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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. Beach (07/10/2009) sp-6385

Hertz v. Beach (07/10/2009) sp-6385

     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,

) Supreme Court No. S- 12884
) Superior Court No. 1 JU- 06-567 CI
v. )
) O P I N I O N
and LONNIE ANDERSON, ) No. 6385 - July 10, 2009
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances: Sidney R. Hertz, pro se,  Spring
          Creek  Correctional Center, Appellant.   Ruth
          Botstein,    Assistant   Attorney    General,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for Appellees.

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

          WINFREE, Justice.

          I.   An inmate incarcerated by the Alaska Department of
Corrections sued two nurses and a dentist, alleging they violated
various professional duties and state and federal laws by failing
to  treat his dental problems timely or adequately.  The superior
court  held  that  the  inmate did not produce  enough  evidence,
expert  or  otherwise, to support his claims and granted  summary
judgment  in  favor  of the defendants.  We affirm  the  superior
courts decision on all claims except one against the dentist;  we
reverse the decision as to that single claim, vacate the judgment
against  the prisoner for attorneys fees, and remand for  further
     A.   Facts
          Sidney  R.  Hertz  was incarcerated  at  the  State  of
Alaskas  Lemon Creek Correctional Center in Juneau.   Iris  Beach
and  Shirley  Hawkins are nurses employed by  the  Department  of
Corrections (DOC) at Lemon Creek.  Dr. Lonnie Anderson, a private
dentist,  provides  dental care to Lemon Creek  inmates  under  a
contract with DOC.
          Hertz,  who suffers from advanced periodontal  disease,
wore an upper partial denture secured to his remaining teeth with
clasps.   On  April  28, 2005, an oral surgeon extracted  two  of
Hertzs  upper teeth.  That same day Hertz filed a medical request
for  a new partial denture, complaining that his existing one  no
longer  fit  properly because of the extractions.   On  April  30
Beach advised Hertz that he was on the dental list.
          On  May 24 Hertz filed a grievance (1) complaining that
he  had  requested a new upper partial denture on April  28,  and
(2)  requesting to see the dentist to have an impression made for
a new upper partial denture.  On June 6 Hertz submitted a medical
request  to  have  an  impression made for a  new  upper  partial
denture,  noting  that the dentist had been to the  prison  twice
without  seeing him.  Hertz was advised by Hawkins the  next  day
that  his  name had been placed on the list to see  the  dentist.
Hertz  reiterated his medical request on June 27, and on June  30
received the same response, this time from Beach.
          On  July 28 Hertz wrote to the DOC Commissioners office
asking  about the status of his May 24 grievance.  On  August  16
Hertz  filed another grievance:  (1) stating that there had  been
no  dentist  at  the  prison for over eight weeks,  he  had  been
waiting  four  months for a new upper partial  denture,  and  his
existing upper partial denture was continually bruising the  roof
of  his mouth; (2) asking whether a lawsuit was necessary to  get
dental  treatment;  and  (3) requesting  an  appointment  with  a
dentist to get an impression for a new upper partial denture.
          On  August 22 Hertz submitted another medical  request,
noting  that it had been nine weeks since a dentist had  been  to
the  prison, that he needed a new upper partial denture, and that
his  existing upper partial denture was continually bruising  the
roof  of his mouth.  Beach responded that day that Hertz  was  on
the dental list.
          In  a  memo dated August 24 regarding Hertzs August  16
grievance, Beach advised the prison compliance supervisor of  the
sequence of events for Hertzs medical requests, stated that Hertz
must be seen by the dentist and a request for a new partial plate
must  be  submitted to DOC Medical for approval  or  denial,  and
recommended  that  Hertz see the dentist  so  the  dentist  could
complete the forms necessary for approval or denial.
          On   September  12  Hertz  submitted  another   medical
request,  noting  that  the dentist had been  to  the  prison  on
September 10 but had not called Hertz to see him.  Hertz demanded
to  see the dentist immediately and threatened to file a lawsuit.
The next day Hawkins replied that Hertzs name was on the list  to
see the dentist.
          Dr.  Anderson  saw Hertz on September 17  and  took  an
impression  for  a  new  upper partial denture.   The  record  is
unclear as to when it did so, but DOC approved the replacement of
Hertzs upper partial denture.
          Hertz  filed another medical request in December  2005,
asking  to  see  the  dentist and receive his new  upper  partial
denture.  He was advised by Beach that he was on the list to  see
the dentist.
          On  February 11, 2006, Hertz was seen by Dr.  Anderson.
The  record does not reflect whether Dr. Anderson had received  a
new   upper   partial  denture  from  the  September  17,   2005,
impression,  but  Dr.  Anderson took another  impression  because
Hertzs teeth had shifted in the interim.
          On  February  13 DOC responded to Hertzs  original  May
2005  grievance  about  his upper partial  denture,  noting  that
approval  for a new partial plate had been granted.  On  February
14 DOC affirmed an earlier denial of Hertzs August 2005 grievance
as duplicative of his original grievance.
          Hertz  received his new upper partial denture on  April
8,  2006.  Hertz believed the new upper partial denture  did  not
fit and told this to Dr. Anderson when he received it.
          A  few  days  before  receiving the new  upper  partial
denture, Hertz had submitted a medical request complaining  of  a
cavity  that  made  brushing  his teeth  painful.   Dr.  Anderson
examined the cavity on April 8, 2006, when he installed  the  new
upper partial denture, and described the cavity as small and non-
acute  . . . a low priority . . . requir[ing] only routine dental
          Hertz   submitted  a  medical  request  on   April   9,
complaining that nothing has been done about my cavity.  He filed
a  grievance on April 19, complaining that Dr. Anderson had again
visited Lemon Creek but had not seen Hertz or treated his tooth.
          On  July  10 Hertz complained of a toothache and  Beach
notified  a  doctor, who authorized the use of  ibuprofen  and  a
topical  pain reliever as needed for thirty days.  Hertz filed  a
grievance  on  July  26,  stating that his  toothache  was  under
control  with his pain medications but demanding that  his  tooth
and  his  upper partial denture be fixed.  That day DOCs  medical
director  authorized  a referral to another  dentist,  Dr.  David
Logan,  to examine and treat the decayed tooth and to adjust  the
upper  partial  denture if necessary.  Dr.  Logan  extracted  the
decayed tooth the next day after concluding it was mobile due  to
periodontal  disease.  Dr. Logan noted that  Hertzs  denture  fit
correctly and that there are no adjustments that will improve its
function.  Dr. Logan also recommended removing the rest of Hertzs
upper  teeth  and  constructing a full  denture  as  a  long-term
treatment goal.
          In  September Hertz was seen by a DOC staff dentist  in
Anchorage, Dr. Geraldine Morrow, who advised Hertz that he should
have  all remaining upper teeth extracted to make room for a full
denture.  Hertz agreed and later received the full denture.
     B.   Proceedings
          In February 2006, shortly before Hertz saw Dr. Anderson
for  the  second  impression,  Hertz filed  suit  against  Beach,
Hawkins,  Dr. Anderson, and DOC seeking:  (1) a declaration  that
the  defendants had violated his state constitutional  and  other
rights;  (2)  injunctive relief ordering the defendants  to  give
Hertz  a  new upper partial denture; (3) $5,000 for his pain  and
suffering;  (4)  punitive damages; (5) costs and attorneys  fees;
and  (6) such other relief the court believed appropriate.  After
resolving filing fee issues, Hertz made service efforts in  July.
Hertz  did not effect proper service on DOC, and on August 29  an
order  was issued directing Hertz to declare whether he was suing
