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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marcie A. Beistline and William C. Beistline v. Bruce M. Footit, and Banner Health Inc., D/B/A Fairbanks Memorial Hospital (4/23/2021) sp-7518

Marcie A. Beistline and William C. Beistline v. Bruce M. Footit, and Banner Health Inc., D/B/A Fairbanks Memorial Hospital (4/23/2021) sp-7518

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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           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                                       



MARCIE  A.  BEISTLINE  and                                        )  

WILLIAM  C.  BEISTLINE,                                           )    Supreme Court No. S-17556  

                                                                                       

                                                                                                         

                                                                  )  

                                 Appellants,                      )    Superior  Court  No.  4FA-18-01401  CI  

                                                                  )  

           v.                                                                               

                                                                  )    O P I N I O N  

                                                                  )  

                                                                                                           

                                            

BRUCE M. FOOTIT and BANNER                                        )    No. 7518 - April 23, 2021  

                                      

HEALTH INC., d/b/a FAIRBANKS                                      )  

                        

MEMORIAL HOSPITAL,                                                )  

                                                                  )  

                                Appellees.                        )  

                                                                  )  



                                                                                                           

                                             

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                    

                      Fourth Judicial District, Fairbanks, Michael A. MacDonald,  

                      Judge.  



                                                                                                            

                      Appearances:   Mike A. Stepovich, Stepovich Law Office,  

                                                                                                             

                      Fairbanks,  for  Appellants.                       John  J.  Tiemessen,  Clapp  

                                                                                                                 

                      Peterson          Tiemessen            Thorsness           LLC,         Fairbanks,          for  

                      Appellees.  



                                                                                                                 

                      Before:          Bolger,  Chief  Justice,  Maassen,  Carney,  and  

                                                                                              

                      Borghesan, Justices.  [Winfree, Justice, not participating.]  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                            

                      A husband and wife sued medical care providers after the wife suffered a  



                                                                                                                                        

seizure, allegedly due to a doctor's decision to abruptly discontinue her medication. The  


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 superior court granted summary judgment to the medical care providers, ruling that the                                                                                                                                                                                                                                                                                                                                       



couple's only expert witness, a pharmacist, was unqualified to provide testimony about                                                                                                                                                                                                                                                                                                                            



the matter at issue because he was not a doctor of internal medicine and was not board-                                                                                                                                                                                                                                                                                                                      



certified in the doctor's field or specialty.                                                                                                                                                                   The couple appeals.                                           



                                                                  We conclude that the pharmacist's testimony was not sufficient to create                                                                                                                                                                                                                                                                     



a genuine issue of material fact about the relevant standard of care.                                                                                                                                                                                                                                                                    We therefore affirm                                                   



the grant of summary judgment to the health care providers.                                                                                                                                                                                             



II.                              FACTS AND PROCEEDINGS                                                    



                                 A.                                Facts  



                                                                   On February 6, 2016, William Beistline brought his wife Marcie to the                                                                                                                                                                                                                                                                       



Fairbanks Memorial Hospital emergency room with 'generalized weakness, ataxia and                                                                                                                                                                                                                                                                                                                                           



confusion."   Marcie was admitted to the hospital by Dr. Bruce M. Footit, a hospitalist                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                         1        William provided his wife's  

and internist who is board-certified in internal medicine.                                                                                                                                                                                                                                                                                                                                                    



medical history, as she was 'too delirious" to do it herself.  

                                                                                                                                                                                                                                                                                                     



                                                                  Dr. Footit's written record includes the following information. In the days  

                                                                                                                                                                                                                                                                                                                                                                                                                       



leading  up  to  Marcie's  admission,  she  had  'been  acting  strangely,  experiencing  

                                                                                                                                                                                                                                                                                                                                                                         



                                  1                                The complaint alleges that Dr. Footit is an 'internist," which his answer                                                                                                                                                                                                                                                             



admits.     The   only   other   direct   evidence   in   the   record   of   Dr.   Footit's   title   and  

qualifications   appears to                                                                                                    be an                             unauthenticated  copy of his curriculum vitae (CV),                                                                                                                                                                                          

 submitted by the defendants with their reply in support of summary judgment.                                                                                                                                                                                                                                                                                                                      The CV   

 states   that   Dr.   Footit   is   certified   by   the   American   Board   of   Internal   Medicine   and  

identifies his position with Fairbanks Memorial Hospital in the relevant time frame as                                                                                                                                                                                                                                                                                                                                             

'Hospitalist/Critical   Care   Provider."     The   Beistlines'   expert,   like   the   defendants',   

assumed   that   Dr.   Footit   was   'a   board  certified   internal   medicine   physician"   when  

opining about the applicable standard of care. The Beistlines' argument makes the same                                                                                                                                                                                                                                                                                                                               

assumption; they do not directly challenge the superior court's factual premise that                                                                                                                                                                                                                                                                                                                                     

