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Parker v. Tomera (04/23/2004) sp-5801
Parker v. Tomera (04/23/2004) sp-5801
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
HAROLD F. PARKER, )
) Supreme Court No. S-10780
Appellant, )
) Superior Court No.
v. ) 3AN-01-8566 CI
)
DR. KEVIN M. TOMERA, )
ALASKA UROLOGICAL )
ASSOCIATES, and JANE DOES, ) O P I N I O N
)
Appellees. ) [No. 5801 - April
23, 2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Harold F. Parker, pro se,
Anchorage. Scott Hendricks Leuning, Clapp,
Peterson & Stowers, LLC, Anchorage, for
Appellees.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Harold F. Parker sued Dr. Kevin M. Tomera, Alaska
Urological Associates, and unnamed others for medical malpractice
and for failing to obtain his informed consent prior to
conducting an invasive diagnostic procedure. He claims that the
procedure caused him permanent sexual dysfunction. The
defendants moved for summary judgment and supported their motion
with expert testimony that Parkers alleged injuries could not
have resulted from the diagnostic procedure they performed. The
superior court granted the defendants motion for summary judgment
because Parker failed to provide rebuttal expert testimony
proving the existence of contested material facts requiring
trial. Parker appeals, claiming that expert testimony was not
required to prove his medical malpractice claim, that the
superior court erred by not appointing an expert advisory panel,
and that the defendants expert witness did not address his
informed consent claim. He also contests the superior courts
award of costs and attorneys fees to the defendants. Because
Parker did not introduce expert testimony to support his medical
malpractice case, we affirm the grant of summary judgment on this
issue. But because the superior court did not separately address
Parkers informed consent claim, we reverse summary judgment on
this issue. We remand the issue of fees and costs in light of
this decision.
II. FACTS AND PROCEEDINGS
I. This suit arises from treatment that Harold F. Parker
received from Dr. Kevin M. Tomera and Mary Carol Miller, R.N.1
during a visit to Alaska Urological Associates (AUA) on June 30,
1999 for a routine prostate examination. During this exam,
Parker told Dr. Tomera that he experienced a constant need to
urinate and that he was unhappy with his urinary condition. He
had voiced this complaint during a previous visit to AUA in 1998,
when he was treated for bladder outlet obstructive symptoms and
possible prostatitis.2 Based upon the symptoms reported by
Parker and his responses to a medical questionnaire, Dr. Tomera
concluded that the cause of Parkers complaints could be
Interstitial Cystitis, a chronic inflammatory condition of the
bladder.3 To confirm this diagnosis, Dr. Tomera ordered a test
that required the insertion of a catheter through Parkers urethra
into his bladder and the injection of a potassium-based solution
to determine changes in Parkers sensations of pain and urgency.
This procedure, sometimes known as a Parsons Test, was performed
by Mary Carol Miller, R.N. A prostate specific antigen (PSA)
test, which is conducted to detect prostate cancer, showed a PSA
level of 1.6, which is within the normal range.4 Parker claims
that he was never informed of any risks associated with this
procedure and that he did not sign any consent forms or waivers.
Parker alleges that his current problems began when
Nurse Miller removed the catheter so quickly that it flew over
her shoulder. According to Parker, he immediately complained to
Miller of an intense burning sensation inside his penis and he
fell ill the following day with fever, chills, weakness, and
nausea. The next month, Parker visited another urologist, Dr. J.
Wesley Turner of Alaska Southcentral Urology Specialists, to
follow up on a different medical condition. During this visit,
he again complained of problems with urinary frequency, and he
told Dr. Turner that he was experiencing burning inside his
urethra and pain during intercourse. Dr. Turner diagnosed
possible urethritis. A PSA test conducted during this visit
showed an elevated level of 6.1, which prompted Dr. Turner to
send Parker a letter recommending follow-up evaluation.5 In this
letter, Dr. Turner indicated that possible reasons for an
elevated PSA include prostate cancer, prostatitis, or an enlarged
prostate gland. A PSA test conducted on August 16, 1999 showed a
PSA level of 3.9. During a follow-up examination with Dr. Turner
on August 23, 1999 Parker discussed the Parsons Test ordered by
Dr. Tomera in June and indicated that he had experienced fever
and chills within twenty-four hours of this procedure and that he
did not recall obtaining any antibiotics from Dr. Tomera. Dr.
