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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marsingill v. O'Malley (01/27/2006) sp-5977

Marsingill v. O'Malley (01/27/2006) sp-5977, 128 P3d 151

     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

VICKI MARSINGILL, )
) Supreme Court No. S- 11578
Appellant, )
) Superior Court No.
v. ) 3AN-95-9909 CI
)
JAMES OMALLEY, M.D., ) O P I N I O N
)
Appellee. ) [No. 5977 - January 27, 2006]
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances: Robert H. Wagstaff, Law  Offices
          of Robert H. Wagstaff, Anchorage, and Richard
          H.   Friedman,   Friedman  Rubin   &   White,
          Anchorage,  for Appellant.  Howard  A.  Lazar
          and  Donna M. Meyers, Delaney, Wiles,  Hayes,
          Gerety,   Ellis   &  Young,  Anchorage,   for
          Appellee.

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

          BRYNER, Chief Justice.

I.   INTRODUCTION
          Vicki  Marsingill  sued Dr. James OMalley  when,  after
failing  to follow his recommendation to report to the  emergency
room,  she  suffered severe permanent injuries.   At  trial,  she
argued that had Dr. OMalley adequately informed her of the  risks
of  her  condition, she would have heeded his advice and  thereby
avoided   injury.   A  jury  found  in  favor  of  Dr.   OMalley.
Marsingill  appeals,  arguing that  the  jury  instructions  were
flawed, that the court allowed inadmissible expert testimony, and
that  the award of attorneys fees was too high.  We conclude that
the  jury  instructions  adequately  stated  the  law.   We  also
conclude  that  expert  testimony concerning  what  a  reasonable
patient  wants  to know and what doctors think patients  want  to
know is admissible in an informed consent case.  But because  the
uncontroverted  evidence indicates that the trial  court  awarded
attorneys  fees  for  non-compensable work,  including  political
lobbying  and appellate work, we vacate the fee award and  remand
the  case so that the court can reevaluate the billing statements
submitted by Dr. OMalleys attorneys.
II.  FACTS AND PROCEEDINGS
          The  facts  leading  up  to the  present  lawsuit  were
summarized in an earlier appeal as follows:
               In  October  1994 Dr. OMalley  performed
          surgery   to  remove  staples  that   another
          surgeon   had  previously  placed  in   Vicki
          Marsingills  stomach  to  facilitate   weight
          loss.    By   January  1995  Marsingill   had
          recovered from the surgery and was cleared to
          return to work.
          
               While  dining out with a friend  on  the
          evening  of  February  14,  1995,  Marsingill
          suffered  a sudden onset of illness,  was  in
          pain,  felt nauseous, and was unable to  eat,
          so  [went] home.  Her pain worsened over  the
          next few hours, and she eventually asked  her
          daughter  to call Dr. OMalley.  Her  daughter
          told  Dr. OMalley that Marsingill looked bad,
          that  she was nauseous and in pain, that  she
          was  unable to burp or have a bowel movement,
          and  that her stomach was as hard as a  rock.
          Dr.   OMalley   then  spoke   directly   with
          Marsingill,  who sounded anxious  and  upset.
          She   informed  him  that  she   was   having
          abdominal  pain, felt bloated, and could  not
          burp.  Dr. OMalley advised Marsingill that he
          could  not  evaluate her over the  phone  but
          that  if she felt bad enough to call  him  at
          night  she should go the emergency room.   He
          repeated  this advice several times  but  did
          not  venture any opinion about the  cause  of
          Marsingills  symptoms or tell  her  that  her
          condition was potentially life-threatening or
          serious.   He  left it up to her  whether  to
          seek emergency room treatment.
          
               When  Marsingill asked what would happen
          at  the  emergency room, Dr. OMalley informed
          her  that  the  doctors there would  probably
          take x-rays and insert a nasogastric tube  to
          relieve  the  pressure in her  stomach.1  Dr.
          OMalley  knew that Marsingill had  previously
          had nasogastric tubes inserted and, like most
          patients, strongly disliked them.  Soon after
          hearing that she would likely need to have  a
          nasogastric tube inserted if she went to  the
          emergency  room, Marsingill ended  the  call,
          telling Dr. OMalley that she thought that she
          could burp and was feeling better.
          
                 After hanging up, Marsingill told  her
          daughter  that  she  was feeling  better  and
          would  try  to tough it out for awhile.   But
          later  that  night Marsingills husband  found
          her   unconscious  on  the  bathroom   floor.
          Paramedics rushed her to the hospital,  where
          an  emergency  operation later revealed  that
          she  had  experienced an intestinal blockage.
          But   by  then  the  obstruction  had  caused
          Marsingill to go into shock; as a result, she
          suffered    brain    damage    and    partial
          paralysis.[1]
          
          
          
          __________________________
          
               1  Inserting a nasogastric tube involves
          placing  a  tube  through the patients  nose,
          down   the  back  of  the  throat  into   the
          esophagus, and into the stomach.
          