Dr. Footit is 'a board-certified internist practicing internal medicine."                                                                                                                                                                                                                                                                                             We therefore   

assume that the doctor's training and qualifications are undisputed for purposes of the                                                                                                                                                                                                                                                                                                                                       

issue on appeal.                                                                  



                                                                                                                                                                                                                 -2-                                                                                                                                                                                                  7518
  


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

increasing confusion[,] lethargy," and 'unstead[iness] on her feet," and was dealing with                                                                                                                                                                                                                                                                                                                                     



nausea, vomiting, and diarrhea.                                                                                                                                  She had previously received some 'very unorthodox"                                                                                                                                                                



 and 'fairly nontraditional" treatments for 'common medical problems" from 'medical                                                                                                                                                                                                                                                                                        



professionals" outside of Alaska.  They had been treating her for Lyme disease 'at [a]                                           



 significant cost" and had also surgically implanted a port in her chest so she could self-                                                                                                                                                                                                                                                                                                                                   



 administer 'vitamin bags," but these Outside providers did not give her any 'followup                                                                                                                                                                                                                                                                                                           



or direct care for her port." Marcie saw these providers annually and received 'sporadic                                                                                                                                                                                                                                                                                                            



treatment" consisting of vitamin IV bags and 'allopathic treatments for her insomnia,                                                                                                                                                                                                                                                                                                             



which [she] takes per her own regimen, which include:                                                                                                                                                                                                                                                  Ambien, benzodiazepines,   



muscle relaxants and other herbal remedies."                                                                                                                                                                                          



                                                                    One of Marcie's providers, 'Dr. Fry," had diagnosed her with a 'blood                                                                                                                                                                                                                                                                 



parasite," which was now 'crawling out of her skin," causing itchiness and skin lesions.                                                                                                                                                                                                                                                                                                                                                               



Williamexplained that Dr. Fry had prescribed an antibiotic, but according to Dr. Footit's                                                                                                                                                                                                                                                                                                                     



notes it was                                                         actually some type of 'herbal remedy that only [Dr. Fry was] able to                                                                                                                                                                                                                                                                                               



prescribe at [a] significant cost."                                                                                                                                        Marcie's medical history also appeared to include                                                                                                                                                                                  



depression, 'potential psychiatric disease," and chronic insomnia.                                                                                                                                                                                                                                                                                No documentation   



was  available   to   Dr.   Footit   about   what   was   in   the   vitamin   bags   or   the   dosage   or  



 frequency of Marcie's medications; according to William, she was 'somewhat secretive                                                                                                                                                                                                                                                                                                                   



 [about] her therapies."                                                                                               She had 'a box full of different medications," but Dr. Footit                                                                                                                                                                                                                                



could not determine which ones she was taking.                                                                                                                                                                                                       



                                                                    Dr. Footit believed that Marcie had 'multiple chronic issues" including                                                                                                                                                                                                                                                        

                                                                                                      2        and  delirium  -  possibly  related  to  the  hyponatremia  -  and  

 acute   hyponatremia                                                                                                                                                                                                                                                                                                                                                                                                          



                                  2                                 'Hyponatremia 'is the term used to describe abnormally low amounts of                                                                                                                                                                                                                                                                                                



 sodium in                                            the blood.'                                                   "     Salt and                                                   Sodium,   HARVARD   SCHOOL   OF   PUBLIC   HEALTH,  

                                                                                                                                                                                                                                                                                                                                                                                                                                       

https://www.hsph.harvard.edu/nutritionsource/salt-and-sodium/  (last  visited  Mar.  3,  

2021).  



                                                                                                                                                                                                                    -3-                                                                                                                                                                                                      7518
  


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

excessive medication use. Because she had no local physician in Alaska and had sought                                                                                                                                                                                                                                                                        



what Dr. Footit believed to be unorthodox and 'frankly potentially dangerous medical                                                                                                                                                                 



therapies" without any significant oversight, Dr. Footit found it difficult to diagnose the                                                                                                                                                                                                                                                                                  



causes of her problems. But he believed her to be 'at significant risk for unintentionally                                                                                                                                                                                                                              



overdosing on her [regimen] of [central nervous system]-active meds."                                                                                                                                                                                                                                                        He ordered a                                           



hold on her 'chronic outpatient medications" and herbal remedies.                                                                                                                                                                                                                                   He planned to give                                                



her 'some IV fluid resuscitation" and 'isotonic saline" to correct her sodiumlevels while                                                                                                                                                                                                                                                                         



monitoring her progress over a 24-hour period. He also planned a toxicology screen; an                                                                                                                                                                                                                                                                                          



initial opiate screen was positive, which he found concerning because she did not appear                                                                                                                                                                                                                                                                     



to have any prescriptions for opiates.                                                                                                                               



                                                           The next day, February 7, a surgeon removed Marcie's implanted port,                                                                                                                                                                                                                                     



having determined that her change in mental status was 'most likely secondary to early                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                           3        and  was  

sepsis/bacteremia."     On   February   9   Marcie   had   a   tonic-clonic   seizure                                                                                                                                                                                                                                                                                



transferred to the Intensive Care Unit. Three days later she was discharged for outpatient  

                                                                                                                                                                                                                                                                                                                                               



treatment.  