DOC.   On  September 6 Hertz filed a motion for leave to file  an
amended complaint eliminating DOC as a defendant.  In his allowed
amended  complaint  Hertz alleged that Beach,  Hawkins,  and  Dr.
Anderson    committed    medical   malpractice    and    violated
constitutional prohibitions against cruel and unusual punishment.1
          Hertz   served  interrogatories  and  a   request   for
production  of  a copy of Dr. Andersons employment contract  with
DOC.   When the contract was not produced, Hertz moved to  compel
production  of the contract and other documents.  He  also  moved
for  summary  judgment as to Beach, arguing that  because  Beachs
interrogatory responses had been signed by her attorney, and  not
by  Beach personally, the interrogatories to her should  be  held
admitted as true.  On December 5, 2006, the superior court denied
Hertzs  motion  for  summary judgment,  but  ordered  service  of
properly signed interrogatory responses from Beach within  twenty
days.   The court also granted Hertzs motion to compel production
of the Anderson contract.
          Hertz  later moved for sanctions against the defendants
attorney, Paula Jacobson, for alleged failure to comply with  the
courts  December  5 order and for alleged false statements.   The
court denied Hertzs motion.
          The  defendants  moved for summary  judgment  in  March
2007.  They submitted Hertzs dental records from 1999 forward, an
affidavit  from each defendant, and an affidavit from  DOC  staff
dentist Dr. Morrow, presented as an expert.
          In  their  affidavits Beach and Hawkins  described  how
dental care is obtained at Lemon Creek  to receive dental care an
inmate  must  be  placed on the dental list, a list  compiled  by
Beach  and  Hawkins to record inmates dental needs.   The  nurses
described  four  ways for an inmates name to  be  placed  on  the
dental list:
          (a)  a  DOC  medical provider  (physician  or
          physicians assistant) has determined that the
          inmate  needs a dental evaluation[;] (b)  one
          of  the  nurses has screened a newly remanded
          inmate  and  determined that he  has  visible
          dental   problems  that  may  require  dental
          treatment[;] (c) the dentist has asked to see
          the  inmate for continuing care[;] or (d) the
          inmate has submitted a [medical request  for]
          According  to  Beach and Hawkins their only  role  with
          respect to dental services at Lemon Creek is to compile the list.
They  stated that they [o]ccasionally . . . may ask Dr.  Anderson
to  see  a  newly  remanded  inmate who  has  an  obvious  dental
infection  or  another type of obvious dental  problem  that  may
require  urgent  care,  but  [t]he  ultimate  decision  regarding
treatment  priorities  lies with Dr. Anderson,  who  reviews  the
dental  list  and determines which inmates need  to  be  treated.
They  also  stated  that they do not provide dental  services  to
inmates  nor  .  . . assist the dentist in anyway [sic]  when  he
performs  dental  examinations or provides  dental  treatment  to
          In   his   affidavit  Dr.  Anderson  described   Hertzs
treatment history:  (1) when Hertz first requested his denture be
adjusted  after  the  April  28,  2005,  tooth  extractions,  Dr.
Anderson determined that under DOC policies and procedures Hertzs
request was not classified as . . . very urgent and that  in  Dr.
Andersons clinical and professional judgment, Hertzs request  did
not  have  priority  over inmates with more acute  dental  needs;
(2)  in  September 2005 he made an impression of Hertzs teeth  to
begin  the process of making a new plate; (3) he could not  treat
inmates at Lemon Creek from October to December 2005 because  the
dental  facility was out of commission; (4) as a result  it  took
almost  two  months  to  work [his] way through  the  backlog  of
inmates  with urgent and moderately urgent dental needs;  (5)  in
February 2006 he took a second impression of Hertzs teeth because
they had shifted; (6) he gave Hertz the new upper partial denture
on  April  8,  2006,  and  adjusted it; and  (7)  Hertzs  cavity,
examined  on April 8, 2006, was small and non-acute  and  in  Dr.
Andersons professional and clinical judgment . . . not an  urgent
          Dr. Morrow stated in her affidavit that after examining
Hertz  and  his  medical records, it was her opinion  that:   (1)
replacing  the  partial  denture was not an  emergent  or  urgent
problem;  (2)  Hertzs  cavity was small and non-acute  and  [t]he
tooth  needed to be extracted, not filled; and (3) the new  upper
partial denture was properly fitted and there were no adjustments
that would improve its function.  She concluded that Dr. Anderson
and  DOC  met  the  standard  of  care  and  did  not  cause  any
medical/dental injury to Mr. Hertz.
          After Hertz submitted responsive briefing, the superior
court  issued  a  preliminary order  on  the  defendants  summary
judgment   motion.    The  court  stated  that   Hertzs   medical
malpractice claims required proof that the defendant(s) failed to
exercise  the  knowledge  or  skill  that  similar  health   care
providers  ordinarily  exercise under the circumstances.   Noting
that  claims  for  breach  of professional  duty  require  expert
testimony,  the  court stated that [w]hether Mr. Hertzs  original
partial plate was repairable; whether the new plate fit properly;
whether Hertz actually needed a plate or a set of dentures; [and]
whether  Hertzs cavity required immediate attention  .  .  .  are
technical  questions  requiring  expert  testimony.   The   court
ordered  Hertz  to  file an affidavit by a  medical  professional
disagreeing with Dr. Morrows expert opinion.
          The  court  further stated that Hertz had not submitted
any  admissible evidence to refute Beach and Hawkinss  affidavits
indicat[ing] that the nurses were not responsible for and did not
provide  dental treatment to Hertz and accordingly  decided  that
these claims were also subject to summary judgment (and no trial)
absent  further action by Hertz.  The court also stated that  for
his  Eighth Amendment claims Hertz needed to show that his dental
needs  were  serious,  that the indifference  to  his  needs  was
substantial, and that defendants acted with serious disregard  to
his serious needs.  Finding that Hertz had presented no competent
evidence,  expert or otherwise, to corroborate his theories,  the
court  gave  Hertz  [sixty] days to submit  affidavits  or  other
evidence,  beyond his unsworn statements, to create an  issue  of
material fact on his claims.
          Hertz  then  submitted his own affidavit and additional
medical  records.   His  relevant factual assertions  were  that:
(1)  Beach made two diagnostic decisions concerning [his]  dental
problems  by  giving him pain relief medication for  his  decayed
tooth  and  by  notify[ing] Dr. Henry Luban, M.D.,  DOCs  medical
director  in  Anchorage . . . to get approval  to  have  [Hertzs]
tooth  .  .  .  pulled by Dr. Logan;2 (2) Beach and Hawkins  were
deliberately indifferent towards [his] known dental  problems  by
allowing  [him] to wait up to 5-6 months before [he] got  to  see
Defendant  Anderson for dental treatment; and (3) the dental  lab
was out of commission from June to September 2005, not October to
December 2005 as Dr. Anderson claimed.  He also submitted a  copy
of  DOCs Medical Advisory Committees response to his appeal (from
the  denial of his July 26, 2006, grievance), acknowledging  that
[a]  new  treatment plan involving extractions and a full denture
has  been  proposed:  You have agreed to this.  Hertz argued  the
response  was  expert  testimony  showing  the  defendants  prior
          In  September  2007 the superior court granted  summary
judgment  in  favor  of  the defendants, finding  Hertz  had  not
remedied  the  evidentiary deficiencies and thus  had  failed  to
create  a  dispute  of material fact for trial.   The  defendants
jointly  moved  for unallocated attorneys fees in the  amount  of
$10,034.20 under Civil Rule 82(b).3  Hertz opposed the motion  on
the  ground that he had been the actual prevailing party  despite
losing  on summary judgment because he received more than he  had
requested  in his relief sought  a new full denture when  he  had
requested  only  a properly fitting partial denture.   The  court
