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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Clemensen v. Providence Alaska Medical Center (03/27/2009) sp-6350

Clemensen v. Providence Alaska Medical Center (03/27/2009) sp-6350, 203 P3d 1148

     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

JAMES CLEMENSEN, )
) Supreme Court No. S- 12920
Appellant, )
) Superior Court No. 3AN-06-06607 CI
v. )
) O P I N I O N
PROVIDENCE ALASKA MEDICAL )
CENTER d/b/a PROVIDENCE ) No. 6350 March 27, 2009
ALASKA HEALTH SYSTEMS )
and/or PROVIDENCE HEALTH )
SYSTEMS WASHINGTON, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Richard L. Harren, Law  Offices
          of  Richard  L.  Harren, P.C.,  Wasilla,  for
          Appellant.   Daniel  W. Hickey  and  Anne  M.
          Preston, Gruenstein & Hickey, Anchorage,  for
          Appellee.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          In  March  2003 James Clemensen assisted  the  hospital
staff at Providence Alaska Medical Center in convincing his wife,
Helen,  that she should stay at Providence for an examination  of
her  mental  status.   James  claims  that  he  was  assured   by
Providence that by law the hospital could hold Helen  for  up  to
seventy-two hours and that it would not release Helen  to  anyone
but  him.  The attending physician who evaluated Helen determined
that she suffered from Alzheimers disease and dementia.  The  day
after  her  admission  to  the hospital,  Helen  checked  out  of
Providence and left with her adult daughter, Faye Romer.   A  few
months later, Helen filed for divorce.  In March 2006 James filed
a   complaint  against  Providence,  alleging  that  he  suffered
emotional distress caused by Providences release of Helen to  her
daughter  rather  than him.  The superior court dismissed  Jamess
complaint for failure to state a claim on the basis that economic
damages resulting from a divorce action are not recoverable, that
the  two-year statute of limitations bars Jamess tort claims, and
that  James  lacked the authority to contract with Providence  to
prevent  it  from releasing Helen to her daughter.   Because  the
superior  court  correctly analyzed the  issues,  we  affirm  its
dismissal of Jamess complaint.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  March 30, 2003,1 James Clemensen drove his wife  of
more  than twenty-five years, Helen, to Providence Alaska Medical
Center  in  Anchorage.  The day before, Helen had fallen  in  the
couples  home in Big Lake and suffered a hip injury.  During  the
evaluation of Helens hip, James told the hospital staff  that  he
was   concerned  that  Helen  was  showing  signs  of  confusion,
paranoia,  and depression, and he informed the Providence  intake
personnel  of  the  suggestions made by at least  one  healthcare
provider  that  she  was  exhibiting  signs  of  dementia  and/or
Alzheimer[s  disease].  After James inquired about having  Helens
mental status assessed, the hospital staff persuaded him to leave
Helen  in  their care for a mental status examination,  and  they
assured  him that by law they could hold Helen for up to seventy-
two  hours and would not release Helen to anyone but him.   Based
on  these  assurances,  James  assisted  the  hospital  staff  in
convincing  Helen that she should stay at Providence for  further
examination.  James told Providence that he would return to visit
Helen the next day.
          The  attending physician at Providence evaluated Helen,
determining  that  she  suffered  from  Alzheimers  disease   and
dementia,  with  agitation and paranoid features,  and  that  she
would  not  be  competent to agree to or refuse  medical  advice.
During  Helens stay at Providence, she was given an antipsychotic
medication.
          The  day  after  Helen checked into  Providence,  James
called  the  hospital to ask about her status.  A hospital  staff
member told James that Helen had checked out of the hospital with
her  adult daughter, Faye Romer.  According to the staff  member,
Helen wanted to leave Providence, and the hospital discharged her
to  her  daughter,  who agreed to take care of  her.   The  staff
member  declined  to  discuss  with James  Helens  mental  status
examination and any treatment Helen received, including  the  use
of the antipsychotic medication.
          Before  Helen was admitted to Providence, James  sought
help  caring  for  Helen  from  family  members,  including   his
stepdaughter, Romer, who declined to help and did not believe her
mother  was  in  need of care.  After Helen was  discharged  from
          Providence, Romer told James that there was nothing wrong with
her  mother and that he was the person in the household with  the
problem.   Romer  did  not allow James to visit  Helen,  who  was