                                              



                             B.                           Proceedings  



                                                          In  early  2018  the  Beistlines  filed  a  medical  malpractice  suit  against  

                                                                                                                                                                                                                                                                                                                                                        



Dr. Footit and Banner Health, d/b/a Fairbanks Memorial Hospital.  They alleged that  

                                                                                                                                                                                                                                                                                                                                                                         



Marcie's tonic-clonic seizure was the result of Dr. Footit's decision to cut off all her  

                                                                                                                                                                                                                                                                                                                                                                           



                             3                            A tonic-clonic seizure is generally characterized by a sudden stiffening of                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                                                                                                        PILEPSY  

the muscles, loss of consciousness, and convulsions.                                                                                                                                                                                     Tonic-clonic Seizures                                                                              , E 

FOUNDATION,https://www.epilepsy.com/learn/types-seizures/tonic-clonic-seizures(last                                                                                                                                                                                                                                                                                     

visited Mar. 17, 2021).                                                



                                                                                                                                                                                       -4-                                                                                                                                                                           7518
  


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

                                                                                                                                                               4  

 medications, including benzodiazepines,                                                                                                                           and that this decision breached the applicable                                                                                          



 standard of care.                                                  



                                                     Dr. Footit and the hospital moved for summary judgment in January 2019,                                                                                                                                                                                                 



 almost a year after the complaint was filed.                                                                                                                                         They supported their motion with the                                                                                                           



 affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine                                                                                                                                                                                                                         



 physician.     Dr.   McIlraith   noted   that   Dr.   Footit   lacked   any   records   of   Marcie's  



 'unorthodox treatments, drugs, drug dosages, [and] drug frequency [or of] the rationale                                                                                                                                                                                                                         



 and diagnoses for the unusual and unconventional unorthodox treatments."                                                                                                                                                                                                                             He attested   



 that because Marcie was delirious, '[t]he standard of care require[d] that potential causes                                                                                                                                                                                                                              



 of the pathology be treated and eliminated." He explained that Dr. Footit did this by first                                                                                                                                                                                                                                        



 'correcting the hyponatremia and treating the sepsis from the implanted port."                                                                                                                                                                                                                                                    He  



 further attested that 'because Marcie was on medications that could cause delirium, in   



 prescribed dosages exceeding recommended amounts, and because Dr. Footit could not                                                                                                                                                                                                                                                   



 ascertain how Marcie was taking her medications," Dr. Footit acted competently by                                                                                                                                                                                                                                                      



 withdrawing them; in fact, Dr. McIlraith asserted, '[i]t would be irresponsible NOT to                                                                                                                                                                                                                                                    

                                                                                                                                                                             5  Finally, he concluded that 'Dr. Footit met  

 eliminate a potential drug cause of delirium."                                                                                                                                                                                                                                                                                      



 the  standard  of  care  and  acted  as  a  reasonable  and  prudent  internist"  and  that  the  

                                                                                                                                                                                                                                                                                                                                     



 hospital's 'staff met the appropriate and applicable standard of care."  

                                                                                                                                                                                                                                                                                   



                           4                         Benzodiazepines are a class of drug used as sedatives and to treat insomnia,                                                                                                                                                                            



 anxiety, muscle spasms, and drug withdrawal symptoms.                                                                                                                                                                                  Benzodiazepines (and the                                                                      

Alternatives) ,   Harvard Health Publishing,                                                                                                                            https://www.health.harvard.edu/mind-and- 

 mood/benzodiazepines_and_the_alternatives (last updated Sept. 27, 2020).                                                                                                                                                                                                                                



                           5                         Dr.  McIlraith  disputed  the  complaint's  assertion  that  Dr.  Footit  had  

                                                                                                                                                                                                                                                                                                                                  

 discontinued benzodiazapenes.  This factual dispute was not material to the summary  

                                                                                                                                                                                                                                                                                                              

judgment ruling on appeal.  

