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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).