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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fletcher v. South Peninsula Hospital (6/13/2003) sp-5701

Fletcher v. South Peninsula Hospital (6/13/2003) sp-5701

     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


JOHN FLETCHER and SUSAN       )
FLETCHER,                                           )     Supreme
                              Court No. S-10484
                              )
             Appellants,      )    Superior Court No.
                              )    3HO-99-00012 CI
     v.                       )
                              )    O P I N I O N
SOUTH PENINSULA HOSPITAL,     )
                              )    [No. 5701 - June 13, 2003]
             Appellee.             )
________________________________)



          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Jonathan H. Link, Judge.

          Appearances:  Rex Lamont Butler and David  E.
          George,   Rex  Lamont  Butler  &  Associates,
          Anchorage, for Appellants.  Howard A.  Lazar,
          Delaney, Wiles, Hayes, Gerety, Ellis & Young,
          Inc., Anchorage, for Appellee.

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

          FABE, Chief Justice.


I.   INTRODUCTION

           John  and Susan Fletcher appeal to this court on three

theories  under which they argue South Peninsula Hospital  should

be  held  liable  for the alleged negligence  of  an  independent

contractor  surgeon  who has staff privileges  at  the  hospital.

First,  the  Fletchers  assert that  the  trial  court  erred  in

refusing  to extend to the operating room the non-delegable  duty

vicarious  liability that we applied to hospitals in  Jackson  v.

Power1  with  respect to emergency room negligence.  Second,  the

Fletchers  argue  that the trial court erred  in  granting  South

Peninsula   summary  judgment  on  the  issue  of  the  hospitals

vicarious  liability  under  the theory  of  apparent  authority.

Third,  the  Fletchers  contend that the  trial  court  erred  in

granting  South Peninsula summary judgment on the  issue  of  the

hospitals   direct  liability  under  the  theory  of   corporate

negligence   for  its  allegedly  negligent  renewal   of   staff

privileges for the independent contractor surgeon.  The Fletchers

also argue that the trial court erred in denying their motion  to

relax   the   expert  disclosure  rules  of  Alaska  Civil   Rule

26(a)(2)(B).  We affirm the trial courts rulings on non-delegable

duty  and  apparent  authority, but we  reverse  the  rulings  on

corporate negligence and relaxation of expert disclosure rules.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          In January 1997 John Fletcher went to the office of Dr.

Paul  Eneboe, a Homer general practitioner, complaining of severe

abdominal  pain.  This was the first time Fletcher had ever  seen

Dr. Eneboe.  Dr. Eneboe made arrangements for Fletcher to see Dr.

Rene  Alvarez, a surgeon, at South Peninsula Hospital later  that

same  day.   Dr. Alvarez ultimately performed surgical procedures

on  Fletcher on four different occasions in February  and  March,

after  which Dr. Alvarez was still uncertain as to the  cause  of

Fletchers  pain.  Prior to each procedure, Fletcher was  given  a

consent   for  medical  treatment  form  that  included  language

indicating   that   the  physicians  at  South   Peninsula   were

independent  contractors  and not  employees  or  agents  of  the

hospital.  Fletchers condition persisted and worsened, so he  saw

Dr.  Paul Sayer, another surgeon, at the end of March.  Dr. Sayer

successfully operated on and treated Fletcher for diverticulitis.

     B.   Procedural History

          The Fletchers filed a complaint against Dr. Alvarez and

          South Peninsula Hospital claiming that Dr. Alvarez negligently

diagnosed   and   treated  Fletcher  and  that  South   Peninsula

negligently hired and granted hospital privileges to Dr.  Alvarez

and failed to investigate his competence as a surgeon.

          South  Peninsula  moved for partial  summary  judgment,

arguing  that  Dr. Alvarez was not an employee of  the  hospital,

that  the  hospital could not be held liable under  a  theory  of

apparent  agency, and that the Fletchers could  not  establish  a

prima facie case of negligent credentialing.  The Fletchers filed

an  opposition  to South Peninsulas motion as well  as  a  cross-

motion  for  partial  summary judgment on  the  theory  that  the

hospital  had a non-delegable duty to provide competent surgeons.

The  Fletchers also filed a motion to relax the expert disclosure

rules  to  allow  Dr. Sayer to testify as an expert  despite  not

complying with the requirements of Alaska Rule of Civil Procedure

26(a)(2).

          The  trial court denied the Fletchers cross-motion  for

partial  summary  judgment, ruling that the  Fletchers  were  not

entitled  to  summary judgment as a matter of  law  on  the  non-

delegable  duty issue.  The trial court also denied the Fletchers

motion  to  relax the expert disclosure rules.  The  trial  court

granted South Peninsulas motions for partial summary judgment  on

the  issues of apparent agency and negligent credentialing.   The

Fletchers  and  Dr.  Alvarez reached a settlement  regarding  the

claims  against him.  The trial court then entered final judgment

in favor of South Peninsula.

          The  Fletchers appeal the denial of their  cross-motion

for  partial summary judgment on the issue of the hospitals  non-

delegable  duty.   They  also  appeal  the  granting   of   South

Peninsulas motions for partial summary judgment on the issues  of

apparent  agency and negligent credentialing.  In  addition,  the

Fletchers  appeal the denial of their motion to relax the  expert

disclosure requirements.