staying at Romers home.
          In  the  summer of 2003, James was served with  divorce
papers.   Through  the divorce proceedings,  James  obtained  the
records  of  Helens  mental  status  examination  at  Providence.
Additionally, an Anchorage psychologist who assessed  Helen  told
James  that Helens Alzheimers disease or dementia caused  her  to
file the divorce action against him.
          Helens  guardians  and  James  agreed  to  dismiss  the
divorce action in 2007.
     B.   Proceedings
          On  March  31,  2006, James filed a  pro  se  complaint
against  Providence.   Liberally construing  the  complaint,2  it
alleges  four causes of action: negligence, negligent  infliction
of  emotional distress, breach of fiduciary duty, and  breach  of
contract.3   It claims that since Helens release from  Providence
James  has  endured  the  loss  of  her  comfort,  society,   and
consortium,  as well as the costs associated with litigating  the
divorce action and mental distress with physical manifestations.
          In  April  2007 Providence filed a motion under  Alaska
Rule of Civil Procedure 12(b)(6) to dismiss Jamess complaint  for
failure  to  state  a claim upon which relief  can  be  granted.4
James, who had retained counsel, opposed the motion.
          In  August  2007 the superior court granted Providences
motion  to  dismiss.   The superior court  reasoned  that  Jamess
contention that he suffered economic damages as a result  of  the
divorce action is not actionable under our holding in Chizmar  v.
Mackie.5   As to Jamess claims for noneconomic harm, the superior
court  held  that  these claims sound in tort  and  the  two-year
statute  of limitations for tort actions had already passed  when
James  filed  his complaint.  The superior court  also  concluded
that  there  was  no legally binding contract between  James  and
Providence, explaining that James could not enter into a contract
with  Providence  that  would bind the hospital  to  comply  with
custodial  restrictions on Helen.  The superior court noted  that
absent  guardianship,  one adult cannot restrict  another  adults
freedom of movement, and Jamess attorney acknowledged that  Helen
did not have a guardian the day she checked into Providence.
          In   early  October  2007  James  filed  a  motion  for
reconsideration,  arguing  that he  could  have  entered  into  a
contract   on  Helens  behalf  under  the  statutory   provisions
concerning  protection of vulnerable adults and that the  statute
of  limitations was tolled under the discovery rule.   Providence
opposed  this  motion,  arguing that Jamess  new  arguments  were
waived and inapplicable to his claims.
          In  mid-October 2007 James filed a motion for a stay of
the  proceedings and for leave to file an amended complaint  that
would include Helens claims arising out of the same circumstances
underlying Jamess claims.  In an affidavit filed with the motion,
Jamess  attorney confirmed that James had recently been appointed
as  Helens co-conservator and that as her co-conservator  he  was
considering bringing her claims against Providence on her behalf.
          Providence opposed the motion, arguing that whether Helen can
bring her own claims against Providence has no bearing on whether
Jamess  complaint asserted any legally cognizable cause of action
against Providence.
          In  late October 2007 the superior court denied  Jamess
motion   for  reconsideration  for  the  reasons  set  forth   in
Providences  opposition and held that Jamess motion to  stay  the
proceedings was moot in light of this denial.  The superior court
entered a final judgment in favor of Providence.  James appeals.
III. STANDARD OF REVIEW
          A  grant of a motion to dismiss a complaint for failure
to  state a claim under Alaska Civil Rule 12(b)(6) is reviewed de
novo.6   In  reviewing  a Rule 12(b)(6) dismissal,  we  liberally
construe the complaint and treat all factual allegations  in  the
complaint as true.7  Such dismissals are viewed with disfavor and
should  only  be  granted on the rare occasion where  it  appears
beyond  doubt  that the plaintiff can prove no set  of  facts  in
support of the claims that would entitle the plaintiff to relief.8
In  other  words, the complaint need only allege a set  of  facts
consistent  with  and  appropriate to some enforceable  cause  of
action.9
          We  review  the  trial courts procedural decisions  for
abuse  of  discretion.10  We will reverse a ruling for  abuse  of
discretion  only  when left with a definite and firm  conviction,
after  reviewing the whole record, that the trial court erred  in
its ruling.11
IV.  DISCUSSION
     A.   James  Fails  To Allege a Tort Claim upon Which  Relief
          Can Be Granted.
          
