

testimony.   We conclude that the trial court did not  abuse  its

discretion by permitting Dr. Halvorsen to express this opinion.

          E.    The  Court Did Not Err by Refusing  To  Impose  a
          Presumption  of  Negligence Based  on  the  Failure  To
          Prepare a Timely Discharge Summary.
          
          Margaret Zaverl's discharge summary was prepared forty-

eight  days  after  her discharge; the estate alleges  that  this

delay  violated  7  Alaska Administrative Code  (AAC)  12.770(e),

which  requires  that  a  discharge summary  be  prepared  within

fifteen  days  of  discharge  and  be  signed  by  the  attending

physician.28   The  estate asserts that the  delay  hindered  its

ability  to present its case, and that the trial court  erred  by

failing to impose a presumption of negligence and causation.29  It

also argues that a violation of this regulation and an equivalent

hospital  policy is relevant, and that the trial court  erred  in

preventing  the estate from examining Dr. Borden about  discharge

summary  procedures.30   It  does not  explain  how  that  ruling

prejudiced the trial of its claims.

          Under the circumstances of this case, the court did not

err  by  declining to impose a presumption of fault or causation.

In  Sweet v. Sisters of Providence in Washington, we held that  a

regulatory breach regarding hospital records could give rise to a

presumption  of  negligence.31  A presumption  of  negligence  is

appropriate when the court is convinced that "the absence of  the

records  hinders [the plaintiff's] ability to establish  a  prima

facie case"32 and that "the essential medical records are missing

through the negligence or fault of the adverse party."33 But there

the  records  were  entirely absent, not merely  late-prepared.34

Here, by contrast, the discharge summary was ultimately prepared,

and  no information was missing or withheld.  And given that  the

diagnosis memorialized in the discharge summary was incorrect, it

is apparent that Dr. Borden did not use the extra time to improve

his  position  in  event of litigation.  More importantly,  Sweet

made  out  a  specific  showing of prejudice.35   In  this  case,

however,  the  estate advances no plausible theory  demonstrating

that  the  delay prejudiced its case.  It has not explained  what

information it expected to find in the discharge summary that  is

not  there,  nor  has it directed us to evidence that  the  delay

impaired the plaintiff's experts' analyses.36

           Accordingly, we hold the trial court did  not  err  in

failing  to  assign a presumption of negligence  for  failure  to

prepare a timely discharge summary.37

           The  estate's companion argument - that it should have

been  permitted to inquire about the delay and whether the  delay

violated  state  law  and  hospital  procedures   -  is   equally

unpersuasive.  The estate has not shown what evidence might  have

been elicited or how it might have altered the verdict.

               F.    Costs  and  Fees  Awards Are  Not  Allowable
               Against  Non-Party  Statutory Beneficiaries  in  a
               Wrongful Death Action.
               
            The  trial  court  awarded  Drs.  Borden  and  Hanley

attorney's  fees and costs totaling $124,973.92.  Reasoning  that

the  statutory  beneficiaries in wrongful death actions  are  the

actual  "parties represented" within the meaning of AS 09.60.040,

the  court  ruled  that  William Zaverl, individually  and  as  a

statutory   beneficiary,   and   the   three   Zaverl   children,

individually and as statutory beneficiaries, would be  personally

liable  for  these  costs  and fees.38   It  concluded  that  the

beneficiaries  should be liable for costs and  fees  because  the

representative  of  the estate is only a nominal  party  and  the

estate  is  not  a  party  at all.  The  court  entered  judgment

totaling $124,973.92 in favor of Drs. Borden and Hanley.

