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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandner v. Pease (11/25/2015) sp-7066

Brandner v. Pease (11/25/2015) sp-7066

         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, email  

                                                                                    

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



MICHAEL D. BRANDNER,                                     )  

                                                          )    Supreme Court No. S-15633  

                           Appellant,                    )  

                                                         )     Superior Court No. 3AN-11-10914 CI  

         v.                                              ) 

                                                          )   O P I N I O N  

ROBERT J. PEASE, M.D.,                                    )  

PROVIDENCE ALASKA                                         )   No. 7066 - November 25, 2015  

ANESTHESIA GROUP, and                                     )  

PROVIDENCE ALASKA MEDICAL                                 )  

CENTER,                                                   )  

                                                         )  

                           Appellees.                    )  

                                                         )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Anchorage, Patrick J. McKay, Judge.  



                  Appearances:  Charles  W.  Coe,  Law  Office  of  Charles  W.  

                  Coe, Anchorage, for Appellant.  Roger F. Holmes, Biss &  

                  Holmes, Anchorage, for Appellees Robert J. Pease, M.D. and  

                  Providence Alaska Anesthesia Group. Robert J. Dickson and  

                                                                                   

                                                            

                  Christopher   J.   Slottee,   Atkinson,   Conway   &   Gagnon,  

                  Anchorage, for Appellee Providence Alaska Medical Center.  

                                                     



                  Before: Fabe, Winfree, and Bolger, Justices.  [Stowers, Chief  

                                                   

                  Justice, and Maassen, Justice, not participating.]  



                  BOLGER, Justice.  


----------------------- Page 2-----------------------

I.       INTRODUCTION  



                   A    cardiac     patient     who      underwent         open     heart     surgery      sued     the  



                                                                       

anesthesiologist  and  medical  providers  involved  in  the  surgery.    The  superior  court  



dismissed the patient's claims on summary judgment, concluding that the patient had  



offered no admissible evidence that the defendants breached the standard of care or  



caused  the  patient  any  injury.    On  appeal  the  patient  relies  on  his  expert  witness's  



                

testimony that certain surgical procedures were suboptimal and that patients generally  



                                                                                                  

tend to have better outcomes when other procedures are followed. But we agree with the  



                                                            

court's conclusion that this testimony was insufficient to raise any issue of material fact  



regarding whether the defendants had violated the standard of care in a way that caused  



injury to the patient.  We also affirm the court's orders involving attorney's fees and  



costs.  



II.      FACTS AND PROCEEDINGS  



         A.        Heart Surgery  



                                                   

                   Dr. Michael Brandner suffered a heart attack in September 2009 and was  



                                              

admitted  to  Providence  Alaska  Medical  Center  (the  Medical  Center)  for  emergency  



bypass  surgery.    Dr.  Kenton  Stephens  was  the  cardiac  surgeon  who  performed  the  



                                

operation; Dr. Robert J. Pease administered anesthesia.  Dr. Brandner is also a medical  



doctor, licensed to practice plastic and reconstructive surgery.   



                   The   surgery   lasted   six   hours.      At   the   outset   Dr.   Pease   intubated  



                                                                                            

Dr. Brandner on his second attempt and used the drug propofol to induce anesthesia.  



Shortly thereafter Dr. Brandner's blood pressure precipitously dropped, but according  



to Dr. Stephens, Dr. Brandner did not suffer complete  cardiac arrest.  Dr. Stephens  



performed CPR while additional drugs were administered to counteract the drop in blood  



                      

pressure.    Dr.  Brandner's  blood  pressure  ultimately  stabilized,  and  the  operation  



continued.  



                                                          -2-                                                    7066
  


----------------------- Page 3-----------------------

                                                 

                          Dr.       Pease          then        placed           a     transesophageal                    echo         (TEE)           probe          in  



                                                                      

Dr.  Brandner's  esophagus  to  take  ultrasonographic  pictures  of  his  heart  and  obtain  



diagnostic information about its condition.  The TEE probe soon failed, and Dr. Pease  



then  notified  Dr.  Stephens  of  this  failure.    According  to  Dr.  Stephens's  deposition  



                                                                                                

testimony, he responded by saying, "Okay, well, I'm pressing on with the operation, do  



what you can."  The TEE probe was not replaced.  



                          Dr. Stephens performed a six-vessel bypass.  Dr. Brandner survived the  



                                                                           

operation and was discharged 12 days later.  In his notes from a follow-up appointment  



about  a  week  after  discharge,  Dr.  Stephens  indicated  that  "[Dr.  Brandner]  has  been  



                                                                                                                                                        

progressing quite well."  Dr. Stephens also indicated that Dr. Brandner could return to  



                                                                                                                                                    

full  activity  within  six  weeks  of  surgery  and  authorized  him  to  return  to  his  plastic  



                                    

surgery practice.  In March 2011 Dr. Stephens wrote a letter on Dr. Brandner's behalf  



                                                                                                                      

indicating  that  "[h]is  recovery  has  been  quite  exemplary"  and  that  "he  had  steadily  



returned to practice."  



             B.           Proceedings  



                                                       

                          In  September  2011  Dr.  Brandner  filed  a  complaint  against  Dr.  Pease,  



Providence  Anchorage  Anesthesia  Group  (the  Anesthesia  Group),  and  the  Medical  



              1  

Center.   Dr. Brandner alleged that  "[t]he administration of anesthesia performed by  



                                                                                                                                             

Dr. Robert J. Pease was below the standard of care, . . . was negligently and recklessly  



performed[,]" and "cause[ed] [Dr. Brandner] to sustain permanent injuries."  He also  



                

alleged that the Anesthesia Group and the Medical Center were vicariously liable for  



                                                                                                                                           

Dr.  Pease's  actions.    Dr.  Brandner  alleged  that  he  "suffered  severe  and  permanent  



             1            Dr. Pease and the Anesthesia Group are jointly represented by the same           



firm; the Medical Center has separate representation and has filed independent briefing.                              