                                                                              



                                                                                                                                                                     -5-                                                                                                                                                        7518
  


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

                                The Beistlines were granted an unopposed 10-day extension of time to                                                                                                    



 respond to the summary judgment motion.                                                               They then moved pursuant to Alaska Civil                                                  

                                                                                                                                                           6  The 45 days passed,  

 Rule 56(f) for a 45-day continuance to obtain supporting affidavits.                                                                                                                       



but the court heard argument on the Rule 56(f) motion in April, when it addressed  

                                                                                                                                                                                     



 several other discovery issues as well.  The court observed that it had 'been three years  

                                                                                                                                                                                                



 since  the  incident,  a  year  since  the  start  of  the  case,  and  the  suggestion  [from the  

                                                                                                                                                                                                     



 defendants] is that the plaintiffs still don't even have an expert and . . . also, that the  

                                                                                                                                                                                                     



plaintiffs have been dilatory in discovery."  The Beistlines' counsel conceded that they  

                                                                                                                                                                                                   



 did not yet have an expert and did not know 'who [would] actually be [their] testifying  

                                                                                                                                                                                       



 expert at trial," but she argued that they were not required to disclose their experts before  

                                                                                                                                                                                              



 the pretrial deadline for such disclosures - still eight months away - notwithstanding  

                                                                                                                                                                       



 the pending summary judgment motion.  At the close of the hearing the court found that  

                                                                                                                                                                                                    



 the plaintiffs had been seeking continuances as 'a strategic matter" and that they had  

                                                                                                                                                                                                    



 'indeed been dilatory during discovery," but it allowed them two more weeks to acquire  

                                                                                                                                                                                            



 an expert 'based solely on the interest in resolving this case on the merits."  

                                                                                                                                                                                     



                                The Beistlines then filed an opposition to the summary judgment motion  

                                                                                                                                                                                            



 that relied solely on the affidavit of Dr. Gregory Holmquist, a pharmacist and educator.  

                                                                                                                                                                                                               



 Dr. Holmquist, unlike Dr. McIlraith, assumed that Dr. Footit had discontinued Marcie's  

                                                                                                                                                                                        



use of benzodiazepine drugs and Ambien, which Dr. Holmquist characterized as a  

                                                                                                                                                                                                         



 'Z-drug." Dr. Holmquist attested that there were strict protocols governing how patients  

                                                                                                                                                                                           



were  removed  from  these  drugs,  and  that  a  failure  to  follow  the  protocols  could  

                                                                                                                                                                                              



                6               Rule 56(f)                 provides:     'Should   it appear                                        from the affidavits of a party                              



 opposing the[summaryjudgment] motion that the party cannot for reasons stated present                                                                                                       

by affidavit facts essential to justify the party's opposition, the court may refuse the                                                                                                             

 application for judgment or may order a continuance to permit affidavits to be obtained                                                                                                 

 or depositions to be taken or discovery to be had or may make such other order as is                                                                                                                    

just."  



                                                                                                   -6-                                                                                           7518
  


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

contribute to seizure.                                      He opined that 'following proper protocols for weaning and                                                                           



discontinuing medication is the standard of care" and that these protocols 'should be                                                                                                                                         



general knowledge to a board certified internal medicine physician, but, if not, then [in                                                                                                                                    



Marcie's case] there should have been a consult between the internist and the hospital's                                                                                                                   



pharmaceutical department."                                                    



                                   The court granted summary judgment to Dr. Footit and the hospital.                                                                                                                   The  



court cited AS 09.20.185(a), which lays out the required expert witness qualifications in                                                                                                                                      



professional negligence cases.                                                    Among the statute's requirements is that the witness be                                                                                     



'certified by a board recognized by the state as having acknowledged expertise and                                                                                                                                        

                                                                                                                                                                        7   The court concluded:  

training directly related to the particular field or matter at issue."                                                                                                                                                                 



'A doctor of pharmacy's expert testimony is insufficient to rebut the testimony of a  

                                                                                                                                                                                                                                 



board-certified internist about the standard of care required of a board-certified internist  

                                                                                                                                                                                                               



practicing internal medicine."  

                                                                                 



                                   The Beistlines moved for reconsideration, arguing again that they had no  

                                                                                                                                                                                                                              



obligation to produce qualified experts before the pretrial deadline for the exchange of  

                                                                                                                                                                                                                               



expert reports.  They also asserted, however, that they now had an expert witness who  

                                                                                                                                                                                                                         



was qualified under AS 09.20.185(a), and they asked the court to allow them to submit  

                                                                                                                                                                                                                  



a  supplemental  opposition  to  the  summary  judgment  motion.                                                                                                                    The  court  denied  

                                                                                                                                                                                                                 



reconsideration andentered final judgment for Dr. Footit and thehospital. TheBeistlines  

                                                                                                                                                                                                           



appeal.  