           Because  the  children were not named parties  to  the

lawsuit  and did not personally appear in the lawsuit and William

Zaverl  appeared  only  in  his representative  capacity,  Zaverl

argues  that  it  was  error to interpret AS 09.60.040  to  allow

recovery  of costs and attorney's fees against him and the  three

children.39

           Drs. Borden and Hanley argue that the surviving spouse

and children in a wrongful death action are liable for attorney's

fees  and costs under AS 09.55.58040 and AS 09.60.040.  They rely

on  In  re  Soldotna Air Crash Litigation, in which we reiterated

that  although  estate  representatives are  nominal  parties  in

wrongful  death  actions,  a  wrongful  death  action   is   "the

[beneficiaries'] cause of action."41

           Alaska Statute 09.60.040 cannot reasonably be read  to

permit  recovery  of  attorney's  fees  and  costs  against   the

statutory beneficiaries in this case because they did not  appear

and  did  not make claims in their personal capacities.  Soldotna

is  distinguishable.   We were concerned  there  with  whether  a

prevailing  defendant  could recover costs  and  attorney's  fees

under  AS  09.60.040 against the non-prevailing  plaintiff  in  a

wrongful  death action.42  We held that the prevailing  defendant

could  recover its award from the fund created by the plaintiffs'

recovery from the other defendants.43  We left for another day the

question  whether a prevailing defendant could  recover  such  an

award from the statutory beneficiaries in the absence of a fund.44

We now address that question and answer it in the negative.

           The  only  party  plaintiff in this case  was  William

Zaverl,  and he appeared only in his representative capacity  and

not  in  any  personal  capacity.  We  hold  that,  although  the

statutory beneficiaries not named in a wrongful death lawsuit are

the  beneficiaries  of any recovery, statutory beneficiaries  who

are  not  parties to the wrongful death lawsuit in their personal

capacities  are  not  parties for the purpose  of  responding  to

awards of costs and attorney's fees.45  Accordingly, we vacate the

trial  court's  award of costs and attorney's  fees  against  the

estate's statutory beneficiaries.

IV.  CONCLUSION

           We  REMAND to the trial court to determine whether the

error of allowing Dr. Borden to testify at trial about topics  he

refused  to  discuss  at his deposition prejudiced  the  estate's

claims  against either defendant.   We also VACATE the joint  and

several  award of costs and attorney's fees against the  estate's

statutory beneficiaries.  We AFFIRM as to all other issues.

_______________________________
1     There may still be genuine, unresolved disputes about  some
of  the  fact propositions we discuss here and elsewhere in  this
opinion.  Our fact recitation is intended to give factual context
to  the  legal issues on appeal.  It is not intended to foreclose
the  parties  from litigating genuine factual disputes  that  are
material to the issues on remand.
2    A "coarctation" is a "constriction, stricture, or stenosis."
Stedman's   Medical   Dictionary  321   (25th   ed.   1990).    A
"thoracotomy" is an "incision into the chest wall."  Id. at 1594.
Margaret  had  a left thoracotomy, an opening of the  left  chest
cavity, for a graft repair of the coarctation of the aorta.
3     Dr. Rolf Holle, one of the estate's experts, testified that
a "massive hemoptysis" occurs "when someone coughs up between two
hundred  and  six hundred cc of blood within a period  of  around
twenty-four hours. . . .  [I]t's not only the volume of blood but
how  quickly it comes out and also the ability of the person  who
is doing it to clear it out of their airway tract."
4     "Parenchyma" designates "[t]he distinguishing  or  specific
cells  of  a  gland or organ, contained in and supported  by  the
connective  tissue  framework,  or  stroma."  Stedman's   Medical
Dictionary  1139 (25th ed. 1990).  "Pulmonary parenchyma"  refers
to the parenchyma of the lungs.
5      The  autopsy  summary  noted  that  "[m]assive  hemoptysis
occurring  several years after report of aortic  coarctation  has
been previously reported," and cited to a medical journal article
published in 1994.
6    We review evidentiary rulings and rulings on the adequacy of
discovery  for abuse of discretion.  Nautilus Marine  Enters.  v.
Valdez  Fisheries  Dev. Ass'n, 943 P.2d 1201,  1204  n.3  (Alaska
1997);  Cockerham v. State, 933 P.2d 537, 539 n.9 (Alaska  1997).
"We will reverse a trial court's evidentiary ruling only when  we
are left with a definite and firm conviction that the trial court
erred in its decision."  Walden v. Dep't of Transp., 27 P.3d 297,
301 (Alaska 2001).