III. DISCUSSION

     A.   The  Non-Delegable Duty for Negligence in the Emergency
          Room Need Not Be Extended to the Operating Room in this
          Case.
          
          The  Fletchers  argue  that the trial  court  erred  in

refusing to determine as a matter of law that the rule laid  down

in  Jackson  v.  Power,2  which  establishes  vicarious  hospital

liability for independent contractor emergency room doctors under

a  theory  of non-delegable duty, should be extended  beyond  the

emergency  room  to  the operating room.  Whether  a  legal  duty

should be extended is a question of law.  We are not bound by the

trial  courts  decision,  but  rather  conduct  de  novo  review,

adopt[ing]  the rule of law that is most persuasive in  light  of

precedent, reason, and policy.3

          1.   The Jackson decision

          In  Jackson,  we held that Fairbanks Memorial  Hospital

(FMH) had a non-delegable duty to provide non-negligent physician

care in its emergency room.4  We concluded that the law imposed a

duty  on  FMH to provide emergency care physicians on  a  twenty-

four-hour  basis.5   FMH voluntarily assumed a  broader  duty  by

seeking accreditation by the Joint Committee on the Accreditation

of  Hospitals,  whose  standards mandated  certain  policies  and

procedures  for FMHs emergency room.6  FMHs bylaws also  provided

for  maintenance  and supervision of an emergency  room.7   Based

upon  these  factors,  we concluded that it cannot  seriously  be

questioned that FMH had a duty to provide emergency room services

and  that part of that duty was to provide physician care in  its

emergency room.8

          We  then decided that having assumed the duty to  staff

an   emergency  room,  FMH  should  [not]  be  allowed  to  avoid

responsibility for the care rendered therein by claiming that the

physicians it provides are not its employees.9  We suggested that

the  criterion for determining which duties are non-delegable  is

that the responsibility is so important to the community that the

employer should not be permitted to transfer it to another.10  Non-

delegable duties include

          the  duty  of  a  carrier  to  transport  its
          passengers in safety, of a railroad to  fence
          its  tracks  properly  or  to  maintain  safe
          crossings, and of a municipality to keep  its
          streets in repair; the duty to afford lateral
          support  to  adjoining land, to refrain  from
          obstructing   or   endangering   the   public
          highway, to keep premises reasonably safe for
          business visitors, to provide employees  with
          a  safe place to work; the duty of a landlord
          to   maintain  common  passageways,  to  make
          repairs  according  to covenant,  or  to  use
          proper  care  in making them,  and  no  doubt
          others.[11]
          
We  concluded  that  patients  . . .  receiving  treatment  at  a

hospital emergency room are as deserving of protection as .  .  .

airline  passengers, deemed a hospitals duty to provide emergency

room  physicians  to  be  as important  to  the  community  as  a

common-carriers duty for the safety of its passengers, and  noted

parallels   between  the  regulatory  schemes  of  airlines   and

hospitals.12

          We  determined that the hospital regulatory scheme  and

the  purpose  underlying  it  (to provide  for  the  development,

establishment,  and enforcement of standards  for  the  care  and

treatment  of  hospital patients that promote safe  and  adequate

treatment AS 18.20.010), coupled with the statutory definition of

a  hospital,  (an  institution  devoted  primarily  to  providing

diagnosis,  treatment or care to individuals,  AS  18.20.130(3)),

made  clear the legislatures recognition that it is the  hospital

as   an  institution  which  bears  ultimate  responsibility  for

complying  with the mandates of the law.13  Because the  hospital

had  to  ensure  compliance  with the  regulations,  it  was  the

hospital  that had to bear final accountability for the provision

of physicians for emergency room care.14  Therefore, we held that

a  hospital  such as FMH may not shield itself from liability  by

claiming   that  it  is  not  responsible  for  the  results   of

negligently performed health care when the law imposes a duty  on

the  hospital  to provide that health care.15  We  observed  that

there  was  no reason that liability should be based on technical

          employment status; regardless of how the hospital provides

emergency  room physicians, it will be responsible for  the  care

rendered by physicians it has a duty to provide.16

          Finally,  we  emphasized  the  limited  nature  of  our

holding.   We did not extend our holding to situations where  the

patient is treated by his or her own doctor in an emergency  room

provided for the convenience of the doctor.  Such situations  are

beyond the scope of the duty assumed by an acute care hospital.17

Rather, we limited our holding of vicarious hospital liability to

those  situations where a patient comes to the  hospital,  as  an

institution, seeking emergency room services and is treated by  a

physician provided by the hospital.18

          2.   Extension   of   Jackson   is   unwarranted    and
               unnecessary in this case.
               
          While  Alaska  regulations require general  acute  care

hospitals  to provide surgical services in addition to  emergency

services,19 and while patients in operating rooms are as deserving

of  protection as Jacksons emergency room patients, extension  of

the non-delegable duty to the operating room is not warranted  in

this  case.   The  Fletchers situation does not  fit  within  the

narrow  confines of our decision in Jackson.  This is not a  case

of  South  Peninsula Hospital providing a physician to a  patient

who  has  come to the hospital for help.  Fletcher went to  South

Peninsula  to  see  Dr.  Alvarez, to  whom  he  was  specifically

referred.  The non-delegable duty exception carved out in Jackson

is  limited  to cases in which the patient looks to the  hospital

for care and the hospital selects the physician for the patient.20

In  Ward  v. Lutheran Hospital & Homes,21 the only other case  in

which we addressed the application to hospitals of the theory  of

non-delegable  duty, we concluded that the duty was  inapplicable

because  Ward was treated at FMHs emergency room by her  personal

obstetrician, who was not a hospital employee.  We  repeated  the

Jackson holding that a hospital is always liable for a physicians

negligence  in  the emergency room, unless the  physician  is  an

independent  contractor  selected  by  the  patient.22   Although

          Fletcher did not have a prior relationship with Dr. Alvarez,

Fletcher went to see a specific physician and was looking to  Dr.

