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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.