7     A fistula is "[a]n abnormal passage from a hollow organ  to
the  surface, or from one organ to another."    Stedman's Medical
Dictionary 589 (25th ed. 1990).  An aortobronchial fistula is  an
abnormal passage between the aorta and the lungs.
8      We   asked  the  parties  to  submit  supplemental  briefs
identifying  the  testimony offered over the estate's  objection.
The  estate asserts that the objection, if sustained, would  have
excluded  Dr.  Borden's testimony which the estate  describes  as
follows:

          (1)   that   he   has   a  "reasonably   good
          understanding"  of  aortobronchial   fistulas
          (Tr.  1742);  (2) of what the "innuendos"  of
          the  aortobronchial fistulas were,  including
          the aortobronchial fistula in this particular
          case (Tr. 1742-44); (3) of what "you would be
          faced  with"  "if  you went in  there  [where
          Margaret   Zaverl's  fistula   was   located]
          surgically"  (Tr. 1743-44);  (4)  of  what  a
          surgeon  who  was operating in  a  case  like
          Margaret  Zaverl's would  do  "once  you  got
          inside  the  chest" "to attempt  to  identify
          whether  or not there is a fistula" and  that
          "in this particular case" "when you separated
          the  lung  off the aorta at that point  you'd
          have,  you  could have a pretty  good  bleed"
          (Tr.  1743-44);  (5) that if Margaret  Zaverl
          had  survived  the second  bleed  and  had  a
          second  CAT  scan, the second  bleed  "almost
          certainly would have showed up" (Tr. 1945-6);
          (6)  of  how fistulas like Margaret  Zaverl's
          fistula are ordinarily diagnosed and "the way
          you  make  the diagnosis ordinarily  of  this
          fistula" is with a CT scan:
          
               .  . . that's the way [CT scan] you
               make  the  diagnosis ordinarily  of
               this  fistula  . . . not  only  the
               pseudoaneurysm  at the  anastomosis
               but   also   congestion  or   blood
               collection  in the fistula  of  the
               lining adjacent to the aorta.
               
          (Tr.  1746);  (7)  that  fistulas  "virtually
          always"  have  an abnormal CT  scan  and  are
          shown  on  a  CT  scan (Tr. 1747);  (8)  that
          "virtually   all"   hemoptysis   from   these
          fistulas  have  abnormal CT scans  that  will
          direct  you  to  the  diagnosis,  [that]   90
          percent of the people with massive hemoptysis
          from this type of fistula die before they get
          to surgery and not only that his care did not
          fall  below  the standard of care,  but  also
          that the way Margaret Zaverl was managed  was
          not below the standard of care:
          
               Q.  .  . . do you believe that your
               care  fell  below the  standard  of
               care?
               
               A.   No,  I  wouldn't say it  falls
               below the standard of care. .  .  .
               [M]ost of these people . . . 90% of
               the           people           with
               massive . . . hemoptysis from these
               fistuli,  die before they ever  get
               to  surgery. . . .  [O]ver  50%  of
               the    diagnoses   are   made    at
               autopsy.  . .  [V]irtually  all  of
               them that have CAT scans . . . have
               an  abnormal CT that'll direct  you
               to  the  diagnosis. . . .  I  can't
               see  where  . . . the way  she  was
               managed would be below the standard
               of care.
               
          (Tr.  1754-55) (the way Margaret  Zaverl  was
          managed  includes  the  treatment  and   care
          provided  by defendant Hanley);  (9)  that  a
          history of [coarct] repair didn't send  up  a
          red   flag   (Tr.  1747);  and  (10)   during
          examination   by  Hanley's  counsel,   Borden
          testified:
          
               Q.  .  .  .  when you were  talking
               about  Exhibit HQ, you talked about
               distal with a subclavian.  What  do
               we mean by . . .
               