But because these three parties' interests, arguments, and evidence are generally aligned,            

we usually refer to them together as "the providers" throughout.  



                                                                                 -3-                                                                           7066
  


----------------------- Page 4-----------------------

injuries, loss of past and future wages, . . . [and] loss of enjoyment of life[,]" and that he  



"incurred  past  and  future  medical  expenses[.]"    In  response  to  interrogatories,  



                                                     

Dr. Brandner  specifically alleged "[i]njury to and loss of myocardium with severely  



compromised cardiac function and reserve"; "[i]njury to brain with noticeable loss of  



short term memory function as demonstrated on testing"; and "[s]evere de-conditioning,  



loss     of   calcium,        with     associated        muscoloskeletal           problems,         displaced       sternal  



                                                 

incision/wound  with  prolonged  healing  and  continued  pain,  as  well  as  hemorrhoids  



requiring surgery and with ongoing problems."  



                    In  February  2012  the  providers  jointly  moved  for  summary  judgment,  



                                                                                                           

arguing that the "lawsuit must be dismissed with prejudice unless [Dr. Brandner] can  



                                         

produce  an  affidavit  from  a  qualified  expert  claiming  Dr.  Pease  failed  to  meet  the  



standard of care, [and] this failure caused or contributed to his injuries."  The motion was  



supported   by   the   affidavit   of   a   board-certified   anesthesiologist   specializing   in  



                                                                                                               

cardiovascular anesthesia who attested that "[t]he medical care provided by Dr. Pease to  



[Dr. Brandner] was appropriate in all respects and met the [s]tandard of [c]are."  



                                                                             

                    In July 2012 Dr. Brandner submitted the affidavit of Dr. Steven Yun, a  



board-certified  anesthesiologist,  in  connection  with  his  opposition  to  the  providers'  



                                                            

motion for summary judgment. Dr. Yun attested that the "treatment, care[,] and services  



                                                                                   

provided by . . . Dr. Robert Pease[] were suboptimal and contributed to [Dr. Brandner's]  



prolonged  and  delayed  recovery."    Specifically,  Dr.  Yun  stated  that  "in  all  medical  



                                                                                                                       

probability,"  (1) "[p]ropofol was not the optimal choice" of induction agent and its use  

"led directly to . . . [Dr.] Brandner's cardiac arrest,"2 (2) the "difficulty in securing  



[Dr.] Brandner's airway . . . directly contributed to [his] cardiac arrest," and (3) the  



          2  

                                                                           

                    As noted above, Dr. Stephens denied that Dr. Brandner suffered complete  

cardiac arrest.  



                                                             -4-                                                           7066  


----------------------- Page 5-----------------------

"amount of damage to [Dr. Brandner's] heart, [the] time to hook up the by-pass machine,         



[and] the extent of surgery performed would have been reduced by the use of a TEE   



[probe]   throughout  his  surgery."    Following  the  submission  of  this  affidavit,  the  



providers withdrew their summary judgment motions.  



                                                                                  

                     In September 2013 Dr. Brandner was indicted in federal court on seven  

                                3   The grand jury charged him with attempting to conceal millions  

                                            

counts of wire fraud.  



of dollars in assets from his wife during divorce proceedings.  



                     In  January  2014  the  parties  deposed  Dr.  Yun.    During  the  deposition  



                                   

Dr. Yun admitted that although he was a practicing anesthesiologist, he had not practiced  



                                                                                                        

cardiovascular anesthesia or used a TEE probe since about 2001.  He also stated that he  



                                      

was not qualified under the current standard of care to practice cardiovascular anesthesia  



because he lacked certification in the use of TEE probes.  



                                                   

                     With regard to Dr. Brandner's surgery, Dr. Yun reiterated his opinion that  



                                                         

the use of propofol and the failure to intubate Dr. Brandner on the first attempt were  



                                  

"suboptimal," but he refused to say that either fell below the standard of care.  Dr. Yun  



                                                                                             

did state that the failure to replace the TEE probe fell below the standard of care and that  



                                                                                                 

cardiac patients generally tend to have better outcomes when a TEE probe is used during  



                           

surgery.  But he repeatedly declined to draw any conclusions about whether the lack of  



                                                                                                          

a TEE probe caused harm to Dr. Brandner specifically, explaining, "I think that goes a  



little beyond my area of expertise."  Dr. Yun also confirmed that his affidavit, which  



                       

stated that Dr. Brandner's outcome would have been improved by the use of a TEE probe  



                                                                                                                   

throughout surgery, was based on his "generalized understanding" of the utility of TEE  



probes - not his specific understanding of Dr. Brandner's situation.  