rejected   Hertzs  argument,  found  the  defendants   were   the
prevailing  parties, and awarded the defendants  the  unallocated
lump sum attorneys fees requested.
          Hertz  appeals the superior courts denial of  discovery
sanctions,  grant  of summary judgment, and  award  of  attorneys
          I.   Whether to impose sanctions on an attorney under Civil
Rule 95 is a matter within the discretion of the trial court, and
its decision will be reversed only for abuse of that discretion.4
We  will find an abuse of discretion only where the record  as  a
whole  leaves  us  with  a definite and firm  conviction  that  a
mistake  has  been  made.5  Determinations  of  prevailing  party
          status and entitlement to attorneys fees are also reversed only
for abuse of discretion.6
          Grants  of summary judgment are reviewed de novo.7   We
will  affirm summary judgment if the record contains  no  genuine
issue  of  material  fact and the moving  party  is  entitled  to
judgment  as  a  matter of law.  When considering  a  motion  for
summary  judgment, all reasonable inferences  of  fact  from  the
proffered evidence must be drawn against the moving party and  in
favor of the non-moving party. 8
          Whether  a  medical malpractice action requires  expert
testimony  is a question of law to which this court  applies  its
independent judgment, adopt[ing] the rule of law most  convincing
in light of precedent, reason, and policy.9
     A.   Hertzs Motion for Sanctions
          A.   Hertz argues that the superior court erred by denying his
motion  to  sanction the defendants counsel, Paula Jacobson,  for
conduct  during discovery.  His motion identified  three  grounds
for  sanctions under Civil Rule 95(b):10  (1) failing  to  timely
comply  with the order to produce Beachs interrogatory responses;
(2)  failing to send Hertz a copy of Dr. Andersons contract  with
DOC  after  the  courts production order; and (3)  issuing  false
statements denying the existence of certain evidence.
          The  superior court ordered Jacobson to serve  properly
signed interrogatory responses within twenty days of its December
5,  2006,  order.  Jacobson provided evidence showing she  mailed
the  interrogatory responses to Hertz on December 19, 2006.   The
Alaska Rules of Civil Procedure provide that [s]ervice by mail is
complete upon mailing,11 and Jacobson therefore complied with the
courts  order.   There  was no basis for the  superior  court  to
sanction Jacobson regarding Beachs interrogatory responses.
          When   the  court  granted  Hertzs  motion  to   compel
production of Dr. Andersons contract with DOC, it did not  set  a
deadline  for  production.  Hertz acknowledged  he  received  the
contract  sometime before February 6, 2007.  The court  therefore
did not abuse its discretion in refusing to sanction Jacobson for
any possible delay in production.
          Finally,   Hertz  requested  a  copy  of  Dr.   Morrows
recommendation/report  concerning  Hertzs  teeth,  and   Jacobson
responded   that   Dr.   Morrow  did  not   make   any   specific
recommendations regarding Hertzs teeth.  She did,  however,  make
notes in Hertzs medical chart.  Those notes have been produced to
Hertz.  Hertz contended this statement amounted to a sanctionable
lie.  The superior court did not abuse its discretion in refusing
to  impose sanctions for Jacobsons discovery response because  no
discovery was withheld and Hertz was not misled.
          We  therefore  affirm  the superior  courts  denial  of
Hertzs motion for sanctions against Jacobson.
     B.   Summary Judgment
          1.   Constitutional claims
          Hertz  alleged the defendants were guilty of deliberate
indifference   in   failing  to  adequately  treat   his   dental
          conditions.  The superior court noted that Hertz was equivocal
about   whether  his  claim  rested  on  the  Federal  or   State
Constitution,  but  construed it as  stating  violations  of  the
Eighth  Amendment  of  the Federal Constitution.   Because  Hertz
relies  on  federal  authority and because his putative  parallel
claim  for  damages under the Alaska constitution  would  not  be
viable,12  we too construe his deliberate indifference  claim  as
arising under 42 U.S.C.  198313 and the Eighth Amendment.
          To  prove  an Eighth Amendment violation stemming  from
prison  medical  or dental care, an inmate must prove  deliberate
indifference to serious medical needs.14 The inmate must  show  a
serious medical need by demonstrating that failure to treat [the]
prisoners condition could result in further significant injury or
the unnecessary and wanton infliction of pain.15  The existence of
an  injury  that  a  reasonable  doctor  or  patient  would  find
important and worthy of comment or treatment; the presence  of  a
medical condition that significantly affects an individuals daily
activities; or the existence of chronic and substantial pain  are
examples  of indications that a prisoner has a serious  need  for
medical treatment.16
          After  demonstrating a serious medical need, the inmate
must   then   show   that  prison  officials  were   deliberately
indifferent  to  that  need,  with resulting  harm.17   A  prison
official  acts  with deliberate indifference . . .  only  if  the
[prison  official] knows of and disregards an excessive  risk  to
inmate health and safety. 18  Indifference may appear when prison
officials  deny,  delay or intentionally interfere  with  medical
treatment,  or  it  may  be  shown by the  way  in  which  prison
physicians provide medical care.19
          Hertz   argues   the   defendants   were   deliberately
indifferent both to his need for a better-fitting partial denture
and to the pain caused by a decayed tooth.
               a.   Hertzs partial denture
          An  inmates  need for properly fitting  dentures  might
amount  to a serious need when, lacking them, the inmate  suffers
disfigurement,  inability to eat and consequent weight  loss,  or
great pain.  In Hunt v. Dental Department the Ninth Circuit Court
of  Appeals  held  that an inmate stated a  claim  of  deliberate
indifference when he alleged that prison officials were aware  of
his  bleeding  gums,  breaking teeth and  his  inability  to  eat
properly, yet failed to take any action to relieve his pain.20  In
Farrow  v.  West the Eleventh Circuit  Court of Appeals  reversed
summary judgment in favor of a prison dentist after concluding an
inmate  had demonstrated a serious medical need through  evidence
show[ing]   pain,  continual  bleeding  and  swollen  gums,   two
remaining  teeth  slicing  into  gums,  weight  loss,  and   such
continuing medical problems.21
          Hertz  did not lack dentures, but complained  that  his
upper  partial  denture  fit loosely.  He  did  not  produce  any
evidence  that  the  loose-fitting denture  caused  him  to  lose
weight,  bleed,  suffer lacerations, or suffer additional  dental
damage.    In  medical  requests from May to September  2005,  he
complained  that the denture was bruising the roof of his  mouth.
In  contrast to the conditions described in Hunt and Farrow,  the
          bruising Hertz describes is not, without more, the kind of
chronic and substantial pain or injury that implicates the Eighth
          We affirm the superior courts grant of summary judgment
in   favor   of  the  defendants  on  this  claim  of  deliberate
               b.   Hertzs decayed tooth
          We  also  affirm the superior courts grant  of  summary
judgment on Hertzs deliberate indifference claim arising from his
tooth:  even assuming that Hertz suffered pain from the cavity in
his  tooth and that the pain was serious enough to implicate  the
Eighth Amendment, the evidence does not show the defendants  were
deliberately indifferent to his condition.
          For  deliberate indifference, the prison official  must
not  only  be  aware of facts from which the inference  could  be
drawn  that a substantial risk of serious harm exists,  but  that
person must also draw the inference. 22  [D]eliberate indifference
to medical needs may be shown by circumstantial evidence when the
facts  are  sufficient to demonstrate that a  defendant  actually
knew of a risk of harm.23  When the facts do not demonstrate that
the   defendants  had  this  knowledge,  however,  a   deliberate
indifference claim must fail.24