          Marsingill filed suit against Dr. OMalley alleging,  in
part, that Dr. OMalleys treatment of her condition was negligent.
She  claimed  that  Dr.  OMalley lacked skill  and  knowledge  in
general surgery and, as a result, committed malpractice by giving
Marsingill incompetent advice when she called about her symptoms.2
Marsingill  tried unsuccessfully to introduce evidence  regarding
the  educational credentials of Dr. OMalley.3  Marsingill and Dr.
OMalley  also each presented experts on the subject of the  level
of  care  given.  Marsingills experts uniformly agreed  that  Dr.
OMalleys actions fell below the accepted standard of care because
he failed to communicate the seriousness of Marsingills condition
and  needlessly told Marsingill that she would likely be  treated
with the painful use of nasogastric tubes.4  Dr. OMalleys experts
uniformly stated that Dr. OMalley had provided very good care and
had  done  his  duty  by not speculating on  possible  causes  of
symptoms,  but rather advising Marsingill to go to the  emergency
room.5
          Marsingill  also argued that by failing to  inform  her
that  her  condition could be quite serious, Dr. OMalley breached
his  duty to give Marsingill enough information to enable her  to
make  an  informed choice about going to the emergency  room  for
treatment.6  The experts from each side weighed in on this issue.
Marsingills  experts stated that Dr. OMalley had  failed  in  his
duty  to  give  enough  information for  Marsingill  to  make  an
intelligent   choice  about  whether  to  seek   emergency   room
treatment.7   Dr.  OMalleys experts stated that  simply  advising
Marsingill to go to the emergency room was the appropriate action
to  take,  and  that this advice fulfilled Dr. OMalleys  duty  to
provide information.8
          Marsingill  proposed jury instructions  covering  these
alternative  theories of liability  malpractice  and  a  lack  of
informed  consent.9  Her proposed instructions  on  the  informed
consent claim were rejected.  As we noted in Marsingill I:
          Marsingills proposed instruction  would  have
          required  the jury to decide the  sufficiency
          of   Dr.  OMalleys  communications  from  the
          standpoint   of  a  reasonable   patient   in
          Marsingills  position. But  the  trial  court
          rejected  the  proposed  reasonable   patient
          instruction, instead directing  the  jury  to
          measure  Dr. OMalleys compliance  by  relying
          exclusively    on   the   expert    testimony
          addressing  his  compliance  with  a  general
          surgeons professional standard of care.[10]
          
At  the  end of the first trial, the jury returned a verdict  for
Dr.  OMalley on all counts.  Marsingill appealed.  We vacated the
judgment and remanded on the informed consent claim.11  We  noted
that  our  cases had already established that a physician  has  a
duty  to  provide a patient with enough information  to  allow  a
reasonable  patient to make an informed and intelligent  decision
concerning  whether to proceed with treatment.12  We  ruled  that
whether  a doctor had fulfilled this duty should be measured  not
by  the  standard  practice of physicians, but  rather  from  the
perspective  of  the reasonable patient.13  We  noted  that  [o]n
remand, the jury must be instructed to decide the claim from  the
standpoint of a reasonable patient.14
          On  remand,  two  disputes arose.  First,  the  parties
disagreed over the proper role of expert testimony in an informed
consent  trial.   Marsingill objected  to  two  forms  of  expert
testimony  offered by Dr. OMalley: she argued that  Dr.  OMalleys
experts  should not be allowed to testify concerning the standard
of  care  for physician disclosures because their views were  not
directly  relevant  to what a reasonable patient  would  want  to
know;  in  addition, she argued that the experts  should  not  be
allowed  to  testify concerning what a reasonable  patient  would
want to know, because Dr. OMalleys witnesses were not experts  on
the subject.  Marsingill further argued that expert testimony  on
both  issues would be prejudicial.  The court allowed the experts
to  testify,  though it did provide limiting  instructions.   The
challenged  experts  for  Dr.  OMalley  were  Dr.  Moossa  (on  a
videotape), Dr. Macho, and Dr. Gardiner, all surgeons, as well as
Dr. Braddock, a medical ethicist.
          The  second  dispute  involved how much  information  a
doctor  was  required  to  provide to a patient  inquiring  about
medical  treatment.  Relying on Marsingill I, Dr. OMalley  argued
that  the  doctor was only required to provide the  patient  with
enough  information  to enable a reasonable patient  to  make  an
informed  and  intelligent  decision.  Marsingill,  in  contrast,
argued that the jury should be instructed that [a] physician owes
a  duty to disclose to his patient all information which would be
material  to  a  reasonable  patients  informed  and  intelligent
decision  regarding matters of treatment and health. The superior
court settled on an instruction describing the physicians duty as
a duty to provide material information, thus omitting Marsingills
proposed language referring to all material information.
          The  jury found in favor of Dr. OMalley.  Based on  the
verdict,  the  court awarded Dr. OMalley $96,354.92 in  attorneys
fees.
          Marsingill appeals.
III. DISCUSSION
          Marsingill  raises three points on appeal.  She  argues
that  the  admission  of  expert testimony  concerning  both  the
standard of care and what a reasonable patient would want to know
amounts  to  reversible error.  She argues that  the  failure  to
include the word all in the jury instructions misstated the  law.
And  she  argues that the award of attorneys fees  was  too  high
that  Dr.  OMalleys attorneys billed unreasonably high hours  for
some of their work and that Dr. OMalley sought attorneys fees for
non-compensable work.
     A.   Standard of Review
          This court reviews jury instructions de novo.15
          We  review the admission of expert testimony for  abuse
of  discretion.16  An abuse of discretion exists when we are left
with a definite and firm conviction that an error has been made.17
But when the admissibility of evidence turns on whether the trial
court  applied the correct legal standard, we review  the  courts
decision using our independent legal judgment.18
          We  similarly review a trial courts order of  attorneys
fees for abuse of discretion.19  We will only reverse an award of
attorneys   fees   when  the  award  is  arbitrary,   capricious,
manifestly unreasonable, or stems from an improper motive.20
     B.   Expert Testimony
          Dr. OMalley presented three live testimony experts: Dr.
Braddock,  Dr. Macho, and Dr. Gardiner.  The videotaped testimony
of  a  fourth  expert, Dr. Moossa, was presented at trial.   Each
testified that he would have behaved similarly to Dr. OMalley and
that  Marsingill had all the information she needed  to  make  an
intelligent and informed decision.  The testimony of the  experts
was allowed over Marsingills pretrial motion to preclude it.  She
argued  that  it  was  not relevant to what a reasonable  patient
would want to know and that the doctors should not be allowed  to
testify concerning what a reasonable patient would want to  know,
because  they  were not experts on the subject.  Marsingill  also
argued  that  expert  testimony on  both  issues  would  be  more
prejudicial than probative.  The trial court nevertheless allowed
the doctors to testify on a limited number of subjects:
               Expert  trial testimony will be  limited
          to  the  risks  facing  [Ms.]  Marsingill  on
          February 14, and to what medically caused her
          injuries on that date.
          
