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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bret Bohn v. Providence Health Services - Washington (4/16/2021) sp-7517

Bret Bohn v. Providence Health Services - Washington (4/16/2021) sp-7517

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

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



BRET  BOHN,                                                       )  

                                                                  )    Supreme  Court  No.  S-17106  

                              Appellant,                          )  

                                                                  )    Superior Court No. 3AN-15-10274 CI  

                                                                                                                               

          v.                                                      )  

                                                                  )    O P I N I O N  

                                                                                           

PROVIDENCE HEALTH SERVICES -                                      )  

                                                             

WASHINGTON,                                                       )    No. 7517 - April 16, 2021  

                                                                                                         

                                                                  )  

                              Appellee.                           )  



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

                                                                                                        

                    Judicial District, Anchorage, Erin B. Marston, Judge.  

                                                                                             



                    Appearances:            Mario  L.  Bird,  Ross,  Miner  & Bird,  LLC,  

                                                                                                        

                    Anchorage,   for  Appellant.                     Chester   Gilmore,  Cashion  

                                                                                                  

                    Gilmore LLC, Anchorage, for Appellee.  

                                                                    



                    Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                                                                                  

                    and Carney, Justices.  

                                         



                    CARNEY, Justice.  

                                       



I.        INTRODUCTION  



                    A patient who sued a hospital for alleged violations of Alaska's Health Care  

                                                                                                                              

Decisions  Act  (HCDA)1   challenges the  superior  court's  application  of the  HCDA's  

                        

                                                                                                                       



statutory  immunity provisions  to  the  hospital.                         The patient  argues  that  the hospital  

                                                                                                                        



          1         AS 13.52.010-.395.   


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

violated the HCDA when it temporarily assumed decision-making authority over his                                                                                                                                                                                                                                                                                                                                                                             



medical care while he was incapacitated and treated him without his consent or that of                                                                                                                                                                                                                                                                                                                                      



his parents, whom he had previously authorized to make medical decisions on his behalf                                                                                                                                                                                                                                                                                                                                                       



if he were rendered incompetent or incapacitated.                                                                                                                                             



                                                                        The hospital argues that it is entitled to immunity under the HCDA because                                                                                                                                                                                                                                                                                  



it held a good faith belief that the patient's parents lacked authority to make medical                                                                                                                                                                                                                                                                                                                                            



decisions for him, based on conduct that convinced health care providers at the hospital                                                                                                                                                                                                                                                                                                                                           



that the parents were not acting in the patient's best interest.                                                                                                                                                                                                                                                                 The superior court agreed                                                                                



with   the   hospital   and   granted   its   summary   judgment   motion,   concluding   that   the  



immunity provisions applied.                                                                                      



                                                                        This is the first opportunity we have had to interpret the HCDA's immunity                                                                                                                                                                                                                                                                         



provisions.   The superior court concluded that the hospital was entitled to immunity                                                                                                                                                                                                                                                                                                                    



because its doctors had acted in good faith and in accordance with generally accepted                                                                                                                                                                                                                                                                                                                                         



medical standards.                                                                                    But the court overlooked the requirement for specific good faith as                                                                                                                                                                                                                                                                                         



to the                         authority or lack thereof                                                                                                           of the patient's surrogate or agent.                                                                                                                                                     We therefore reverse                                                       



the grant of summary judgment and remand for further proceedings.                                                                                                                                                                                                                                                                                                               



II.                                 FACTS AND PROCEEDINGS                                                         



                                    A.                                  Facts  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                           2  

                                                                        In 2007 Bret Bohn executed a Durable Power of Attorney for Healthcare.                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                          

He wanted his parents to have the authority to make medical decisions on his behalf if  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

he became "incompetent or incapacitated." He named first his mother and then his father  



                                                                                                                                                                                                                                                                                                                                                                                                                       

 as his health care agents.  The power of attorney stated:  "I want my life to be prolonged  



                                                                                                                                                                                                                                                                                                                                                                                                                  

 and I want life-prolonging treatment to be provided unless, in my Agent's judgement,  



                                    2                                  AS 13.52.010(b) ("An adult may execute a durable power of attorney for                                                                                                                                                                                                                                                                                                                 



health care, which may authorize the agent to make any health care decision the principal                                                                                                                                                                                                                                                                                                                                      

 could have made while having capacity.").                                                                                                                                                                                             



                                                                                                                                                                                                                                -2-                                                                                                                                                                                                                  7517
  


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

the pain, discomfort, or probable outcome of the treatment outweighs any benefit the                                                                                                                                                                                                                                                                                                                                                  



treatment may have for me."                                                                                                                            In another document Bohn nominated his father as his                                                                                                                                                                                                                           



guardian in the event a guardian needed to be appointed.                                                                                                                                                                                 



                                                                     1.                               Bohn's admission and treatment at Providence                                                                                                                                                    



                                                                    In   early   October  2013   Bohn,   then   26   years   old,   started   to   experience  



insomnia while guiding a hunt.                                                                                                                                He believed the insomnia was caused by his prescribed                                                                                                                                                                              



use of the steroid prednisone to treat nasal polyps.                                                                                                                                                                                                                        The insomnia persisted after he                                                                                                                              



returned fromthe                                                                        hunt; he also began experiencing disorientation and hallucinations. On    



October 16 Bohn's parents took himto Providence Alaska Medical Center, where he was                                                                                                                                                                                                                                                                                                                                                 



prescribed sedatives and then released. He began experiencing seizures the next evening                                                                                                                                                                                                                                                                                                                        



 after taking the sedatives.                                                   



                                                                    Bohn's symptoms worsened and on October 19 he returned to Providence,                                                                                                                                                                                                                                                 



where he was admitted and remained until late March 2014.                                                                                                                                                                                                                                                       Hospital records state that                                                                                         



when he was                                                             admitted he "was unable to clearly answer                                                                                                                                                                                                  questions or                                                       describe his   



 experience" and that he was placed in psychiatric observation.                                                                                                                                                                                                                                                            His condition continued                                                  



to deteriorate and he suffered more seizures after admission, which Bohn suggests were                                                                                                                                                                                                                                                                                                                                        



 a side effect of a dose of the antipsychotic drug haloperidol.                                                                                                                                                                                                                                                 The following day he was                                                                                          



transferred to the emergency room after staff observed that he was perspiring heavily,                                                                                                                                                                                                                                                                



had an elevated pulse and temperature, and had low blood oxygen saturation.                                                                                                                                                                                                                                                                                                                                   During  



this time Bohn seemed to be unable to make medical decisions on his own behalf.                                                                                                                                                                                                                                                                                                             



                                                                    Bohn   posits   that   his   psychiatric   and   other   symptoms   were   caused   by  



neuroleptic malignant syndrome (NMS) resulting from the steroids and the haloperidol                                                                                                                                                                                                                                                                                                        

                                                                                                  3          He points out that his condition seemed to improve between the  

he had been given.                                                                                                                                                                                                                                                                                                                                                                                                                    



                                  3                                 Bohn obtained reports from independent physicians noting that certain                                                                                                                                                                                                                                                                         



 antipsychotic   drugs,   including   haloperidol,   can   sometimes   cause   NMS.     NMS   is  

                                                                                                                                                                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                                                                                                     -3-                                                                                                                                                                                                       7517
  


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

afternoon   of   October   20   and   October  22,   when   Providence   temporarily   stopped  



administering antipsychotic medications and steroids. He suggests that, for at least some                                                                                     



of this time, he was competent to give or withhold consent to medication.  Chart notes                       



entered by multiple Providence doctors in the days after Bohn's admission indicate that                                                                                          



steroid use may have caused his altered mental state and psychosis and that haloperidol                                                                         



may have caused or exacerbated his seizures.                                                        The medical records do not, however,                            



indicate   a   conclusive   diagnosis.     Providence   characterizes   Bohn's   condition   as  

"exceeding[ly] difficult to diagnose."                                         4  



                                                                                                                                                                        

                            In the weeks that followed providers gave Bohn multiple doses of steroids  



and antipsychotic medications, including haloperidol and risperidone.  He was treated  



                                                                                                                                                      

by a number of physicians.   His psychiatric state did not improve, and  Providence  



                                                                                                                                                                   

records indicate that his delirium persisted and that he remained "effectively catatonic"  



                           

as of March 2014.  



                                                                                                                                                                             

                            2.	            Bohn's  parents'  efforts  to  halt  treatment  and  meeting  with  

                                                                      

                                           Providence staff  



                                                                                                                                                                        

                            Throughout late October and early November 2013 Bohn and his parents,  



                                                                                                                                                                

especially his mother, repeatedly sought to prevent health care providers at Providence  



              3              (...continued)  



                                                                                                                                                                                

characterized by fever, signs of autonomic dysfunction such as profuse sweating and  

                                                                                                                                                                              

elevated heart rate, and a movement disorder.  Bohn points out that his symptoms were  

                                  

consistent with NMS.  



