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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Freitas v. Alaska Radiology Associates, Inc. (11/14/2003) sp-5753

Freitas v. Alaska Radiology Associates, Inc. (11/14/2003) sp-5753

     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,
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     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

DONNA MAE FREITAS and         )
DANIEL FREITAS, husband and   )    Supreme Court No. S-10487
wife,                              )
                               )     Superior  Court No.  3AN-99-
10664 CI
             Appellants,      )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5753 - November 14, 2003]
ALASKA RADIOLOGY         )
ASSOCIATES, INC., and JANICE  )
M. ANDERSON, M.D.,            )
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Robert C. Erwin and Roberta  C.
          Erwin,  Erwin  &  Erwin, LLC, Anchorage,  for
          Appellants.  Matthew K. Peterson and Jason A.
          Weiner,  Clapp,  Peterson  &  Stowers,   LLC,
          Anchorage, for Appellees.

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

          EASTAUGH, Justice.




I.   INTRODUCTION

            Donna   and  Daniel  Freitas  sued  Alaska  Radiology

Associates, Inc. and Dr. Janice M. Anderson, alleging  that  they

committed  medical  malpractice in  1996  by  failing  to  detect

cancerous  lesions depicted on Donna Freitas's  mammograms.   The

jury  found for the defendants.  The Freitases argue that it  was

error to permit Dr. Denise Farleigh to testify about the practice

Alaska   Radiology  followed  in  positioning   patients   during

mammograms and the training its mammogram technologists received;

they  reason that this was opinion evidence that should have been

disclosed  before trial and that it unfairly raised  new  topics.

But  under the circumstances presented here, we conclude that the

trial  court  did  not  abuse its discretion  in  admitting  this

testimony.  The Freitases also argue that Jury Instruction No. 18

misled  the  jury.  Because they did not raise this objection  at

trial, they did not preserve this issue, and we conclude that  it

was  not  plain  error  to give this instruction.   We  therefore

affirm the judgment below.

II.  FACTS AND PROCEEDINGS

            Donna  Freitas  obtained  a  screening  mammogram  in

November  1996.   Dr.  Janice M. Anderson,  a  radiologist  under

contract  with  Alaska  Radiology  Associates,  Inc.,  read   the

mammogram  and  declared  it  "stable."   Fourteen  months  later

Freitas felt a lump in her breast and obtained another mammogram.

Dr.  Anderson  read the new mammogram and observed  a  relatively

large density.  She ordered follow-up testing which revealed that

Freitas  had  a  virulent form of breast cancer with  lymph  node

involvement  and metastases.  An oncologist later testified  that

Freitas  has  "virtually  no chance" for  long-term  disease-free

survival or for long-term survival.

           Freitas  and her husband Daniel sued Dr. Anderson  and

Alaska  Radiology,  for  whom  Dr.  Anderson  is  an  independent

contractor.    They   alleged  that  Dr.   Anderson   negligently

interpreted Freitas's 1996 mammogram.

           After  a  nine-day  trial, a jury returned  a  verdict

finding that the defendants had not been negligent.  The superior

court entered judgment for the defendants.

           The  Freitases argue on appeal that the superior court

abused  its discretion by allowing Dr. Denise Farleigh to testify

about  breast positioning during mammograms at Alaska  Radiology.

They  also  contend that the superior court erred as a matter  of

law  by  giving Jury Instruction No. 18.  They ask us to  reverse

the judgment and remand for a new trial.

III. DISCUSSION

     A.   Standard of Review

           We review for an abuse of discretion a decision of the

superior court to admit or exclude evidence.1  "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."2

           A  challenge to a jury instruction presents a question

of  law  that we review de novo.3  If no timely objection to  the

jury  instruction was made, we will only review  the  instruction

for  plain error.4  We will find plain error in jury instructions

only   when  there  is  an  "obvious  mistake  creating  `a  high

likelihood  that  the  jury  will  follow  an  erroneous   theory

resulting in a miscarriage of justice.' "5

          B.    The  Superior Court Did Not Err in  Allowing  Dr.
          Farleigh   To   Testify   About   Positioning    During
          Mammography  at Alaska Radiology or About the  Training
          Its Technologists Receive.
          