               Experts may discuss the medical problems
          confronting  Ms. Marsingill, the  information
          available  to  [Dr. OMalley],  and  what  the
          expert believes would be material information
          in  the  context of Feb 14, 95  to  enable  a
          reasonable  patient  to make  an  intelligent
          decision.
          
               The   experts  may  opine  whether   the
          information provided was sufficient to enable
          an  intelligent  decision based  on  material
          information.[21]
          
            Dr.  Braddock testified that when a patient  calls  a
physician  at  night, the main question a patient wants  answered
is,  should  I  be really worried and go into the hospital  right
now, or not.  He testified that it is generally inappropriate  to
tell  patients that they might die, because it might unduly alarm
them  or seem overly melodramatic and manipulative.  Dr. Braddock
also  testified  that  he  believed that  Marsingill  had  enough
information  to decide whether to go to the emergency  room.   He
explained that he arrived at this conclusion by considering three
perspectives:
          One  is thinking about what most people would
          .  . . with a complaint of abdominal pain and
          the  kind of situation that she was  in  what
          they  would . . . need to hear to be able  to
          make  a  decision about, you know, do I  stay
          home, do I go to the emergency room.  Second,
          reflecting on . . . patients that Ive had  or
          other  sort  of more hypothetical people,  if
          they heard the advice that they got over  the
          phone,  what  they would likely actually  do.
          And  I  think  that most anyone  hearing  the
          advice  that,  you know, I  cant  tell  whats
          going  on over the phone, you should go  into
          the   emergency  department,  Ill  call   and
          expedite  things,  Ill meet  you  there,  you
          know,  thats conveying that I should probably
          go.   I  think  most  people  would  go.    I
          certainly  know I would go.  And third,  sort
          of  just reflecting on what I would say to  a
          patient  who called me in the middle  of  the
          night with those kind of complaints.  Now, Im
          not a surgeon so I might not know some of the
          subtle nuances of what might be expected .  .
          .  after the kind of surgeries that shed had,
          but  I  have  seen lots of people with  bowel
          obstructions,  and  I  know  the   kinds   of
          symptoms,  I know the kind of advice  that  I
          would give.  So based on those three things I
          think that she had the information she needed
          to make an informed choice.
          
          Dr.  OMalleys second expert, Dr. Macho, also  testified
that   he  would  have  communicated  the  same  information   to
Marsingill  that  Dr. OMalley had.  He noted that  there  were  a
large  number  of  conditions that might have caused  Marsingills
symptoms. He testified that he would not have informed Marsingill
of  any of the specific concerns that he had, both because  there
were too many possibilities and because,
          [y]ou  would  have  to include  possibilities
          that  are serious and possibilities that  are
          trivial.   Some patients will focus on  whats
          serious  and  other patients  will  focus  on
          whats  trivial. . . . So, you  know,  telling
          them  all this information could actually  be
          misleading  or  falsely  reassuring  to   the
          patient.
          
In   addition,   Dr.  Macho  testified  that  without   examining
Marsingill  in  person, it would be impossible to know  which  of
those conditions was causing her symptoms:
          [A]s  a  surgeon what you want to do  is  you
          want  to know what the problem is.  You  dont
          want  to  know a whole list of possibilities.
          And the way that you could narrow down on the
          problem is by having the patient simply  come
          to  the emergency room and be evaluated.  So,
          you  know,  it  was really the  only  logical
          thing to tell the patient.
          