              4             The extent to which Providence considered NMS as a diagnosis is unclear.  

                                                                                                                                                                                          

A summary of Bohn's symptoms and treatment during his stay at Providence notes that  

                                                                                                                                                                                 

his symptoms could have been caused by numerous conditions, including a mental  

                                                                                                                                                                         

disorder.  NMS was mentioned as a possible condition in March 2014, just before Bohn  

                                                                                                                                                                             

was  transferred  to  another  hospital,  but  otherwise  does  not  appear  to  have  been  

                                                                                                                                                                             

considered.  



                                                                                         -4-	                                                                                7517
  


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

                                                                                                                      

from  administering  medications  to  him.                         His  parents  disagreed  with  the  doctors'  



                                                                                          

decisions, believing that the medications were causing his symptoms.  



                                                                                                                         

                    Providence medical records indicate that on October 23 Bohn's mother  



                                                                                                                         

attempted to physically restrain Bohn on two occasions. According to a friend of Bohn's  



                                                                                                                            

who was present, his mother was "holding [him] back and feared that he could harm  



                                                                                                                              

somebody," possibly as a reaction to being "medicated . . . against his will."  But a note  



                                                                                                                         

by a Providence doctor states that Bohn "was not being threatening" and that his mother  



                                                                                                       

continued to restrain him "despite repeated requests" from Bohn's father and multiple  



                                                                                                                               

doctors that she stop.  Later that day Bohn's parents attempted to remove him from the  



                                                                                                                             

hospital but, according to Providence's records, a doctor explained that Bohn was "not  



                                                                                                                         

medically stable" enough to be discharged.   On October 24 Bohn's parents sought  



                                    

representation from an attorney.  



                                                                                                                         

                    On the morning of October 25 Providence held a meeting with Bohn's  



                                                                                                                              

parents, several Providence providers (including two doctors and a social worker), and  



                                                                                                                     

a Providence security guard. Providence informed Bohn's parents that it was restricting  



                                                                                                                                     

their visits to one hour per day, with no cell phones, and with Providence staff present.  



                                                                                                                               

Bohn  later  alleged  that  at  this  meeting  Providence  staff  told  his  parents  "that  an  



                                                                                                                              

institutional decision had been made by Providence that [Bohn] was incapacitated and  



                                                                                                          

that Providence would thereafter be making all health care treatment decisions."  



                                                                                                                       

                    According  to  notes  kept  by  Bohn's  parents,  Bohn's  mother  notified  



                                                                                                                               

Providence staff on October 25 that Bohn had executed a power of attorney naming his  



                                                                                                                     

parents as his agents.  But a doctor's note in Providence's records from that day states  



                                                                                                                                

that, as far as Providence providers and risk management staff knew, Bohn "ha[d] no  



                                                                                                                                

designated [power of attorney]," and that although Alaska law would normally make his  



                                                               -5-                                                         7517
  


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

                                                                                                                                                                                                                            5  

parents his surrogate decision makers,                                                                                                                                                                                           "[h]is parents are unfortunately interfering in his                                                                                                                                                                                                                    



medical care."                                                                           Another doctor's note from the same day states:                                                                                                                                                                                                                                                                  "Medical team is                                                                                  



 [Bohn's] surrogate decision maker[].                                                                                                                                                                                     Parents not acting in best interest of patient."                                                                                                                                                                         



                                                                              3.                                     Guardianship appointment   



                                                                              Providence's records for later on October 25 indicate the hospital received                                                                                                                                                                                                                                                                                                             



 a   call   from   Bohn's   parents'   attorney  "stating   that   [Bohn's]   mother   has   verbalized  



multiple times that she would like [Bohn] to commit suicide rather than be hospitalized."                                                                                                                                                                                                                                                                                                                                                                                                                                  



Based on this call and Bohn's mother's previous conduct, Providence sent a report of                                                                                                                                                                                                                                                                                                                                                                                                                       



harm to Adult Protective Services (APS), stating that it believed Bohn was at risk of                                                                                                                                                                                                                                                                                                                                                                                                                      



neglect because his mother "ha[d] been interfering with [his] medical care, . . . ha[d]                                                                                                                                                                                                                                                                                                                                                                               



 attempted to remove him from the hospital against medical advice," and was "observed                                                                                                                                                                                                                                                                                                                                                                        



physically assaulting and restraining [Bohn]" despite medical staff's requests that she                                                                                                                                                                                                                                                                                                                                                                                                             



 stop.  



                                                                              On October 31 Bohn's parents provided Providence staff the power of                                                                                                                                                                                                                                                                                                                                                         



 attorney Bohn had executed and requested copies of Bohn's medical records. According                                                                                                                                                                                                                                                                                                                                                                    



to APS records Providence notified APS of the power of attorney that same day and                                                                                                                                                                                                                                                                                                                                                                                                                



 statedthat Providence's                                                                                                                  risk management staff"would                                                                                                                                                   bereviewing themother's                                                                                                                                [power  



 of attorney] document and will provide guidance to the doctors as to how to proceed."                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                       5                                      See  AS 13.52.030(a) ("[A] surrogate may make a health care decision for                                                                                                                                                                                                                                                                                                                                                 



 a patient who is an adult if an agent or guardian has not been appointed or the agent or                                                                                                                                                                                                                                                                                                                                                                                                                  

 guardian is not reasonably available, and if the patient has been determined by the                                                                                                                                                                                                                                                                                                                                                                                                                

primary physician to                                                                                                   lack capacity."); AS                                                                                                 13.52.030(c) (listing patient's family members                                                                                                                                                                         

who may act as surrogate absent designation by patient in order of priority, including                                                                                                                                                                                                                                                                                                                                                                          

parents).  



                                                                                                                                                                                                                                                     -6-                                                                                                                                                                                                                                     7517
  


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

                                                                                                                                                       6  

                         On November 5 APS filed a guardianship petition in superior court.                                                                APS  



acknowledged the power of attorney naming Bohn's mother as his agent but argued that                                                                         



"her   current   decisions   and   interference   with   his   medical   care   ha[ve]   caused   great  



concern."  



                         On    November    9    Bohn's    mother    sent    Providence    a    letter    seeking  

                                                                                                                                       7  A Providence  

"emergency evacuation" of Bohn to "any other medical health facilities."                                                                       



risk management specialist responded that "the physicians treating himare exploring the  

                                                                                                                                                              



option of transferring himto another facility but are awaiting" certain test results and that  

                                                                                                                                                             



"[t]he transfer of a patient is something that is done by the physician and can only occur  

                                                                                                                                                          



if there is a physician willing to accept the patient as their own at the new facility."  

                                                                                                                                                                     



Providence directed Bohn's mother "back to the physician treating [Bohn] to see what  

                                                                                                                                                           



the status is" on the pending test results.  

                                                               



                         An  emergency  guardianship  hearing  was  held  before  a  magistrate  on  

                                                                                                                                                              



November 14.   Bohn's parents were not present and there is no indication that they  

                                                                                                                                                           



received notice of the petition or hearing.   Bohn's sister and a close friend who had  

                                                                                                                                                             



frequently visited him in the hospital also were not present; both later attested that they  

                                                                                                                                                            



would have been willing and able to act as Bohn's surrogate or guardian. Following the  

                                                                                                                                                              



hearing, and apparently based on a joint stipulation from APS's attorney and Bohn's  

                                                                                                                                                      



court-appointed  attorney,  the  magistrate  recommended  that  the  Office  of  Public  

                                                                                                                                                      



Advocacy (OPA) be appointed as a temporary guardian for Bohn. Superior Court Judge  

                                                                                                                                                         



Erin Marston approved the temporary guardianship order the same day, suspending  

                                                                                                                                              



Bohn's power of attorney documents pending further court order.  

                                                                                                                  



             6           See   AS 13.26.311(a) (providing for court appointment of guardian for                                            



incapacitated person).                     



             7           Bohn's mother had previously asked that Bohn be transferred either to the  

                                                                                                                                                              

Alaska Psychiatric Institute or to Alaska Regional Hospital.  

                                                                                                



                                                                               -7-                                                                        7517
  


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

                                      In a later order granting full guardianship to OPA, the court found that                                                                                                                           



although Bohn's parents wouldnormally havepriority                                                                                                     forguardianship,appointing                                                    OPA  



was in Bohn's best interests because "it would be wrong to appoint the parents as a                                                                                                                                                             



guardian when they don't believe a guardianship is necessary[,] nor do they believe in                                                                                                                                                        



the medical diagnosis that their son is 'gravely ill' [or] . . . think he should receive any                                                                                                                                              

medications."8  



                                      4.                 Transfer, removal from hospital, and discharge  

                                                                                                                                                                           



                                      Throughout  late  2013  and  early  2014  Bohn  remained  hospitalized  at  

                                                                                                                                                                                                                                              



Providence. His parents continued their efforts to prevent administration of medications  

                                                                                                                                                                                                                  



and to contest the guardianship appointment.  