          1.   Chizmar  v. Mackies rejection of wrongful  divorce
               actions   precludes  James  from  seeking  damages
               arising from Helens divorce action.
               
          Jamess  tort claims of negligence, negligent infliction
of emotional distress, and breach of fiduciary duty12 are based on
the premise that Providence breached a duty to James by releasing
Helen  to  her daughter and that this breach led to the breakdown
of their marriage.  As James puts it in his complaint:
          Had  Providence released my wife  to  myself,
          and,   informed  me  of  the  diagnosis   and
          assessment made of her, and, informed  me  of
          the  medications provided to her, their  side
          effects,  their benefits, and, if  Providence
          had  told  me  to follow-up with  appropriate
          medical   providers,  and,  make  appropriate
          provisions for her living circumstances given
          the  medications appropriate  for  her  care,
          there would have been no divorce action filed
          between us.
          
In other words, James claims that because of Providences conduct,
he suffered damages from Helens divorce action.
          But  we  have previously rejected such claims based  on
divorce.   In Chizmar v. Mackie, we limited a patients  potential
          recovery against her physician who misdiagnosed her with having
AIDS.13   Among the damages sought by the patient were those  for
the  economic losses arising from her divorce, which she  claimed
was  the result of the physicians alleged misconduct.14  We  held
that  as  a  matter  of  law the patient could  not  recover  any
economic  losses that she suffered as a result of her  divorce.15
Recognizing  other  courts that have uniformly rejected  wrongful
divorce actions on proximate cause and public policy grounds,16 we
agreed with a Wisconsin courts reasons for declining to recognize
these actions:
          We  find  the reasoning in Prill v.  Hampton,
          154 Wis. 2d 667, 453 N.W.2d 909, 914-15 (App.
          1990),  persuasive.   In  Prill,  the   court
          refused to allow the plaintiff to recover  on
          her claim that her divorce was the result  of
          the  injuries sustained by her husband at the
          hands of the defendant.  The court reasoned:
          
               . . . .

                    Failure  of  a marriage  is  rarely
               attributable to a single cause.  In some
               instances,  there may be  evidence  that
               the  spouses injuries were, in part, the
               cause of the marriages failure.  For the
               jury  to  properly assess the amount  of
               damages,  however, it  is  necessary  to
               show both a causal relationship and  the
               extent  or degree this factor played  in
               the  failure of the marriage.   Such  an
               inquiry  would  open  to  scrutiny  very
               personal issues, not only of the  spouse
               claiming  damages,  but  also   of   the
               injured spouse.  This factor, along with
               the   difficulty   of   the   jury    in
               determining  the  extent  to  which  any
               single cause may have contributed to the
               failure  of the marriage, requires  that
               such claims be rejected.[17]
               