          Dr.  Macho  also  believed that Marsingill  had  enough
information   to  make  a  decision.   He  said  that   in   some
circumstances (e.g., where a patient is having a heart attack) it
might be appropriate to warn a patient that failure to go to  the
emergency room might be fatal, but in Marsingills situation  such
a warning would not have been appropriate.
          Dr.  Gardiner, another of Dr. OMalleys experts,  agreed
with  Dr.  Macho that because patients sometimes hear  what  they
want  to hear, giving patients a list of possibilities would  not
be  appropriate over the telephone.  He testified that  he  faced
similar situations to the present case almost weekly and that  he
had never responded significantly differently than Dr. OMalley.
          Dr.  Gardiner  also  testified  that  Dr.  OMalley  had
provided  Marsingill with the information necessary  to  make  an
informed  and  intelligent decision.  Specifically, Dr.  Gardiner
pointed  out  that  Dr. OMalley communicated that  he  could  not
diagnose  Marsingill  over the phone,  that  if  Marsingill  felt
enough  pain to call at ten oclock at night she should go to  the
emergency  room,  and  that  if she did  go,  Dr.  OMalley  would
facilitate  her  intake process when she arrived.   Dr.  Gardiner
further  noted that by telling Marsingill that he would meet  her
at  the  emergency room, Dr. OMalley communicated  that  he  took
Marsingills  condition very seriously.  Dr. Gardiner  also  noted
that  Dr. OMalley had accurately explained what Marsingill  could
expect at the emergency room: that he would examine her, do  some
blood work, do some x-rays, and possibly pass a nasogastric tube.
          In  addition, Dr. Gardiner expressed the view that  Dr.
OMalley  had  given  Marsingill all of the information  that  she
genuinely  needed.  He testified that communicating  any  of  the
myriad possible causes to Marsingill would have been nothing more
than pure speculation, guess work, and that most patients do  not
expect that over the phone.
          Marsingill  argues that the superior court  should  not
have allowed Dr. OMalleys experts to discuss the standard of care
for physician disclosures or what a reasonable patient would want
to  know.   According  to  Marsingill,  this  testimony  was  not
relevant  or  helpful, the doctors lacked  expertise  in  what  a
reasonable  patient would want to know, and their  opinions  were
unfairly prejudicial.  We consider each of these arguments below.
          1.   Relevance
          Alaskas  informed  consent  statute,  AS  09.55.556(a),
requires  physicians to disclose the common risks and  reasonable
alternatives to a proposed treatment or procedure.22   But as  we
noted  in Marsingills first appeal, the statute fails to  specify
what  standard governs the scope of the disclosure requirement.23
We  have  rejected the traditional professional standard  in  the
field  approach in favor of the modern trend of case  law,  which
measure[s] the physicians duty of disclosure by what a reasonable
patient  would  need  to know in order to make  an  informed  and
intelligent decision.24
          As  we  stressed  in  Marsingill I,  a  physician  must
disclose  those risks which are material to a reasonable patients
decision concerning treatment.25  We held in Marsingill I that the
determination  of materiality had two parts: (a)  to  define  the
existence  and  nature  of the risk and  the  likelihood  of  its
occurrence;  and  (b) to decide whether the probability  of  that
type  of harm is a risk which a reasonable patient would consider
in  deciding on treatment.26  We also recognized in Marsingill  I
          that while expert testimony may be necessary to satisfy the first
prong  of  the  test, it is not necessary to satisfy  the  second
prong:27
          The  second prong of the materiality test  is
          for  the trier of fact to decide whether  the
          probability of that type of harm  is  a  risk
          which a reasonable patient would consider  in
          deciding  on  treatment.  The  focus  is   on
          whether  a reasonable person in the  patients
          position  would  attach significance  to  the
          specific  risk.  This determination does  not
          require expert testimony.[28]
          
          Relying  on this aspect of our ruling in Marsingill  I,
Marsingill  argues that Dr. OMalleys witnesses  should  not  have
been allowed to testify either about the general standard of care
for  physician  disclosures or about what  a  reasonable  patient
would   want  to  know.   She  asserts  that  the  testimony   is
inadmissible   because  a  physicians  opinion  concerning   what
information  the  physician thinks is important is  not  directly
relevant to establish what a reasonable patient would deem to  be
important.     Marsingills   arguments   on   this   point    are
unpersuasive.
          To  be admissible under our rules, evidence need not be
directly relevant to the fact that it seeks to establish.  Alaska
Rule of Evidence 401 provides that evidence is relevant if it has
the  tendency  to  make the existence of  any  fact  that  is  of
consequence  to the determination of the action more probable  or
less  probable  than  it  would be without  the  evidence.   This
definition of relevant evidence is a broad one.29  The Commentary
to  the  Rules  of  Evidence, cited in  Denison  v.  Anchorage,30
stresses that
          [t]he standard of probability under the  Rule
          is  more  .  .  . probable than it  would  be
          without  the  evidence.  Any  more  stringent
          requirement is unworkable and unrealistic.  .
          . .
          
               The  words  any  tendency  in  the  rule
          suggest   that  the  court  should  err,   in
          doubtful    cases,    on    the    side    of
          admissibility.[31]
          