            The  Freitases  contend  that  it  was  an  abuse  of

discretion  to  permit Dr. Farleigh to testify about  how  Alaska

Radiology technologists position patients during mammograms.   At

the  time  of  trial Dr. Farleigh was the supervising radiologist

for  mammography  at Alaska Radiology Associates,  Inc.  and  its

former  president;  she  was  also  director  of  mammography  at

Providence  Imaging  Center  and  chair  of  the  Department   of

Radiology at Providence Alaska Medical Center.

           The  Freitases  argued at trial  that  Dr.  Farleigh's

proposed  testimony  about positioning and  training  was  expert

opinion  testimony  that Dr. Farleigh had not  disclosed  at  her

deposition,  when  she was asked if she had any other  "opinions"

about  the lawsuit and she answered that she did not.  They  also

argued  that  it  interjected a "defense" that was  "brand  new."

They claimed that defense counsel was "getting the same testimony

in  as if he said [`]what is your opinion,['] he's just not using

the  opinion  word."  The Freitases argued that Dr. Farleigh  was

not  merely  providing fact testimony but instead was  "back-door

experting."

            The  superior  court  found  that  Dr.  Farleigh  was

testifying  as  a  fact witness and allowed  the  testimony,  but

precluded Dr. Farleigh from offering specific opinions about  the

adequacy of what was done in this case.  The court explained that

Dr. Farleigh would:

          [B]e  essentially saying this is what happens
          in  the  clinic, this is what we do, this  is
          what   the   procedure[s]  are.   She's   not
          offering an opinion . . . in this case -  and
          she's precluded from looking at this [X]-ray,
          taking  a look at it and commenting on  where
          the  position of the density is  .  .  .  and
          saying  boy,  we did it right  here.  .  .  .
          [T]hat  would  make  her  an  expert  in  the
          opinion  sense . . . [S]o as far as  she's  a
          fact   witness,  I'm  going  to   allow   her
          testimony.
          
            Dr.  Farleigh  then  testified  at  trial  about  how

mammograms are performed at Alaska Radiology.  She described  how

the  breast is positioned during a mammogram at Alaska Radiology.

She  explained how Alaska Radiology's mammogram technologists are

trained.   She  also  testified that  breast  positioning  has  a

bearing  on  the  quality of mammogram films.  She  characterized

breast positioning as "critical" to obtaining quality films.

           The  Freitases  argue on appeal  that  Dr.  Farleigh's

testimony  was  expert opinion evidence that  was  not  disclosed

before trial, and that it was consequently an abuse of discretion

to  allow  Dr.  Farleigh to testify about breast positioning  for

mammograms.   They also claim that the testimony  raised  a  "new

defense,"  was  "far  more  prejudicial  [than]  probative,"  and

"created confusion in the minds of the jurors."  They claim  that

there  was  no  time to prepare a response.  We  interpret  these

arguments as raising three main grounds why it was error to admit

this  testimony into evidence: (1) because Dr. Farleigh testified

at  her  deposition  that she had no other "opinions"  about  the

lawsuit;  (2) because the defendants otherwise failed to disclose

this  "expert"  testimony  before trial;  and  (3)  because  this

testimony raised an undisclosed new defense.

           Because  the ultimate question is whether,  under  the

circumstances,  the  trial court abused  its  discretion,  it  is

necessary to discuss the facts at some length.

           When  the  Freitases  took Dr.  Farleigh's  deposition

before  trial, their attorney asked Dr. Farleigh if  she  had  an

opinion  whether Dr. Anderson had met the standard of care.   Dr.