We  further explained that it is difficult to imagine that a jury
will  be  able  to isolate the fault attributable  to  the  third
partys  actions,  from  the fault of  the  two  spouses  and  the
weakness inherent in the marriage.18
          The  superior  court  determined that  our  holding  in
Chizmar  that damages for economic losses resulting from  divorce
are  not  recoverable forecloses James from seeking any  economic
damages suffered as a result of Helen filing for divorce.   James
argues  that Chizmar is distinguishable for four reasons: (1)  in
Chizmar  the  couple divorced but in the present case  James  and
Helen  did not divorce, though divorce proceedings depleted their
marital  assets;  (2)  the cause of the marital  difficulties  in
Chizmar  and the present case differ; (3) both spouses in Chizmar
were  mentally competent, whereas in the present case  Helen  was
determined  to lack mental competency; and (4) only  tort  claims
          were asserted in Chizmar but both tort and contract claims were
asserted  in the present case.  None of the differences cited  by
James, however, is relevant to the rationale of our holding  that
economic losses resulting from divorce are not recoverable  as  a
matter  of  law.  As in Chizmar, James is asking us to scrutinize
very  personal issues related to the relationship between himself
and  Helen  in order to determine the degree to which Providences
actions  caused  Helen  to file for divorce.   We  recognized  in
Chizmar that it is difficult, if not impossible, to attribute the
failure of a marriage to a single cause or event.19
          Providence asks us to extend our holding in Chizmar  to
cover  all  of the damages alleged by James.  Under our rationale
in  Chizmar,  damages caused by the filing of  a  divorce  action
whether economic or emotional distress  are not recoverable.  But
Chizmars holding does not foreclose recovery of damages unrelated
to  the divorce proceedings.20  Nonetheless, as we discuss  next,
James  is precluded from recovering any such damages because  his
tort claims are barred by the statute of limitations.
          2.   The  statute  of  limitations for tort  causes  of
               action bars James from bringing his tort claims.
               
          The   superior   court  ruled  that  the   statute   of
limitations for tort actions had already passed when James  filed
his  complaint.  We agree.  The statute of limitations for a tort
action is two years.21  Ordinarily, the period of limitations for
a  tort begins to run on the date the plaintiff is injured.22  In
the  present case, Helen arrived at Providence on March 30, 2003,
and checked out the next day.23  James learned that Helen had been
released to her daughter when he called the hospital on March 31,
2003.   Thus, James had until March 31, 2005, to bring  his  tort
claims against Providence.24  But James did not file his complaint
against Providence until March 31, 2006.
          James  argues that his tort suit is timely because  the
discovery  rule  applies to toll the running of  the  statute  of
limitations.  According to James, the statute of limitations  did
not  begin  to  run  until  2005 when he discovered  that  Helens
Alzheimers disease or dementia prompted her to file for  divorce.
But  to  the extent that Jamess claims are based on the  divorce,
they are precluded as a matter of law.  Under the discovery rule,
a  cause of action accrues when a person discovers, or reasonably
should  have discovered, the existence of all elements  essential
to  the cause of action.25  It is not apparent which elements  of
Jamess  tort  claims against Providence he would have  discovered
had  he  made a reasonable inquiry as to Helens mental state.  In
any  event, when Helen was released from Providence on March  31,
2003,  James was aware that she was exhibiting signs of  dementia
and/or  Alzheimer[s  disease].  This  notice  was  sufficient  to
prompt  James  to make a reasonable inquiry into the relationship
between  Helens  mental status and the harms  that  he  allegedly
suffered after Helens release from the hospital.
          James  next  argues that the superior  court  erred  in
failing  to  hold  that  Providence was equitably  estopped  from
invoking its statute of limitations defense.26  James claims that
Providence failed to disclose facts to him where it had a duty to
          do so:
          Providence  withheld  important  facts   that
          would have made [James] aware of the need  to
          protect  his  rights  by filing  tort  claims
          within two years of his wifes discharge  from
          the  hospital.  Providence released  [Jamess]
          wife  into  the  custody of his stepdaughter,
          leading him to believe she was competent  and
          had  no serious mental or physical illnesses.
          Providence  had a duty to inform  [James]  of
          his  wifes  mental  state so  that  he  could
          initiate appropriate guardianship proceedings
          to protect his wife.
          