Thus,  [t]o be relevant [under Evidence Rule 401], evidence  need
not  be direct or conclusive; it need only have some tendency  to
advance the proposition for which it is offered.32  And as Denison
also  recognized,  Evidence Rule 402 embodies a basic  preference
for  admission of all relevant evidence unless such  evidence  is
otherwise specifically made inadmissible by constitution, statute
or rule.33
          The  doctors  who testified in this case had  extensive
experience interacting with patients.  Under the broad definition
of  Rule 401, their testimony concerning the amount and kinds  of
information  that  patients generally want in  late  night  phone
calls  was  relevant  to  establish  whether  Dr.  OMalley   gave
          Marsingill as much information as a reasonable patient would want
to  know.  In addition, their testimony was relevant to show what
a  reasonable doctor is likely to think a patient might  want  to
know.  When determining whether a doctor is liable for failing to
disclose  sufficient information, the standard  of  liability  is
negligence  and  not  strict liability.34  A doctors  failure  to
provide sufficient information will not render him liable  unless
the  doctor knew or reasonably should have known that the patient
might have considered the information to be important.  The  jury
instruction   defining  materiality  reflected  this   negligence
standard,   telling  the  jury  that  material   information   is
information  which  the surgeon knows or  should  know  would  be
regarded  as  significant by a reasonable person in the  patients
position  when  deciding to accept or reject  medical  treatment.
Marsingill  did  not object to this aspect of  the  instructions.
As  a  result, while the standard of care exercised by physicians
with  regard to disclosures does not determine what a  reasonable
patient  would  want  to know, it is unquestionably  relevant  in
determining whether a doctor was negligent when assessing what  a
reasonable patient would want to know.
          2.   Helpfulness
          Under   Alaska   Rule  of  Evidence   702   scientific,
technical, or other specialized knowledge may be heard only if it
will  assist the trier of fact to understand the evidence  or  to
determine a fact in issue.35  Under this rule, we have held  that
the primary criterion for determining whether a witness should be
permitted  to  give   expert testimony is whether  the  jury  can
receive  appreciable  help from this particular  person  on  this
particular subject.36
          For  the  same reasons that the disputed testimony  was
relevant,  it  could also be considered helpful to the  trier  of
fact.   The  doctors had a broad range of experience in providing
information  that their patients needed.  Similarly, the  doctors
were  able  to  testify  concerning  the  kinds  and  amount   of
information  that they, as experienced members  of  their  field,
perceived  patients to desire.  The trial court could  reasonably
find  that  both  sorts of testimony might  help  the  jurors  to
determine  whether Dr. OMalley gave Marsingill enough information
to enable her to make an informed treatment decision.
          3.   Reliability
          Alaska  Rule  of Evidence 702 requires that  the  trial
court  determine the reliability of expert testimony: the witness
must  be  qualified as an expert by knowledge, skill, experience,
training, or education.37 Our case law has described two  general
categories  of  expert testimony: (a) expert testimony  based  on
technical  or scientific research and testing;38 and  (b)  expert
testimony based on practical experience in the relevant field.39
          Marsingill  argues that Dr. OMalleys  experts  did  not
possess  adequate scientific knowledge to offer  expert  opinions
concerning  what  a reasonable patient would want  to  know.   To
support  this  argument, Marsingill relies on  State  v.  Coon;40
there,  we  approved  the reliability and relevance  requirements
adopted  by the United States Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals, Inc.,41 for admitting expert testimony based
          on scientific theory.42
          In  response  to  this argument, Dr. OMalley  correctly
counters   that  his  witnesses  derived  their  expertise   from
experience  and so do not need to meet the requirements  of  Coon
and Daubert.  In Marron v. Stromstad we  limited our reliance  on
the  Daubert test to expert testimony based on scientific theory;
we  noted  that  testimony based on personal  experience  is  not
covered  by this standard.43  Because the disputed evidence  here
consisted of experience-based testimony, it did not need to  meet
the stricter Daubert/Coon test.44
          Dr.  OMalleys  experts possessed the relevant  personal
experience.  Each had extensive experience with patients and  was
routinely  called  upon to respond to patients  questions  during
late  night  telephone  calls.  In  addition,  Dr.  Braddock  had
completed  several  studies  on the amount  of  information  that
doctors  give  patients  in a variety of circumstances.   As  the
trial  court  correctly  observed, an  understanding  of  what  a
patient needs to know . . . and understanding what a doctor needs
to  say,  is  .  .  .  related  to  what  doctors  do.   We  have
consistently recognized that experience-based expert testimony is
admissible when the expert witness has substantial experience  in
the relevant field and the testimony might help the jury.45
          4.   Unfair Prejudice
          Under  Alaska  Rule of Evidence 403,  evidence  may  be
excluded  if its probative value is outweighed by the  danger  of
unfair  prejudice,  confusion of the issues,  or  misleading  the
jury[.]46   We  will  only overturn a superior  courts  Rule  403
balancing  determination  if we find an  abuse  of  discretion.47
Marsingill suggests that even if the doctors testimony concerning
the  standard of care and what a reasonable person would want  to
know  were  otherwise admissible, it should  have  been  excluded
because  it  could not help but confuse the jury.   According  to
Marsingill, [t]his confusion was prejudicial . . . and warrants a
reversal.  We are not persuaded.
          Marsingill in effect contends that the expertise of the
doctors and the fact that they were well respected rendered their
testimony overly persuasive.  But if expertise renders a witnesss
otherwise  relevant  testimony unfairly prejudicial,  all  expert
testimony would be excluded.  There is always a risk that  juries
might  weigh  expert  opinion  too heavily;  for  precisely  this
reason,  jury instructions routinely remind jurors that they  are
not  bound to accept or believe the testimony of experts.48  This
was   true  of  the  instructions  given  in  the  present  case.
Moreover, the instructions correctly emphasized that the standard
for  determining whether sufficient information had been  relayed
to  Marsingill  was  that  of  the reasonable  patient,  not  the
patients physician.  Read together, the instructions in this case
adequately  informed  the jury that it  need  not  defer  to  the
doctors  conclusions  concerning what  a  reasonable  patient  in
Marsingills position would have wanted to know.  The trial  court
did  not  abuse its discretion in determining that the challenged
expert testimony was not unfairly prejudicial.
     C.   Jury Instructions
          Marsingills  second claim of error  is  that  the  jury
instructions  failed  to  accurately describe  the  standard  for
informed consent.49  In Korman v. Mallin, we established that  in
order   to   comply   with  Alaskas  informed  consent   statute,
AS 09.55.556,
          a  physician  must disclose those  risks  and
          benefits  of  a  proposed procedure  which  a
          reasonable  patient would  need  to  know  in
          order  to  make  an informed and  intelligent
          decision.[50]
          