Turner indicated that Parkers elevated PSA in July could have
been caused by the insertion of the catheter or by prostatitis,
and he recommended a course of antibiotic treatment followed by a
repeat PSA test in six months. Between October 1999 and October
2001, Parker had additional routine visits with Dr. Turner. He
complained of sexual dysfunction during several of these visits.
Parker filed a complaint against Dr. Tomera, Alaska
Urological Associates, and several Jane Does on June 29, 2001,
alleging that the catheterization was performed negligently and
left him permanently sexually dysfunctional, and that the
defendants failed to obtain his informed consent for the
procedure. He sought compensatory damages of $1,500,000 plus
prejudgment interest, punitive damages, and costs and fees for
bodily injury, pain and suffering, mental anguish, and loss of
capacity to enjoy his sex life.
The defendants moved for summary judgment on January
31, 2002 and supported their motion with an affidavit from a
board certified urologist indicating that Tomeras decision to
test for interstitial cystitis was reasonable given the symptoms
Parker complained of, that Tomeras treatment met the standard of
care for a general practice urologist, and that it is
physiologically and neurologically impossible to render someone
impotent as a result of the catheterization involved in the
diagnostic examination performed on Parker. The defendants
claimed that, since Parker bore the burden of proving his medical
malpractice claim, his complaint must be dismissed if he did not
rebut the defendants expert testimony with admissible expert
testimony supporting his claim that Dr. Tomeras treatment fell
below the applicable standard of care. The defendants motion did
not address the issue of informed consent. Parkers request for
additional time to respond to this motion was granted. In his
opposition to this motion, Parker claimed that summary judgment
was inappropriate because expert testimony was not required to
evaluate his claim and because the defendants expert affidavit
did not address the issue of informed consent. On April 17, 2002
the superior court entered an order providing that summary
judgment would be granted in thirty days unless Parker provided
expert testimony to support his malpractice claim. This order
did not address Parkers informed consent claim.
On April 22, 2002 Parker moved for an additional thirty
days in which to obtain counsel and an expert affidavit, and he
asked the court to apply the doctrine of res ipsa loquitur to
this case since he claimed that his impotence would not have
occurred but for the negligence of Dr. Tomera and his staff. In
May Parker moved for the appointment of an expert advisory panel
pursuant to AS 09.55.536 because he was unable to obtain expert
testimony to support his case. The defendants opposed an
extension of time because the trial was scheduled to begin in
August 2002, and they opposed the request for appointment of an
expert advisory panel as untimely and impractical. Parker moved
for a supplemental summons for Mary Carol Miller in June and
again requested an extension of time to obtain an expert
affidavit. He indicated that an attorney, Robert D. Stone, had
agreed to help him obtain an expert affidavit from a board-
certified urologist. In opposing this motion, defense counsel
submitted an affidavit indicating that Stone had denied that he
had been retained by Parker; the affidavit also noted that the
scope of services Stone had discussed with Parker involved merely
drafting a letter to an expert identified by Parker. There was
no indication that Stone agreed to help Parker identify an expert
witness. In reply, Parker alleged that the defendants were
attempting to intimidate Stone to prevent him from assisting
Parker.
The superior court granted the defendants motion for
summary judgment on July 21, 2002 because Parker failed to
provide expert rebuttal testimony. This order was entered more
than two months after the courts May 17, 2002 deadline to submit
expert rebuttal testimony. Final judgment was entered on
September 10, 2002. The order indicated that no jury trial was
warranted since Parker failed to submit expert testimony
demonstrating a factual dispute. The order did not separately
address the informed consent claim. Parker appeals.