But  as  Providence points out, it was legally obligated  to  not
disclose  the results of Helens assessment to James  without  her
written consent.27
          James  also relies on Cikan v. ARCO Alaska,  Inc.28  to
support  his contention that the superior court should have  held
an evidentiary hearing on the statute of limitations issue before
dismissing Jamess complaint.  In Cikan, we reversed the  superior
courts  summary  judgment  order and remanded  the  case  to  the
superior  court  to  hold  an evidentiary  hearing  to  determine
whether  the statute of limitations on the plaintiffs  claim  was
tolled  by her disputed mental incompetency.29  We reasoned  that
when  the  issue of whether a summary judgment motion  should  be
granted  depends on resolving a factual dispute in order for  the
court  to  apply  the  statute  of limitations,  the  court  must
ordinarily   resolve  the  factual  dispute  at   a   preliminary
evidentiary  hearing  in advance of trial  because  the  task  of
interpreting  and applying a statute of limitations traditionally
falls within the province of the courts.30  But in this case there
was  no  factual dispute that had to be resolved in a evidentiary
hearing.31
          Finally, James argues that the superior court erred  in
failing to acknowledge that Helens tort claims were tolled by her
mental  incompetency.  This argument, however, has no bearing  on
whether  James properly stated a claim in his complaint.  Rather,
it  concerns the possible claims that James sought to  assert  as
Helens   co-conservator   after   he   filed   his   motion   for
reconsideration.32
     B.   James  Fails To Allege a Breach of Contract Claim  upon
          Which Relief Can Be Granted.
          The  superior  court  reasoned that  Jamess  breach  of
contract  claim  could not survive because there was  no  legally
binding  contract  between James and Providence regarding  Helens
release.   The  superior court ruled that a third  person  cannot
enter  into  a  contract  with a care provider  to  restrict  the
patients  freedom of movement if the third person  is  not  in  a
custodial  relationship  with the  patient.   James  argues  that
agency   principles  and  the  statutory  provisions   concerning
vulnerable  adults  gave  him  the  authority  to  contract  with
Providence  for  Helens  care.  Providence  responds  that  these
arguments are untimely and thus waived.
          Two  well-established waiver principles apply  to  this
case.   First,  [w]e  will not consider on appeal  new  arguments
which  (1)  depend  on new or controverted  facts,  (2)  are  not
closely  related  to the appellants arguments  [in  the  superior
court],  and (3) could not have been gleaned from the  pleadings,
unless the new issue raised establishes plain error.33  Second, we
will  not consider an issue raised for the first time in a motion
for reconsideration.34
          In  his  complaint, James did not allege  circumstances
suggesting  the existence of an agency relationship  nor  did  he
assert  that  he  was  Helens  guardian  when  she  checked  into
Providence  for an assessment of her mental status.   James  also
failed to make these arguments in opposing Providences motion  to
dismiss.  James first raised his vulnerable adult argument in his
motion  for  reconsideration, asserting that statutory provisions
concerning  vulnerable adults are designed for the protection  of
people like himself and his wife and thus should be deemed, as  a
matter  of public policy, implied terms in the contract  of  care
which  was  created  between the hospital and  [James].   Because
James  failed  to  make this argument prior  to  his  motion  for
reconsideration, it is waived.35
V.   CONCLUSION
          Because  Jamess  claim  for damages  arising  from  the
divorce  action is precluded by our holding in Chizmar v. Mackie,
because  his tort claims are barred by the statute of limitations
for  tort  causes  of action, and because there  was  no  legally
binding  contract between James and Providence concerning  Helens
release,  we  AFFIRM  the  superior courts  dismissal  of  Jamess
complaint for failure to state a claim upon which relief  can  be
granted.
_______________________________
     1     The  facts are drawn from Jamess dismissed  complaint.
Because  the superior court granted Providences motion to dismiss
for  failure  to state a claim under Alaska Civil Rule  12(b)(6),
the  factual  allegations of Jamess complaint are assumed  to  be
true.   See Jacob v. State, Dept of Health & Soc. Servs.,  Office
of  Childrens  Servs., 177 P.3d 1181, 1184 (Alaska 2008)  (noting
that  we treat a dismissed complaints factual allegations  as  if
they  were  true  when we review a grant of a motion  to  dismiss
pursuant  to  Rule  12(b)(6)).  But March 30, 2003,  may  be  the
incorrect  date.  In its answer, Providence states that according
to  its records, Helen arrived at the hospitals emergency room on
March  31,  2003,  and  checked into  the  hospitals  psychiatric
observation unit that day.