Farleigh  testified  that,  based  on  her  own  review  of   the

mammograms  and Dr. Anderson's report, Dr. Anderson had  met  the

standard  of care.  The Freitases' lawyer then asked Dr. Farleigh

if  she  had  any  other opinions about the films  or  about  the

lawsuit  that  she had not already discussed.  Dr. Farleigh  said

that she did not.  At her deposition Dr. Farleigh did not discuss

breast  positioning  or  the  training mammography  technologists

receive.

           The issue of breast positioning during Donna Freitas's

mammograms  was  raised  at trial by counsel  for  the  Freitases

during  her  cross-examination  of  Dr.  Anderson,  one  of   the

defendants.   Some  of  the  questions concerned  the  effect  of

positioning  on the appearance of breast contents  from  year  to

year.   Those  inquiries seem intended to  seek  admissions  that

positioning  differences  could affect  the  ability  to  compare

annual   mammograms.   Dr.  Farleigh  was  then  called  by   the

defendants  to  testify, over the plaintiffs'  objections,  about

mammogram  techniques and procedures.  Although Dr. Farleigh  had

expressed  an  opinion at her deposition that  Dr.  Anderson  had

satisfied the applicable standard of care, Dr. Farleigh  did  not

offer  opinions about that topic (or other core liability issues)

at trial.

           We  first  consider whether Dr. Farleigh's  deposition

statement that she had no more "opinions" about the films or  the

lawsuit  required  the  court  to  exclude  her  testimony  about

positioning  and  training.   This situation  differs  from  that

presented in Zaverl v. Hanley, in which we held that it was error

to  allow a surgeon to offer expert opinions at trial on subjects

that  he  refused  to  discuss during his  deposition.6   It  was

inherently  unfair in that case to allow the treating surgeon  to

testify  about  core liability issues that he was  unwilling  and

unable  to  discuss at his deposition.  His position at  trial  -

that he was willing and qualified to testify about those topics -

was completely inconsistent with his deposition position, and  he

did  not  otherwise  alert  the plaintiffs  in  advance  that  he

intended to address those topics at trial.7

           There  is  no  such inconsistency  here.   First,  Dr.

Farleigh's  trial  testimony about positioning  and  training  at

Alaska   Radiology  was  primarily  about  factual  matters   and

contained  little  or no evidence that could be characterized  as

"opinion"  testimony.   Certainly she had  specialized  knowledge

about mammography that a layperson does not possess.  It was  her

professional  expertise that allowed her to testify knowledgeably

about   positioning  and  training.   But  Dr.  Farleigh's  trial

testimony  contained only a few passages that might be considered

"opinion"  evidence in even the broadest sense.  As the appellees

correctly  observe,  "Dr.  Farleigh  gave  no  testimony  on  how

positioning should have been performed for [Donna Freitas's 1996]

mammography  or  whether Dr. Anderson or the technicians  at  the

clinic  used  proper  positioning"  when  taking  Freitas's  1996

mammogram.   Dr. Farleigh did characterize consistent positioning

as  "critical"  to generating the maximum amount  of  information

every  time  physicians see the patient.  Assuming  that  such  a

characterization  expresses an "opinion" and that  her  testimony

about  why  things  are done may have implicitly  conveyed  other

inferences, these were not the sorts of opinions that she had  to

disclose at her deposition in response to counsel's question.

           Second, the question asked at the deposition certainly

required  disclosure of expert opinions concerning core liability

issues  of  the  sort Dr. Farleigh had already discussed  at  her

deposition.   But breast positioning and training were  not  core

liability  issues  in  this case.  The Freitases  disclaimed  any

interest  in  impugning  the  positioning  practices  of   Alaska

Radiology.   The  Freitases  did not claim  the  defendants  mis-

positioned  Donna  Freitas or other patients during  mammography.

