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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.