     2     See  Jacob,  177 P.3d at 1184 (We review the  superior
courts grant of a motion to dismiss pursuant to Rule 12(b)(6)  de
novo,  construing the dismissed complaint liberally, and assuming
the  truth  of  the facts it alleges. (internal  quotation  marks
omitted)).

     3      Jamess   complaint  also  alleged   that   Providence
interfered   with   his   prospective  economic   advantage   and
contractual relations and that Providence failed to warn  him  of
the  results  of his wifes assessment, but James does  not  argue
these claims on appeal.

     4     Alaska  Rule of Civil Procedure 12(b)(6)  provides  in
relevant part: [T]he following defenses may at the option of  the
pleader  be  made by motion: . . . (6) failure to state  a  claim
upon which relief can be granted . . . .

     5     896 P.2d 196, 214 (Alaska 1995) (holding that economic
losses  resulting from divorce are not recoverable  on  proximate
cause and public policy grounds).

     6    Jacob, 177 P.3d at 1184.

     7    Id.

     8    Id. (internal quotation marks omitted).

     9    Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 128 (Alaska
2000) (internal quotation marks omitted).

     10     Prentzel v. State, Dept of Pub. Safety, 169 P.3d 573,
592 (Alaska 2007).

     11    Id. (internal quotation marks omitted).

     12     It is possible that James had intended his allegation
of  breach of fiduciary duty to be a contract action and thus not
subject to our analysis of the applicability of Chizmar v. Mackie
and  of  the  two-year statute of limitations for  tort  actions.
Whether  a  claim of breach of fiduciary duty sounds in  tort  or
contract  depends on the source of the fiduciary duty.   See  Lee
Houston  & Assocs., Ltd. v. Racine, 806 P.2d 848, 852-55  (Alaska
1991)  (holding  that  an  action for breach  of  fiduciary  duty
arising out of a professional service relationship that primarily
involved economic injury sounds in contract and thus the  statute
of  limitations  for contract actions applies).  Although  Jamess
complaint does not suggest the source of the fiduciary duty  that
he  claims Providence owes him, the source may be a duty  imposed
by  tort law or, in the alternative, the alleged contract between
James  and  Providence.  Here, we treat his claim  of  breach  of
fiduciary duty as a tort action.  But even if James had  intended
his  claim to be a contract action, it would still fail  for  the
reasons explained in subpart IV.B.

     13    896 P.2d 196-98, 212-14 (Alaska 1995).

     14    Id. at 198.

     15    Id. at 211-12.

     16    Id. at 211.

     17     Id.  at 211-12 (quoting Prill v. Hampton, 453  N.W.2d
909, 914-15 (Wis. App. 1990)).

     18    Id. at 212 n.14.

     19    Id.

     20     Id. at 214 (holding that the appellant may be able to
recover  damages  for negligent infliction of emotional  distress
but  limiting  the appellants potential recovery to preclude  any
economic damages flowing from her divorce).

     21    AS 09.10.070.

     22    Sengupta v. Wickwire, 124 P.3d 748, 753 (Alaska 2005).

     23     Because of the procedural posture of this  case,  all
factual allegations in Jamess complaint are taken to be true, but
according  to Providences records, Helen arrived at the  hospital
on March 31, 2003.  See supra note 1.

     24    See Solomon v. Interior Regl Hous. Auth., 140 P.3d 882,
884  (Alaska  2006)  (accepting the parties contention  that  the
former  employees  claim accrued on September 9,  1999,  and  the
statute  of  limitations would normally have run on September  9,
2001);  David v. Sturm, Ruger & Co., 557 P.2d 1133, 1134  (Alaska
1976)  (noting that the [p]etitioner was injured on July 3, 1974,
and  that  [t]he  limitation period  for  this  cause  of  action
terminated  on July 3, 1976); see also Inclusion or Exclusion  of
First  and  Last Day for Purposes of Statutes of Limitations,  20
A.L.R.2d  1-2, at 1249-54 (1951) (explaining computation of  time
under the statute of limitations).