          Hertz  first  complained of the  cavity  in  a  medical
request dated April 2, 2006, in which he stated the cavity caused
him  pain  when  brushing.  Dr. Anderson examined the  cavity  on
April 8; he described it as small and non-acute and deemed  it  a
low  priority  .  . . requir[ing] only routine dental  treatment.
Hertz  submitted  another  request for treatment  the  next  day,
complaining that nothing has been done about my cavity, to  which
Beach responded that his name had been placed on the dental list.
According  to  a grievance filed by Hertz on July 26,  2006,  his
tooth began causing him excruciating pain on July 8 and the  pain
subsided with the use of pain relievers by July 16.  His  medical
chart  indicates he complained to Beach of pain in his  tooth  on
July 10, and a DOC receipt indicates he received ibuprofen and  a
topical pain reliever that same day.  Hertz was referred  to  Dr.
Logan  (an  outside dentist) on July 26, and Dr. Logan  extracted
the tooth on July 27.
          The evidence does not establish deliberate indifference
by  Beach or Hawkins because there is no indication they knew  of
but  did not respond to Hertzs alleged severe pain.  The evidence
indicates  that  Hertzs  decayed  tooth  was  not  serious   when
Dr. Anderson examined it on April 8; only when it allegedly began
causing him great pain on July 8 did the tooth arguably become  a
serious condition.25  But when he complained of the pain to Beach
on  July 10, Beach immediately notified the doctor on staff  (not
Dr. Anderson), and Hertz received pain relievers.