Alvarez  for  care,  not to South Peninsula  as  an  institution.

Accordingly,  extension of the theory of  non-delegable  duty  in

this case would be inappropriate.

             The Fletchers cite several cases in their briefs  to

show  that  other  courts  have extended the  non-delegable  duty

outside   the   emergency   room,  but   decisions   from   other

jurisdictions do not support extension in this case.  Some of the

cases  cited by the Fletchers do not deal with the issue of  non-

delegable duty at all.23  Others do employ the language  of  non-

delegable  duty  outside the emergency room  context,  but  these

cases  are  distinct from the present inquiry because  they  deal

with direct liability for the hospital, not vicarious liability.24

Those jurisdictions that have addressed the issue of extending  a

vicarious liability non-delegable duty outside the emergency room

have  either  rejected such an application25 or  have  taken  the

Jackson approach of limiting the non-delegable duty to situations

in  which  a  patient  seeks  services  at  the  hospital  as  an

institution  and is treated by a physician that the  patient  did

not  select.26  Again, in this case, Fletcher was referred  to  a

specific  physician and was looking to Dr. Alvarez for care,  not

to South Peninsula as an institution.

          Finally,  the  availability  of  other  remedies  makes

extension of the non-delegable duty unnecessary in this case.  We

noted  in  Ward  that  the  theories of  non-delegable  duty  and

apparent agency create liability in the emergency room under  the

same  circumstances.27   As  South  Peninsula  points  out,  this

demonstrates  why  such  an extension is  neither  necessary  nor

justified.   The two doctrines will cover the same  circumstances

in  the  emergency room; outside the emergency room, theories  of

apparent  agency  or  apparent  authority  are  still  available.

Therefore,  although  we decline to extend  the  theory  of  non-

delegable  duty under circumstances such as those in  this  case,

          future plaintiffs will not be left without legal remedy.28

     B.   The   Trial  Court  Did  Not  Err  in  Granting   South
          Peninsulas  Summary Judgment Motion  on  the  Issue  of
          Apparent Agency.
          
          The Fletchers next argue that the trial court erred  in

granting South Peninsulas motion for partial summary judgment  on

the  issue  of apparent agency, their second asserted  basis  for

vicarious  hospital  liability.  We review de  novo  a  grant  of

summary judgment.  We must determine whether any genuine issue of

material fact exists and whether the moving party is entitled  to

judgment  on the law applicable to the established facts.29   All

reasonable inferences of fact must be drawn in favor of the  non-

moving party.30

          Jackson  v.  Power again provides the  cornerstone  for

this  analysis.  In that decision, we discussed the significantly

overlapping doctrines of apparent agency and apparent  authority.

We  noted  that  apparent  agency  (sometimes  called  ostensible

agency)  is  based on the Restatement (Second)  of  Torts,  which

provides:

          One who employs an independent contractor  to
          perform   services  for  another  which   are
          accepted  in the reasonable belief  that  the
          services  are being rendered by the  employer
          or  by  his servants, is subject to liability
          for physical harm caused by the negligence of
          the contractor in supplying such services, to
          the  same extent as though the employer  were
          supplying them himself or by his servants.[31]
          
We  determined  that the two relevant factors in apparent  agency

are (1) whether the patient looks to the institution, rather than

the  individual physician, for care; and (2) whether the hospital

holds  out the physician as its employee.32  We declined to apply

apparent  agency  to  the  hospital-physician  context,   though,

concluding  that  the  traditional rules  of  apparent  authority

provide sufficient guidelines.33

          Apparent  authority  is  based  on  Section  8  of  the

Restatement  (Second) of Agency.  We explained  in  Jackson  that

apparent  authority is created by written or spoken word  or  any

          other conduct of the principal which, reasonably interpreted,

causes the third person to believe that the principal consents to

have  the act done on his behalf by the person purporting to  act

for  him.34  We emphasized that it is the principals conduct that

is relevant.  [O]ne dealing with an alleged agent must prove that

the principal was responsible for the appearance of authority, by

doing  something or permitting the alleged agent to do  something

that  led  others, including the plaintiff, to believe  that  the

agent  had  the  authority he purported to  have.35   Except  for

apparent   authoritys  more  explicit  focus  on  the  principals

conduct,  apparent authority and apparent agency are not markedly

different theories of liability; in fact, other courts often  use

them  interchangeably.36  Both theories focus  on  the  hospitals

actions and on the reasonable beliefs of the patient.

          South  Peninsula  sought to dispel  any  appearance  of

employment, agency, or authority.  It is undisputed that prior to

each  of  the  four  procedures Dr. Alvarez  performed,  Fletcher

signed  the hospitals Permission for Treatment and Billing  form.