III. STANDARD OF REVIEW
I. We review a grant of summary judgment de novo and will
affirm the decision to grant summary judgment if there are no
genuine issues of material fact and if the moving party is
entitled to judgment as a matter of law.6 We draw all reasonable
inferences in favor of the non-movant.7 Once the movant has
satisfied [his] burden of establishing an absence of genuine
issues of material fact and [his] right, on the basis of the
undisputed facts, to judgment as a matter of law, the non-movant
is required, in order to prevent summary judgment, to set forth
specific facts showing that he could produce evidence reasonably
tending to dispute or contradict the movants evidence and thus
demonstrate that a material issue of fact exists.8 We may affirm
a grant of summary judgment on any basis appearing in the record.9
We review questions of law, including the
interpretation of statutes and regulations, using our independent
judgment.10
We review a superior courts award of attorneys fees and
costs for abuse of discretion.11
IV. DISCUSSION
A. The Superior Court Properly Granted Summary Judgment on the
Medical Malpractice Claim.
A. Parker argues that summary judgment was inappropriate and
that he is entitled to a trial to litigate his claims. He claims
that expert testimony was not necessary to prove his claim, that
the trial court did not properly advise him of the need to obtain
an expert witness, and that the defendants motion did not address
the negligence of Nurse Miller and AUA or the failure of Dr.
Tomera to prescribe medication to prevent prostatitis. Parker
also claims that he was prevented from obtaining an expert
witness due to institutionalized prejudice against pro se
litigants and that the superior court erred by not appointing an
expert advisory panel to resolve this problem. For the reasons
discussed below, we reject these arguments.
1. Summary judgment was appropriate because Parker
did not provide expert testimony to rebut
defendants summary judgment motion.
Parkers medical malpractice claim is based upon
injuries that allegedly resulted from the Parsons Test performed
in Dr. Tomeras office by Nurse Miller. Parker claims that this
procedure caused him permanent sexual dysfunction manifested by
impotence and other sexual disabilities. In support of their
motion for summary judgment, the defendants submitted an
affidavit from an expert witness indicating that it is impossible
to make someone impotent as a result of catheterization. The
superior court ordered Parker to provide expert testimony to
support his medical malpractice claim or face dismissal of his
suit on summary judgment. Parker did not submit expert testimony
and summary judgment was granted.
Medical malpractice actions are governed by AS
09.55.540, which places the burden of proof on the plaintiff:
(a) In a malpractice action based on the
negligence or wilful misconduct of a health
care provider, the plaintiff must prove 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 cause of this
lack of knowledge or skill or the failure to
exercise this degree of care the plaintiff
suffered injuries that would not have
otherwise been incurred.
(b) In malpractice actions there is no
presumption of negligence on the part of the
defendant.
In Kendall v. State, Division of Corrections,12 we held that [i]n
medical malpractice actions . . . the jury ordinarily may find a
breach of professional duty only on the basis of expert
testimony.13 The primary exception to this rule is if the
negligence claimed would be evident to lay people.14 Thus Parker
was required by law to support his claim with expert testimony
unless the causation of his alleged injury was of a non-technical
nature. The injury Parker alleges does not fall within this
category.
The defendants expert, Dr. Mark R. McCaughan, submitted
an affidavit asserting that Dr. Tomeras initial impression of
interstitial cystitis was appropriate given the symptoms Parker
complained of, that catheterization was an appropriate diagnostic
tool to confirm this diagnosis, and that it is physiologically
and neurologically impossible to render someone impotent through
catheterization. While Dr. McCaughan acknowledged that
catheterization is inherently uncomfortable and painful, he
indicated that the procedure could not have caused Parkers
alleged sexual dysfunction. If Parkers sexual dysfunction was
not caused by this procedure then he did not have a viable
medical malpractice claim against Dr. Tomera, Nurse Miller, or
Alaska Urological Associates. The defendants motion and
accompanying affidavit demonstrated the absence of factual issues
requiring trial. According to the rule we articulated in Kendall15
and affirmed in Kaiser v. Sakata,16 Parker bore the burden of
providing rebuttal expert testimony to prove the existence of a
factual dispute.17
Parker claims that summary judgment was premature
because the superior court did not advise him of the need to
obtain an expert witness or allow any discovery before granting
summary judgment. There is no evidence that Parker was prevented
from conducting discovery. Indeed, in support of his May 14,
2002 request for additional time to secure an expert witness,
Parker informed the court that [t]he discovery process began in
January and continues to the present day. The defendants
submitted their initial disclosures on October 1, 2002 and
supplemented the disclosures six times by May 2002. The
defendants likewise timely responded to Parkers discovery and
production requests. Parker, however, never provided the
defendants with initial disclosures. Parkers assertion that the
superior court failed to warn him of the need to obtain an expert
affidavit is similarly unfounded. The superior court directly
advised Parker of the need to provide expert testimony to
withstand summary judgment, and Parkers awareness of this
requirement is evident in his repeated requests that the superior
court delay action on the defendants summary judgment motion to
provide him additional time to obtain an affidavit from an
expert.