III.              STANDARD OF REVIEW  

                                                                   



                                   'We review a grant of summary judgment de novo, affirming if the record  

                                                                                                                                                                                                                   



presents no genuine issue of material fact and if the movant is entitled to judgment as a  

                                                                                                                                                                                                                                 



                  7                AS 09.20.185(a)(3).  

                                              



                                                                                                              -7-                                                                                                                7518  


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

                             8  

matter of law."                  'We must determine whether any genuine issue of material fact exists,                                                         



and in so doing all factual inferences must be drawn in favor of - and the facts must be                                                                               



viewed in the light most favorable to - the party against whom summary judgment was                                                                                 

                   9   'We interpret statutes 'according to reason, practicality, and common sense,  

granted."                                                                                                                                                       



taking into account the plain meaning and purpose of the law as well as the intent of the  

                                                                                                                                                                      

drafters.' "10  

                           



IV.	         DISCUSSION  



                                                                                                                                                                  

             A.	           The Sufficiency Of Expert Testimony In A Medical Malpractice Case  

                                                                                                                                                                   

                           Depends On Both AS 09.20.185 (Expert Witness Qualifications) And  

                                                                                  

                           AS 09.55.540 (Burden Of Proof).  



                                                                                                                                                                     

                           The  legislature,  by  statute,  has  imposed  particular  requirements  for  



                                                                                                                                                                

establishing  the  standard  of  care  in  professional  negligence  cases,  including  those  



                                                                                                                                                                     

involving  claims of medical malpractice.                                               In any  'malpractice action based  on  the  



                                                                                                                                                                        

negligence or wilful misconduct of a health care provider," the plaintiff is required to  



                                                                                                                                                                    

prove  'by  a  preponderance  of  the  evidence"  both  the  standard  of  care  and  the  



                                                                                                                                                        

defendant's breach of that standard, i.e., '(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 speciality in which the defendant  



                                                                                                                                                                   

is practicing" and '(2) that the defendant either lacked this degree of knowledge or skill  



             8            Hagen v.             Strobel,  353 P.3d                    799,   802   (Alaska 2015)                         (quoting   Kelly v.   



Municipality of Anchorage                             , 270 P.3d 801, 803 (Alaska 2012)).                                      



             9            Id. at 802-03 (quoting Kelly, 270 P.3d at 803).  

                                                                                                             



              10          Dapo v. State, 454 P.3d 171, 175 (Alaska 2019) (quoting Marathon Oil Co.  

                                                                                                                                                                     

v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska 2011)).  

                                                                                                                   



                                                                                   -8-	                                                                          7518
  


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

                                                                         11  

or failed to exercise this degree of care."                                  We have held repeatedly that these elements                      



of the plaintiffs' case require the support of expert testimony except 'in non-technical   

situations where negligence is evident to lay people."                                           12  



                                                                                                                                                      

                        Theadmissibility ofexpert testimony is governed by AlaskaEvidenceRule  



                                                                                                                                                       

702. The rule provides that '[i]f scientific, technical, or other specialized knowledge will  



                                                                                                                                                

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness  



                                                                                                                                                   

qualified as an expert by knowledge, skill, experience, training, or education, may testify  

                                                                                    13  But Rule 702(c) notes an exception for  

                                                                                                                                                         

thereto in the form of an opinion or otherwise." 



professional negligence claims; in those cases 'a person may not testify as an expert  

                                                                                                                                                  



witness  on  the  issue  of  the  appropriate  standard  of  care  except  as  provided  in  

                                                                                                                                                         



AS 09.20.185."  

        



                        That statute, titled 'Expert witness qualification," reads in full:  

                                                                                                                                    



                         (a)         In an actionbased on professional negligence, aperson  

                                                                                                                          

                        may  not  testify  as  an  expert  witness  on  the  issue  of  the  

                                                                                                                                

                        appropriate standard of care unless the witness is  

                                                                                                               



                                     (1) a professional who is licensed in this state or in  

                                                                                                                                  

                        another state or country;  

                                                      



                                     (2) trained and experienced in the same discipline or  

                                                                                                                                  

                         school of practice as the defendant or in  an  area directly  

                                                                                                                       

                        related to a matter at issue; and  

                                                                           



            11          AS 09.55.540(a).   



            12  

                                                                                                                                                       

                        Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984); see also  

                                                                                                                                                      

Hagen, 353 P.3d at 803 (noting that jury may ordinarily find breach of health care  

provider's duty of care only on basis of expert testimony);                                                 Midgett v. Cook Inlet Pre-                

                                                                                                                                           

Trial Facility, 53 P.3d 1105, 1115 (Alaska 2002) ('We have held that, where negligence  

                                                                                                                                                 

is not evident to lay people, the plaintiff in a medical malpractice action must present  

                                                             

expert testimony to establish the claim.").  



            13          Alaska R. Evid. 702(a).  

                                                       



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

                                                                                                             

                               (3)  certified  by  a  board  recognized  by  the  state  as  

                                                                                                      

                    having acknowledged expertise and training directly related  

                                                                         

                    to the particular field or matter at issue.  



                                                                                                            

                    (b)        The provisions of (a) of this section do not apply if the  

                                                                                                     

                    state has not recognized a board that has certified the witness  

                                                                         

                    in the particular field or matter at issue.  