          3          See 18 U.S.C.  1343 (2012).  



                                                                 -5-                                                               7066  


----------------------- Page 6-----------------------

                     In  February  2014  the  providers  jointly  moved  to  exclude  Dr.  Yun's  



                                                                 

testimony, arguing that Dr. Yun was not a qualified expert in the field of cardiovascular  



                                                                               

anesthesia.  While this motion was still pending, and less than a month before trial was  



                                                                                                       

set  to  begin,  Dr.  Brandner  requested  a  continuance.                                 Citing  the  ongoing  criminal  



                                                                                                         

proceedings against him, Dr. Brandner argued that "he [would not be able to] testify []or  



explain his circumstances" and that "exercising his right to remain silent is prejudicial  



                         

even in a civil case" because "[i]f he is acquitted and/or the charges are dismissed, his  



                                        

current criminal charges become irrelevant and . . . [in]admissible under Evid[ence] Rule  



                                                                                                                     

404(b)."  He also acknowledged the providers' motion to exclude Dr. Yun and stated that  



"[i]f [Dr. Yun] is struck from being a witness, the trial cannot proceed."  



                     The providers opposed Dr. Brandner's request for a continuance.   The  



                          

Medical Center argued that postponing the trial was unnecessary because Dr. Brandner's  

                                                                     4   "The [criminal proceedings] . . . do not  

"substantial rights" would not be violated:    



prevent [Dr. Brandner] from putting on his evidence concerning his . . . surgery, the  

                                                                                                                      



results from the surgery, his expert's opinions (to the extent that [the] trial court allows  

                                                                                                        



that testimony), and his testimony on damages" - the essential elements of his case.  



The Medical Center also argued that Dr. Brandner's request was dilatory because his  



indictment had been issued five months before and he could have moved to continue trial  



                                                                    

at any time during the intervening months.  The Anesthesia Group noted that it had hired  



an  additional  physician  "at  great  expense  .  .  .  to  cover  the  two  weeks  Dr.  Pease  is  



expected to be in trial" and that two out-of-state expert witnesses had already rearranged  



their schedules and purchased tickets to attend trial in Anchorage.  



           4         See Wagner v. Wagner, 299 P.3d 170, 175 (Alaska 2013) ("A refusal to     



grant a continuance constitutes an abuse of discretion 'when a party has been deprived   

of a substantial right or seriously prejudiced.' " (quoting                                 Siggelkow v. Siggelkow, 643  

P.2d 985, 987 (Alaska 1982))).  



                                                                   -6-                                                            7066
  


----------------------- Page 7-----------------------

                    Although  the  superior  court  called  Dr.  Brandner's  motion  to  continue  



"dilatory,"   "inexplicable,"   and   "inconvenien[t]    [to]   opposing   litigants,   opposing  



attorneys, and the [c]ourt," the court "reluctantly" granted his request.  But the court  



                    

ordered  Dr.  Brandner  to  pay  the  actual  out-of-pocket  costs  the  Anesthesia  Group  



                                                                                                           

incurred as a result of postponing trial.  The court later reconsidered this costs award on  



                                                                          

Dr. Brandner's motion and confirmed its decision to award costs. But the court reduced  



the award after learning that the Anesthesia Group's billings included costs that were  



avoidable  since  Dr.  Pease  was  still  available  to  work,  including  "travel,  hotels,  car  



                               

rentals,     per     diem,      overtime,"        and     other      costs     associated       with      the    substitute  



anesthesiologist.    In  addition  the  court  granted  the  providers'  motion  to  exclude  



                                         

Dr. Yun's testimony after finding that Dr. Yun was not a practicing, board-certified  



cardiovascular anesthesiologist.  Dr. Brandner then asked the court to reconsider its  



exclusion  of  Dr.  Yun's  testimony,  contending  that  "there  is  no  such  thing  as  board  



                        

certification  in  cardiovascular  anesthesia  and  use  of  the  TEE  probe  is  allowed  by  



anesthesiologists without any certification."  



                    In March the providers again moved for summary judgment, supporting  



their motions with four affidavits.  Two of these affidavits were from board-certified  



                                                                                 

anesthesiologists who asserted that Dr. Pease's actions met the standard of care.  In their  



                                  

motions the providers argued that, because the court had excluded Dr. Yun's testimony,  



                                                                                                                       

Dr. Brandner had no expert to testify about the appropriate standard of care.   In the  



alternative  they  argued  that  Dr.  Yun's  deposition  testimony,  even  if  admitted  in  its  



              

entirety,  did  not  raise  any  genuine  issues  of  material  fact,  because  there  was  "no  



                               

admissible evidence that any of [Dr. Pease's] actions [including the failure to replace the  



faulty TEE probe] caused injury to Dr. Brandner."  



                    The  superior  court  granted  the  providers'  summary  judgment  motions.  



                                                                                                      

Although acknowledging that its previous order excluding Dr. Yun was based on the  



                                                             -7-                                                        7066
  


----------------------- Page 8-----------------------

erroneous  premise  that  Alaska  recognizes  board  certification  for  the  subfield  of  



cardiovascular anesthesia, the court nonetheless excluded Dr. Yun's testimony.  The  



                                                                                                 

court also ruled that even if Dr. Yun were qualified as an expert witness, summary  



                                                                      

judgment would still be warranted because Dr. Yun did not causally connect any of  



Dr. Pease's allegedly negligent acts to any of Dr. Brandner's claimed injuries.  



                   The providers moved for Alaska Civil Rule 82 attorney's fees and costs.  



The  superior  court  granted  their  requests  but  reduced  the  awards  slightly  from  the  



requested amount.  



                   Dr. Brandner appeals.  



III.      STANDARD OF REVIEW  



                                                                                                       

                   "We review rulings on motions for summary judgment de novo, 'reading  



the record in the light most favorable to the non-moving party and making all reasonable  

inferences in its favor.' "5  "We 'will affirm a grant of summary judgment when there are  



no genuine issues of material fact and the moving party is entitled to judgment as a  

                                                   



                        6  

matter of law.' "    "We may affirm the superior court on any basis supported by the  



record, even if that basis was not considered by the court below or advanced by any  

                                                                                               



          7  

party."   "We  review  a  trial  court's  fact-based  determinations  regarding  whether  



          5        ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d  



 114,  122  (Alaska  2014)  (quoting  Witt v. State, Dep't  of  Corr.,  75  P.3d  1030,  1033  

                                                                      

(Alaska 2003)).  