Parkers own affidavit, in which he claims that his
injury was caused by the negligence of Dr. Tomera and the nurse
who performed the procedure, does not qualify as expert
testimony.18 This is true even though Parkers affidavit states
that Dr. Turner told him that he would not have diagnosed
interstitial cystitis or recommended the bladder instillation,
because opinion testimony and hearsay statements that would be
inadmissible at trial are inadmissible in a motion for summary
judgment.19 Parker has no right to a jury trial if the superior
court properly dismissed his claim on summary judgment.20 Parker
failed to provide expert rebuttal testimony and thus summary
judgment in favor of all defendants was appropriate on this
claim.
2. The superior court was not required to appoint an
expert advisory panel.
Parker argues that he was unable to obtain expert
medical testimony because of institutionalized prejudice against
pro se litigants and that the superior court erred by not
appointing an expert advisory panel to address this problem.
Alaska Statute 09.55.536(a) states that in a medical
malpractice suit the court shall appoint within 20 days after
filing of answer to a summons and complaint a three-person expert
advisory panel unless the court decides that an expert advisory
opinion is not necessary for a decision in the case. Not only
does this statute provide that panels will be appointed within
twenty days of a defendants answer, which was August 27, 2001,
but the plain language of the statute also accords discretion to
a court to determine whether such a panel is necessary to resolve
a claim. Trial judges are not obliged to appoint advisory
panels, but rather have discretion to determine whether a panel
is necessary.21 Therefore, the decision not to appoint an
advisory panel will only be overturned if the trial court abused
its discretion.
Parker claims that the superior court abused its
discretion by failing to appoint a panel to redress what he
characterizes as institutionalized prejudice against pro se
litigants that makes it impossible for them to retain expert
witnesses without the assistance of counsel. Parker claims that
he was unable to secure counsel to help him obtain an expert
affidavit despite having written more than thirty attorneys, and
that appointment of an expert panel would right a wrong.
We have previously rejected the argument that the
legislature created expert advisory panels to protect pro se
litigants. In Kaiser we noted that no points of legislative
intent listed by the legislature in enacting or amending AS
09.55.536 relate to protection of pro se litigants.22 To the
contrary, [i]t is virtually beyond dispute that the purpose of
the numerous panel review procedures (including Alaskas) enacted
during the early and mid-1970s was to alleviate the effects of
the malpractice insurance crisis.23 While AS 09.55.536, which
provides for appointment of expert advisory panels, is not meant
to protect medical practitioners by precluding plaintiffs with
legitimate claims from successfully bringing suit, neither does
it shift the burden of proof from the plaintiff.24 In Priest v.
Lindig25 we discussed the legislative history of AS 09.55.540,
which establishes the burden of proof in medical malpractice
cases, and noted that the legislature was unambiguous in its
desire to control the cost of medical malpractice insurance by
requiring that malpractice be proven and not presumed.26 Parkers
argument, that the superior court was required to appoint an
expert advisory panel to help him prove the defendants medical
malpractice, directly contradicts this legislative intent. It is
wholly inconsistent to place the burden of proof on the plaintiff
on the one hand, but require appointment of an expert advisory
panel to help him prove his claim at state expense27 on the
other.
The record contradicts Parkers argument that the
superior court abused its discretion. There is strong evidence
that it would have been difficult or impossible to appoint a
panel of three board certified urologists due to conflicts of
interest. An expert advisory panel must consist of three
individuals who practice in the same specialty as a defendant.28
The defendants alleged that there were only fourteen urologists
practicing in Alaska at that time, including Dr. Tomera.