          Hertz  does not assert by affidavit that he told  Beach
or  Hawkins his severe pain continued after July 10, nor does  he
refer  to any other evidence implying that Beach or Hawkins  knew
that  it  did.  There is thus no evidence that Beach  or  Hawkins
          ever denied or delayed treatment.  Hertzs medical chart indicates
that  Hawkins took his blood pressure and heart rate on July  16,
but it makes no mention of tooth pain.  Hertz himself admits that
the  pain  subsided  by  July 16.  Beach and  Hawkins  cannot  be
considered  deliberately indifferent when, to the best  of  their
knowledge, medications had relieved Hertzs pain.26
          There  is  also no evidence in the record that Anderson
knew  about  the pain Hertz began experiencing on  July  8.   Had
Anderson been aware that Hertz had complained to Beach about pain
from  his decayed tooth, he would have known only that Hertz  had
received pain medications and had not complained again.   Without
knowledge  that Hertz was suffering from a serious medical  need,
Anderson could not have been deliberately indifferent.
          2.   Hertzs medical malpractice claims
          1.   The superior court granted summary judgment in favor of the
defendants  on Hertzs medical malpractice claims after concluding
that  Hertz  had failed to supply expert testimony  necessary  to
carry  his  burden  of proof.  Hertz argues this  conclusion  was
erroneous for two reasons.
          Hertz   first  contends  that  he  did  produce  expert
testimony:  the DOC Medical Advisory Committees response  to  his
grievance  appeal  of  August 14, 2006, in  which  the  Committee
observed  that  Hertzs  decayed tooth had  been  extracted  by  a
contract  dentist,  his upper partial denture fit  correctly  and
needed no further adjustments, and he had been transferred to  an
Anchorage  correctional  facility where [a]  new  treatment  plan
involving  extractions  and  a full denture  has  been  proposed.
Although   Hertz   argues  this  response  is  expert   testimony
sufficient to rebut Dr. Morrows opinion, it is not  it  does  not
describe  the standard of care ordinarily exercised  by  dentists
under  similar  circumstances,  nor  does  it  assert  that   the
defendants  fell  below  this standard.  Although  the  Committee
acknowledged   a  new  course  of  treatment  for   Hertz,   that
acknowledgment  was not expert opinion that  the  old  course  of
treatment was negligent.27  The grievance response does not carry
Hertzs burden of proof in his medical malpractice claims.28
          Hertz  next contends that the superior court  erred  in
requiring  expert  testimony because his  claim  falls  within  a
narrow  exception  to  the  expert  testimony  requirement:   the
negligence here is clear enough, he argues, that it is evident to
a layperson even without the aid of expert testimony.
          In   medical  malpractice  actions  .  .  .  the   jury
ordinarily may find a breach of a professional duty only  on  the
basis of expert testimony.29  But we have recognized an exception:
expert testimony is not needed in non-technical situations  where
negligence is evident to lay people.30
          In  a  medical malpractice action by a prisoner against
DOC  medical  personnel, we recently drew a  distinction  between
actions  that  involve professional judgment or skill  and  those
that do not:
          Most of the [plaintiffs] contentions involved
          treatment decisions, prescriptions, or  other
          medical  issues that are arguably  technical;
          if  so,  they  must  be supported  by  expert
          evidence.  But some of the allegations  could
          possibly    fall   into   the   non-technical
          category,  such  as  the failure  to  provide
          medication  and adequate access  to  licensed