     25    Johns Heating Serv. v. Lamb, 129 P.3d 919, 923 (Alaska
2006) (internal quotation marks omitted).

     26     See generally Williams v. Williams, 129 P.3d 428, 432
(Alaska 2006) (discussing the elements of equitable estoppel).

     27      See   AS   47.30.845  (providing  that  a   patients
confidential  health  records may not be  disclosed  to  a  third
person  without  the patients written consent, unless  the  third
person is among the persons covered by the statute).

     28    125 P.3d 335 (Alaska 2005).

     29    Id. at 342.

     30    Id. at 339.

     31     James also contends that the superior court erred  in
dismissing  his complaint because the superior court fail[ed]  to
make a separate determination for each of the allegations in  the
complaint.   But  the superior court provided a  full  and  well-
reasoned explanation for its decision.  Jamess argument that  the
dismissal  was erroneous because he alleged numerous  damages  in
his  complaint is also unavailing.  We have long recognized  that
to  survive  a  Rule 12(b)(6) motion the plaintiff must  properly
plead all elements of the claim, not just the element of damages.
See  Linck  v. Barokas & Martin, 667 P.2d 171, 173 & n.4  (Alaska
1983).

     32     James  also argues that the superior court  erred  in
denying his motion for a stay of the proceedings and for leave to
amend  his  complaint to add Helen as a party  under  Civil  Rule
19(a) and to add her claims under Civil Rule 15(a).  The superior
court  ordered  that  [i]n light of the foregoing  [dismissal  of
Jamess  complaint  for failure to state a  claim  and  the  order
denying  Jamess motion for reconsideration], the motion  to  stay
this  matter until 11-16-07 is denied as moot.  James  failed  to
file  a  copy  of the amended complaint or even allude  to  which
causes  of  action  he intended to bring on Helens  behalf.   But
Jamess  argument to add Helen as a party under Civil Rule  19  is
difficult  to comprehend given that as the plaintiff he  had  the
discretion to determine the parties to his case.  See 3 James Wm.
Moore  et  al., Moores Federal Practice  19.02[1] (3d  ed.  2003)
(explaining  that while plaintiffs generally have the  discretion
to  determine the party structure of their actions and to use the
permissive  party  joinder  provisions  of  Rule  20,   Rule   19
prescribes   when  other  parties,  absentees,  and  the   courts
themselves  may override the autonomy of plaintiffs to  structure
the  litigation).   In any event, James waived this  argument  by
failing  to raise it below.  See Eagle v. State, Dept of Revenue,
153 P.3d 976, 981-82 (Alaska 2007).

     33    Kaiser v. Umialik Ins., 108 P.3d 876, 881 (Alaska 2005)
(first  alteration  in original) (internal  quotation  marks  and
citation omitted).

     34    E.g., Haines v. Cox, 182 P.3d 1140, 1144 & n.13 (Alaska
2008);  Stadnicky v. Southpark Terrace Homeowners Assn, 939  P.2d
403, 405 (Alaska 1997).

     35    See Stadnicky, 939 P.2d at 405 (An issue raised for the
first time in a motion for reconsideration is not timely.).  Even
if  this  argument  were timely, it is without  merit.   Although
chapter  24  of  title 47 provides the Department of  Health  and
Social  Services with the authority to appoint surrogate decision
makers  to obtain consent for vulnerable adults who are incapable
of  consenting  to the services that they need, a spouse  is  not
entitled to automatically assume the role of a surrogate decision
maker  when, as is the case here, the health department  had  not
sought  the  spouses consent for services.  See AS  47.24.016(a).
Jamess  agency  argument  is also both  untimely  and  unavailing
because  if James had been acting as Helens agent, he would  have
formed  a contract between Helen and Providence that Helen  could
enforce, not James.  See Restatement (Second) of Agency  363 cmt.
a  (1958)  (The  fact that an agent negotiates a contract  for  a
principal  does not enable him to maintain an action in  his  own
name against the other party thereto for its breach . . . .).

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