                                                                                                                                      

This appeal requires us to again consider the relationship between these two statutes:  



                                                                                                                                

AS 09.20.185, governing expert qualifications in all professional negligence cases for  



                                                                                                                          

witnesses testifying about the standards of care, and AS 09.55.540, governing the burden  



                                                                                                                    

of proof in the more narrow category of 'malpractice action[s] based on the negligence  



                                                          

or wilful misconduct of a health care provider."  



                                                                                                                 

          B.	       The Testimony Of An Expert Who Is Qualified Under AS 09.20.185(a)  

                                                                                                             

                    Is Not Necessarily Sufficient To Carry The Plaintiff's Burden Under  

                           

                    AS 09.55.540.  



                                                                                                                                 

                    The superior court's summary judgment order is factually premised on its  



                                                                                                                       

description  of  Dr.  Footit,  the  defendant  physician,  as  'a  board-certified  internist  



                                                                                                                        

practicing internal medicine."  The court determined that the defendant in a medical  



                                                                                                                           

malpractice case is entitled to summary judgment 'if the plaintiff fails to present expert  



                                                                                                                              

testimony from an expert who is board-certified in [the] same field as the physician who  



                                                                                                                             

committed the alleged malpractice who can establish the standard of care."  The court  



                                                                                                                              

observed that the Beistlines' proposed expert, Dr. Holmquist, was a pharmacist and 'not  



                                                                                                                           

board-certified in the same field of practice as" Dr. Footit; because the Bestlines' claims  



                                                                                                                                  

lacked the support of qualified expert testimony 'about the standard of care required of  



                                                                                                                       

a  board-certified  internist  practicing  internal  medicine,"  they  could  not  'survive  



                                   

summary judgment."  



                                                                                                                           

                    We agree with the superior court's conclusion that Dr. Holmquist's expert  



                                                                                                                         

testimony was not sufficient to carry the Beistlines' burden of proof, though our analysis  



                                                                                                                         

is different.  Because this is a medical malpractice case, we consider the expert witness  



                                                               -10-	                                                        7518
  


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

qualification   requirements of AS 09.20.185                                                       in   light of the special burden                                   of   proof  

requirements of AS 09.55.540.                                     14  



                             First,Dr.Holmquist appears to meet therequirement ofAS09.20.185(a)(1)  

                                                                                                                                                        



because he is 'a professional" - a doctor of pharmacy - and 'is licensed in . . . another  

                                                                                                                                                                         

state," Washington.15                            Second, subsection (a)(2) requires that the testifying expert be  

                                                                                                                                                                                    



'trained and experienced in the same discipline or school of practice as the defendant or  

                                                                                                                                                                                     



in an area directly related to a matter at issue."  It is undisputed that Dr. Holmquist, as  

                                                                                                                 



a pharmacist, was not 'trained and experienced in the same discipline or school of  

                                                                                                                                                                    



practice as" Dr. Footit, an internist; this leaves the question of whether he was 'trained  

                                                                                                                                                                        



and experienced . . . in an area directly related to a matter at issue."  

                                                                                                                                  



                             As  the  Beistlines  contend,  we  addressed  a  similar  issue  in  Hymes  v.  

                                                                                                                                                                                     



DeRamus, which involved a prisoner's treatment by Department of Corrections medical  

                                                                                                                                                                         

staff.16          We held in Hymes that the testimony of a rheumatologist was relevant to the  

                                                                                                                                                                                   



standard of care for a prison doctor treating arthritis because he could testify about 'the  

                                                                                                                                                                                 

                                                                                                                                                              17      We  also  

physical  effects  of  abrupt  discontinuation  of"  an  arthritis  medication.                                                                                                 

                                                                                                                                    



considered the affidavit testimony of a psychiatrist, rejecting the argument that she  

                                                                                                                                                                                  



needed to be trained in correctional medicine and observing that she had 'sufficient  

                                                                                                                                                                  



               14            SeeHymes               v. DeRamus, 222 P.3d874,886 (Alaska2010)(identifying issue                                                                 



of expert witness qualification in medical malpractice case as whether the proposed                                                                                  

expert witness could 'provide testimony relevant to the standard of AS 09.55.540(a)(1)                                                                  

and [whether] she                     [met] the           requirements of AS 09.20.185(a) as to licensure, training and                                                           

experience, and certification directly relevant to an area of practice at issue in this case").                                                                                            



               15            Evidence of Dr. Holmquist's licensure does not appear in our record, but  

                                                                                                                                                                                   

because it is not challenged we assume he meets this criterion of AS 09.20.185(a).  

                                                                                                                                                                                   



               16            222 P.3d. at 878, 885-87.  