Whether  Hertzs  claims require the support of  expert  testimony
depends  on  whether  the actions from which they  arise  involve
specialized medical care, skill, or judgment.
               a.   Malpractice claims against Beach and Hawkins
          Hertz argues Beach and Hawkins committed malpractice in
two ways:  in failing to provide him treatment themselves and  in
delaying  his  treatment with Dr. Anderson.  The  superior  court
granted  summary  judgment in favor of Beach and Hawkins  because
Hertz failed to supply expert testimony to support his claims.32
          Nurses  are  health  care providers under  the  medical
malpractice statutes, including the expert testimony requirements
of  AS  09.55.540.33   To show that Beach and  Hawkins  committed
malpractice in failing to treat him themselves, Hertz  needed  to
provide expert evidence showing negligence.  He did not.
          As  to his delayed treatment, Hertz does not deny  that
Hawkins  and  Beach placed his name on the dental  list  when  he
complained  of  his loose-fitting denture or his  decayed  tooth.
The  nurses  communicated  names and  conditions  to  a  dentist,
Dr.  Anderson, to determine the course and treatment priority for
Hertz  and  other  inmates on the list.  Hertz acknowledges  that
Beach  alerted  a  doctor and gave him pain  relievers  after  he
informed  Beach that his decayed tooth was causing  severe  pain.
Assuming  the  nurses actually had or exercised the authority  to
make prioritization recommendations to Dr. Anderson, whether they
were negligent in not prioritizing Hertzs dental needs over those
of  other inmates  a medical judgment  is a question the ordinary
layperson  cannot answer without expert evidence  describing  the
standard  of  care  required of nurses under  the  circumstances.
Hertz supplied no such evidence.
          We  therefore  affirm  the  superior  courts  grant  of
summary  judgment  in  favor  of the  nurses  on  Hertzs  medical
malpractice claims.
               b.   Malpractice claims against Dr. Anderson
     Hertzs  pleadings  suggest four separate malpractice  claims
against  Dr.  Anderson:  (1) the delay in replacing  his  partial
denture between April 28, 2005, and April 8, 2006; (2) the  delay
in  adjusting his new partial denture between April 8, 2006,  and
September  12, 2006; (3) the overall approach to treating  Hertzs
longstanding periodontal disease between April 2005 and September
2006; and (4) the delay in treating the decayed tooth, which  was
ultimately extracted on July 27, 2006.
          The  actions  underlying  the latter  three  claims  of
malpractice  all  required expert evidence.   Dr.  Anderson  gave
Hertz  his new partial denture and adjusted it on April 8,  2006.
Although Hertz complained the new partial denture was loose, both
Dr.  Logan, who examined Hertz in July 2006, and Dr. Morrow,  who
examined  him  in September 2006, believed that the  denture  was
          properly fitted and there were no adjustments that would improve
its  function.  Whether the partial denture needed to be adjusted
and  whether  Dr.  Andersons failure to do so was  negligent  are
questions of medical judgment that a layperson is ill-equipped to
evaluate.   To  avoid summary judgment Hertz  needed  to  produce
expert  opinion  evidence  disputing  Dr.  Morrows  opinion  that
Dr. Anderson met the standard of care; when Hertz did not, it was
not error to grant summary judgment in Dr. Andersons favor.
          Hertzs  theory that Dr. Andersons overall  approach  to
treating Hertzs periodontal disease  replacing and adjusting  the
partial   denture  as  necessary   was  negligent  also  required
supporting  expert evidence.  The proper course of treatment  for
periodontal  disease  is  a  matter  of  professional   judgment;
laypeople  are  not  ordinarily equipped with  the  knowledge  to
second-guess a dentists approach.  Hertz suggests that  the  more
aggressive treatment ultimately proposed by Drs. Logan and Morrow
extracting Hertzs remaining teeth and constructing a full denture
implies  Dr.  Andersons  approach  was  inadequate.   That  these
dentists opted for one approach, however, does not establish that
Dr.  Andersons approach fell below the standard of care  required
of dentists under the circumstances.34  More than one approach may
meet   the   applicable  standard  of  care;  without   testimony
describing that standard, the ordinary layperson would  not  know
whether Dr. Andersons approach fell below it.  When Hertz  failed
to  produce  expert evidence to support this claim,  it  was  not
error to grant summary judgment in Dr. Andersons favor.
          Finally, Hertzs claim that the treatment of his decayed
tooth  amounted  to  malpractice also required supporting  expert
evidence  to  survive  summary  judgment.   Dr.  Anderson   first
examined the decay on April 8, 2006.  He described the cavity  as
small  and  non-acute,  and  in [his] professional  and  clinical
judgment,  the cavity was not an urgent matter nor  did  it  take
priority  over  other inmates with more acute and  urgent  dental
needs.  Dr. Andersons April 8 diagnosis, his decision to postpone
treatment, and his decision to prioritize other inmates needs all
involved the exercise of medical judgment and skill; Hertz needed
expert  evidence  to show those decisions were  negligent.   When
Hertz  failed  to produce expert evidence, it was  not  error  to
grant summary judgment in Dr. Andersons favor.
          When all inferences are drawn in Hertzs favor the delay
of  almost a year in replacing his upper partial denture may  not
have   been  due  entirely  to  the  exercise  of  Dr.  Andersons
professional judgment.  Hertz began requesting a new  denture  in
April  2005  after  two  of his teeth had  been  extracted.   Dr.
Anderson  made  an  impression of Hertzs teeth on  September  17,
2005, and sent it to the laboratory.  Dr. Anderson stated that he
was unable to treat inmates from mid-October 2005 to mid-December
2005  because  the  Lemon  Creek  dental  facility  was  out   of
commission  at  that time.  He then explained that,  due  to  the
resulting  backlog of inmates with more urgent dental  needs,  he
was  unable to see Hertz until February 11, 2006.  Although there
is  nothing in the record to indicate whether Dr. Anderson had  a
new upper partial denture ready to install that day, Hertzs teeth
had  shifted  during  the interim, so Dr.  Anderson  made  a  new
          impression.  Dr. Anderson delivered the new upper partial denture
to Hertz on April 8, 2006.
          Hertz asserts that the Lemon Creek dental facility  was
not  out of commission in the fall of 2005, but rather from  June
to  September  2005, before his impression was taken.   If  true,
this statement calls into doubt Dr. Andersons assertion that  his
failure  to treat Hertz between September 2005 and February  2006
was  due  to  closure  of  the facility  and  to  his  subsequent
professional judgment about whom to treat first.  Without knowing
whether  the  months-long  wait resulted  from  the  lack  of  an
appropriate facility or appropriate staffing, from Dr.  Andersons
professional judgment regarding Hertzs needs relative to those of
other  inmates,  or from some other factor, we  cannot  determine
whether  expert evidence is necessary to evaluate  Dr.  Andersons
actions.   On  the current record, it was error to grant  summary
judgment   for  lack  of  expert  evidence  on  this   particular
malpractice claim.35
          We  affirm  the  grant of summary  judgment  on  Hertzs
malpractice  claims against Dr. Anderson, except  for  the  claim
arising  from the year-long delay in replacing his  denture.   We
remand that claim to the superior court for further proceedings.
     C.   Attorneys Fees
          The  superior court granted the defendants joint motion
for  attorneys  fees after finding that the defendants  were  the
prevailing  parties and that their attorneys fees were reasonable
and  necessarily incurred.  The award did not specify the  amount
of   attorneys  fees  incurred  on  behalf  of  each   individual
defendant.   In light of our rulings, the judgment against  Hertz
for attorneys fees must be vacated.
          Because  we  reverse one part of the  summary  judgment
ruling   in  favor  of  Dr.  Anderson  and  remand  for   further
proceedings, Dr. Anderson is not a prevailing party  and  is  not
entitled to an attorneys fees award.
          Because  we affirm the superior courts grant of summary
judgment  in  favor  of Beach and Hawkins,  we  also  affirm  its
determination  that they were prevailing parties entitled  to  an
attorneys fee award.36  But Beach and Hawkins may not be  awarded
attorneys  fees incurred in Dr. Andersons defense or in defending
against  Hertzs deliberate indifference claims unless  the  court
finds  that  his action was frivolous, unreasonable,  or  without
foundation.37  We therefore remand for further proceedings on the
attorneys fees award in favor of Beach and Hawkins.
          We  AFFIRM  the  superior courts  denial  of  sanctions
against  the  defendants counsel.  We AFFIRM the superior  courts
grant  of  summary judgment in favor of Beach  and  Hawkins.   We
AFFIRM the superior courts grant of summary judgment in favor  of
Dr.  Anderson  on  all  claims except Hertzs medical  malpractice
claim  arising  from  the delay in replacing  his  upper  partial
denture,  and  we REVERSE the grant of summary judgment  on  that
claim  and  REMAND for further proceedings consistent  with  this
decision.   We  VACATE the judgment against Hertz  for  attorneys
fees  and REMAND for entry of a new attorneys fees award in favor
          of Beach and Hawkins.
     1     At  about the time of Hertzs amended complaint,  Hertz
agreed  to have his remaining upper teeth removed so that a  full
denture  could be fitted.  This mooted his request for injunctive
relief,  leaving only his claim for damages.