          6        Maness v. Daily , 307 P.3d 894, 900 (Alaska 2013) (quoting Russell ex rel.  

                                            

J.N. v. Virg-In, 258 P.3d 795, 801-02 (Alaska 2011)).  



          7        Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008) (quoting Gilbert M.  

                                                                   

v. State, 139 P.3d 581, 586 (Alaska 2006)).  



                                                           -8-                                                     7066
  


----------------------- Page 9-----------------------

                                                                                        8  

                                                                                           

attorney's  fees  are  reasonable  for  an  abuse  of  discretion."   However,  "[w]e  review  



de novo whether the superior court correctly applied the law in awarding attorney's  

fees."9  



IV.	      DISCUSSION  



          A.	       The  Superior  Court  Did  Not  Err  By  Granting  The  Providers'  

                    Summary Judgment Motions.  



                   In  a  suit  alleging  negligence  or  willful  misconduct  by  a  health  care  



                                                                        

provider,  AS  09.55.540(a)  requires  a  plaintiff  to  prove  by  a  preponderance  of  the  



evidence:  



                             (1) the degree of knowledge or skill possessed or the  

                                                                        

                   degree of care ordinarily exercised under the circumstances,  

                                        

                    at the time of the act complained of, by health care providers  

                                         

                   in the field or specialty in which the defendant is practicing;  



                                          

                             (2)  that  the  defendant  either  lacked  this  degree  of  

                   knowledge or skill or failed to exercise this degree of care;  

                    and  



                             (3) that as a proximate 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.  



"In medical malpractice actions . . . the jury ordinarily may find a breach of professional  

                                                                                             

duty only on the basis of expert testimony."10  



          8        Froines v.  Valdez Fisheries Dev. Ass'n , 175 P.3d 1234, 1236 (Alaska  



2008) (citing Marron v.  Stromstad , 123 P.3d 992, 998 (Alaska 2005)).  



          9        Dearlove v. Campbell , 301 P.3d 1230, 1233 (Alaska 2013) (citing Glamann  



v. Kirk , 29 P.3d 255, 259 (Alaska 2001)).  



          10        Trombley v. Starr-Wood Cardiac Grp., PC                      , 3 P.3d 916, 919 (Alaska 2000)
  



(omission in original) (quoting Kendall v. State, Div. of Corr.                        , 692 P.2d 953, 955 (Alaska
  

                                                                                                          (continued...)
  



                                                             -9-	                                                      7066
  


----------------------- Page 10-----------------------

                  The superior court granted summary judgment in favor of the providers  



                                                               

under two independent rationales.  First, the court concluded that Dr. Brandner's only  



                                                     

expert, Dr. Yun, was not qualified to testify as an expert in cardiovascular anesthesia.  



                                                                                                           

Second, the court concluded that, even if Dr. Yun were qualified to testify as an expert  



in  cardiovascular  anesthesia,  his  testimony  "did  not  make  a  clear  causal  connection  



between the alleged malpractice and Dr. Brandner's injuries under [any] of the stated  



theories of liability."   



                  Dr. Brandner contests both of these conclusions.  With respect to the court's  



second conclusion, Dr. Brandner argues that if Dr. Yun had been found qualified to  



testify as an expert in cardiovascular anesthesia, then there would have been genuine  



              

issues of material fact regarding all three alleged instances of malpractice:  the use of  



propofol,  the  two  intubation  attempts,  and  the  failure  to  use  a  working  TEE  probe  



throughout the surgery.  



                   1.	     Dr. Brandner produced no expert testimony demonstrating that  

                            the  standard  of  care  had  been  breached  with  regard  to  his  

                            propofol and intubation malpractice claims.  



                  Dr. Brandner contends that"[t]here is a genuine dispute of fact as to whether  



the use of the drug propofol and the second intubation attempt were suboptimal ; taken  



together these [support] Dr. Yun's conclusion that [Dr.] Pease's actions fell below the  



standard of care."  (Emphasis added.)  But Dr. Brandner mischaracterizes Dr. Yun's  



                                                                                                          

testimony.  In his affidavit Dr. Yun stated only that Dr. Pease's failure to use a working  



TEE probe during surgery fell below the standard of care; he did not make the same  



                                                                                      

claim about Dr. Brandner's propofol and intubation theories or about Dr. Pease's actions  



                                                                                     

generally.  And in his deposition testimony Dr. Yun explicitly stated that he "[could not]  



         10       (...continued)  



1984)).  



                                                         -10-	                                                     7066  


----------------------- Page 11-----------------------

make the argument that [the use of propofol] was below the standard of care" and that  



                                                                                                                     

taking more than one attempt to intubate a patient was "suboptimal and . . . not ideal, but  



                                                                                   

not necessarily below the standard of care."  Under AS 09.55.540(a) the providers could  



                                                           

not have been held liable for either of these alleged acts of malpractice on the basis of  



Dr. Yun's testimony.  



                    2.	       Dr. Brandner produced no evidence to support his claim that  

                                                                           

                              the failure to use a working TEE probe throughout the surgery  

                              caused his specific injuries.  