According to the defendants, four of these urologists worked at
Alaska Urological Associates, a defendant in this case. Five are
members of Alaska Southcentral Urology Specialists and work with
Dr. Turner, thus they could be called as witnesses in this case.
One of the remaining four urologists, Dr. McCaughan, is an expert
witness for the defendants, and another is represented by the law
firm defending Dr. Tomera in this case. That would leave only
two board certified urologists without conflicts who could serve
on the expert advisory panel. Parker introduced no evidence to
rebut these assertions. Under these circumstances it was
impractical to appoint a panel.
Furthermore, Parkers request was untimely. He
requested appointment of a panel on May 14, 2002, more than eight
months after the defendants filed their answer and less than
three months before the start of trial. The record indicates
that Parker was aware of his right to request an expert panel
early in the litigation. In his October 2001 motion for
additional time to seek counsel, Parker indicated that two of his
questions for counsel were whether to seek appointment of an
advisory panel and whether to seek arbitration of his claims. He
did not retain counsel, despite his repeated promises to do so,
and he did not make a timely request for the appointment of a
panel. In his February opposition to the defendants motion for
summary judgment, Parker wrote that the case has not arrived at
the point where the court pursuant to AS 09.55.536 could appoint
an expert advisory panel. While it is unclear upon what basis
Parker made that assertion, his delay in seeking appointment of a
panel is inexcusable in light of his repeated failure to retain
competent counsel to assist in his claim. Given that Parkers
request was made only one week before the courts deadline for
submission of expert rebuttal testimony and only three months
before the scheduled trial date, the superior court did not abuse
its discretion by declining to appoint a panel.
B. The Superior Court Erred in Granting Summary Judgment on the
Informed Consent Claim.
The superior court granted the defendants motion for
summary judgment and dismissed Parkers claims with prejudice.
This motion, and the courts order, addressed only Parkers medical
malpractice claim. On appeal, Parker claims that it was error to
dismiss his informed consent claim on summary judgment because
the defendants did not make a prima facie showing negating that
claim. The defendants respond that, because Parker cannot
support the informed consent claim without expert testimony, it
was properly dismissed along with his malpractice claim. But
Parkers informed consent claim was distinct from his medical
malpractice claim. For this reason, summary judgment was
inappropriate.
Alaska Statute 09.55.556 states the elements of a cause
of action regarding informed consent:
(a) A healthcare provider is liable for
failure to obtain the informed consent of a
patient if the claimant establishes by a
preponderance of the evidence that the
provider has failed to inform the patient of
the common risks and reasonable alternatives
to the proposed treatment or procedure, and
that but for that failure the claimant would
not have consented to the proposed treatment
or procedure.
The informed consent doctrine is based on the principle that
every human being of adult years and sound mind has a right to
determine what shall be done to his or her own body.29 This
statute requires medical professionals to disclose the
information that a reasonable patient would need to know in order
to make an informed decision about the proposed treatment.30
Parker alleges that Dr. Tomera failed to inform him
prior to the Parsons Test that it could cause harm or serious
illness. To the extent that Parkers claim relies upon his
allegation that this procedure caused his sexual dysfunction, the
defendants are correct that it was properly dismissed on summary
judgment because Parker failed to provide expert testimony to
support his claim. However, Parker also alleges that he became
ill for several days and developed prostatitis as a result of
this procedure. There is at least some evidence indicating a
potential causal relationship between Parkers elevated PSA level
and the insertion of the catheter by Dr. Tomeras staff. Dr.
McCaughan, the defendants expert witness, agreed that the
procedure could have resulted in Parkers subsequent elevated PSA
level, but he did not address whether it could cause fevers and
chills or prostatitis. Because McCaughans affidavit did not
address whether these were potential side effects there was no
expert testimony for Parker to rebut. If infection and
prostatitis are common risks of catheterization, then Parker was
entitled to full information in deciding whether to consent to
this procedure.