We also held that materiality must ultimately be judged by asking
what  a  reasonable patient would want to know.51  This  standard
requires the factfinder to determine the existence and nature  of
the  risk  and the likelihood of its occurrence, and whether  the
probability  of  that type of harm is a risk which  a  reasonable
patient would consider in deciding on a treatment.52
          Here,  after  extensive briefing  by  the  parties,  an
unsuccessful petition for review by Marsingill, and objections by
both   sides,  the  trial  court  settled  on  informed   consent
instructions  that described Marsingills claim  as  one  alleging
that she was harmed because Dr. OMalley had failed to communicate
material  information  about  the potential  seriousness  of  her
condition  and the risks of failing to seek immediate  treatment,
thus  leaving  her  with  insufficient  information  to  make  an
informed  decision  as to whether she needed  to  report  to  the
emergency room.
          The instructions went on to state that a physician owes
a  duty  to  disclose information that would  be  material  to  a
reasonable patients informed and intelligent decisions  regarding
treatment  and health, and that the sufficiency of  a  physicians
disclosure  is  measured  from the  standpoint  of  a  reasonable
patient.   They  also  specified that [m]aterial  information  is
information  which  the surgeon knows or  should  know  would  be
regarded  as  significant by a reasonable person in the  patients
position  when  deciding to accept or reject  medical  treatment.
Furthermore,  the  instructions told the  jury  that  failure  to
disclose  material information renders the physician  liable  for
any  injury a cause of which was the patients declining to accept
treatment  if a reasonable person in the patients position  would
not  have declined treatment if the material information had been
given.
          The instructions laid out the ultimate jury decision as
follows:
          If  you  decide that it is more  likely  true
          than  not true that (1) James OMalley  failed
          to  disclose to Vicki Marsingill, or a family
          member,  material  information  necessary  to
          permit   a  reasonable  person  to  make   an
          informed decision as to whether she should go
          to  the emergency room on February 14,  1995,
          (2)  a reasonable person, had she known  this
          information, would have gone to the emergency
          room, and (3) the failure of Vicki Marsingill
          to go to the emergency room was a legal cause
          of  her  injuries,  then you  must  return  a
          verdict for the plaintiff, otherwise you must
          return a verdict for the defendant.
          
          Although the standard established in Marsingill  I  and
Korman53 might have been described in many alternative ways, these
instructions accurately stated the law.  They informed  the  jury
that Dr. OMalley had a duty to disclose information that would be
material   to  a  reasonable  patient.   They  defined   material
information as information which the surgeon knows or should know
would  be regarded as significant by a reasonable person  in  the
patients position.  And they emphasized that if information would
lead  a  reasonable patient to accept treatment, the  information
needed to be disclosed.  Nothing more is required.
          Relying on the instructions failure to specify that Dr.
OMalley  was  required  to  give her  all  material  information,
Marsingill  argues  that they allowed the doctor  to  argue  that
because  he  gave Marsingill some information, he  satisfied  his
duty  despite  failing  to  disclose  all  material  information.
Marsingill  insists  that  by  merely  requiring  the  doctor  to
disclose material information, the court effectively allowed  the
defense  to  nullify the standard altogether.   Under  the  facts
presented here, we find this argument unpersuasive.
          Initially,  Marsingills  argument  incorrectly  assumes
that  omitting  an express requirement to disclose  all  material
information equates to telling the jury that Dr. OMalley only had
to  disclose some material information.  Even if this  assumption
might  be  plausible  in some situations, it  lacks  plausibility
here,  for  it  overlooks the instruction that  defined  material
information to include any information that a reasonable  patient
would  regard  as  significant.  Reading the  instructions  as  a
whole, then, it seems unlikely that a reasonable juror would have
concluded  that  Dr.  OMalley met his duty to  disclose  material
information   despite   neglecting  to  disclose   matters   that
Marsingill would have deemed to be significant.
          Moreover,  the  record undercuts Marsingills  assertion
that  the instructions allowed Dr. OMalley to argue this improper
interpretation.   Our review of the record establishes  that  Dr.
OMalleys attorney never advanced this argument to the jury.   Dr.
OMalleys attorney maintained that Dr. OMalley was correct in  not
telling  Marsingill that she might have a bowel  obstruction  and
that  this  condition could be life threatening, because  such  a
warning  was  not  even  information . .  .  much  less  material
information. . . . [G]uesses are not material information.
          In  short,  because  the  jury  instructions  correctly
stated  the law and because Dr. OMalleys attorney did  not  argue
that  Dr.  OMalley  was  only required to disclose  some  of  the
material   information,  we  find  no  error  in  the  challenged
instructions.
     D.   Attorneys Fees
          Marsingills  final point on appeal is  that  the  trial
courts award of attorneys fees was an abuse of discretion.  After
the  verdict, Dr. OMalley moved for attorneys fees.  Dr.  OMalley
          noted that after the first trial he had been awarded $51,160.50
in  attorneys  fees.  He stated that in the second trial  he  had
incurred  attorneys  fees  of  $150,648.00.   Under  Civil   Rule
82(b)(2),  he  calculated  that  he  should  get  $45,194.42   in
attorneys fees for the second trial.54  He added the awards  from
both trials together for a total of $96,354.92.  Over Marsingills
objection,  the trial court awarded Dr. OMalley the exact  amount
of  attorneys  fees  he sought: $96,354.92.  The  court  did  not
explain its award.
          Marsingill argues that the fee award was too high.  She
contends  that  Dr.  OMalleys  billing  statement  included  non-
compensable  work,  such  as  lobbying  the  legislature  for   a
statutory  reversal of Marsingill I, and appellate work  relating
to  Marsingill  I.   She also argues that Dr. OMalleys  attorneys
billed  unreasonably high hours for some of their work.  Finally,
Marsingill contends that the trial courts award of fees for  time
spent  on  the appeal of Marsingill I conflicts with this  courts
order granting Marsingill fees and costs for the prior appeal.
          Dr. OMalley responds that the fee award was appropriate
and  that  so long as a trial court did not depart from  the  fee
schedule  in  Rule  82(b)(2), it did  not  need  to  explain  its
decision.   He  also  notes that we have previously  given  trial
courts  great  discretion in determining whether  the  amount  of
hours billed is reasonable and appropriate.
          We have held that when a trial court issues a fee award
that  accords with the presumptive percentages in Rule  82(b)(2),
the  court need not offer an explanation of its award.55  We have
also  held  that  it  is . . . for the trial judge  to  determine
whether  too much time was spent by attorneys for the  prevailing
party or whether too many attorneys were employed.56  Here, as to
a  $10,172.25 portion of Dr. OMalleys total billings of $150,648,
Marsingill simply advances a general claim of excessive  billing.
We  find  no merit to this claim.  The general reasonableness  of
the  billings  was a matter within the discretion  of  the  trial
court.
          In contrast, we agree with Marsingill that it was error
to award attorneys fees for legislative work and for work related
to the first appeal.  We have previously held that attorneys fees
under  Civil  Rule  82  may be awarded  only  for  work  that  is
reasonably related to the matter directly before the trial court.57
In  Torrey  v.  Hamilton, we held that Rule 82 fees  must  relate
solely  to attorneys services performed in the case in which  the
judgment  is entered and that the rule only provides compensation
for attorneys services performed up to the time of the judgment.58
We  have  also  held  that attorneys fees  for  appeals  are  not
awardable  by the trial court or governed by Civil Rule  82,  but
may  ordinarily  be  awarded  by an  appellate  court  acting  in
accordance with Appellate Rule 508.59
          Here,  Dr.  OMalleys billings appear to  have  included
specific  amounts  attributable to appellate  work  and  lobbying
efforts  before the legislature.60  The superior court failed  to
address  these parts of the billings or to explain why  it  found
them  to be compensable.  Because these aspects of the award turn
on  an  incorrect  interpretation of the  applicable  legal  rule
          rather than an exercise of  allowable discretion, we vacate the
award  of  attorneys fees and remand for reconsideration  by  the
trial court.
IV.  CONCLUSION
          For  the foregoing reasons, we AFFIRM the jurys verdict
in  favor  of  Dr.  OMalley but VACATE and REMAND  the  award  of
attorneys fees so that the trial court can reconsider the  amount
of the award in light of this opinion.
_______________________________
     1     Marsingill  v.  OMalley, 58 P.3d 495,  497-98  (Alaska
2002) (Marsingill I).