                                                                                              

                    Dr. Yun did testify that Dr. Pease's failure to use a working TEE probe -  



                                                                                                                          

and the Medical Center's alleged failure to have a working backup probe on hand - fell  



below the standard of care.  But the superior court concluded that "Dr. Yun failed to  



causally connect the TEE shutdown and the physician's decision to proceed without a  



spare with any injury suffered by [Dr.] Brandner."  We agree.  



                                                                                

                    Dr. Brandner argues that Dr. Yun, in his deposition, "describe[d] the effects  



                                    

[that] the [defendants'] negligence caused to [Dr.] Brandner."  Dr. Brandner cites several  



                                                                                          

instances in Dr. Yun's deposition testimony where Dr. Yun suggested that Dr. Brandner  



                                                                       

probably would have had a better outcome if a TEE probe had been used.  But when  



                                                                     

these statements are read in the context of Dr. Yun's full testimony, it becomes clear that  



Dr. Yun was opining only that patients in general  tend to have better outcomes when a  



                                                                    

TEE probe is used - not that the failure to use a working TEE probe throughout the  



surgery harmed Dr. Brandner specifically.  Dr. Yun testified elsewhere in the deposition:  



                                                                                                                     

"I can't make any specific conclusions.  I can only say, in general, that patients who have  



                                                                                                        

a TEE probe used in their cardiac surgery tend to do better than those who do not."  And  



                                                                                                                    

when asked whether it was "outside the scope of [his] training and expertise to be able  



                                          

to testify about the impact the surgery had on [Dr.] Brandner in his particular case,"  



Dr. Yun simply replied, "Yes."  



                                                              -11-	                                                        7066
  


----------------------- Page 12-----------------------

                    As a matter of statistical probability, evidence that patients generally do  



                                                                                                 

better with a given treatment does not necessarily provide causal support that a specific  



                                                                                        

patient will do better.  The United States Court of Appeals for the First Circuit recently  



examined the logical pitfall inherent in attempting to prove causation with regard to a  



specific patient based on studies demonstrating correlation among patients in general.  



                                                                                                      

An expert witness testified that the chances of a patient's recovery increased by over  



                                                                                                            

50% when given a drug, and concluded that therefore, "the plaintiff more likely than not  



would have recovered had he received the drug." But as that court explained,  



                                                                                     

                    this reasoning is structurally unsound . . . .  When a person's  

                    chances of a better outcome are 50% greater with treatment  

                    (relative to the chances of those who were not treated), that  

                              

                    is not the same as a person having a greater than 50% chance  

                                                           

                    of experiencing the better outcome with treatment.  The latter  

                    meets the required standard for causation; the former does  

                          [11] 

                    not.  



                                                                                                                 

                    In the present case, Dr. Yun stated that "patients who have a TEE probe  



                                                                                               

used in their cardiac surgery tend to do better than those who do not" - in other words,  



the  chances  of  a  better  outcome  increase  when  a  TEE  probe  is  used.    But  Dr.  Yun  



provided no specific figures about what percentage of patients do better, in which ways,  



                              

and by how much. Without this information, Dr. Yun's statements about general patient  



                                                                                               

outcomes provides no support for Dr. Brandner's specific claim that his recovery would  



have been better had a working TEE probe been used throughout his surgery.  



                                                                                                  

                    Here the Anesthesia Group presented an expert who stated that the failure  



to use a working TEE probe had no effect on the surgery,  and Dr. Yun declined to offer  



testimony to the contrary.  The uncontested evidence that the lack of a working TEE  



          11  

                                  

                    Samaan v. St. Joseph Hosp., 670 F.3d 21, 33 (1st Cir. 2012) (emphasis  

added).  



                                                             -12-                                                           7066  


----------------------- Page 13-----------------------

probe  had  no  impact  on  Dr.  Brandner's  specific  surgery  overrides  any  marginal  



relevance of Dr. Yun's testimony about patient outcomes in general.  



                                                                                             

                    For these reasons the superior court was correct to conclude that Dr. Yun's  



                                     

testimony provided no evidence that the failure to use a working TEE probe was the  



                                                                                                     

likely  cause  of  Dr.  Brandner's  alleged  injuries.    Dr.  Brandner  pointed  to  no  other  



                                                                                              

evidence of causation in his opposition to summary judgment,  nor does he cite any such  



                                                                     

evidence  on  appeal.    We  therefore  affirm  the  grant  of  summary  judgment  in  the  

providers' favor.12  



          B.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                    Dr.   Brandner's   Request   For   Additional   Time   To   Depose   The  

                                                                                                              

                    Providers' Experts.  



                    Prior to the superior court's summary judgment ruling, Dr. Brandner moved  



to depose Dr. T. Andrew Bowdle, Thomas Vasquez, and Dr. Pease, whose affidavits  

                 



supported  the  providers'  summary  judgment  motions.    The  providers  opposed  the  



motion, pointing out that Dr. Brandner had ample time to depose all three witnesses  



before the discovery deadline. The superior court denied Dr. Brandner's motion as moot  

                                                                           



because "[his] only expert cannot testify that . . . the lack of a TEE [probe] caused any  

                                                                                                                   



injury  to  [Dr.]  Brandner."               Dr.  Brandner  contends  that  this  order  was  an  abuse  of  

                                                   



discretion.  



                                                                                                 

                    The superior court did not abuse its discretion. Dr. Brandner had produced  



                                                                                          

no evidence of causation, while, in contrast, the providers submitted four affidavits to  



                                                                                                                     

support their summary judgment motion.  Dr. Brandner asked to depose three of the four  



witnesses, but he did not attempt to depose or strike the testimony of Dr. Beerle, who  



                                                                                     

stated that "[t]he medical care provided by Dr. Pease to [Dr. Brandner] was appropriate  



          12  

                                                                                                

                    Because we affirm the superior court on this basis, we do not reach the issue  

of Dr. Yun's qualifications as an expert witness.  