                                                                   



               17           Id. at 886.  

                                          



                                                                                        -11-                                                                                  7518
  


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

training and experience in psychiatry and psychotherapy and related fields to meet the                                                                             



requirements of subsection (a)(2) (training and experience in an area directly related to                                                                            



a matter at issue) to testify regarding the psychological effects of failing to adequately                                                         

                                                                                  18   For both experts, thus, we concluded that  

treat [the prisoner's] physical conditions."                                                              



their testimony about the physical effects of the alleged malpractice would be relevant  

                                                                                                              

to establishing the standard of care.19   Hymes supports the Beistlines' argument that the  

                                                                                                                                                                   



area in which Dr. Holmquist is 'trained and experienced" - i.e., the 'proper protocols  

                                                                                                                                                       



for weaning and discontinuing medication" -is 'directly related to . . . a matter at issue"  

                                                                                                                                                             



for purposes of AS 09.20.185(a)(2).  

                                       



                          Because of Hymes ' procedural posture, however, we were not called upon  

                                                                                                                                                               



to determine in that case whether the testimony of the plaintiffs' two proposed experts,  

                                                                                                                                                          



either singly or in combination, would be  enough to establish the standard of care.  

                                                                                                                                                                          



Although the superior court had refused to consider the experts' affidavits, it granted  

                                                                                                                                                          



summary judgment on an unrelated  ground:                                                    the plaintiffs'  failure to  exhaust their  

                                                                                                                                                               

                                                20     Reversing the superior court's decision of that issue, we  

administrative remedies.                                                                                                                                           

                              



observed that the experts' affidavits would now be relevant on remand when the superior  

                                                                                                                                                         

court took a renewed look at the merits.21  

                                                                 



                          But  relevance  does  not  equal  sufficiency.                                             The  issue  more  squarely  

                                                                                                                                                       



presented on this appeal is whether a plaintiff can prove the standard of care, as required  

                                                                                                                                                         



by AS 09.55.540(a)(1), by the testimony of an expert witness who may satisfy the  

                                                                                                                                                                  



             18           Id.   



             19           Id. at 886-87 & n.45.  

                                                          



             20  

                                      

                          Id. at 881-85.  



             21  

                                                       

                          Id. at 885-87.  



                                                                                -12-                                                                           7518
  


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

qualification standards of AS 09.20.185 but otherwise lacks expert perspective on 'the  

                                                                                                                             



field or specialty in which the defendant is practicing."  

                                                                  



          C.	       Dr. Holmquist's Affidavit Was Not Sufficient To Create A Genuine  

                                                                                                                      

                    Issue Of Material Fact About An Internist's Standard Of Care.  

                                                                                                                   



                    As   noted   above,   the   focus   of   the   superior   court's   decision   was  

                                                                                                             



Dr.  Holmquist's  lack  of  board  certification  in  a  relevant  field  as  required  by  

                                                                                                                               



AS 09.20.185(a)(3); accordingly, that is the focus of the parties' briefing on appeal. The  

                                                                                                                               



superior court decided that because Dr. Holmquist was 'not a board-certified internist,"  

                                                                                                                     



he was 'not qualified to offer expert testimony about the standard of care required of the  

                                                                                                                               



defendant."  The Beistlines challenge this decision by arguing that subsection (a)(3)  

                                                                                                                           



refers only to boards officially recognized by the State of Alaska through its executive  

                                                                                                                     



branch; that the State has not officially recognized any boards in this way; and therefore,  

                                                                                                                     



pursuant to AS 09.20.185(b), '[t]he provisions of (a) of this section do not apply,"  

                                                                                                                        



meaning that Dr. Holmquist's expert qualifications are governed only by Evidence  

                                                                                                                     



Rule 702.  

                 



                    We  find  it  unnecessary  to  address  these  arguments.                               Alaska  Statute  

                                                                                                                        



09.55.540(a)(1) requiresthat theplaintiffin amedicalmalpracticecaseprove'thedegree  

                                                                                                                          



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."  (Emphasis added.)  Regardless of  

                                                                                                                                



how   we   interpret   the   board-certification   requirement   of   AS   09.20.185(a)(3),  

                                                                                                         



Dr. Holmquist's affidavit testimony - the Beistlines' only evidence on the standard of  

                                                                                                                                 



care - was insufficient to create a genuine issue of material fact on that subject.  

                                                                                                               



                    Dr.Holmquist's affidavitdescribes hiscredentialsasaDoctorofPharmacy,  

                                                                                                                    



a former assistant professor at a university school of pharmacy, and an educator certified  

                                                                                                                       



by the American Society of Pain Educators and the American Medical Association.  