     2    Id. at 498.

     3    Id.

     4    Id.

     5    Id. at 498-99.

     6    Id. at 498.

     7    Id. at 499.

     8    Id.

     9    Id.

     10    Id.

     11    Id. at 505.

     12    Id. at 503.

     13    Id. at 503-04, 505.

     14    Id. at 505.

     15     See Jackson v. Am. Equity Ins. Co., 90 P.3d 136,  141
(Alaska 2004).

     16     See  Johns Heating Serv. v. Lamb, 46 P.3d 1024,  1030
(Alaska 2002).

     17     See  Samaniego v. City of Kodiak, 80 P.3d 216, 218-19
(Alaska 2003).

     18     Alderman v. Iditarod Properties, Inc., 104 P.3d  136,
140 (Alaska 2004) (Alderman I).

     19    Id. at 140.

     20    Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303
(Alaska  2000)  (quoting  Jones v. Jones,  925  P.2d  1339,  1340
(Alaska 1996)).

     21     In  allowing the expert testimony to be admitted  for
these  limited  purposes, the court also  asked  the  parties  to
consider the possibility of instructing the jury:

               Some  opinions expressed by  experts  in
          this  case  on the topic of what a reasonable
          person  would  expect or  what  a  reasonable
          person  would  need  to know  are  not  being
          admitted as expert opinion (or testimony)  in
          the classic sense, but simply as opinions  on
          a  topic  relevant to trial about which  they
          have  considered thoughts.  The  experts  are
          not  appearing before the court as  linguists
          or  expert reasonable patients.  What  weight
          is  to be given their testimony on this topic
          is  wholly for the jury to determine in light
          of all the evidence and instructions.
          
     22    AS 09.55.556(a) provides that:

          A  health care 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.
          
     23     See  Marsingill I, 58 P. 3d at 503 (citing Korman  v.
Mallin, 858 P.2d 1148-49 (Alaska 1993)).

     24    Marsingill I, 58 P.3d at 503 (quoting Korman, 858 P.2d
at 1148-49).

     25    Id. (quoting Korman, 858 P.2d at 1149).

     26    Id. at 504.

     27    Id.

     28    Id.

     29    See Van Meter v. State, 743 P.2d 385, 392 (Alaska App.
1987).

     30     See Denison v. Anchorage, 630 P.2d 1001, 1003 (Alaska
App. 1981).

     31    Alaska R. Evid. 401 Commentary.

     32     McLaughlin v. State, 818 P.2d 683, 687  (Alaska  App.
1991).  See also Byrne v. State, 654 P.2d 795 (Alaska App. 1982);
Denison, 630 P.2d at 1003.

     33    Denison, 630 P.2d at 1003.

     34    See, e.g., Jaskoviak v. Gruver, 638 N.W.2d 1, 6-7 (N.D.
2002);  McKinley v. Stripling, 763 S.W.2d 407, 409  (Tex.  1989);
Fortier  v.  Traynor,  330 N.W.2d 513,  517  (N.D.  1983)  ([T]he
doctrine  of  informed  consent is a  form  of  negligence  which
essentially  relates to a duty of a doctor to disclose  pertinent
information to a patient.).

     35     Alaska  R.  Evid.  702(a) (providing  that  qualified
experts may testify thereto).

     36     Handley  v.  State, 615 P.2d 627, 631  (Alaska  1980)
(quoting Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965)).