Contained in this form was a General Information paragraph, which

read:

          My  Understanding Of The Relationship Between
          The  Hospital and Physician Treating  Me:   I
          recognize  that all physicians  and  dentists
          who  may  be  treating  me  are  independent,
          licensed practitioners who have been  granted
          the  privilege of using the hospital for  the
          care and treatment of their patients, and are
          not employees or agents of the hospital.
          
Fletcher  claimed that he did not carefully read  this  paragraph

since  he signed many papers, was under a lot of medication,  and

was   in  extreme  pain.   Whether  the  patient  understood  the

hospitals notice is not in itself a determining factor,  however.

The  focus  of  the  inquiry  is on the  hospitals  actions,  and

provision  of  this  form seems to be an action  taken  by  South

Peninsula to dispel an appearance of agency.37

          The  other  factors  to which the Fletchers  point  are

insufficient  to  defeat summary judgment in this  case.   First,

          they direct this court to two other consent forms, each of which

has  a South Peninsula Hospital heading.  Neither of these forms,

however, contains any information about the relationship  between

the  hospital and Dr. Alvarez.  This absence cannot  be  read  to

suggest that South Peninsula held Dr. Alvarez out as its employee

or  agent, particularly given the hospitals express disclosure of

its  physicians  independent contractor status.38   Further,  the

Fletchers  never averred that these forms caused them to  believe

that  [South Peninsula] consent[ed] to have the act done on [its]

behalf[.]39

                The  Fletchers also point to the  fact  that  Dr.

Alvarez had the hospitals phone number on his business cards  and

that  South  Peninsula was the only place Fletcher ever  saw  Dr.

Alvarez.40   These  two  facts  suggest  nothing  more  than   an

affiliation.   Furthermore, South Peninsula allows physicians  to

use  its number on their business cards because no paging service

exists  in Homer, so this is generally the only way for  patients

to reach their physicians during off-hours.  This is an important

service  given  the  exigencies of life in rural  Alaska,  as  is

allowing doctors to see their patients at the hospital.   In  the

context  of  this  case  given the importance  of  these  patient

services, and because it is undisputed that Fletcher went to  see

a  specific  doctor for care and that South Peninsula  repeatedly

provided  Fletcher with a disclaimer of a relationship  with  Dr.

Alvarez    the   factors  to  which  the  Fletchers   point   are

insufficient to defeat summary judgment as a matter of law.

     C.   The  Trial  Court  Erred in Granting  South  Peninsulas
          Summary  Judgment  Motion on  the  Issue  of  Negligent
          Credentialing (Corporate Negligence).
          
          The Fletchers argue that South Peninsula should be held

directly liable under the theory of corporate negligence for  its

negligent credentialing of Dr. Alvarez, and that the trial  court

erred  in  granting  the  hospitals motion  for  partial  summary

judgment  on  the  issue.  We review de novo a grant  of  summary

judgment.41   We  must  determine whether any  genuine  issue  of

          material fact exists and whether the moving party is entitled to

judgment  on  the law applicable to the established  facts.   All

reasonable inferences of fact must be drawn in favor of the  non-

moving party.42

          As  described  in dicta in Jackson, [t]he  doctrine  of

corporate  negligence holds that a hospital owes  an  independent

duty  to  its  patients to use reasonable  care  to  insure  that

physicians  granted  hospital privileges are  competent,  and  to

supervise  the  medical  treatment provided  by  members  of  its

medical  staff.43   A  prima facie case of  corporate  negligence

requires  plaintiffs to present evidence that (1)  the  defendant

acted  in  deviation from the standard of care, (2) the defendant

had  actual  or constructive notice of the defects or  procedures

that  created  the  harm, and (3) the conduct was  a  substantial

factor in bringing about the harm.44

          Although  the Fletchers would thus bear the  burden  of

proof  at  trial,  that is not the case at the  summary  judgment

stage.  As a general proposition, a defendant is not entitled  to

complete summary judgment in Alaska unless it demonstrates as  to

each  claim against it that there is no genuine issue of material

fact  and  that it is entitled to judgment as a matter of  law.45

This  is  so  even  if  the summary judgment motion  concerns  an

element or issue on which the plaintiff would bear the burden  of

proof at trial.46  The burden was thus on South Peninsula to show

that  it  was  entitled to summary judgment as a  matter  of  law

because it did not deviate from the standard of care, it did  not

have  actual or constructive notice, and its conduct  was  not  a

substantial factor in causing Fletchers harm.47  We conclude that

it  did  not  carry that burden and that the trial  court  should

therefore have denied summary judgment.

          The  focus  of  the  Fletchers negligent  credentialing

claim  is  South  Peninsulas renewal  of  Dr.  Alvarezs  hospital

privileges  in 1996, the last renewal before Fletchers surgeries.

Dr. Alvarez filled out a reappointment questionnaireat that time.

          Dr. Alvarezs answers on this questionnaire indicated that his

privileges  had been suspended for medical record delinquency  in

Kodiak,  that  a  case  against him had  settled  in  1996,  that

professional liability claims against him had been dropped,  that

his  malpractice insurance was terminated in 1990 because of  the

Kodiak  incident,  and  that he never reapplied  for  malpractice

insurance.48  In addition, the Fletchers informed the trial court

of six prior malpractice cases against Dr. Alvarez.