                                                              -13-	                                                            7066  


----------------------- Page 14-----------------------

                                                                      

in all respects and met the [s]tandard of [c]are," and that a working TEE "would not have  



                    

changed the surgeon's plans to bypass the vessels chosen." Accordingly, even if the  



                                                                                                       

superior court had struck the affidavits of Dr. Bowdle, Vasquez, and Dr. Pease in their  



                                                                                                                      

entirety, the providers would have remained entitled to judgment as a matter of law  



because Dr. Brandner produced no evidence of causation to counter Dr. Beerle's expert  



testimony.  



          C.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Ordering  

                                                                                 

                    Dr. Brandner To Reimburse Costs The Anesthesia Group Incurred As  

                    A Result Of His Motion To Continue.  



                                                                             

                    Dr. Brandner moved for a continuance less than one month before trial was  



set to begin, largely based on criminal charges that were filed five months prior.  The  



superior   court  reluctantly  granted  the  continuance,  but  specifically  found  "that  



[Dr.] Brandner . . . violated the pre-trial order deadlines by failing to timely file this  



motion to continue and such violation . . . directly caused . . . costs [to the providers]."  



The court ordered Dr. Brandner to pay the costs that the Anesthesia Group incurred as  



                                                                                                                

a result of the continuance within 30 days. The Anesthesia Group submitted an affidavit  



stating that its total costs from the continuance were $27,559.38 - $22,559.38 for a  



                                                                                                  

temporary anesthesiologist who was hired to cover for Dr. Pease during the originally  



                                                                                                    

scheduled trial period and whose contract could not be cancelled, and $5,000 for the  



                                                                       

cancellation fee for one of its expert witnesses. The court initially ordered Dr. Brandner  



                                                                                           

to pay the Anesthesia Group the entire sum, though the court subsequently reduced the  



                                                                                 

cost award to $24,878 because the Anesthesia Group's billings revealed that the original  



                                                                                                

sum included "travel, hotels, car rentals, per diem, overtime[,] and other avoidable costs"  



                                                                                                                    

for the temporary anesthesiologist that "[t]he [c]ourt did not intend to award."  Despite  



this reduction, Dr. Brandner contends that the superior court abused its discretion by  



awarding these costs.  



                                                             -14-	                                                      7066
  


----------------------- Page 15-----------------------

                    Dr.  Brandner  argues  that  it  was  unfair  for  him  to  pay  for  a  temporary  



anesthesiologist  who  was  "[n]ever  needed."    He  points  out  that  the  temporary  



                                                                                          

anesthesiologist was hired to allow Dr. Pease to attend trial, and he claims "revenue or  



wage loss due to a party attending a trial is not recoverable under any rule, and there was  



             

nothing to show that a [temporary anesthesiologist] was needed to replace Dr. Pease,  



                                           

who was available [to work] when the trial was continued."  Dr. Brandner further argues  



                                                                       

that the cost award "opens the doors for parties to claim loss of income to attend trial as  



                                                                                   

a component of damages or as a component of litigation costs."  He argues that the court  



                                                                               

"penalized him for exercising his Fifth Amendment rights."  And he contends that the  



requirement  that  he  pay  the  Anesthesia  Group  for  their  costs  within  30  days  was  



"inconsistent with the civil rules" and "amount[ed] to a[n] [unreasonable] sanction."  



These arguments are unpersuasive.  



                    Alaska Civil Rule 40(e)(2) grants the superior court "significant discretion"  



                                                                                                           

in requiring a party moving for a continuance to pay the costs resulting from the delay  



           13  

of trial.      Rule 40(e)(2) provides:  



                                                                                  

                    Unless otherwise permitted by the court, application for the
  

                                                                     

                    continuance of the trial . . . shall be made to the court at least
  

                                                                                    

                    five days before the date set for trial . . . .  If such case is not
  

                    tried upon the day set, the court in its discretion may impose
  

                    such  terms  as  it  sees  fit,  and  in  addition  may  require  the
  

                                                                                    

                   payment of jury fees and other costs by the party at whose
  

                    request the continuance has been made. (Emphasis added.)
  



Recently, in Cooper v. Thompson, we affirmed a costs award for "travel, lodging, and . . .
  

                               



attorney's hours of trial preparation that would have to be duplicated" as a result of a
  



          13        Cooper v. Thompson, 353 P.3d 782, 796 (Alaska 2015).  



                                                             -15-                                                           7066  


----------------------- Page 16-----------------------

                                                14  

                                                                              

party's request to continue trial.                   The purpose of awarding such costs is not to punish  



                                                            

the party requesting a continuance but to "require [that] party to pay for these financial  



                                                                                               

costs when it was responsible for the need to continue the trial so close to the date it was  

scheduled to begin."15  



                                                          

                    It is uncontested that the Anesthesia Group committed to paying these costs  



under  the  assumption  that  the  trial  would  commence  on  the  scheduled  date.    The  



                                                                                                         

postponement of that trial, which Dr. Brandner requested and the Anesthesia Group  



opposed,  made  the  costs  unnecessary  but  did  not  absolve  the  Anesthesia  Group's  



                                                                            

contractual duty to pay them. And the Anesthesia Group could have avoided committing  



to these costs in the first place if Dr. Brandner had moved for a continuance earlier.  