                                                                                          



                                      In late March 2014 Providence transferred Bohn to Harborview Medical  

                                                                                                                                                                                                                             



Center  in  Seattle,  Washington.                                                                    According  to  a  report  Bohn  obtained  from  an  

                                                                                                                                                                                                                                           



independentpsychiatrist who reviewed Providence'sandHarborview's medical records,  

                                                                                                                                                                                                                              



Harborview planned to administer electroconvulsive therapy.  Bohn's parents removed  

                                                                                                                                                                                                                           



him from Harborview on April 22 in what Bohn later characterized as a "decision to  

                                                                                                                                                                                                                                              



surreptitiously  assist  in  an  escape"  prior  to  the  administration  of  electroconvulsive  

                                                                                                                                                                                                 



therapy.  The police apprehended Bohn and his parents three days later and returned  

                                                                                                                                                                                                                            



Bohn to Harborview, where he was assigned a new medical team.  

                                                                                                                                                                           



                                      Bohn's condition had apparently improved during the three days he spent  

                                                                                                                                                                                                                                     



outside  Harborview,  during  which  he  took  no  medications.                                                                                                                                 According  to  the  

                                                                                                                                                                                                                                         



independentpsychiatrist's report, Harborviewadministeredno medicationstoBohnafter  

                                                                                                                                                                                                                                        



                   8                  See   AS   13.26.311(d),   (f)   (providing   that   patient's   nominated   agent,  



relatives, and close friends who have "demonstrated a sincere, longstanding interest in                                                                                                                                                       

the welfare of [the patient]" take priority in guardianship appointments over public                                                                                                                                              

guardian, unless court makes written findings that deviating from statutory order of                                                                                                                                                         

priority is in patient's best interests).                                                                



                                                                                                                      -8-                                                                                                             7517
  


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

his return except an anti-anxiety medicine; he was discharged in early May after tapering                                                                                                 



 off the anti-anxiety medicine.                                          Bohn asserts that his recovery after his "escape" from                                                                  



 Harborview and cessation of all medications demonstrates that his catatonia and other   



 symptoms were caused by Providence's "misdiagnoses and negligent prescriptions of                                                                                                                      



 medications."  



                B.              Proceedings  



                                                                                                                

                                1.              Complaints and relevant motions  



                                In October 2015 Bohn filed suit against Providence Health & Services -                                                                                                    

                                                                                                                                                                                9   as well as  

 Washington, the corporate owner of Providence Alaska Medical Center,                                                                                                                                  



 againstOPA employees and several individual health careproviders, including anumber  

                                                                                                                                                                                          



 of Providence employees and some providers from other facilities who were involved  

                                                                                                                                                                                        



 in his case.  He alleged that Providence administered medication on several occasions  

                                                                                                                                                                                      



 over his parents' opposition, violating his rights under the HCDA "to have his parents  

                                                                                                     

participate in surrogate decision making."10  He also brought claimsbased on negligence,  

                                                                                                                                                                                  



 falseimprisonment, administration ofmedication withoutconsent,breachofcontract and  

                                                                                                                                                                                                     



 the implied covenant of good faith and fair dealing, and purported violations of federal  

                                                                                                                                                                                             



 law.  



                                Bohn  dismissed  some  claims and  the superior  court granted  summary  

                                                                                                                                                                                      



judgment dismissing the claims against one physician. In November 2016 the remaining  

                                                                                                                                                                                     



 individual physician defendants moved for summary judgment.  They pointed out that  

                                                                                                                                                                                                    



                9               For   ease   of   reference   we   refer   to   the   corporate   defendant   simply   as  



 "Providence."  



                10              AS 13.52.010(b) ("An adult may execute a durable power of attorney for  

                                                                                                                                                                                                      

health care, which may authorize the agent to make any health care decision the principal  

                                                                                                                                                                                        

 could have made while having capacity."); AS 13.52.030(a) ("[A] surrogate may make  

                                                                                                                                                                                                

 a health care decision for a patient who is an adult [and who lacks capacity] if an agent  

                                                                                                                                                                                                

 or guardian has not been appointed or . . . is not reasonably available.").  

                                                                                                                                                                             



                                                                                                   -9-                                                                                           7517
  


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

 one of the physician defendants, Dr. Harold Johnston - the director of Providence's                                                                                                                                               



 Family Medicine Residency - had attested in an affidavit that the treatment Bohn                                                                                                                                                                         



 received was "well within the accepted practice and standard of care." They argued that                                                                                                                                                                         



 Bohn's malpractice claims against themrequired himto prove that they had breached the                                                                                                                                                                              



 relevant standard of care and that he had no admissible expert testimony to counter                                                                                                                                                                

                                                                           11  Bohn did not oppose the motion but instead agreed to dismiss  

 Dr. Johnston's affidavit.                                                                                                                                                                                                                            



 the claims against the individual physicians with prejudice.  The order of dismissal also  

                                                                                                                                                                                                                                                                



 granted leave for Bohn to file an amended complaint and specified that he could still  

                                                                                                                                                                                                                                             



 recover against Providence for its employees' actions.  In a separate order issued three  

                                                                                                                                                                                                                                                             



 days later the court also concluded that because Providence had joined the doctors'  

                                                                                                                                                                                                                                                  



 summary judgment motion and continued to assert that it was entitled  to summary  

                                                                                                                                                                                                                                              



judgment on the same grounds, the motion was not moot.  The court also found that  

                                                                                                                                                                                                                                                                



 Bohn was not required to present expert testimony to overcome summary judgment on  

                                                                                                                                                                                                                                                                     



 the HCDA claims and that those claims stood.  

                                                                                                                             



                                          Bohn  then  filed  a  Second  Amended  Complaint  in  January  2017,  

                                                                                                                                                                                                                                                        



 maintaining his HCDA claims against Providence but not asserting any malpractice  

                                                                                                                                                                                                                                        



 claims.  He also opposed the summary judgment motion that Providence had joined.  In  

                                                                                                                                                                                                                                                                      



 February he moved for partial summary judgment as to liability on three of his claims:  

                                                                                                                                                                                                                                                                                



 (1) that Providence violated the HCDA by not cooperating with his parents' attempts to  

                                                                                                                                                                                                                                                                       



 take  him  out  of  the  hospital  or  have  him  transferred;  (2)  that  administration  of  

                                                                                                                                                                                                                                                                    



                      11                  See AS 09.55.540(a) (requiring plaintiff in medical malpractice action to   



 prove by preponderance of evidence that defendant failed to exercise care ordinarily                                                                                                                                                        

 exercised by health care providers in relevant field and that plaintiff suffered injuries as                                                                                                                                                                         

 proximate result of defendant's lack of care);                                                                                                     Hagen v. Strobel                                        , 353 P.3d 799, 804                                 

 (Alaska 2015) (concluding that, absent conflicting testimony, attestation of qualified                                                                                                                                                         

 expert that                      medical malpracticedefendants metapplicablestandard ofcarewas sufficient                                                                                                                                      

 to support summary judgment in defendants' favor).                                                                                                                  



                                                                                                                                -10-                                                                                                                         7517
  


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

antipsychotic medications without consent and over his parents' objections violated the                                                                                                                  



HCDA; and (3) that Providence should be strictly liable for administering medication                                                                                                 



without consent over the objections of his designated agents.                                                                     



                                Bohn argued that his parents were his surrogates until Providence received                                                                                  



                                                                                                                                                                                                            12  

his power of attorney, after which it should have recognized his mother as his agent.                                                                                                                             



He argued further that even if Providence determined his parents were not acting in his  

                                                                                                                                                                                                         



best interest, it should have proceeded to consider Bohn's sister or his friend as the next  

                                                                                                                                                                                                      

available  surrogates.13                                     By  having  his  medical  team  act  as  surrogate  instead,  he  

                                                                                                                                                                                                         



contended, Providence had violated the specific provision of the HCDA barring health  

                                                                                                                                                                                                 

care providers from acting as surrogates for patients in their care.14  

                                                                                                                                                  



                                In March Providence cross-moved for partial summary judgment on the  

                                                                                                                                                                                                        



claims that it administered medications without consent fromBohn, his surrogates, or his  

                                                                                                                                                                                                         



agent.  Providence argued that these allegations had been resolved in the guardianship  

                                                                                                                                                                        

                                                                                                                                                                                           15     Bohn  

proceeding and were therefore barred by the doctrine of collateral estoppel.                                                                                                                     

                                                                                                                                                                     



                12              See  AS 13.52.010(b) (providing for nomination of agent through durable                                                                                       



power of attorney for health care); AS 13.52.030(a), (c) (governing health care decisions                                                                                                 

by surrogates and listing persons who may act as surrogate in order of priority).                                                                                                                 



                13              See AS 13.52.030(c).  

                                                    



                14              See AS 13.52.030(k) ("Unless related to the patient by blood, marriage, or  

                                                                                                                                                                                                           

adoption, a surrogate may not be an owner, operator, or employee of the health care  

                                                                                                                                                                                                      

facility where the patient is receiving care.").  