          The   trial  court  concluded  that  the  reappointment

questionnaire would probably be admissible evidence, as would the

disciplinary  proceeding in Kodiak for  failing  to  fill  out  a

medical  record.   The court was unsure whether  the  malpractice

cases  would be admissible or not.  In Ward, we declared  that  a

corporate  negligence  claim requires  proof  that  the  hospital

should have known that the physician would act negligently before

the  negligence  at issue occurred.49  Although the  trial  court

deemed it a close question, the court granted summary judgment in

favor  of South Peninsula, reasoning that this evidence  did  not

establish  the  proposition that the hospital should  have  known

that  [Dr.]  Alvarez would act negligently in the future[.]   The

burden  at  the  summary  judgment stage,  however,  was  on  the

hospital  to show that it should not have known that Dr.  Alvarez

would  act negligently and that it did not itself act negligently

in its credentialing process.

          South Peninsula failed to establish as a matter of  law

that  it  did  not  have  actual or constructive  notice  of  Dr.

Alvarezs  potential negligence.  In Ward, we  recognized  that  a

showing  that  the hospital should have known that the  physician

would act negligently generally will consist of evidence that the

physician  either lacked standard credentials or  previously  had

been   the   subject  of  a  malpractice  suit  or   disciplinary

proceedings.50  The prior malpractice cases against  Dr.  Alvarez

were  relevant to whether South Peninsula should have known  that

Dr.  Alvarez  would act negligently, whether the hospital  should

          have investigated, and whether an investigation would have caused

the hospital to find something to make it withhold, restrict,  or

condition  Dr. Alvarezs privileges.51  South Peninsula  maintains

that  the prior cases against Dr. Alvarez would not be admissible

since  the Fletchers provided no evidence that any of those cases

were  similar  to  theirs.52  To prevail at the summary  judgment

stage,  however, the hospital must point to uncontroverted record

evidence affirmatively establishing that it exercised due care in

reviewing Dr. Alvarezs credentials and history.

          South  Peninsula  similarly failed to  establish  as  a

matter  of  law  that it acted in a non-negligent manner  in  its

privilege-renewing process.  South Peninsula did not  demonstrate

that  it  was entitled to judgment as a matter of law  simply  by

stating that the Fletchers did not know what actions the hospital

took.   The  Fletchers  asked  South  Peninsula  to  provide  all

documents in the hospitals possession relating to the granting of

privileges  to  Dr. Alvarez and to make available for  deposition

someone with knowledge of the privilege-granting process.   Three

weeks  after  filing  its  motion  for  summary  judgment,  South

Peninsula  informed the Fletchers that it was still looking  into

who  the  proper  person  would  be  to  testify  about  granting

privileges  to  Dr. Alvarez;53 it later identified  its  hospital

administrator  as the best person.  As for the document  request,

all  South Peninsula produced was Dr. Alvarezs credentialing file

with  the  reappointment questionnaire; there were  no  documents

concerning a hospital investigation.  If investigatory  documents

concerning the renewal of Dr. Alvarezs privileges existed,  South

Peninsula  should have produced them, either in response  to  the

Fletchers  request  or  as part of its initial  disclosure  under

Civil  Rule  26.54   If  they did not exist,  then,  drawing  all

reasonable inferences in favor of the non-moving party, the court

could  presume that the hospital conducted no investigation.   No

facts  had  been established, therefore, concerning what  actions

the  hospital took in credentialing Dr. Alvarez; South  Peninsula

          never even provided an affidavit describing the process it had

undertaken.  South Peninsula thus could not carry its  burden  of

establishing   that   it  had  not  acted  negligently   in   its

credentialing process.

          We  therefore reverse the trial courts grant of summary

judgment  on  the issue of negligent credentialing because  South

Peninsula failed to carry its burden of demonstrating that it was

entitled to summary judgment as a matter of law.55

     D.   The  Trial  Court Abused Its Discretion in Denying  the
          Fletchers    Motion   to   Relax   Expert    Disclosure
          Requirements.
          
          Because we are remanding for trial, we must address the

Fletchers argument that the trial court abused its discretion  in

denying  their motion to relax the expert disclosure  rules  with

regard  to Dr. Sayer.  We review a trial courts discovery rulings

for  abuse  of discretion.56  We will find an abuse of discretion

when  we  are  left  with  a definite and firm  conviction  after

reviewing  the  whole record that the trial court  erred  in  its

[discovery] ruling.57

          The  Fletchers   who had identified  Dr.  Sayer  as  an

expert  on  damages, the standard of care given to Fletcher,  and

the  privileging procedures at South Peninsula  asked  the  trial

court  to  relax the requirements in Civil Rule 26(a)(2)(B)  that

experts  must  produce an expert report and a  curriculum  vitae.

Rule  26,  however,  does not apply here, as it  speaks  only  of

witnesses  who  are  retained or specially  employed  to  provide

expert  testimony[.]58 The Fletchers did not retain or  specially

employ  Dr.  Sayer  to be an expert witness.59   Rather,  he  was

Fletchers  treating physician, a testimonial role  that  we  have

recognized  to be unique.  In Miller v. Phillips, we  noted  that

[w]hen  physicians are called to testify about matters pertaining

to  the  treatment of their patients, the distinction between  an

expert  witness and a fact witness inevitably becomes  blurred.60

As  Dr. Sayer was not a retained expert witness, the requirements

of Rule 26 did not apply.