                                                                                           

                    For this reason Dr. Brandner is incorrect that the award "opens the doors  



                                       

for parties to claim loss of income to attend trial as a component of damages or as a  



                                                                  

component of litigation costs."  Affirming the costs award here merely recognizes that  



when  a  party's  delay  in  filing  a  motion  to  continue  causes  another  party  to  incur  



                                       

nonrefundable costs that could have been avoided had the motion been filed earlier, the  



superior court has discretion to assign those costs to the moving party.  It in no way  



affects   the   general   rule   that   such   costs   are   normally   each   party's   respective  



                      16  

responsibility.            



          14        353 P.3d at 796.  As with the Anesthesia Group's costs in the present case,  



the travel and lodging costs in Cooper were not costs an opposing party would normally  

                                                                   

be required to bear under Rule 79.  See Alaska R. Civ. P. 79(f) (listing costs that may be  

                                                                                                                    

awarded to a prevailing party).  



          15        Id.  



          16  

                                                                                                    

                     Cf. Alaska R. Civ. P. 79(f) (list of costs that may be awarded to prevailing  

party does not include costs associated with grant of continuance, such as fees incurred  

for cancellation of expert witnesses).  



                                                               -16-                                                         7066
  


----------------------- Page 17-----------------------

                     Dr.  Brandner  is  also  incorrect  that  the  imposition  of  these  costs  was  

                                                                                                                    



 intended to "penalize[] him for exercising his Fifth Amendment rights."  The superior  

                                                                                                   



 court's  order  explicitly  stated:  "The  delay  in  filing  the  motion  -  not  the  fact  that  



                                                                                                

 [Dr.] Brandner had decided to exercise his [Fifth] Amendment rights . . . - is the direct  



                                                                                        

 cause of the . . . cost[s] unnecessarily [in]curred . . . ."   And when the superior court  



                                                                                                        

 reduced  the  costs  award  on  reconsideration,  the  court  reiterated  that  "[i]t  was  the  



 [c]ourt's intention to award only costs that could not be avoided because of the dilatory  



filing  of the motion to continue."  (Emphasis added.)  There is simply no evidence in the  



 record  that  the  superior  court  intended  to  punish  Dr.  Brandner  for  exercising  a  



 constitutional right.  



                     Dr.  Brandner  also  argues  the  requirement  that  he  pay  the  Anesthesia  



                                                                                             

 Group's costs within 30 days was intended to "sanction" him and was "inconsistent with  



 the civil rules."  But Rule 40(e)(2) grants the superior court significant discretion to  



                                               

 "impose such terms as it sees fit" and to "require the payment of . . . costs by the party  



                                                                                            

 at whose request the continuance has been made."  Setting a 30-day deadline was within  



 the court's discretion in this matter.  



                                                               

                     Dr. Brandner finally argues that "[i]f this cost is to be imposed, [he] should  



                                                                                                                       

 at least be allowed to depose the billing department of [the providers'] expert and [the]  



 Anesthesia Group to find out what, if anything, was paid and what income was earned  



                                                                             

 as a result of using a [temporary anesthesiologist] and Dr. Pease [simultaneously] once  



                                        

 trial was continued."  Dr. Brandner made this argument before the superior court, which  



 rejected it while noting that "[Dr. Brandner] is entitled to a copy of [the] documentary  



                               

 proof  of  payment,  which  defendants  shall  timely  provide."    The  court's  order  was  



 reasonable.  There is little reason to think the demand for anesthesia necessarily increases  



                                                                        

 with the supply of anesthesiologists.  And the Anesthesia Group did provide proof of  



 payment, which already resulted in the reduction of the costs award.  The court could  



                                                               -17-                                                        7066
  


----------------------- Page 18-----------------------

reasonably  conclude  that  Dr.  Brandner's  request  for  depositions  on  this  matter  was  



excessive and unreasonable.  



                                               

                   For these reasons, we affirm the imposition of costs to Dr. Brandner under  



Rule 40(e)(2).  



          D.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Awarding  

                   Attorney's Fees.  



                                                               

                   The superior court awarded attorney's fees to the providers pursuant to  



Rule 82, which provides in part that "[i]n cases [resolved without trial] in which the  



prevailing  party  recovers  no  money  judgment,  the  court  shall  award  the  prevailing  



                                                                                                                            17  

                

party . . . 20 percent of its actual attorney's fees which were necessarily incurred." 



Dr. Brandner argues that the awards were excessive and that the court failed to provide  

                                                                                                       



explanation for the reasoning behind its awards.  These arguments are without merit.  



                                                       

                   As an initial matter, Dr. Brandner argues that the providers' attorney's fees  



                                                  

were facially excessive given that the "case involved [only] six depositions and a limited  



                                                                                             

motion for summary judgment."  But this argument ignores the fact that the case nearly  



                                 

went to trial, and that Dr. Brandner claimed damages of approximately $1,681,065 plus  



                                                                             

$466,905 yearly in future lost earning capacity. Thus the superior court could reasonably  



conclude  that  the  providers'  attorneys'  total  billings,  $240,456,  were  not  facially  



unreasonable.  



                   Dr. Brandner also raises four specific criticisms regarding Dr. Pease and the  



Anesthesia Group's billings.  We reject these arguments as well.  