               A.   Downstream.  Often we'll  take
               proximal  and  distal  when   we're
               talking about a graft because,  you
               know,  most  of the time  when  you
               have a graft fistula, it'll be from
               the  proximal  anastomosis,  so  if
               there  was  a tube graft  going  on
               here,  towards the heart or towards
               the  center  of the body  would  be
               proximal  and then the distal  into
               the graft would be down stream,  so
               again,  distal,  to the  subclavian
               artery would be down stream.
               
          (Tr. 1755)
          
           Dr.  Borden and Dr. Hanley have not claimed  that  the
estate has misdescribed the Borden testimony that would have been
excluded had the court upheld the estate's objection.

9     660  P.2d  428, 432 (Alaska 1983) (also holding that  trial
court  properly excluded expert witness not included in  pretrial
witness  list), overruled on other grounds by Williford  v.  L.J.
Carr  Invs.,  Inc.,  738 P.2d 235, 237 n.5  (Alaska  1989).   The
estate  also relies on McCubbins v. State, Department of  Natural
Resources,   984  P.2d  501, 507-08 (Alaska 1999)  (holding  that
trial  court  did not abuse its discretion by excluding  evidence
that should have been disclosed in interrogatory responses); City
of  Valdez  v. Salomon, 637 P.2d 298, 299 (Alaska 1981)  (holding
that  trial court abused its discretion by refusing to set  aside
default  judgment issued for plaintiff where plaintiff's attorney
did   not   respond  to  defendant's  pre-judgment  request   for
information);  and  Aysseh v. Lawn, 452 A.2d  213,  221-22  (N.J.
Super.  Ch. Div.) (barring witness from testifying to matters  he
refused  to  speak to at deposition on ground of  attorney-client
privilege).
10    Dr. Borden's April 1999 responses to requests for admissions
concerning  the  aorta repair again indicated, about  five  weeks
before  trial  was to begin, that he was only a  "fact  witness."
His  pretrial memorandum submitted ten days before trial  stated:
"Dr. Borden does perform some vascular and thoracic surgery. .  .
.   Dr.  Borden  has never performed aortic surgery,  nor  is  he
familiar with the procedures involved."  (Emphasis added.)  These
assertions  would have given the estate no reason  to  anticipate
that at trial Dr. Borden would be asked the disputed questions or
would talk about topics foreclosed at his deposition.
11    The estate asserts that Dr. Borden engaged in "impermissible
gamesmanship."   Dr.  Borden argues that he  did  not  engage  in
"gamesmanship,"  and  we note that different lawyers  represented
Dr.  Borden  at  his deposition and at trial.  We  also  observe,
however,  that  the  facts  may not exactly  match  Dr.  Borden's
appellate explanation for his change in position.  He argues that
he  knew  very  little about such matters at his deposition,  but
that  he  "later became an expert on the subject," and  that  the
trial  court "correctly ruled" that Dr. Borden knew more  at  the
time of trial in 1999 than when he was deposed in 1997.  But  the
estate contends that the Borden trial testimony Dr. Borden  cites
to  support  those propositions simply established that  he  knew
more  in  1999  than  he knew in 1994 when  he  treated  Margaret
Zaverl.   At  his deposition, Dr. Borden testified  that  he  had
reviewed  "quite  a pile" of medical literature  articles.   This
testimony implies that Dr. Borden might have learned enough  even
before  his  1997 deposition to answer the questions  his  lawyer
told  him not to answer.  If so, the facts would not support  the
trial  court's  assumption that Dr. Borden's new-found  expertise
post-dated  his  deposition.   And if  so,  counsel's  deposition
instruction  was unwarranted and Dr. Borden's refusal  to  answer
potentially  would have justified entry of an order  under  Civil
Rule 37 sufficient to remedy any prejudice the refusal caused.
12    See W.R. Grace & Co.-Conn. v. Zotos Int'l, Inc., No. 98-CV-
838S(F), 2000 WL 1843258, at *5 (W.D.N.Y. Nov. 2, 2000);  Rossman
v. Rossman, 352 N.E.2d 149, 153 (Ohio App. 1975).
13     As a treating physician Dr. Borden was eligible to express
expert  opinions  even  though he was not  listed  as  an  expert
witness  on  defendants'  pretrial disclosure  lists.  Miller  v.
Phillips, 959 P.2d 1247, 1250 (Alaska 1998).
14    959 P.2d 1247, 1251 (Alaska 1998).
15     Given this conclusion, we do not need to consider whether,
as  the  estate alternatively asserts, the failure to give notice
that  Dr.  Borden  would  be asked about these  topics  at  trial
violated the duty to supplement expert deposition testimony under
Alaska Civil Rule 26(e), or whether such a violation required the
trial court to limit Dr. Borden's trial testimony.