     37    Alaska R. Evid. 702(a).

     38     See  generally  State v. Coon, 974 P.2d  386  (Alaska
1999).

     39    See Getchell v. Lodge, 65 P.3d 50, 56-57 (Alaska 2003).

     40    974 P.2d 386.

     41    509 U.S. 579 (1993).

     42    Coon, 974 P.2d at 395.

     43     Marron  v.  Stromstad, 123  P.3d  992  (Alaska  2005)
(explicitly rejecting the extension of Daubert suggested in Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).

     44     We note that the concurring opinion in Marron favored
retaining  the  Daubert/Coon  test  for  experience-based  expert
testimony  but  advocated a lenient and flexible  application  of
that  test.   Marron,  123  P.3d at 1014-17  (Bryner,  Chief  J.,
concurring).  In our view, the expert testimony disputed in  this
case  would  have  been readily admissible under the  alternative
approach set out by the concurring opinion in Marron.

     45    See, e.g., Getchell, 65 P.3d at 57; Johns Heating Serv.
v. Lamb, 46 P.3d 1024, 1039 (Alaska 2002).

     46    Alaska R. Evid. 403.

     47     See, e.g., City of Kodiak v. Samaniego, 83 P.3d 1077,
1087  (Alaska  2004);  Alaska  Northern  Dev.,  Inc.  v.  Alyeska
Pipeline Serv. Co., 666 P.2d 33, 42 (Alaska 1983).

     48    Alaska Pattern Civil Jury Instruction 2.10 (rev. 1999)
provides in part:

          As  with  other  witnesses, you  must  decide
          whether  to  believe an expert and  how  much
          weight to give to expert testimony.  You  may
          believe  all, part, or none of the  testimony
          of  an  expert witness.  You need not believe
          an   expert   even   if  the   testimony   is
          uncontradicted.   However,  you  should   act
          reasonably  in deciding whether  or  not  you
          believe an expert witness and how much weight
          to give expert testimony.
          
     49    Our review of this claim is governed by Lynden Inc. v.
Walker,  30  P.3d  609,  612 (Alaska 2001) (A  legally  erroneous
instruction  will  lead to reversal only where  it  prejudices  a
party.);  cf.  Wilson v. State, 967 P.2d 98, 102-03 (Alaska  App.
1998) (observing that the test for determining the legitimacy  of
jury  instructions is not whether a clearer and [a] more accurate
statement  of  the law is possible but rather whether  the  trial
judges wording wrongly stated the law or was otherwise likely  to
have led the jury astray.).

     50    858 P.2d 1145, 1146 (Alaska 1993).

     51    Marsingill I, 58 P.3d at 504.

     52    Id. (quoting Korman, 858 P.2d at 1149).

     53     Compare the statement of the standard in Alaska Civil
Pattern Jury Instruction 8.03 (rev. 2002):

          In  order for the plaintiff to prevail on  [a
          failure  to  obtain informed consent]  claim,
          you must find it is more likely true than not
          true that:
          
          (1)   the defendant failed to provide  enough
          information about the material risks  of  the
          [insert   treatment   or   procedure],    the
          likelihood  that the risks would  occur,  and
          the  reasonable alternatives to [insert  type
          of   treatment  or  procedure]  to  allow   a
          reasonable person in the plaintiffs  position
          to  make an informed and intelligent decision
          whether  or  not to proceed with the  [insert
          type of treatment or procedure];
          
          (2)  the plaintiff would have decided against
          the  [insert type of treatment or  procedure]
          if   [he]   [she]  had  been  provided   such
          information; and
          
          (3)    the  [insert  type  of  treatment   or
          procedure]   was  a  legal   cause   of   the
          plaintiffs harm.
          
Alaska  Civil Pattern Jury Instruction 8.05 (rev. 2002) specifies
that  [a] risk is material if a reasonable person in the patients
position would have attached significance to the risk in deciding
on treatment.

     54    Alaska Civil Rule 82(b)(2) states:

          In   cases  in  which  the  prevailing  party
          recovers  no money judgment, the court  shall
          award  the  prevailing party in a case  which
          goes  to  trial 30 percent of the  prevailing
          partys reasonable actual attorneys fees which
          were  necessarily incurred. . . . The  actual
          fees   shall  include  fees  for  legal  work
          customarily  performed  by  an  attorney  but
          which  was delegated to and performed  by  an
          investigator, paralegal or law clerk.
          
     55    Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 305
(Alaska 2000).

     56     Integrated  Res. Equity Corp. v.  Fairbanks  N.  Star
Borough, 799 P.2d 295, 304 (Alaska 1990).

     57     Torrey v. Hamilton, 872 P.2d 186 (Alaska 1994); Aloha
Lumber  Corp. v. University of Alaska, 994 P.2d 991, 1003 (Alaska
2000)  ([T]he  superior  court  had  discretion  to  award   [the
prevailing party] fees for services in addition to those provided
exclusively  in  the  superior court, but only  if  they  closely
related  to  and  were  made  necessary  by  the  superior  court
proceeding.).

     58    Torrey, 872 P.2d at 187.

     59    See, e.g., Aloha Lumber, 994 P.2d at 1003; Stalnaker v.
Williams, 960 P.2d 590, 597 (Alaska 1998).

     60    The appellate billings include work on the petition for
rehearing  and  opposing  the  appellate  cost  bill.    Apparent
lobbying  efforts  include  such items  as:  Prepared  letter  re
Marsingill  opinion  to  Jordan of State Medical  Association  in
response  to request re legislative change; Email from Holmes  re
changing  statute  to eliminate telehpone [sic]  advice  problem;
Review  proposed statute and sent email to Jordan and  Holmes  re
same and protection for doctors among others.

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