                                                                                                              



                15              The doctrine of collateral estoppel "bars the relitigation of issues actually  

                                                                                                                                                                                             

determined in [earlier] proceedings."  Ahtna, Inc. v. State, Dep't of Transp. & Pub.  

                                                                                                                                                                                                    

Facilities, 296 P.3d 3, 8 (Alaska 2013) (alterations in original) (quoting Jeffries v.  

                                                                                                                                                                                                           

 Glacier State Tel. Co., 604 P.2d 4, 8 n.11 (Alaska 1979)).  Collateral estoppel applies  

                                                                                                                                                                                               

when:  

                  



                                (1) the party against whom the preclusion is employed was a  

                                                                                                                                                                              

                                                                                                                                                                                (continued...)  



                                                                                                   -11-                                                                                             7517
  


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

 opposed.   The court stayed the other summary judgment motions pending resolution of                                                                                                                                                                                                                                                                                                                           



 this issue.   In May it denied Providence's partial summary judgment motion and lifted                                                                                                                                                                                                 



 the stay, concluding that the issues litigated in the guardianship proceeding were not                                                                                                                                                                                                                                                                                                                   



 identical to the question of Providence's obligations under the HCDA in its initial                                                                                                                                                                                                                                                                                                        



 treatment of Bohn and the claims were not barred by collateral estoppel.                                                                                                                                                                                                                                   



                                                                That same month Bohn filed a Third Amended Complaint.                                                                                                                                                                                                                                  He re-alleged   



 hisHCDAclaimsbasedon involuntary administration                                                                                                                                                                                                            ofantipsychoticmedications,anti-                                                                                                          



  seizure medications, and steroids.                                                                                                                              He also re-alleged his claims of false imprisonment,                                                                                                                               



 breach of contract, breach of the implied covenant of good faith and fair dealing, and                                                                                                                                                                                                                                                                                                                 



  strict liability for nonconsensual administration of medications.                                                                                                                                                                                                                                             In addition he alleged                                                  



 that Providence had violated the HCDA by failing to provide his mother with his medical                                                                                                                                                                                                                                                                                             



 records upon request when she presented Providence employees the power of attorney                                                                                                                                                                                                                                                                                                



 and that it had violated the HCDA's prohibition against health care providers acting as                                                                                                                                                                                                                                                                                                                        



  surrogates   for   their   patients.     Shortly   afterward   Bohn   moved  for  partial   summary  



judgment as to liability on most of the claims raised in his Third Amended Complaint.                                                                                                                                                                                                                                                                                                                                        



                                                                In June Providence opposed Bohn's partial summary judgment motion and                                                                                                                                                                                                                                                                     



 cross-moved for summary judgment. It argued that under the HCDA treating physicians                                                                                                                                                                                                                                                                                     



 were expressly permitted to determine Bohn's best interest in the absence of any other                                                                                                                                                                                                                                                                                                          



 appropriate decision maker and that the statute did not require it to provide health care                                                                                                                                                                                                                                                                                                            



                                 15	                             (...continued)  



                                                                                                                                                                                                                                                                                      

                                                                party to or in privity with a party to the first action; (2) the  

                                                                                                                                                                                                                                                                                                                                 

                                                                issue  precluded  from  relitigation  is  identical  to  the  issue  

                                                                                                                                                                                                                                                                                                                                            

                                                                decided in the first action; (3) the issue was resolved in the  

                                                                                                                                                                                                                                                                                                                                           

                                                                 first action by a final judgment on the merits; and (4) the  

                                                                                                                                                                                                                                                                                                            

                                                                determination of the issue was essential to the final judgment.  



                                                                                                                                                                                                                                                                                                                                                                                     

 Id. (quoting Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 468 (Alaska  

                                      

 2007)).  



                                                                                                                                                                                                     -12-	                                                                                                                                                                                          7517
  


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

                                                                                                                                                                                                      16  

that   did   not   fall   within   applicable   "generally   accepted   health   care   standards."                                                                                                         



                                                                                                                                                                                                 

Providence argued that it had reason to believe Bohn's parents were not acting in his best  



                                                                                                                                                                                          

interest and therefore they were disqualified from acting as his surrogate.  It also argued  



                                                                                                                                                                                               

that   allowing   Bohn's   parents   to   take   him   home   between   October   20   and  



                                                                                                                                                                                            

November 14, 2013 would have worsened Bohn's prognosis and even risked his death,  



                                                                                                                                                                                                   

and thus would have failed to meet "generally accepted health care standards" under the  

                                   17   Providence asserted that during this time it was obligated to provide  

circumstances.                                                                                                                                                                          



continuing  care,  which  it  had,  and  that  it  was  Bohn's  family's  responsibility,  not  

                                                                                                                                                                                                 

Providence's, to arrange a transfer to another hospital.18  

                                                                                                           



                               2.              Providence's summary judgment motion on immunity  

                                                                                                                                                              



                               That same month Providence separately moved for summary judgment on  

                                                                                                                                                                                                    



the basis of HCDA immunity.  It pointed to AS 13.52.080(a)(3), which immunizes a  

                                                                                                                                                                                                       



health care provider from liability for declining to comply with a person's health care  

                                                                                                                                                                                                



decision so long as the provider "acts in good faith and in accordance with generally  

                                                                                                                                                                       



                16             Providence argued that its position was justified by several subsections of                                                                                           



the HCDA:                    AS 13.52.030(f) (allowing primary physician to determine patient's best                                                                                            

interest if multiple surrogates have equal priority and are evenly divided over health care                                                                                                      

decision); AS 13.52.030(h) (allowing health care provider to decline to comply with                                                                                                            

surrogate's decision if "provider observes that a surrogate is not abiding by the wishes,                                                                                                

values, and best interest of the patient"); and AS 13.52.120(e) (requiring health care                                                                                                          

providers to abide by "generally accepted health care standards" regardless of HCDA's                                                                                                

other provisions).                         



                17             See AS 13.52.120(e).  

                                                                                   



                18             See AS13.52.060(g) (requiring healthcareproviderthat declines to comply  

                                                                                                                                                                                         

with authorized decision maker's decision to: (1) inform patient or other decision maker  

                                                                                                                                                                                            

of  provider's  refusal  to  comply;  (2)  provide  continuing  care  pending  transfer;  and  

                                                                                                                                                                                                 

(3) cooperate with decision by patient or authorized decision maker to transfer patient  

to another facility).  

                          



                                                                                                -13-                                                                                          7517
  


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

accepted health care standards" and so long as the refusal to comply is "based on a good                                                                                                                                                                                                                              



faith   belief   that   the   person   then  lacked   authority"   to   make   health   care   decisions.   



Providence supplied asecond affidavit fromDr. Johnston stating that the doctors treating                                                                                                                                                                                                                         



Bohn   "provided   care   within   the   applicable   standard   of   care   for   family   medicine  



physicians"; that the medications they prescribed "were also well within the applicable                                                                                                                                                                                                               



 standard of care"; that the doctors "genuinely and in good faith believed that [they] were                                                                                                                                                                                                                                



acting in . . . Bohn's best interests"; and that they "genuinely and in good faith believed                                                                                                                                                                                                                  



that . . . Bohn's parents were not acting in his best interests," which the doctors believed                                                                                                                                                                                                                 



"disqualified them from acting as . . . Bohn's surrogates or agents."                                                                                                                                                                                              Providence argued   



based on this affidavit that it satisfied all the conditions for statutory immunity and that                                                                                                                                                                                                                                   



it was therefore entitled to summary judgment.                                                                                                



                                                    Bohn   opposed,   arguing   that   the   HCDA   does   not   deprive   agents   or  



 surrogates of decision-making authority, or support a good faith belief in their lack of                                                                                                                                                                                                                                            



authority, solely on the basis that health care providers believe the agents or surrogates                                                                                                                                                                                                           



are not acting in the patient's best interest.                                                                                                                          Bohn pointed out that the HCDA requires                                                                                               



health care providers to cooperate with an agent's or surrogate's decision to transfer a   



patient either to another facility or to the patient's home or to a location chosen by the                                                                                                                                                            

                                                                           19  he argued that Providence had clearly violated this section.  He  

agent or surrogate;                                                                                                                                                                                                                                                                                                            



further argued that Providence could not have had a good faith belief that his parents  

                                                                                                                                                                                                                                                                                                                



lacked authority to make health care decisions because they were aware both of his  

                                                                                                                                                                                                                                                                                                                                 

parents' relationship to him - which would qualify them as surrogates20  - and, later,  