16     We  review  evidentiary rulings for abuse  of  discretion.
Nautilus Marine Enters. v. Valdez Fisheries Dev. Ass'n, 943  P.2d
1201,  1204 n.3 (Alaska 1997).  "A challenge to jury instructions
presents  a  question of law which is reviewed independently.   A
legally  erroneous instruction will lead to reversal only  if  it
prejudices  a  party; prejudice exists unless one can  `say  with
fair  assurance that the result was not affected by [the] error.'
"  Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001) (quoting
Barrett  v.  Era Aviation, Inc., 996 P.2d 101, 105 (Alaska  2000)
(footnote omitted)).
17    Given the result we reach on this issue, it is not necessary
here to discuss Dr. Borden's assertion based on Priest v. Lindig,
583  P.2d  173  (Alaska 1978), that he should not be  held  to  a
higher  standard because he was not actually trained in  thoracic
or  vascular surgery and had no actual knowledge of or  skill  in
those areas.  But in the event the error discussed in Part III.A.
requires  retrial, we believe that the advertisements  and  other
evidence,  including Dr. Borden's own testimony, would permit  an
inference, as Zaverl argues, that Dr. Borden "possessed . .  .  a
greater  degree  of skill, knowledge or intelligence  than  other
physicians   practicing  in  the  same   specialty   in   similar
communities."   Priest,  583  P.2d  at  177  (quoting  Poulin  v.
Zartman, 542 P.2d 251, 269 n.42 (Alaska 1975)).
18     Ayers  v.  Parry, 192 F.2d 181, 184 (3d  Cir.  1951);  cf.
Buckner v. Wheeldon, 33 S.E.2d 480, 482 (N.C. 1945) (holding that
specialists will be held to higher standard of care); see 61  Am.
Jur.  2d  Physicians,  Surgeons, and Other  Healers   209  (2002)
(collecting  cases and stating general rule that  physicians  who
hold  themselves out as specialists will be held to  standard  of
care commensurate with their enhanced qualifications).
19    61 Am. Jur. 2d Physicians, Surgeons, and Other Healers  209
(2002);  see  Rule v. Cheeseman, 317 P.2d 472, 478  (Kan.  1957);
Reikes v. Martin, 471 So. 2d 385, 389 (Miss. 1985) (holding  jury
instruction  erroneous because it referred to  standard  of  care
particular   patient  might  reasonably  expect  as  opposed   to
objective standard physician owed to patient); but cf. McBride v.
United  States,  462  F.2d 72, 74 (9th Cir. 1972)  (holding  that
standard of care does not vary according to doctor's knowledge or
education  unless  doctor represents to  patient  that  physician
possesses special skill).
20     Dr.  Coselli  testified that a thoracic surgeon  might  go
through  a whole career without seeing an aortobronchial fistula.
He  asserted  that only fifty percent of aortobronchial  fistulae
are  properly  diagnosed and about half of the  people  who  need
surgery  as a result of an aortobronchial fistula die before  the
operation.  He testified that the result would have been the same
even had Margaret been cared for at his hospital in Houston.   He
said, "I don't think with the information . . . that they had  at
hand, if I was in the same situation . . . I don't think I'd make
the  diagnosis.  .  .  .  We'd let her go home,  would  not  have
changed the course of her care at all."
21     We  also note that Dr. Borden described for the  jury  the
substance of the advertisements and his listing of his speciality
as  "Vascular  Surgery, Thoracic Surgery" in  the  State  Medical
Association Directory.
22    Proposed Instruction No. 31 stated in part:

                It is the duty of a physician who holds
          himself or herself out as a specialist  in  a
          particular  field  of medical,  surgical,  or
          other  healing science, to have the knowledge
          and  skill ordinarily possessed, and  to  use
          the  care  and  skill  ordinarily  used,   by
          reputable specialists practicing in the  same
          field or speciality.
          
                A  failure  to  fulfill  such  duty  is
          negligence.
          
                In  this  case, defendant Borden  holds
          himself out as a specialist in the fields  of
          general, vascular, and thoracic surgery.
          
                Defendant Hanley holds himself out as a
          specialist in the field of pulmonary  disease
          and internal medicine.
          
          The court's Instruction No. 16 provided:

                In  a  malpractice action based on  the
          negligence or willful 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 defendants 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.
               
          The court's Instruction No. 20 provided in part:

          [A] pulmonologist and/or surgeon is negligent
          if the physician:
          
          1.   lacked the degree of knowledge or  skill
               ordinarily  possessed  by  a   reputable
               physician specializing in his field;
               
          2.   failed  to exercise the degree  of  care
               ordinarily    exercised    under     the
               circumstances  by a reputable  physician
               in  his  specialty.  Failure to exercise
               that care may be the result of an act or
               failure to act.
               
                 However,  the  mere  fact   that   the
          plaintiff  was  harmed  does  not  mean   the
          defendant or defendants were negligent.
          
23     We review the denial of the motion to strike the panel and
its  report  for  abuse of discretion.  We apply our  independent
judgment  to issues of statutory interpretation, such as  whether
the  trial  court properly construed and fulfilled its  statutory
duty  to  appoint  an expert advisory panel under  AS  09.55.536.
Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999).
24     AS  09.55.536(a) requires the superior court to appoint  a
three-member  expert advisory panel in medical malpractice  cases
unless  the  court deems an expert advisory opinion  unnecessary.
The  panel  may  hear  testimony  and  may  meet  in  camera.  AS
09.55.536(b).   The panel shall make a written report  signed  by
each  panel member unless a member chooses to submit a concurring
or dissenting report.  AS 09.55.536(c)- (d).
25     The superior court denied the motion to strike, apparently
on  the  merits, rather than on grounds of untimeliness.  We  can
affirm on alternative grounds apparent from the record.  Moore v.
State,  553  P.2d  8, 20-21 (Alaska 1976) (holding  that  supreme
court may affirm judgment on alternative grounds).
26    Per a January 1998 pretrial order, expert witnesses were to
be listed by March 1, 1999, discovery was to close April 9, 1999,
and  trial was to begin May 10, 1999.  An April 15, 1999  amended
pretrial order extended discovery to April 21 and set May  17  as
the first day of trial.
27     We  apply  the abuse of discretion standard  in  reviewing
rulings   permitting   retained  experts  to  express  particular
opinions.  Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).
28    7 AAC 12.770(e) provides in pertinent part:  "A record must
be  completed  within 15 days of discharge and  authenticated  or
signed by the attending physician or dentist."