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.31 For a trial
court to decide on summary judgment that a doctor has disclosed
sufficient information to allow a reasonable patient to make an
informed decision about treatment, the record must establish that
the physician explained to the patient in lay terms the nature
and severity of the risk and the likelihood of its occurrence.32
Dr. Tomera has not identified anything in the record to
demonstrate that he discussed any risks with Parker.
Accordingly, we find that the trial court erred in granting
summary judgment on this claim.
C. Parkers Remaining Procedural Claims Are Without Merit.
Parker also argues that the superior court erred by not
ruling on several motions submitted after the court entered its
order requiring him to submit expert rebuttal testimony. These
motions included a request for an extension of time to obtain an
expert affidavit and to conduct discovery, a supplemental summons
to replace Mary Carol Miller, RN, as Jane Doe, a motion to compel
discovery and for sanctions against the defendants, and a request
to apply the doctrine of res ipsa loquitur to the malpractice
claim. For the following reasons, these arguments are without
merit.
To succeed in his claims of error, Parker must prove
both error and prejudice.33 On April 17, 2002 the superior court
entered an order requiring Parker to provide expert rebuttal
testimony within thirty days in order to withstand summary
judgment. While the superior court did not rule on Parkers
motion for a thirty-day extension, it did not enter judgment
until July 21, 2002, more than two months after its own deadline.
Thus Parker received an extension even though the court did not
formally rule on his request. Because the motion for summary
judgment sought to dispose of Parkers malpractice claims against
all defendants, it was reasonable to withhold ruling on the
supplemental summons. For the same reason it was appropriate to
delay ruling on Parkers discovery request. While there is no
evidence that the defendants failed to comply with Parkers
discovery requests, and thus no basis upon which to impose
sanctions, this issue was rendered moot by disposition of Parkers
claim on summary judgment. Finally, Alaska has legislatively
nullified the doctrine of res ipsa loquitur in medical
malpractice actions.34 The superior court did not err by
withholding action on these motions pending Parkers compliance
with its order to provide rebuttal expert testimony.
D. The Award of Fees and Costs Must Be Redetermined
Following Procedures on Remand.
Parkers final argument is that the superior court erred
by awarding attorneys fees and costs to the defendants. He
claims that this award was inappropriate because the defendants
failed to comply with Civil Rule 26, violated Civil Rule 37, and
interfered with Parkers attorney-client relationship with
attorney Stone. These arguments are baseless.
As noted, we review an award of fees and costs for
abuse of discretion.35 There is no basis to find that the trial
court abused its discretion in awarding costs and fees to the
defendants for the medical malpractice claim. While Parker
claims that the defendants provided incomplete and evasive
answers to his discovery requests, the record indicates that the
defendants appropriately responded to his requests for
disclosures and discovery. Parker did not have an opportunity to
pursue additional requests because he failed to rebut the
defendants expert evidence and lost his medical malpractice case
on summary judgment. The record also indicates no interference
with an attorney-client relationship with attorney Stone. Stone
agreed to draft a letter to an expert witness identified by
Parker, but Parker never paid a retainer fee or otherwise engaged
his services. Defense counsel communicated with Stone to
determine if he would be making an entry of appearance on behalf
of Parker, but there is no evidence to support Parkers claim of
interference with an attorney-client relationship.
In light of our decision that summary judgment was
inappropriate on the informed consent claim, however, attorneys
fees must be redetermined by the superior court following
resolution of the claim of informed consent.
V. CONCLUSION
Because Parker failed to introduce rebuttal expert
testimony necessary to withstand the defendants motion for
summary judgment, we AFFIRM the grant of summary judgment on the
medical malpractice claim. Because the superior court did not
separately address Parkers informed consent claim, we REVERSE the
grant of summary judgment as to this claim. We REMAND the issue
of attorneys fees and costs for re-determination following
resolution of this case on remand.
_______________________________
1 Nurse Miller, who had been sued as Jane Doe, was the
individual who performed the procedure at issue in this dispute.
2 Prostatitis, a painful condition of the prostate gland,
can be caused by bacterial infection or inflammation of the
prostate gland. It can be a chronic condition and is associated
with pain, fever, chills, urinary problems, and painful
ejaculation. See http://mywebmd.com/hw/mens_conditions/hw73295
(March 5, 2004).