                                                                                                                                                                                                                                                                                                                          



                          19                       See  AS   13.52.060(g)(3).   



                          20                       See  AS   13.52.030(c)(3).  



                                                                                                                                                               -14-                                                                                                                                                                        7517  


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

                                                                                                                                                                                                                              21  

of the power of attorney that named his mother as his agent.                                                                                                                                                                           Bohn characterized  



Providence's immunity argument as "a claimthat physicians can alter the statutory scope                                                                                                                                                                                                     



of an agent's or a surrogate's authority by believing in good faith that decisions are not                                                                                                                                                                                                          



in a patient's best interests," which he argued was a misunderstanding of the HCDA that                                                                                                                                                                                                            



could not entitle Providence to immunity.                                                                     



                                               3.                     Transfer of case to Judge Marston                                                                



                                               The case was transferred to Judge Marston, who held a status hearing on  



August  23.    Judge   Marston   noted   that   he   had   presided   over   Bohn's   "extremely  



emotional" guardianship hearing and gave Bohn an opportunity to ask him to withdraw                                                                                                                                                                                           



on that basis.                                  Bohn declined.                                          Later in the hearing Judge Marston disclosed that he was                                                                                                                                  



in the same book club as Dr. Johnston.                                                                                                        Providence stated that it had no objection to                                                                                                             



Judge Marston hearing the case based on the disclosure.                                                                                                                                             Bohn made no objection at the                                                                    



time, nor did he object at any time during subsequent proceedings.                                                                                                                                                                          



                                               4.                      Summary judgment decision                                                    



                                               Over two days in September                                                                        2017 the court held oral arguments on pending                                                                                      



motions, including Providence's summary judgment motionbased                                                                                                                                                                         on immunity. Bohn's    



counsel emphasized that Providence violated the plain terms of the HCDA when it                                                                                                                                                                                                                           



                                                                                                                             22  

decided to act as Bohn's surrogate                                                                                                                                                                                                                                                              

                                                                                                                                      and argued that the statute requires health care  



                                                                                                                                                                                                                                 

providers to abide by a surrogate's subjective determination of a patient's best interest  



                                                                                                                                                                                                                                                                                       

even when the surrogate disagrees with theproviders. Providence argued that theHCDA  



                                                                                                                                                                                                                                                                                                         

permits a provider to disregard a surrogate's directions if the surrogate "is not acting in  



                        21                     See  AS   13.52.010(b);  AS   13.52.030(c).  



                        22                     See   AS   13.52.030(k)   (barring   "an   owner,   operator,   or   employee   of   the  



health  care  facility  where  the  patient  is  receiving care"  from  being  patient's  surrogate  

unless  related  to  patient).   



                                                                                                                                                 -15-                                                                                                                                          7517
  


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

the best interest of the patient"                    23 and contended that the HCDA defined "best interest"   



                                                   24  

according to objective factors.                                                                                                      

                                                        At oral argument the court had the following exchange  



                       

with Bohn's attorney:  



                                                                                     

                       THE COURT:  Did they act in bad faith?  



                                                                                                                          

                       [COUNSEL]:   No.   No, I think they honestly felt that -  

                                                                                                                      

                       you're talking about the doctors?  They thought they were  

                                                                                            

                       doing what was right, but you can't . . . .  



                                                                                                 

                       THE COURT:  Wouldn't they be immune then?  



                                                                                                                        

                       [COUNSEL]:  No, because you can't take this section and  

                                                                                                                         

                       say  well,  it's  not  really  a  mistaken  identity  situation,  the  

                                                                                                                 

                       person then lacked authority.  It's - the mistake is I didn't  

                                                                                                                         

                       know what the law was. Because I didn't know what the law  

                                                                                                                

                       was, I'mimmune and I can appoint myself surrogate decision  

                                                                        

                       maker in direct violation of statute.  



                                                                                                                                              

                       In December the court granted summary judgment to Providence.   The  



                                                                                                                                              

court read the HCDA to immunize "health care providers who, while acting in good faith  



                                                                                                                                              

and in accordance with generally accepted health care standards, decline to comply with  



                                                                                                                                          

the health care decision of a person based on the good faith belief that the person lacked  

                                                     25    The  court  found  that  there  was  no  dispute  about  

                                                                                                                                           

authority  to  make  decisions." 



Providence's good faith, pointing to Bohn's counsel's statements at oral argument that  

                                                                                                                                               



the doctors had not acted in bad faith and had "honestly felt that . . . they were doing  

                                                                                                                                           



what was right." The court interpreted Bohn's agreement that the doctors "thought they  

                                                                                                                                              



were doing what was right" as a concession that "doctors can make a good faith mistake  

                                                                                                                                        



           23          See  AS 13.52.030(h).   



           24          See  AS 13.52.390(6) (listing factors in "best interest" analysis).                           



           25          See  AS 13.52.080(a)(3).   



                                                                       -16-                                                                 7517
  


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

 of law."  Based on that concession, the court concluded Bohn's claim that Providence   



 made a mistake of law when it determined that Bohn's parents lacked authority did not                                                                                                                                                                                                                            



 amount to a claim that Providence acted in bad faith. The court held that "[t]herefore . . .                                                                                                                                                                                                                           



 Providence should qualify for immunity in accordance with AS § 13.52.080(a)(3)." The                                                                                                                                                                                                                          



 court granted summary judgment to the hospital on all of Bohn's claims.                                                                                                                                                                         



                                                  Later that month Bohn moved for reconsideration.                                                                                                                                                  He argued that the                                            



  superior court had erroneously interpreted his counsel's statements at oral argument as                                                                                                                                                                                                                             



 conceding that Providence "acted with good faith                                                                                                                                       in all its conduct towards  [Bohn] or  



 his agent and surrogates                                                                     , including any belief as to his agent's or surrogate's lacking                                                                                                                                     



 authority," when in fact his counsel had conceded only that Providence, "                                                                                                                                                                                                  as a medical      



provider , 'honestly felt that what they were doing to [Bohn] was right.' " (Emphasis in                                                                                                                                                                                                                               



 original.) He also argued that the court erroneously conflated two separate requirements                                                                                                                                                                                     



 for immunity under the HCDA: first, that a health care provider "                                                                                                                                                                         act[]  in good faith                                                 and  

                                                                                                                                                                                                                                  26  and second, that it hold  

 in accordance with generally accepted health care standards,"                                                                                                                                                                                                                                               



 "a good faith belief that the [agent or surrogate] then lacked authority" to make health  

                                                                                                                                                                                   

 care decisions for the patient.27  (Emphasis in original.) Bohn also argued that "good faith  

                                                                                                                                                                                                                                                                                                             



 belief" in a surrogate's lack of authority under AS 13.52.080(a)(3) should not extend to  

                                                                                                                                                                                                                                                                                                                       



 mistakes of law.  Finally, he argued that even if ignorance of the law were an available  

                                                                                                                                                                                                                                                                                             



 defense, Providence's ignorance was "a question of 'culpable mental state,' and not  

                                                                                                                                                                                                                                                                                                                 



  susceptible to summary judgment."  

                                                                                         



                                                  The court denied Bohn's motion for reconsideration in May 2018.  Bohn  

                                                                                                                                                                           



 appeals.  



                          26                      See  AS   13.52.080(a).  



                          27                      See  AS   13.52.080(a)(3).  



                                                                                                                                                        -17-                                                                                                                                                               7517  


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

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                                                                      



                            28 

                                                                                                                                  

matter of law."                  When reviewing a grant of summary judgment, we draw "all factual  



                                                                                                                                                           

 inferences . . . in favor of," and view "the facts . . . in the light most favorable to[,] the  



                                                                                                     29  

                                                                                                                                                

party against whom summary judgment was granted."                                                          "[A] party seeking summary  



                                                                                                                                                           

judgment has the initial burden of proving, through admissible evidence, that there are  



                                                                                                                                                             

no [genuine] disputed issues of material fact and that the moving party is entitled to  



                                                        30  

                                                                                                                                         

judgment as a matter of law."                                 "Once the moving party has made that showing, the  



                                                                                                                                                        

burden shifts to the non-moving party to set forth specific facts showing that [the non- 



                                                                                                                                                          

movant]  could  produce  evidence  reasonably  tending  to  dispute  or  contradict  the  



                                      31  

                    

movant's evidence." 



                                                                                                                                                             

                         "We use our independent judgment to review matters of constitutional or  



                                               32  

                                                                                                                                         

 statutory interpretation."                          To determine the meaning of a statute, we "look to the  



                                                                                                                                                       

meaning of the language, the legislative history, and the purpose of the statute and adopt  



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



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



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

                                                                                                                 



             30          Id. at 803 (alterations in original) (quoting Christensen v. Alaska Sales &  

                                                                                                                                                              

Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)).  