          The   purpose  behind  Rule  26,  however,   is   still

important;  a  defendant  has a right  to  discover  what  expert

testimony  a treating physician will provide.  Despite  Rule  26s

literal  inapplicability, the trial court had the  discretion  to

effectuate  the  Rules basic purpose.  For  instance,  the  court

could  have  required the Fletchers to subpoena  and  depose  Dr.

Sayer  as  to the questions they would ask him on the stand.   By

denying   the   Fletchers  motion  and  applying  the   Rule   26

requirements,  the  trial court essentially  prevented  Fletchers

expert  treating physician from testifying.  This is too harsh  a

result,   given  the  other  options  available  to  the   court.

Accordingly,  we  reverse the denial of the Fletchers  motion  to

relax  the  expert disclosure requirements with  respect  to  Dr.

Sayer.61

IV.  CONCLUSION

          Because  we  conclude that extension to  the  operating

room of the non-delegable duty identified in Jackson v. Power  is

unwarranted and unnecessary, we AFFIRM the trial courts denial of

the Fletchers motion for partial summary judgment on the issue of

non-delegable duty.

          Because  it is undisputed that Fletcher went to  see  a

specific  doctor  for  care and that South  Peninsula  repeatedly

provided  Fletcher with a disclaimer of a relationship  with  Dr.

Alvarez,  we  AFFIRM the trial courts grant of  South  Peninsulas

motion  for  partial summary judgment on the issue  of  vicarious

liability under apparent authority.

          Because  South Peninsula failed to carry its burden  of

showing  that it was entitled to summary judgment as a matter  of

law, we REVERSE the trial courts grant of South Peninsulas motion

for partial summary judgment on the issue of the hospitals direct

liability  under corporate negligence for its allegedly negligent

credentialing of Dr. Alvarez.

          Because  Dr. Sayer is not a retained expert and because

other  less  harsh options were available to the trial  court  to

          effectuate the purposes of disclosure, we REVERSE the trial

courts  denial  of  the  Fletchers motion  to  relax  the  expert

disclosure rules of Civil Rule 26(a)(2)(B).

          REVERSED   and   REMANDED   for   further   proceedings
consistent with this opinion.
_______________________________
     1    743 P.2d 1376 (Alaska 1987).

     2    743 P.2d 1376, 1384-85 (Alaska 1987), overruled in part
by  AS  09.65.096  (for  those hospitals  that  comply  with  its
disclosure and insurance requirements), as noted in Evans ex rel.
Kutch v. State, 56 P.3d 1046, 1066-67 (Alaska 2002).

     3    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     4    743 P.2d at 1377.

     5    Id. at 1382.

     6    Id. at 1382-83.

     7    Id. at 1383.

     8    Id.

     9    Id.

     10    Id. at 1384 (emphasis removed) (quoting W. Page Keeton
et  al., Prosser and Keeton on The Law of Torts  71, at 512  (5th
ed. 1984)).

     11    Id. at 1383-84 (quoting Prosser and Keeton,  71 at 511-
12);  see also Alaska Airlines, Inc. v. Sweat, 568 P.2d 916, 925-
26  (Alaska  1977) (noting responsibility of common  carrier  for
safety of its passengers).

     12    Jackson, 743 P.2d at 1384.

     13    Id.

     14    Id. at 1384-85.

     15    Id. at 1385.

     16    Id.

     17    Id.

     18    Id.

     19    See 7 AAC 12.105(a) (A general acute care hospital must
provide   surgical,  anesthesia,  perinatal,  medical,   nursing,
pharmaceutical, dietetic, laundry, medical records, radiological,
laboratory,  and emergency care services.  A general  acute  care
hospital  must  also  provide speech, occupational,  or  physical
therapy services.); see also AS 18.20.130(3) ( hospital means  an
institution   or   establishment,  public  or  private,   devoted
primarily to providing diagnosis, treatment, or care  . . .   for
.  .  .   individuals suffering from illness, physical or  mental
disease,  injury or deformity, or any other condition  for  which
medical or surgical services would be appropriate).

     20    Jackson, 743 P.2d at 1385.

     21    963 P.2d 1031, 1035 (Alaska 1998).

     22    Id.

     23     See,  e.g., Robert v. Paschall, 767 So.2d 1227  (Fla.
Dist. App. 2000) (dealing with statutory duty); Campbell v.  Pitt
County  Meml  Hosp., 352 S.E.2d 902, 907 (N.C. App. 1987),  affd,
362  S.E.2d  273 (N.C. 1987) (finding, under corporate negligence
theory,  duty  to ensure informed consent); Felice v.  St.  Agnes
Hosp.,  411  N.Y.S.2d 901, 907 (N.Y. App. Div. 1978)  (concluding
that  question  of fact exists as to relationship of  doctors  to
hospital).

     24     See,  e.g., Whittington v. Episcopal Hosp., 768  A.2d
1144,  1149 (Pa. Super. 2001); Pedroza v. Bryant, 677  P.2d  166,
170  (Wash. 1984) (en banc); Johnson v. Misericordia Cmty. Hosp.,
294  N.W.2d 501, 506 (Wis. App. 1980), affd, 301 N.W.2d 156 (Wis.
1980).   This direct liability is usually found under the  theory
of  corporate  negligence,  and as  such,  these  cases  will  be
addressed later in this opinion.