                                                                                                                                     



                                                              -13-	                                                        7518
  


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

                                                                                                                         

Dr. Holmquist identifies the drugs at issue in this case and the protocols for patient  



                                                                                                                   

withdrawal, briefly describes Marcie's symptoms upon her admission to the emergency  



                                                                                                                               

room, and concludes that rather thanimmediately discontinuing her benzodiazepines and  



                                                                                                                         

Z-drugs, 'Dr. Footit and the hospital staff should have been focused on rapidly raising  



                                                                                                                       

her sodium levels."  Dr. Holmquist's conclusion about the standard of care is this:  



                                                                                       

                    [G]iven the risks of abruptly discontinuing benzodiazepines  

                                                                                              

                    and Z-drugs in a patient with long-term physical dependence  

                                                                                                   

                    onthesemedications, following proper protocols forweaning  

                                                                                                         

                    and discontinuing medication is the standard of care.  This  

                                                                                                      

                    standard of care should be general knowledge to a board  

                                                                                                        

                    certified internal medicine physician, but, if not, then there  

                                                                                                          

                    should have been a consult between  the internist and  the  

                                                                                

                    hospital's pharmaceutical department.  



       

Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols  



                                                                                                                           

he describes, known to a pharmacy expert, are also 'general knowledge to a board  



                                                                                                                              

certified internal medicine physician," although he believes that they 'should be."  And  



                                                                                                                       

nothing in his affidavit indicates that he has a basis in training or experience for knowing  



                                                                                               

the answer to that question or for knowing the circumstances under which an internist  



                                                                                                                              

would consider it necessary to consult 'the hospital's pharmaceutical department." This  



                                                                                                                       

is in contrast to the testimony of the defendants' expert, Dr. McIlraith, who testified  



                                                                                                                    

based on his own training and experience as an internist.  According to Dr. McIlraith,  



                                                                                                                            

Dr. Footit acted appropriately by withdrawing Marcie's medications because she 'was  



                                                                                                               

onmedications that couldcausedelirium,in prescribeddosagesexceeding recommended  



                                                                                                                              

amounts,  and  because  Dr.  Footit  could  not  ascertain  how  Marcie  was  taking  her  



                       

medications."  



                                                                                                                             

                    Dr. Footit and the hospital had the initial burden of proving that there were  



                                                                                                                                 

no genuine issues of material fact and that they were entitled to judgment as a matter of  



                                                                                                                        

law on the issue raised in their summary judgment motion - whether Dr. Footit's  



                                                              -14-                                                         7518
  


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

                                                                                          22  

 conduct met the governing standard of care.                                                   The Beistlines conceded at oral argument                          



 on this appeal that the defendants met that burden with the affidavit of Dr. McIlraith.                                                                                              



 The burden therefore shifted to the Beistlines 'to set forth specific facts showing that                                                                                    



 [they]    could    produce    evidence    reasonably    tending    to    dispute    or    contradict    the  



                                                                                                                                                                                 23  

 [defendants'] evidence and thus demonstrate that a material issue of fact exist[ed]."                                                                                                



Because Dr. Holmquist's affidavit testimony did not demonstrate a basis on which to  

                                                                                                                                                                                



 challenge Dr. McIlraith on the prevailing standard of care for internists, the superior  

                                                                                                                                                                   



 court was correct to conclude that the Beistlines' claims could not survive summary  

                                                                                                                                                                 

judgment.24  

                            



V.            CONCLUSION  



                            The judgment of the superior court is AFFIRMED.  

                                                                                                           



              22            Christensen v. Alaska Sales &Serv.,                                       Inc., 335 P.3d 514, 517 (Alaska 2014).                            



              23            Id.  (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32  

                                                                                                                                                                           

 (Alaska 1978)).  

                   



              24            The Beistlines also argue that summary judgment was premature, either  

                                                                                                                                                                        

because it was error to grant summary judgment before the parties were required to  

                                                                                                                                                                                

 disclose their experts or because the Beistlines should have been granted more time to  

                                                                                                                   

produce the expert testimony of an internist.  As described above, the superior court  

                                                                                                                                                                          

 granted extensions for the Beistlines' response to the defendants' motion, ultimately  

                                                                                                                                                               

totaling  83  days  in  addition  to  the  initial  15  days  allowed  by  Alaska  Civil  Rule  

                                                                                                                                                                          

 77(c)(2)(ii). The court allowed the last two weeks of extension despite a finding that the  

                                                                                                                                                                              

 Beistlines had been dilatory in discovery, citing the 'policy in favor of deciding the case  

                                                                                                                                                                            

 on the merits."  On this record and the Beistlines' cursory briefing of the issue, we see  

                                                                                                                                                                              

no abuse of discretion.  See Erica G. v. Taylor Taxi, Inc., 357 P.3d 783, 786 (Alaska  

                                                                                                                                                          

 2015) ('We apply the abuse of discretion standard when reviewing superior courts'  

                                                                                                                                                                      

rulings on motions for extension of time.").  

                                                                                             



                                                                                      -15-                                                                                7518
  

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