                                                                         



             31          Id. (quoting Christensen, 335 P.3d at 517).  

                                                                                                



             32          State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 991 (Alaska  

                                                                                                                                                   

2019) (citing Premera Blue Cross v. State, Dep't of Commerce, Cmty. & Econ. Dev.,  

                                                                                                                                                       

Div. of Ins., 171 P.3d 1110, 1115 (Alaska 2007)).  

                                                                               



                                                                             -18-                                                                      7517
  


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

                                                                                                                                                                   33  

the rule of law that is most persuasive in light of precedent, reason, and policy."                                                                                     Under  



our "sliding scale approach to statutory interpretation, . . . 'the plainer the statutory                                                                          



language is, the more convincing the evidence of contrary legislative purpose or intent                                                                                   

must be' " to convince this court to adopt a different meaning.                                                                   34  



IV.	          DISCUSSION  



                            Bohn remained hospitalized for many months. But we, like the parties and  

                                                                                                                                                                              



the superior court, focus only on the time leading up to OPA's appointment as Bohn's  

                                                                                                         



guardian - from October 20 through November 14, 2013.  Because we have not had  

                                                                                                                                                                              



occasion  previously  to  interpret  the  HCDA's  immunity  provisions,  we  begin  by  

                                                                                                                                                                               



examining the statutory text.  

                                                              



              A.            Providence Is Not Entitled To Immunity Under The HCDA.  

                                                                                                                                                  



                            1.	           The  statutory  text  of  AS  13.52.080(a)(3)  does  not  support  

                                                                                                                                                                   

                                          granting Providence immunity for declining to follow Bohn's  

                                                                                                                                                                     

                                          surrogates' instructions.  

                                                                     



                            Alaska Statute 13.52.080(a) provides:  

                                                                                         



                            A health care provider or health care institution that acts in  

                                                                                                                                                     

                            good faith and in accordance with generally accepted health  

                                                                                                                                             

                            care  standards  applicable  to  the  health  care  provider  or  

                                                                                                                                                    

                            institution is not subject to civil or criminal liability or to  

                                                                                                                                                     

                            discipline for unprofessional conduct for  

                                                                                                                   



                            . . . .  

                                   



                            (3)  declining  to  comply  with  a  health  care  decision  of  a  

                                                                                                                                                       

                            person  based  on  a  good  faith  belief  that  the  person  then  

                                                                                                                                                

                            lacked authority.  

                                            



              33            Alaska Spine Center, LLC v. Mat-Su Valley Med. Ctr., LLC                                                                  , 440 P.3d 176,        



 180-81 (Alaska 2019).             



              34            Id.  at  181  (alterations  omitted)  (quoting  Adamson  v.  Municipality  of  

                                                                                                                                                                                

Anchorage , 333 P.3d 5, 11 (Alaska 2014)).  

                                                                                             



                                                                                      -19-	                                                                                7517
  


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

In its motion for summary judgment, Providence asserted that "given their perception                                                                                                                                                                                                                           



that plaintiff's parents were not acting in his best interests[,] the doctors in good faith and                                                                                                                                                                                                                                             



genuinely believed that the parents did not have the authority to act as a surrogate or                                                                                                                                                                                                                                                          



agent for plaintiff's health care decisions."                                                                                                                                 Providence argued that its doctors had the   



following good faith beliefs: that Bohn's parents were not acting in Bohn's best interest;                                                                                                                                                                                                                                



that because Bohn's parents were not acting in his best interest, they were disqualified                                                                                                                                                                                                                  



to   act   as   health   care   surrogates   or   agents;   and   that   because   Bohn's   parents   were  



disqualified to act as health care surrogates or agents, they lacked authority.                                                                                                                                                                                                                                                 Thus,  



Providence argued, the hospital - through its doctors - was immune from liability for                                                                                                                                                                                                                                                          



declining to follow Bohn's parents' decisions. The superior court granted Providence's                                                                                                                                                                                                                



motion:   "[S]ince there is no dispute that the physicians acted in good faith, Providence                                                                                                                                                                                                                   



 should qualify for immunity in accordance with AS §13.52.080(a)(3)."                                                                                                                                            



                                                      When   it   granted   summary   judgment,   the   court   failed   to   differentiate  



between the good faith required in the first clause of AS 13.52.080(a) and the second                                                                                                                                                                                                                                        



reference to good faith in subsection (a)(3).                                                                                                                                        The first clause authorizes immunity in                                                                                                                      



certain situations for "[a] health care provider or health care institution that acts in good                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                      35  But subsection  

faith and in accordance with generally accepted health care standards."                                                                                                                                                                                                                                         



(a)(3) requires a second level of good faith related to the surrogate's or agent's authority:  

                                                                                                                                                                                                                                                                                                                                                              



To be entitled to immunity for declining to follow the instructions of a surrogate or  

                                                                                                                                                                                                                                                                                                                                                 



agent, the medical providers must also have "a good faith belief that the person then  

                                                                                                                                                                                                                                                                                                                                        

                                                                        36   While it was undisputed that Bohn's providers were acting in good  

lacked authority." 

                                                                                                                                                                                                                                                                                                                                      



faith generally, the court overlooked that they were required to both act in good faith  

                                                                                                                                                                                                                                                                                                                                       



generally and have a good faith belief that the surrogate or agent lacked authority.  

                                                                                                                                                                                                                                                                                                                                                              



                           35                        AS   13.52.080(a).   



                           36                        AS   13.52.080(a)(3)  (emphasis  added).   



                                                                                                                                                                     -20-                                                                                                                                                                               7517  


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

Providence's belief that Bohn's parents were stripped of authority because they were not                                                                                                       



acting in his best interest is not sufficient under subsection (a)(3).                                                                                  



                               By   conflating   the   two  levels   of   good   faith,   Providence's   argument  



undermines the role of the surrogate or agent - a role the HCDA was intended to                                                                                                                  

strengthen.37  Providence argues that Bohn's doctors should be immunized because of  



their  good  faith  belief  that  Bohn's  parents  lacked  authority  as  a  result  of  making  

                                                                                                                                                                                    



decisions that the doctors believed were not in Bohn's best interest. But as Bohn argues,  

                                                                                                                                                                                      



this interpretation of AS 13.52.080(a)(3) risks turning it "into the subsection that ate the  

                                                                                                                                                                                               



statute."                Under  Providence's  interpretation  any  provider  who  disagreed  with  a  

                                                                                                                                                                                                  



surrogate's or agent's direction could plausibly assert a "good faith" belief that the  

                                                                                                                                                                                              



surrogate or  agent is not acting in  the patient's best interest.                                                                                    From the  provider's  

                                                                                                                                                                             



perspective,  if  the  surrogate  or  agent  were  acting  in  the  patient's  best  interest,  the  

                                                                                                                                                                                              



surrogate or agent would have made the same decision as the provider.   And if the  

                                                                                                                                                                                              



surrogate or agent did not make the same decision, the provider would then be able to  

                                                                                                                                                                                                 



assume that because the surrogate or agent was not acting in the patient's best interest,  

                                                                                                                                                                                    



that person lacked authority to direct the patient's care.  As a result any provider in that  

                                                                                                                                                                                              



situation would be free to ignore any direction from the surrogate or agent without fear  

                                                                                                                                                                                             



of civil or criminal liability.  

                                             



                               When we interpret a statute, we "look to the meaning of the language, the  

                                                                                                                                                                                               



legislative history, and the purpose of the statute and adopt the rule of law that is most  

                                                                                                                 



               37             See  Ch. 83, § 1(b), SLA 2004 ("It is the intent of this Act to (1) establish                                                         



the   right   of   a   patient   to   control   the   patient's   own   health   care   decisions   .   .   .   .");  

AS   13.52.010(b)   (allowing   adults   to   authorize   agent   to   make   healthcare   decisions  

through durable power of attorney); AS 13.52.030 (authorizing surrogate to make health                                                                                                   

care decisions for adult under certain circumstances).                                 



                                                                                              -21-                                                                                        7517
  


----------------------- Page 22-----------------------

                                                                                                        38  

persuasive in              light of precedent,                   reason,  and   policy."                       "[W]e use 'a sliding                      scale  



approach to statutory interpretation, in which "the plainer the statutory language is, the                                                                   



more convincing the evidence of contrary legislative purpose or intent must be" ' " to                                                                        

                                                                                          39   We must also interpret a statute as a  

persuade this court to adopt a different meaning.                                                                                                                

whole.40  



                         We must determine whether the good faith belief described in .080(a)(3)  

                                                                                                                                                



refers to any good faith belief held by a provider, or whether it requires a more specific  

                                                                                                                                                    



belief about the decision-maker's legal authority as a surrogate or under a power of  

                                                                                                                                                               



attorney.  Although the plain text of the statute does not limit the range of acceptable  

                                                                                                                                               



"good faith belief[s] that the person then lacked authority," it must be interpreted to  

                                                                                                                                                               



avoid eliminating the role of a surrogate or agent altogether. Because .080(a)(3) includes  

                                                                                                                                                    



a  second  level  of  good  faith  in  addition  to  that  which  precedes  the  enumerated  

                                                                                                                                            



subsections, the most natural reading is that subsection (a)(3) requires a good faith belief  

                                                                                                                                                         



specific to the individual's legal authority to act as a surrogate or agent.  