          Hertz  also alleged Dr. Andersons conduct violated  the
terms of the settlement agreement between DOC and state prisoners
in Cleary v. Smith, No. 3AN-81-4274 CIV (Alaska Super., Sept. 21,
1990),  and DOCs own policies and procedures regarding access  to
health  care.   Both the Cleary settlement and DOC  policies  and
procedures  require that prison care meet the  standard  of  care
that non-prisoners expect  in effect, that prison health care not
be  negligent.   Id.  at  16 (All inmates shall  be  entitled  to
necessary  medical, dental and mental health services  comparable
in quality to those available to the general public.).  Thus even
assuming  Hertz had a private cause of action against  the  named
defendants  under  the  settlement or internal  DOC  regulations,
which  we need not address, it would be resolved the same way  as
his medical malpractice claims.

     2     The document Hertz relied on for this assertion is  an
authorization  for  Hertz to see Dr. Logan, signed  by  Beach  on
behalf  of  DOCs  Dr. Luban.  There is no indication  that  Beach
initiated  or  requested this referral, or that  she  faxed  this
document  to Dr. Luban; rather, it appears to have been  sent  to
Dr.  Logan, who noted on the document his diagnosis and treatment
of Hertz.

     3     Alaska Civil Rule 82(b)(2) provides in pertinent part:
In  cases  in  which  the  prevailing  party  recovers  no  money
judgment, the court shall award . . . the prevailing party  in  a
case  resolved  without trial 20 percent of its actual  attorneys
fees which were necessarily incurred.

     4     In re Schmidt, 114 P.3d 816, 819 (Alaska 2005) (citing
Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989)).

     5     Wooten  v.  Hinton, 202 P.3d 1148, 1151 (Alaska  2009)
(citing Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007)).

     6     Id.;  Gwichin Steering Comm. v. State, Office  of  the
Governor,  10  P.3d 572, 584-85 (Alaska 2000); see also  Interior
Cabaret,  Hotel,  Rest. & Retailers Assn  v.  Fairbanks  N.  Star
Borough,  135  P.3d  1000, 1002 (Alaska 2006)  (citing  Jerue  v.
Millett,  66  P.3d  736,  740 (Alaska  2003))  (Prevailing  party
determinations  will ordinarily be overturned only  if  they  are
manifestly unreasonable.).

     7     Wilson  v. MacDonald, 168 P.3d 887, 888 (Alaska  2007)
(citing DeNardo v. Bax, 147 P.3d 672, 676 (Alaska 2006)).

     8    Id. at 888-89 (quoting DeNardo, 147 P.3d at 676-77).

     9     D.P.  v. Wrangell Gen. Hosp., 5 P.3d 225, 228  (Alaska
2000) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     10    Alaska R. Civ. P. 95(b) provides in pertinent part:

          [A] court may, after reasonable notice and an
          opportunity  to show cause to  the  contrary,
          and after hearing by the court, if requested,
          impose   a  fine  not  to  exceed  $50,000.00
          against any attorney who practices before  it
          for failure to comply with these rules or any
          rules promulgated by the supreme court.
     11    Alaska R. Civ. P. 5(b).

     12    Hertz did assert that the dental treatment he received
at  Lemon  Creek  violated article I, section 12  of  the  Alaska
Constitution, which prohibits cruel and unusual punishment.   But
we will not imply a private cause of action for damages under the
Alaska  Constitution  except in cases of flagrant  constitutional
violations where little or no alternative remedies are available.
Lowell  v.  Hayes, 117 P.3d 745, 753 (Alaska 2005) (quoting  Dick
Fischer  Dev. No. 2 v. State, Dept of Admin., 838 P.2d  263,  268
(Alaska  1992)  (internal  quotation  marks  omitted)).   Medical
malpractice  and  federal  constitutional  law  provide  adequate
remedies  to  redress inadequate dental treatment.  We  therefore
affirm  the  implicit  dismissal of Hertzs  state  constitutional

     13    42 U.S.C.  1983 provides in relevant part:

          Every person who, under color of any statute,
          ordinance, regulation, custom, or  usage,  of
          any  State  . . . subjects, or causes  to  be
          subjected,  any citizen of the United  States
          or   other  person  within  the  jurisdiction
          thereof  to  the deprivation of  any  rights,
          privileges,  or  immunities  secured  by  the
          Constitution and laws, shall be liable to the
          party injured in an action at law . . . .
     14     Estelle  v. Gamble, 429 U.S. 97, 106 (1976)  (holding
that  deliberate indifference to prisoners serious medical  needs
constitutes   violation  of  Eighth  Amendments  prohibition   of
unnecessary and wanton infliction of pain).

     15     Jett  v. Penner, 439 F.3d 1091, 1096 (9th Cir.  2006)
(quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.  1991),
overruled  on  other grounds by WMX Techs., Inc. v.  Miller,  104
F.3d  1133  (9th Cir. 1997) (en banc)) (internal quotation  marks

     16    McGuckin, 974 F.2d at 1059-60.

     17     Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d  at

     18     Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
(quoting  Gibson v. County of Washoe, Nev., 290 F.3d  1175,  1187
(9th Cir. 2002)).