As  a result of the Freitases' cross-examination of Dr. Anderson,

positioning (and therefore training) became sufficiently relevant

mid-trial  to  justify Dr. Farleigh's testimony.  Notwithstanding

that  relevance, it cannot be said that positioning and  training

were so important that Dr. Farleigh's deposition answer obligated

the  trial  court to preclude her from addressing these ancillary

topics.  Under the circumstances, the trial court was not obliged

to  exclude this evidence as fundamentally inconsistent with  Dr.

Farleigh's deposition answer.

            We   next  consider  whether  the  court  abused  its

discretion  by failing to exclude the evidence on the  ground  it

was  expert  testimony defendants otherwise  failed  to  disclose

before trial.   These circumstances convince us that there was no

abuse of discretion: defendants' expert witness list stated  that

Dr.  Farleigh  would  "testify  with  regard  to  the  procedures

utilized by Alaska Radiology Associates, Inc. with respect to the

techniques  for taking films and reading those"; even  after  the

topic  of positioning and training became relevant during  trial,

it  was  of  ancillary importance; Dr. Farleigh's trial testimony

contained  no  overt opinions on critical issues; the  plaintiffs

were   free   to  object  that  specific  questions  called   for

impermissible  opinion  evidence;  and  the  Freitases  have  not

identified  any particular testimony that overstepped the  bounds

the  trial  court - correctly, we think - imposed.  Indeed,  they

have  not  even  cogently explained how this evidence  prejudiced

them.

           We  also consider whether, as appellants assert,  this

testimony unfairly raised an undisclosed "new defense."   It  did

not.  It was not a defense.  It was relevant to a topic raised at

trial by the Freitases.  There was no discovery violation.  There

was   no  need  (or  opportunity,  given  the  topic's  mid-trial

relevance)  to  supplement pre-trial disclosures.   Nor,  to  the

extent  appellants may imply that the prejudicial  value  of  the

evidence  outweighed its relevance, have they  demonstrated  that

they  suffered undue prejudice.  They do not even mention  Alaska

Rule  of   Evidence 403, the logical rule to discuss if  a  party

wishes  to make a plausible claim that the prejudicial  value  of

evidence outweighs its probative value.8  Plaintiffs did not  ask

for an opportunity to conduct a short mid-trial deposition of Dr.

Farleigh  to  discover  what she would say about  positioning  or

training.  And the trial court permitted the plaintiffs to  offer

rebuttal  evidence  on  the  positioning  topic  with  their  own

experts.   They then recalled Dr. Marianne Drucker as a  rebuttal

expert to discuss the effect of positioning.  Further, given  the

plaintiffs' litigation position that there was nothing wrong with

the  positioning, there is no reason the trial court should  have

thought that admitting the testimony would be unduly prejudicial.

Indeed,  plaintiffs'  lawyer asserted in  closing  argument  that

positioning  was  "another non-issue.  We're not criticizing  the

positioning at all, the positioning was fine on the films."   Nor

does  it appear positioning was critical to the defense.  Defense

counsel's  discussion of positioning comprised only a small  part

of his argument to the jury.

           This case does not require us to distinguish between a

lay witness and an expert witness, or decide whether Dr. Farleigh

was  a  hybrid  witness eligible to express opinions  about  core

liability  issues.9   The  question here  is  whether  under  the

circumstances the trial court abused its discretion by failing to

exclude this evidence.  We hold that it did not.

     C.   It Was Not Plain Error To Give Jury Instruction No. 18.

           The  superior court gave the jury Instruction No.  18,

which set out a potential basis for finding medical malpractice.10

You  must  resolve any conflict in the testimony of witnesses  by

weighing  each  of  the opinions expressed  against  the  others,

taking into consideration the reasons given for the opinion,  the

facts  relied  upon by the witness, and the relative credibility,

special  knowledge, skill, experience, training and education  of

the  witness.    The  Freitases argue that  the  instruction  was

incomplete because it failed to identify one possible  basis  for

finding  negligence under AS 09.55.540, which specifies  what  is

needed  to  prove  medical malpractice,  and  therefore  did  not

conform  to  the statute.11  They claim that Instruction  No.  18

required the jury to find for the defendants unless it found both

that Dr. Anderson did not possess the training and experience  of

a  physician practicing in her field, and also that she  did  not

exercise that training and experience.  They therefore claim that

Instruction  No. 18 was "incomplete," because it did  not  inform

the  jurors that they could find Dr. Anderson negligent  "if  she

had  the  necessary knowledge and skill but simply acted  in  the

wrong way."