3 Interstitial Cystitis is characterized by pressure and
pain above the pubic area along with increased frequency and
urgency of urination. See
http://www.ichelp.org/whatisic/ICFactSheet.html. (March 5,
2004.)
4 For a white man in his 50s or 60s a PSA level of less
than 4 is considered to be within the normal range. See
http://mywebmd.com/hw/health_guide_atoz/aa96698 (March 5, 2004).
Parker was 59 at the time of his examination.
5 PSA levels above 4 require further testing to confirm
the presence or absence of prostate cancer. See
http://mywebmd.com/hw/health_guide_atoz/aa96686 (March 5, 2004).
6 Therchik v. Grant Aviation, 74 P.3d 191, 193 (Alaska
2003).
7 Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska
2000).
8 State, Dept of Highways v. Green, 586 P.2d 595, 606
n.32 (Alaska 1978) (quoting Howarth v. First Natl Bank of
Anchorage, 540 P.2d 486, 489-90 (Alaska 1975), affd on rehg, 551
P.2d 934 (Alaska 1976)).
9 Martinez v. Ha, 12 P.3d 1159, 1162 (Alaska 2000).
10 Therchik, 74 P. 3d at 193.
11 Wyatt v. Wyatt, 65 P.3d 825, 828 (Alaska 2003).
12 629 P.2d 953 (Alaska 1984).
13 Id. at 955 (quoting Clary Ins. Agency v. Doyle, 620
P.2d 194, 200 (Alaska 1980)).
14 Id.
15 Id.
16 40 P.3d 800, 805 (Alaska 2002).
17 See Martinez v. Ha, 12 P.3d 1159, 1162-63 (Alaska
2000).
18 See Ball v. Birch, Horton, Bittner and Cherot, 58 P.3d
481, 489 (Alaska 2002) (citing Zok v. Collins, 18 P.3d 39, 42-43
(Alaska 2001)); Willoya v. State, Dept of Corrections, 53 P.3d
1115, 1124 n.35 (Alaska 2002).
19 Broderick v. Kings Way Assembly of God Church, 808 P.2d
1211, 1215 (Alaska 1991).
20 Alaska R. Civ. P. 56(c); Falke v. Council of City of
Fairbanks, 960 P.2d 589, 590 (Alaska 1998) (A proper grant of
summary judgment does not infringe jury trial rights.)
21 Kaiser v. Sakata, 40 P.3d 800, 805 (Alaska 2002).
22 Id. at 805 n.15 (Alaska 2002) (citing ch. 26, 1, SLA
1997; ch. 177, 1, SLA 1978; ch. 46, 8, SLA 1982).
23 Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 352
(Alaska 1988).
24 Roethler v. Lutheran Hosps. & Homes Society of America,
Inc., 709 P.2d 487, 489 (Alaska 1985).
25 583 P.2d 173 (Alaska 1978).
26 Id. at 175-76 & n.7 (citing House Judiciary Committee
Report on Committee Substitute for Senate Bill 142).
27 AS 09.55.536(g) provides that travel and per diem
expenses and expert witness fees shall be paid by the court.
28 See AS 09.55.536(a); AS 09.55.540(a)(1); Priest v.
Lindig, 583 P.2d 173 (Alaska 1978).
29 Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993)
(quoting Hondroulis v. Schuhmacher, 553 So. 2d 393, 411 (La.
1989)).
30 Id.
31 Ball v. Birch, Horton, Bittner and Cherot, 58 P.3d 481,
485-86 (Alaska 2002).
32 Korman, 858 P.2d at 1150.
33 Alaska R. Civ. P. 61; Hayes v. Bering Sea Reindeer
Prods., 983 P.2d 1280, 1283 (Alaska 1999).
34 D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 234 (Alaska
2000) (Carpeneti, J. dissenting) (citing Priest v. Lindig, 583
P.2d 173, 175-76 & n.7 (Alaska 1978) (citations omitted)).
35 Wyatt v. Wyatt, 65 P.3d 825, 828 (Alaska 2003).