                   First,  Dr.  Brandner  criticizes  Dr.  Pease  and  the  Anesthesia  Group's  



                                                                                                       

attorneys  for  "reviewing  the  same  chart  notes  and  medical  records  .  .  .  on  multiple  



                                                              

occasions." But these documents were the critical evidence in this case, upon which both  



          17       Alaska R. Civ. P. 82(b)(2).  



                                                            -18-	                                                         7066  


----------------------- Page 19-----------------------

                                                                                                                          

sides'  expert  testimony  relied.                But  Dr.  Brandner  has  not  demonstrated  that  it  was  



                                                                                                          

unreasonable for the providers' attorneys to review in depth critical documents upon  



which both sides' experts relied.  



                                                                           

                    Second, Dr. Brandner criticizes the attorneys' billings for "joint meetings  



                                                                                                                    

with counsel for [the Medical Center], and work with experts not used in this case."  But  



              

because  the  providers'  interests  and  legal  defenses  were  largely  aligned,  it  seems  



                                                                                                         

reasonable that they would want their attorneys to meet to coordinate legal strategy.  As  



            

for the experts, Dr. Pease and the Anesthesia Group explained to the court that "[h]ad the  



                               

case progressed to trial, each [expert] would have testified."  Dr. Brandner does not  



                                                                                                                       

explain why obtaining the opinions of experts not ultimately called to testify at trial was  



                                                                                                          

in any way unreasonable in a case that was resolved before trial and turned on expert  



testimony.  



                                                                        

                    Third, Dr. Brandner criticizes the attorneys for time spent investigating his  



criminal case, which he claims had "nothing to do with this case."  But Dr. Pease and the  



                                                       

Anesthesia Group told the superior court that "[t]he defendants were trying to untangle  



Dr.  Brandner's  complicated  financial  picture  as  a  part  of  defending  [against]  his  



                                                                                     

multimillion  dollar  loss  of  earnings  claim,"  and  that  "[Dr.]  Brandner  .  .  .  used  his  



                                                      

criminal issues as a basis for a last minute continuance[,] which also required the court  



and the defendants to delve into those issues."  Given the relevance of Dr. Brandner's  



criminal  indictment  to  the  case,  Dr.  Brandner  has  not  demonstrated  that  it  was  



unreasonable for the attorneys to bill time spent investigating the issue.  



                    Finally,  Dr.  Brandner  criticizes  the  attorneys  for  billing  time  spent  



                 

preparing the 2012 motion for summary judgment, which was later withdrawn.  But  



                                                                    

Dr. Pease and the Anesthesia Group pointed out that summary judgment was eventually  



granted for the same reasons advanced in the original summary judgment motion, and  



they maintained that "[a]ll the work which went into the original motion was utilized  



                                                              -19-                                                         7066
  


----------------------- Page 20-----------------------

                                                                                                                      

when filing the second, successful summary judgment motion."  Dr. Brandner has not  



demonstrated that the superior court erred in awarding fees for time spent preparing the  



original summary judgment motion.  



                    In addition to disputing Dr. Pease and the Anesthesia Group's legal billings,  



Dr. Brandner argues that the attorney's fees awards should be remanded because the  



superior court provided "no explanation of the reasoning behind [the Medical Center's]  



                                                                                              

award"  and  granted  Dr.  Pease  and  the  Anesthesia  Group's  attorney's  fees  request  



"without ruling on [his] objections."  



                                                                                                                              18  

                                                                                           

                    The court was not obliged to provide reasons for rejecting - or accepting 



                                                                    19  

                                                                                             

- Dr. Brandner's specific billing objections.                           It is true that "[i]f the [superior] court  



                                                                                                     

deviates  from  [the  Rule  82(b)  percent  award]  formula,  it  must  provide  a  written  



                                        20  

                                                                                              

explanation  for  doing  so."                 But  there  is  no  indication  here  that  the  superior  court  



deviated from that formula.  Instead, it appears that the superior court determined the  



                                                                                             21  

"actual   attorney's   fees   which   were   necessarily   incurred,"                              accepting   some   of  



                                             

Dr. Brandner's objections in the process, and applied the proper formula to that sum.  



          18        It  appears  that  the   superior  court  did  accept  some  of  Dr.  Brandner's  



objections.  The Medical Center reported that it had incurred $110,355.50 in attorney's  

fees  and  was  entitled  to  an  award  of  $22,071.10;  the  court  awarded  $20,616.10.  

Dr.  Pease  and  the  Anesthesia  Group  reported  that  they  had  incurred  $130,100  in  

                                                                         

attorney's fees and were entitled to an award of $26,020; the court awarded $25,380.  



          19        Alaska  R.  Civ.  P.  52(a)  ("Findings  of  fact  and  conclusions  of  law  are  



                                                                           

unnecessary on decisions of motions under Rules 12 or 56 or any other motion except  

as provided in Rule 41(b).").  



          20  

                                                                                                           

                    Nichols v. State Farm Fire & Cas. Co. , 6 P.3d 300, 305 (Alaska 2000)  

(citing Alaska R. Civ. P. 82(b)(3)).  



          21        Alaska R. Civ. P. 82(b)(2).  



                                                             -20-                                                        7066
  


----------------------- Page 21-----------------------

"[T]he [superior] court is under no obligation to give reasons for an award that complies       

with the percentages expressed in Rule 82(b)(2)."22  



V.        CONCLUSION  



                    The  superior  court  did  not  err  in  granting  summary  judgment  to  the  



defendants because Dr. Brandner did not produce any evidence that the defendants'  



                                                                                                 

actions caused his injuries.  Nor did the superior court abuse its discretion in ordering  



                                                                                               

Dr. Brandner to pay attorney's fees and costs associated with his motion to continue.  We  



therefore AFFIRM the superior court's judgment.  



          22        Nichols , 6 P.3d at 305.  



                                                             -21-                                                           7066  

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