           The  Freitases  did not raise this  objection  in  the

superior  court.  They advanced other objections  to  Instruction

No.  18 before trial, and the superior court made changes to  the

instruction in response to those objections.  The court gave  the

parties  a  final opportunity to object to the instructions,  and

the  Freitases did not make the objection that they now  raise.12

The Freitases consequently did not preserve this objection.13

           Plain  error is therefore the applicable standard  for

reviewing this instruction.14

           We  perceive no plain error here.  Instruction No.  18

could  have  been clearer, but it was not misleading.   Moreover,

Instructions No. 16 and 17, which also discussed negligence, were

very  clear.  Instruction No. 16 submitted the statutory standard

set out in AS 09.55.540(a).15  Instruction No. 17 made it clear to

the  jury that it could find Dr. Anderson negligent if she failed

to  exercise  expertise that she possessed.16  And in  this  case

there  was no dispute about whether Dr. Anderson had the training

and   experience  to  practice  her  specialty.   Therefore   the

instructions  as a whole properly instructed the  jury.   It  was

consequently not plain error to submit Instruction No. 18 to  the

jury.

IV.  CONCLUSION

          Concluding that the trial court did not err in allowing

Dr.  Farleigh  to  testify or in giving Instruction  No.  18,  we

AFFIRM the judgment below.

_______________________________
1    Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).
2     Zaverl  v.  Hanley,  64 P.3d 809,  812  n.6  (Alaska  2003)
(quoting  Walden  v. Dep't of Transp., 27 P.3d 297,  301  (Alaska
2001)).
3    Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).
4    Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).
5     Jaso  v. McCarthy, 923 P.2d 795, 800 (Alaska 1996) (quoting
Conam  Alaska  v. Bell Lavalin, Inc., 842 P.2d 148,  153  (Alaska
1992)).
6    Zaverl v. Hanley, 64 P.3d 809, 813-15 (Alaska 2003).
7    Id. at 814 & n.10, 815.
8     Evidence Rule 403 states:  "Although relevant, evidence may
be excluded if its probative value is outweighed by the danger of
unfair  prejudice,  confusion of the issues,  or  misleading  the
jury,  or  by  considerations of undue delay, waste of  time,  or
needless presentation of cumulative evidence."
9     Cf. Getchell v. Lodge,  65 P.3d 50 (Alaska 2003); see  also
Miller v. Phillips, 959 P.2d 1247, 1250-51 (Alaska 1998).
10    Instruction No. 18 provided:

                You  must  determine  the  standard  of
          professional   learning,   skill   and   care
          required of Defendant Dr. Anderson only  from
          the  opinions  of the radiologists  who  have
          testified as witnesses as to such standard.
               If you are not able, based on the expert
          testimony, to decide what level of knowledge,
          skill  and  care other reputable radiologists
          would more likely than not have possessed and
          used,  you  must  return a  verdict  for  the
          defendant.
                If  you  are able, based on the  expert
          testimony, to decide what level of knowledge,
          skill  and  care other reputable radiologists
          would  more  likely than not have  used,  you
          must  then  determine whether  the  defendant
          possessed  and used such level of  knowledge,
          skill and care or whether she failed to do so
          and  therefore  was  negligent.   Again,  you
          shall make this decision only on the basis of
          opinions offered by the radiologists who have
          testified   as  experts  on  the   applicable
          standard of care.
                You  should consider each such  opinion
          and  should weigh the qualifications  of  the
          witness   and  the  reasons  given  for   his
          opinion.   Give  each opinion the  weight  to
          which you deem it is entitled.
11    AS 09.55.540 provides in part:

          (a)   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 defendant either lacked  this
          degree  of  knowledge or skill or  failed  to
          exercise this degree of care; and
          (3)   that as a proximate result of this lack
          of  knowledge  or  skill or  the  failure  to
          exercise  this  degree of care the  plaintiff
          suffered  injuries that would  not  otherwise
          have been incurred.
12                   The Court:     This is the time set
                    to  put objections to proposed jury
                    instructions on the record. .  .  .
                    I'm    going    to   ask    counsel
                    essentially    to    state    their
                    objections to the instructions they
                    have for the record, please.
               . . . .
          The Court:      I  just want to note for  the
                    record, we have agreed to edit some
                    of    these    jury   instructions.
                    Counsel will present a package, and
                    other   objections  that  we   have
                    talked  about, they have  all  been
                    withdrawn  except  these  two  that
                    remain  in Court's Exhibit  1.   Is
                    that right?
                         [Freitas]:     Yes, sir.
                                             [Anderson and Alaska
                                        Radiology]:        That's
                                        right.
                         The Court:     All right.
          [Anderson and  Alaska Radiology]:   What I'll
                    do  is  have  my  secretary  retype
                    these ones we're editing.  I think,
                    if  it's  okay, I'll bring them  to
                    court first thing in the morning, .
                    . .
                         The Court:     Sure.
          [Anderson and  Alaska Radiology]: . . . [A]nd
                    you'd  better look at them in  case
                    there's  typos or a wrong  word  or
                    something,  before they  go  final,
                    and  then we can change it if  need
                    be.
                         The Court:     Okay.
          [Anderson and  Alaska Radiology]:   But  it's
                    correct, we've agreed - the  packet
                    we have in front of us, as far as I
                    understand, we've agreed  to  that,
                    and   we  each  only  had  the  one
                    objection on each side, so . . .
                         The Court:     Okay, great.
                         [Freitas]:     And you have them all.
                                   The Court:     All right.
13     Alaska  Civil Rule 51(a) provides in part:  "No party  may
assign  as error the giving or the failure to give an instruction
unless  the  party  objects thereto before the  jury  retires  to
consider its verdict, stating distinctly the matter to which  the
party objects and the grounds for the objection."  See also  Jaso
v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996) (explaining that
if  party  fails to object to jury instructions at  trial,  court
will  only review instructions for plain error); Conam Alaska  v.
Bell Lavalin, Inc., 842 P.2d 148, 152-53 (Alaska 1992) (same).
14    Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).
15    Instruction No. 16 provided:

               In a malpractice action against a health
          care  provider, the plaintiff has the  burden
          of   proving  by  a  preponderance   of   the
          evidence:
          1.   the   degree  of  knowledge   or   skill
               possessed   or   the  degree   of   care
               ordinarily    exercised    under     the
               circumstances, at the time  of  the  act
               complained of, by health care  providers
               in  the field or specialty in which  the
               defendant is practicing;
          2.   that  the  defendant either lacked  this
               degree  of knowledge or skill, or failed
               to exercise this degree of care; and
          3.   that  as a proximate result of this lack
               of knowledge or skill, or the failure to
               exercise   this  degree  of  care,   the
               plaintiff  suffered harm that she  would
               not otherwise have incurred.
                In malpractice actions, the fact of the
          injury,  standing  alone, does  not  raise  a
          presumption of malpractice.
16    Instruction No. 17 provided:

                A  physician has a duty to exercise the
          degree  of  skill  and  care  expected  of  a
          reasonably  prudent physician acting  in  the
          same or similar circumstances at the time  of
          the  care  in question.  Failure to  exercise
          such skill and care is negligence.