     25    Albain v. Flower Hosp., 553 N.E.2d 1038, 1047-48 (Ohio
1990),  overruled with respect to agency by estoppel by Clark  v.
Southview Hosp. & Family Health Ctr., 628 N.E.2d 46 (Ohio 1994).

     26     Simmons  v. Tuomey, 533 S.E.2d 312, 322 (S.C.  2000);
Martell v. St. Charles Hosp., 523 N.Y.S.2d 342, 350-52 (N.Y. Sup.
Ct.  1987); Irving v. Doctors Hosp. of Lake Worth, Inc., 415  So.
2d  55, 60-61 (Fla. Dist. App. 1982).  We need not decide at this
time  whether  we would extend a non-delegable duty  outside  the
emergency  room  in  cases  in which  the  hospital  selects  the
physician,  since  that  is not the case here.   Cf.  Paintsville
Hosp.  Co.  v.  Rose,  683 S.W.2d 255, 257 (Ky.  1985)  (applying
principle  of  ostensible  agency to  anesthesiologists,  .  .  .
pathologists, radiologists, and emergency room physicians, all of
whom  share  the common characteristic of being supplied  through
the hospital rather than being selected by the patient).

     27    Ward v. Lutheran Hosps. & Homes, 963 P.2d 1031, 1034-35
(Alaska 1998).

     28     The Fletchers argue that AS 09.65.096 (enacted  after
Fletchers injury) supports their arguments for extending the non-
delegable   duty,  since  it  represents  codification   of   the
legislatures  view  of  what  reasonable  notice  and   insurance
requirements  should  be.  This does not  seem  relevant  to  the
evaluation   of  whether  a  non-delegable  duty   exists.    The
alternative relief they request should we not extend  Jackson  is
that  we rule that hospitals have a non-delegable duty to  ensure
that  their  independent  contractor  physicians  carry  adequate
insurance, again based on AS 09.65.096.  Again, that statute does
not seem relevant to this case.

     29    Snook v. Bowers, 12 P.3d 771, 776 (Alaska 2000).

     30    Id.; Meyer v. State, 994 P.2d 365, 367 (Alaska 1999).

     31    743 P.2d 1376, 1380 (Alaska 1987) (quoting Restatement
(Second) of Torts  429 (1965)).

     32    Id. (citations omitted).

     33    Id. at 1380-81.

     34     Id.  at 1381 (quoting City of Delta Junction v.  Mack
Trucks,   Inc.,  670  P.2d  1128,  1130  (Alaska  1983)  (quoting
Restatement (Second) of Agency  27 (1958))).

     35    Id. (quoting City of Delta Junction, 670 P.2d at 1130)
(internal citation omitted).

     36     See,  e.g., Bynum v. Magno, 125 F.Supp.2d 1249,  1265
(and cited cases) (D. Haw. 2000).

     37     Cf.  Valdez v. Pasadena Healthcare Mgmt.,  Inc.,  975
S.W.2d  43,  46,  47  n.2 (Tex. App. 1998) (ruling  that  similar
clause  in consent form, signed without being read or understood,
was  sufficient to defeat ostensible agency claim because  notice
showed that hospital had not held out doctor as its agent); Floyd
v.  Humana of Virginia, Inc., 787 S.W.2d 267, 270 (Ky. App. 1989)
(finding  testimony of the appellant admitting that she had  read
and  signed each of the admission forms to Humana . . .  ,  which
indicates   her  knowledge  that  the  doctors  were  independent
contractors  and not agents of the hospital, to be  determinative
in  this [ostensible agency] case.).  But cf. Valdez, 975  S.W.2d
at  48  n.3  (recognizing that other Texas appellate  courts  had
found circumstances surrounding patients signing of consent forms
in emergency room context to raise sufficient question of fact).

     38    See Valdez, 975 S.W.2d at 46-47.  Other cases that have
considered  forms  with the hospitals name to  be  a  significant
factor  have  involved  forms that either  did  not  disclaim  or
actively  promoted  a concept of agency with its  doctors.   See,
e.g.,  Bynum v. Magno, 125 F. Supp. 2d 1249, 1266 (D. Haw.  2000)
([I]t  is  at  least  arguable that QMC held itself  out  as  the
employer  of  the doctors, i.e., it took the required affirmative
step, by its forms which bore its name and which do not appear to
have  disclaimed affiliation with the doctors.); Fulton v. Quinn,
1993  WL  19674,  at  *6 n.5 (Del. Super. Ct. 1993)  (unpublished
opinion) (noting that all forms contained hospital logo and  that
language  of  forms  tends to indicate, or at  least  convey  the
impression,  that  the patient is the Hospitals  patient,  not  a
patient of [the doctor]).

     39     Jackson v. Power, 743 P.2d 1376, 1381 (Alaska  1987).
We  also  stated in Jackson that no showing of plaintiff reliance
on  the  principals conduct was needed for a showing of  apparent
authority  absent evidence that the patient knew or  should  have
known  that  the  treating physician was not a hospital  employee
when  the treatment was rendered.  Id. at 1382 n.10.  Given South
Peninsulas disclaimer, the Fletchers reliance becomes an issue.