29    Whether a violation of law gives rise to a legal presumption
is  a  question  of  law which we review de novo.   Himschoot  v.
Shanley,  908  P.2d  1035, 1041 n.4 (Alaska 1996)  (stating  that
whether  statutory  presumption  of  compensability  applies   is
question  of law); Langdon v. Champion, 745 P.2d 1371,  1372  n.2
(Alaska  1987)  (stating that questions of law  are  reviewed  de
novo).
30    Evidentiary rulings are reviewed for an abuse of discretion.
Nautilus Marine Enters. v. Valdez Fisheries Dev. Ass'n, 943  P.2d
1201, 1204 n.3 (Alaska 1997).
31    Sweet v. Sisters of Providence in Washington, 895 P.2d 484,
490-92 (Alaska 1995).
32    Id. at 491.
33    Id.
34         Id. at 487-88, 490.
35         Id. at 491.
36     Dr.  Hanley argues that 7 AAC 12.770(e) imposes a duty  on
hospitals, not individual physicians.  Because there was no error
in  refusing  to  impose a presumption here, we do  not  have  to
decide whether Dr. Hanley's reading of the regulation is correct.
37    We further agree with Dr. Hanley that any possible error was
harmless.   Presumptions  of  fault  are  rebuttable,   and   the
defendants   offered  sufficient  evidence  -  particularly   the
testimony  of Dr. Coselli - to rebut any presumption arising  out
of  the  delay in preparing the discharge summary.  To  determine
whether  an  error merits reversal, this court  asks  whether  it
probably affected the outcome of the trial.  See Wilson v. State,
669  P.2d  1292, 1298 (Alaska 1983).  Given the defense evidence,
it  is not likely the outcome of the trial would have changed had
a rebuttable presumption of negligence been imposed.
38    AS 09.60.040 provides:

          In    actions    in   which   an    executor,
          administrator,  trustee of an express  trust,
          or  a  person authorized to represent a party
          is  a party, costs may be allowed as in other
          cases.    However,  when  costs  are  allowed
          against   that  party,  they  are  chargeable
          solely  upon  the  estate,  fund,  or   party
          represented unless the court orders the costs
          to  be  paid  by  that party  personally  for
          mismanagement or bad faith in the conduct  of
          the action.
          
39     This argument raises a question of law: the meaning of the
controlling  statute.  We review interpretations of  statutes  de
novo,  and  adopt  the rule of law most persuasive  in  light  of
precedent,  reason, and policy.  Boone v. Gipson, 920  P.2d  746,
748 (Alaska 1996).
40    AS 09.55.580 provides in pertinent part:

          (a)   Except  as provided under (f)  of  this
          section, when the death of a person is caused
          by  the  wrongful act or omission of another,
          the  personal representatives of  the  former
          may  maintain an action therefor against  the
          latter,  if  the former might have maintained
          an  action,  had  the person  lived,  against
          latter for an injury done by the same act  or
          omission.  .  .  .  The amount recovered,  if
          any, shall be exclusively for the benefit  of
          the  decedent's spouse and children when  the
          decedent is survived by a spouse or children,
          or other dependents.
          
41     835  P.2d  1215, 1220 (Alaska 1992) (quoting Haakanson  v.
Wakefield Seafoods, Inc., 600 P.2d 1087, 1090 n.4 (Alaska 1979)).
42    Id. at 1221-23.
43    Id. at 1222-23.
44    Id. at 1223 n.11.
45    The relationship of statutory beneficiaries to the personal
representative  is analogous to that of the beneficiaries  of  an
estate  or  trust  to an executor or trustee.  Estate  and  trust
beneficiaries are ordinarily not considered parties to an  action
brought  by  an  executor  or trustee, nor  are  they  personally
responsible  for  costs  and fees if  the  action  proves  to  be
unsuccessful.   See 97 C.J.S. Wills  1972 (2001) (devisee  liable
only  as  to distributed assets); 90A C.J.S. Trusts  586  (2001);
see  also  Restatement  (Second) of Trusts   274  (1959).   These
rules are subject to an exception if the beneficiary has received
property from the estate or trust that should have been available
for  the payment of costs and fees.  See Restatement (Second)  of
Trusts   274 (1959); AS 13.16.635 (estate distributee not  liable
for  amounts in excess of value of distribution); 97 C.J.S. Wills
  1972  (2001).  We applied a similar exception in  the  case  of
wrongful  death action statutory beneficiaries in  Soldotna,  835
P.2d at 1221-22.