                                                                                                                            



                         Looking at AS 13.52.080(a) as a whole and considering all of its numbered  

                                                                                                                                                 



subsections supports thisinterpretation. Theprovisionimmediatelypreceding subsection  

                                                                                                                                                



(a)(3) provides immunity for providers who comply with a health care decision "based  

                                                                                                                                                      



on a good faith belief that the person has authority to make a health care decision for a  

                                                                                                                                                                 



             38          Alaska  Spine  Center,  LLC,  440  P.3d  at   180-81.  



             39          Id.  (quoting  Adamson ,  333  P.3d  at   11).  



             40          McDonnell  v.  State  Farm  Mut.  Auto.  Ins.  Co.,  299  P.3d  715,  721  (Alaska  



2013)  ("[W]e  must,  whenever  possible,  interpret  each  part  or  section  of  a  statute  with  

every  other  part  or  section,  so  as  to  create  a  harmonious  whole."  (quoting  State,  Dep't  of  

Commerce,  Cmty.,  & Econ.  Dev.,  Div.  of  Ins.  v.  Progressive  Cas.  Ins.  Co.,  165  P.3d  624,  

629  (Alaska  2007))).  



                                                                             -22-                                                                        7517
  


----------------------- Page 23-----------------------

patient, including a decision to withhold or withdraw health care."                                  41  The presumption   



of   consistent   usage   "states   that   words   are   'presumed   to   bear   the   same   meaning  

                                 42   It  is  unlikely  that  the  legislature  intended  that  the  relevant  

throughout   a   text.'   "                                                                                             



"authority" in subsection (a)(2) was limited to "authority to make a health care decision  

                                                                                                                        



for a patient" but that the authority described in the very next subsection was broad  

                                                                                                                            



enough to cover any good faith belief about an individual's authority.  Taken together,  

                                                                                                                       



subsections  (a)(2)  and  (a)(3)  seem  intended  to  protect  health  care  providers  who  

                                                                                                                             



accidentally follow health care decisions made by the wrong people.  

                                                                                              



                    Providence also argues that other sections of the HCDA allow providers to  

                                                                                                                                  



refuse to comply with surrogate decision-making in certain contexts, such as if the  

                                                                                                                                



provider believes the surrogate is not "abiding by the wishes, values, and best interest of  

                                                                                                                                  

                  43                                                                                         44  But in those  

                     or if the decision would require medically ineffective care.                                            

the patient"                                                                                           

       



circumstances when a provider is entitled to ignore a surrogate's instruction, it is not  

                                                                                                                                



because the provider believes the surrogate "lacks authority"; it is because the provider  

                                                                                                                        



                                                                                                                                 45  

believes that the instruction (for example) "requires medically ineffective health care."                                             

                                                                                                                          



If providers were already granted immunity for failing to follow instructions in those  

                                                                                                                            



circumstances, there would seem to be no need for the legislature to have included  

                                                                                                                       



          41        AS   13.52.080(a)(2).  



          42        Forrer  v.  State,  471  P.3d  569,  597  (Alaska  2020)  (quoting  ANTONIN SCALIA  



& BRYAN   A.  GARNER, READING   LAW : THE   INTERPRETATION   OF   LEGAL   TEXTS   170  

                                                               

(2012)).  



          43        AS   13.52.030(h).  



          44        AS   13.52.060(f).   



          45        Id.  



                                                               -23-                                                         7517
  


----------------------- Page 24-----------------------

subsection (a)(3)'s requirement that a provider have "a good faith belief that the person                                            

then lacked authority."               46  



                      ThelegislativehistorysupportsinterpretingAS13.52.080(a)(3) as referring  

                                                                                                                                  



to a provider's belief about the surrogate's legal decision-making authority. The original  

                                                                                                                                    



draft of AS 13.52.080(a) provided immunity to "[a] health care provider or health care  

                                                                                                                                         



institution that makes reasonable efforts, with a level of diligence appropriate to the  

                                                                                                                                           



seriousness and urgency of the situation, to ensure the validity of an advance Health Care  

                                                                                                                                         



Directive or a person's assumption of authority to make health care decisions for a  

                                                                                                                                              

patient."47   This focus on "the validity of an advance Health Care Directive or a person's  

                                                                                                                                  



assumption  of  authority"  suggests  that  the  statute  is  primarily  concerned  with  an  

                                                                                                                                            



individual's authority under a power of attorney or as a surrogate.  While this language  

                                                                                                                                 

                                                                 48  and replaced with "[a] health care provider or  

was eliminated in the 2005 amendment                                                                                                         

                                              



health care institution that acts in good faith and in accordance with generally accepted  

                                                                                                                                  

                                     49 this change did not appear motivated by a change in the statute's  

health care standards,"                                                                                                            

                    



purpose.  Rather, the goal was to remove the "duty of investigation" earlier placed upon  

                                                                                                                                        

health  care  providers.50                  This  suggests  that  providers  were  initially  charged  with  

                                                                                                                                        



investigatingthevalidity oftheHealth CareDirective or other sourceofdecision-making  

                                                                                                                     



authority but that since 2005 the provider's good faith belief in the individual's decision- 

                                                                                                                                 



           46         AS   13.52.080(a)(3).  



           47         Former  AS   13.52.080  (2004).  



           48         See  Ch.   103,  §§  8,  9,  SLA  2006.  



           49         AS   13.52.080(a).   



           50         See  Minutes,  Sen.  Judiciary  Standing Comm.  Hearing  on  H.B.  442,  24th  



Leg., 1st Sess. (May 2,  2006) (testimony  of Jacqueline Tupou, Staff to Representative  

Bruce  Weyhrauch).   



                                                                     -24-                                                              7517
  


----------------------- Page 25-----------------------

making authority has been sufficient.                                                However, the legislature's focus in drafting the                                                   



immunity provision was on the source of the individual's authority, not whether the                                                                                                     



provider was permitted to ignore an individual instruction under a separate provision of                                                                                                   



the HCDA.   



                             We    therefore    conclude    that    the    most    persuasive    interpretation    of  



AS 13.52.080(a)(3), based on its plain language, legislative history and "in light of                                                                                                     

                                                                    51  is that the immunity it provides is limited to good faith  

precedent, reason, and policy,"                                                                                                                                                      

mistakes about an individual's legal authority as an agent or surrogate.52  

                                                                                                                                                                 



                             Providence never argued to the superior court that it in good faith believed  

                                                                                                                                                                             



Bohn's parents were not his surrogates or that they lacked authority under the power of  

                                                                                                                                                                                           

attorney.53               Instead Providence alleged it believed that Bohn's parents lacked authority  

                                                                                                                                                                           



because they were not acting in Bohn's best interest.  That belief, even if held in good  

                                                                                                                                                                   



faith,  exceeds  the  scope  of  protection  offered  by  AS  13.52.080(a)(3).                                                                                          Accepting  

                                                                                                                                                                       



Providence's argument at face value would functionally eliminate the role of agent or  

                                                                                                                                                                                          



surrogate, which is contrary to the HCDA's purpose.   Providence is not entitled to  

                                                                                                                                                                                          



               51            Alaska Spine Center, LLC v. Mat-Su Valley Med. Ctr., LLC                                                                         , 440 P.3d 176,         



 180-81 (Alaska 2019).              



               52             This interpretationcloselyresemblestheinterpretation that Bohnadvocates  

                                                                                                                                                                          

in  his  pleadings,  although  it  is  not  identical.                                                              For  example,  Bohn  argues  that  

                                                                                                                                                                                     

AS 13.52.080(a)(3) immunity can never cover mistakes of law.  There is no reason why  

                                                                                                                                                                                      

all mistakes of law should be excluded from AS 13.52.080(a)(3) immunity, as long as  

                                                                                                             

the mistakes of law are related to whether a person is authorized to serve as an agent or  

                                                                                                                                                                                           

surrogate.  For example, our interpretation of AS 13.52.080(a)(3) may cover a health  

                                                                                                                                                                                

care provider who, through a faulty recollection or understanding of AS 13.52.080(c),  

                                                                                                                                                   

identifies the wrong family member as the legally prioritized surrogate.  

                                                                                                                                        



               53             If Providence did believe Bohn's parents were not his surrogates or lacked  

                                                                                                                                                                                 

authority under the power of attorney, it may raise that argument on remand.  