     19     Hutchinson v. United States, 838 F.2d 390,  394  (9th
Cir. 1988).

     20    865 F.2d 198, 200 (9th Cir. 1989).

     21    320 F.3d 1235, 1244-45 (11th Cir. 2003).

     22     Toguchi, 391 F.3d at 1057 (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)).

     23    Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.
2003) (citing Farmer, 511 U.S. at 842).

     24     See id. (reversing grant of summary judgment in favor
of  certain defendants when evidence showed prisoner alerted them
to  his  diabetic  condition and need  for  food,  but  affirming
summary  judgment  in favor of other defendants because  prisoner
failed  to  introduce sufficient evidence that [these defendants]
knew of [prisoners] diabetic condition).

     25     We assume without deciding that Hertzs painful cavity
was  a serious need, recognizing that tooth pain may be a serious
medical  need  implicating  the  Eighth  Amendment.   See,  e.g.,
Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004)  (noting
plaintiff  had presented evidence that he suffered  extreme  pain
from  loose and infected teeth, which caused blood to  seep  from
his  gums,  swelling, and difficulty sleeping and  eating.   This
constituted  a  need for medical attention that would  have  been
obvious to a layperson . . . .).

     26     See  Reeves v. Caldwell, No. CIV. 98-363-ST, 1999  WL
375580,  at  *5  (D.  Or.  Mar. 3, 1999)  ([Defendant]  responded
promptly  to plaintiffs medical/dental requests.  She immediately
provided  pain medication in the form of extra-strength  Tylenol,
and when it became apparent to her that plaintiffs tooth pain was
not  alleviated,  she  scheduled a dental  appointment  and  then
changed  his  medication  to  a  stronger  one.   The  fact  that
plaintiff complains that the Tylenol he received for 21 days  did
not  sufficiently alleviate his pain, and that [defendant] should
have  either  scheduled the dental appointment or  increased  his
pain  medication earlier does not rise to the level of deliberate
indifference    sufficient   to   constitute   a   constitutional

     27     See Hutchins v. Blood Servs. of Mont., 506 P.2d  449,
452  (Mont. 1973) (Nor does the fact that other physicians  might
have  adopted  other  methods necessarily  render  the  attending
physician liable, nor show negligence or want of skill  or  care.
If  the method adopted . . . has substantial medical support,  it
is  sufficient. (ellipses in original) (quoting Dunn v. Beck, 260
P.  1047, 1050 (Mont. 1927))); Lawless v. Calaway, 147 P.2d  604,
607  (Cal.  1944) ([T]he fact that another physician  or  surgeon
might  have elected to treat the case differently or use  methods
other  than  those  employed  by defendant  does  not  of  itself
establish negligence.).

     28                              See  AS 09.55.540(a),  which
                                   places the burden of proof  on
                                   the  plaintiff  in  a  medical
                                   malpractice action to show:
          (1)   the   degree  of  knowledge  or   skill
          possessed  or  the degree of care  ordinarily
          exercised  under  the circumstances,  at  the
          time of the act complained of, by health care
          providers in the field or specialty in  which
          the defendant is practicing;
          (2)  that  the defendant either  lacked  this
          degree  of  knowledge or skill or  failed  to
          exercise this degree of care; and
          (3)  that as a proximate result of this  lack
          of  knowledge  or  skill or  the  failure  to
          exercise  this  degree of care the  plaintiff
          suffered  injuries that would  not  otherwise
          have been incurred.
     29     Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska

     30     Kendall  v. State, Div. of Corr., 692 P.2d  953,  955
(Alaska 1984) (citing Clary Ins. Agency, 620 P.2d at 200).

     31    Hymes v. DeRamus, 119 P.3d 963, 968 n.23 (Alaska 2005).

     32     The  superior  court also ruled that  Hertz  had  not
contested Beach and Hawkinss affidavits indicating that they were
not  responsible  for  and did not provide  dental  treatment  to
Hertz, and granted summary judgment in favor of Beach and Hawkins
on  that  ground as well.  Because we conclude Hertz was required
to  produce expert testimony in support of claims against the two
nurses, we need not reach this ground of the courts decision.

     33    AS 09.55.560(2).

     34     See  Hutchins, 506 P.2d at 452; Lawless, 142 P.2d  at

     35     We observe that inordinate delays in dental treatment
due to inoperative facilities or insufficient staff to handle the
volume  of prisoner needs may implicate DOCs duties to prisoners.
Because Hertz did not raise this issue, and actually removed  DOC
from  his  lawsuit by way of his amended complaint, we  need  not
address it.

     36    Hertz argues that the superior court erred in deciding
the  defendants were prevailing parties because he received  more
than  he  requested,  a full set of dentures.   Prevailing  party
status  does not automatically follow [from] . . . an affirmative
recovery  but rather . . . is based upon which party prevails  on
the  main  issues.   Hutchins v. Schwartz, 724  P.2d  1194,  1204
(Alaska  1986).  To decide which party prevails, the  court  must
determine, in an overall sense, which party the decision  favors.
Gwichin  Steering Comm., 10 P.3d at 584 (quoting Alaska  Wildlife
Alliance  v.  Rue,  948 P.2d 976, 981 (Alaska 1997)).   The  main
issues in this case were whether the defendants were negligent or
deliberately  indifferent  regarding  Hertzs  dental  care.    As
discussed  above, Hertzs eventual receipt of a full denture  does
not  prove  that they were negligent or deliberately  indifferent
(nor  was  it provided in exchange for dismissal of his  claims).
The superior courts decision granted summary judgment in favor of
Beach  and Hawkins on all claims.  The decision therefore favored
Beach  and  Hawkins,  and it was not an abuse  of  discretion  to
determine they were the prevailing parties.

     37    DeNardo v. Mun. of Anchorage, 775 P.2d 515, 518 (Alaska
1989)  (quoting Hughes v. Rowe, 449 U.S. 5, 15 (1980))  (internal
quotation  marks omitted) (reversing award of attorneys  fees  to
city  government when trial court remarked that plaintiffs  claim
under  1983 appeared to have merit).

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