     40     The Fletchers also point to the fact that Dr. Alvarez
was  an  employee of South Peninsula for one year, in 1992.   The
Fletchers  note  that the trial court struck  this  evidence  but
presume   that  it  would  have  come  out  during  Dr.  Alvarezs
testimony.    This  argument  must  fail.   As  South   Peninsula
correctly notes, the Fletchers do not argue that the trial  court
erred in striking the evidence and have no basis for assuming  it
would  be allowed at trial.  Even if allowed, Fletcher stated  in
his  deposition that he knew nothing about Alvarez  before  first
meeting  him,  so this fact could not have been  an  act  of  the
principal  engendering  a reasonable belief  in  Fletcher  of  an
agency or employment relationship.

     41     Snook  v.  Bowers,  12 P.3d 771,  776  (Alaska  2000)
(citation omitted).

     42    Id.; Meyer v. State, 994 P.2d 365, 367 (Alaska 1999).

     43    743 P.2d at 1378 n.2 (citations omitted).

     44     Whittington v. Episcopal Hosp., 768 A.2d  1144,  1149
(Pa. Super. 2001).

     45     Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d 481,
485-86 (Alaska 2002) (emphasis added) (citations omitted).

     46    Id. at 486.

     47    See Alakayak v. British Columbia Packers, Ltd., 48 P.3d
432, 447-48 (Alaska 2002).

     48      The  Fletchers claim that hospitals have a  duty  to
ensure   their   independent  contractor   physicians   are   not
financially incompetent, citing Robert v. Paschall,  767  So.  2d
1227,  1228 (Fla. Dist. App. 2000).  As South Peninsula correctly
notes,  however,  this case imposed a duty on  Florida  hospitals
based on a statute to which Alaska has no analogue.  In fact, the
court  in Robert specifically stated that the statutory  duty  it
imposed  is  separate  and distinct from  .  .  .  the  corporate
negligence doctrine.  Id.

     49     Ward v. Lutheran Hosps. & Homes, 963 P.2d 1031,  1033
n.2 (Alaska 1998).

     50    Id. (citation omitted).

     51    See Alaska R. Evid. 404(b)(1); see also Elam v. College
Park  Hosp., 183 Cal. Rptr. 156, 165-66 (Cal. App. 1982); Raschel
v. Rish, 488 N.Y.S.2d 923, 924 (N.Y. App. Div. 1985).

     52    See Purcell v. Zimbelman, 500 P.2d 335, 343 (Ariz. App.
1972);  see also Johnson v. Misericordia Cmty. Hosp., 294  N.W.2d
501, 517 (Wis. App. 1980), affd, 301 N.W.2d 156 (Wis. 1980).

     53    It is clear, therefore, that South Peninsula could not
have carried its burden at the time it filed its summary judgment
motion.

     54     Alaska  R.  Civ.  P.  26(a)(1) (Initial  Disclosures.
Except to the extent otherwise directed by order or rule, a party
shall,  without  awaiting a discovery request, provide  to  other
parties:  (A) the factual basis of each of its claims or defenses
. . . .).

     55     The  Fletchers  argue that they should  not  have  to
provide expert testimony in a negligent credentialing case, or in
the   alternative  that  they  could  rely  on  South  Peninsulas
administrator  as  an expert and should be given  extra  time  to
depose  him.   As South Peninsula correctly points out,  however,
the  trial  court never held that the Fletchers  had  to  provide
expert  testimony  or  that  they could  not  use  the  hospitals
administrator.  The trial court merely stated that it  [did  not]
know  whether  you  need an expert or not from this  information.
The trial judge also stated that I dont think theres any question
in  Alaska [that] you can use their expert[.] Since there was  no
adverse ruling on these issues, we decline to address them.

     56     Willoya  v. State, Dept of Corr., 53 P.3d 1115,  1119
(Alaska 2002).

     57     Christensen v. NCH Corp., 956 P.2d 468,  473  (Alaska
1998).

     58    Alaska R. Civ. P. 26(a)(2)(B).

     59     Retained experts are presumed to be under the control
of  the  party  retaining  them  and  are  thus  presumed  to  be
cooperative.  Since Dr. Sayer was not a retained expert  witness,
the  Fletchers had no control over whether he chose to prepare  a
curriculum vitae or an expert report.

     60    959 P.2d 1247, 1250 (Alaska 1998).

     61    This case is distinguishable from Zaverl v. Hanley, 64
P.3d 809, 813-15 (Alaska 2003), in which we concluded that it was
error  to  allow  a defendant doctor to testify  to  matters  his
lawyer  had  instructed  him  not to  address  at  his  pre-trial
deposition.  Unlike in Zaverl, Dr. Sayer would not be  testifying
on  matters outside his realm of knowledge as a general  surgeon.
Further, Dr. Sayer is not a party to this case, and because he is
not  a retained witness, the Fletchers have limited control  over
his  level of cooperation in his deposition, which seemed  rather
low.   Finally, there were no assertions in this case,  as  there
were in Zaverl, that Dr. Sayer would not be called to testify  on
issues such as the standard of care.  In sum, the key distinction
is that it does not appear that the Fletchers were trying to hide
anything or to preserve a surprise for trial.