                                                                                                                                                                           



                                                                                           -25-                                                                                     7517
  


----------------------- Page 26-----------------------

 summary judgment on the issue of immunity, and the superior court's grant of summary                                                                                    



judgment is reversed and remanded.                                               



                              Providence may nonetheless succeed on the merits if it can show that it                                                                                     



 declined to follow Bohn's parents' instructions only in statutorily permitted contexts.                                                                                 



Under the HCDA, a health care provider is not required to comply with a surrogate's                                                                                 



 instructions if the provider observes that the surrogate is not abiding by the wishes,                                                                                     

                                                                                         54      Similarly,  the  HCDA  allows  health  care  

values,   and   best   interest of                              the   patient.                                                                                                     



providers to decline to comply with health care instructions that offend their moral or  

                                                                                                                                                                                         

medical codes.55                        If Providence can show that it declined to follow Bohn's parents'  

                                                                                                                                                                           



 instructions only in statutorily permitted contexts, such as after observing that Bohn's  

                                                                                                                                                                             



parents  were not abiding  by  Bohn's wishes,  values,  and  best interest or  that those  

                                                                                                                                                                                 



 instructionsrequiredmedicallyineffectivehealth care,it may successfully prevail against  

                                                                                                                                                                               



 Bohn's causes of action without recourse to the immunity provisions.  

                                                                                                                                



                              2.	           Providence is not entitled to immunity for failing to transfer  

                                                                                                                                                                          

                                            Bohn.  

                                                            



                             AlaskaStatute13.52.060(g)placesresponsibilities on ahealth careprovider  

                                                                                                                                                                            



that declines to comply with a surrogate's or agent's decision. The provider must inform  

                                                                                                                                                                               



the patient and any person authorized to make health care decisions for the patient that  

                                                                                                                                                                                     

 it is refusing to comply with the decision;56  must continue providing care to the patient  

                                                                                                                                                                               

until the patient is transferred;57  and must "cooperate and comply with a decision by the  

                                                                                                                                                                                       



patient or a person then authorized to make health care decisions for the patient to  

                                                                                                                                                                                        



               54            AS 13.52.030(h).   



               55  

                                                                     

                             AS 13.52.060(e), (f).  



               56  

                                      

                             AS 13.52.060(g)(1).  



               57  

                                      

                             AS 13.52.060(g)(2).  



                                                                                          -26-	                                                                                   7517
  


----------------------- Page 27-----------------------

transfer the patient to another health care institution, to another health care facility, to the                                                

patient's home, or to another location."                            58  



                       Bohn'sparentsrepeatedly, andat least once in writing, told Providence that  

                                                                                                                                               



they wished to remove him from Providence and transfer him to a different facility.  On  

                                                                                                                                                



November 9 Bohn's mother sent Providence a letter seeking "emergency evacuation" of  

                                                                                                                                                  

Bohnto "any other medicalhealth facilities."59  A Providence risk management specialist  

                                                                                                                                      



wrote back that "the physicians treating him are exploring the option of transferring him  

                                                                                                                                               



to another facility but are awaiting the results of tests" and that "[t]he transfer of a patient  

                                                                                                                                         



is something that is done by the physician and can only occur if there is a physician  

                                                                                                                                    



willing to accept the patient as their own at the new facility."  Providence then directed  

                                                                                                                                       



Bohn's mother "back to the physician treating [Bohn] to see what the status is" on the  

                                                                                                                                                



pending test results.  

                       



                       Providence now argues that it was up to Bohn's family to find a physician  

                                                                                                                                     



at another facility willing to take over Bohn's care, and its duty to cooperate with a  

                                                                                                                                                   



transfer would take effect only once the family had done so.   But the only written  

                                                                                                                                         



response Providence provided to the parents specified the opposite:  "The transfer of a  

                                                                                                                                                   

patient is something that is done by the physician."60                                      Although Bohn repeatedly raised  

                                                                                                                                           



and argued this claim before the superior court, the summary judgment order contained  

                                                                                                                                     



no conclusions on whether Providence had met its obligations under AS 13.52.050(g).  

                                                                                                                                                       



            58         AS   13.52.060(g)(3).  



            59         Bohn's  mother  had  previously  asked  that  Bohn  be  transferred  either  to  the  



Alaska  Psychiatric  Institute  or  to  Alaska  Regional  Hospital.  



            60         We  also  question  the  practical l  ikelihood  that  an  individual  is  capable  of  



arranging  a  transfer  or  admission  to  another  facility.  



                                                                       -27-                                                                 7517
  


----------------------- Page 28-----------------------

                                       Whether Providence fulfilled its statutory duty after it declined to follow                                                                                                                       



Bohn's parents' instructions thus presents an issue of material fact.                                                                                                                                       And nothing in                           



AS 13.52.080(a) appears to extend immunity to providers who fail to fulfill this duty                                                                                                                                                         



after   declining   to   follow   instructions.     Summary   judgment   granting   immunity   to  



Providence on that claim is therefore reversed and remanded for further proceedings.                                                                                                                               



                                       3.	                Providence   is   not   entitled   to   immunity   for   appointing   itself  

                                                          Bohn's surrogate.                                         



                                       Bohn argues that Providence violated another section of the HCDA by                                                                                                                                          



appointing itself as his surrogate after deciding that his parents could no longer act as                                                                                                                                                            



surrogates or agents and before a guardian was appointed.                                                                                                                Alaska Statute 13.52.030(k)                  



specifically   prohibits   employees   of   the   treating  health   care   facility   from   acting   as  



                                                                                                                         61  

surrogates   unless   related   to   the   patient.                                                                                                                                                                         

                                                                                                                                     And  Bohn  offered  evidence  that  other  



                                                                                                                                                                                                                                             

individuals who would have qualified as surrogates under AS 13.52.030(c) and (d)'s  



                                                                                                                                                                                                                                                      

order of priority - his sister and his close friend - were available and willing to act as  



surrogates.  



                                                                                                                                                                                                                                                 

                                       Nothing in AS 13.52.080(a) appears to grant immunity to providers that  



                                                                                                                                                                                                                                              

violate the prohibition on health care providers acting as surrogates themselves.  And  



                                                                                                                                                                                                                                                  

Bohn  raised  and  repeatedly  argued  his  claim  that  Providence  should  be  liable  for  



                                                                                                                                                                                                                                              

appointing its own providers as his surrogates, even temporarily. There remains an issue  



                                                                                                                                                                                                                                                 

of material fact about whether Providence may be liable under AS 13.52.030(k).  It was  



                                                                                                                                                                                                                                                 

error to apply the immunity provision to this claim. Summary judgment is reversed and  



                                                                                                                                                                                                                     

remanded for consideration ofwhether Providencemay beliableunder AS13.52.030(k).  



                   61                  AS 13.52.030(k) ("Unless related to the patient by blood, marriage, or                                                                                                                                        



adoption, a surrogate may not be an owner, operator, or employee of the health care                                                                                                                                                            

facility where the patient is receiving care.").                                                                                     



                                                                                                                        -28-	                                                                                                                7517
  


----------------------- Page 29-----------------------

           B.         Judge  Marston  Is  Not  Disqualified.  



                      Bohn  requests  an  order  disqualifying  Judge  Marston.   Bohn  urges  that  the  



judge be disqualified because he was in a  book club with Dr. Johnston, "Providence's  



only  source  of  evidence  on  the  issue  of  good  faith,"  and  because  the  judge's  role  in  the  



guardianship  proceeding  raises  questions  about  his  impartiality.   Bohn  also  argues  that  



treating   his   attorney's   "non-technical  use   of   'good   faith'   at   oral   argument"   as   a  



concession  of  the  issue  is  "egregious"  and  that  Judge  Marston  seemed  concerned  "first  



and  foremost  to  protect  health  care  providers,"  further  calling  into  question  his  ability  to  



be  impartial.  



                      Providence  responds  that  Bohn  was  aware  of  Judge  Marston's  connection  



to  Dr.   Johnston   during  trial   court  proceedings   and   failed  to   object  then.   Providence  



argues  that  failure  to  move  to  disqualify  a  judge  constitutes  waiver  of  the  opportunity  to  

do  so.62  



                     Alaska's  Code  of  Judicial  Conduct  provides  that  "a  judge  shall  disqualify  



himself  or  herself  in  a  proceeding  in  which  the  judge's  impartiality  might  reasonably  be  

questioned,"63  

                         although   parties   can   waive   the   grounds   for   disqualification   in   most  



                        64  

circumstances.                  Alaska    Statute    22.20.020(a)    provides   additional    grounds    for  



           62        See AS 22.20.020(b) (providing that failure to object results in waiver of   



certain bases of disqualification).       



           63        Alaska Code Jud. Conduct Canon 3 E(1).  

                                                                                         



           64        Alaska Code Jud. Conduct Canon 3 F(1) (permitting waiver unless judge  

                                                                                                                                  

"has a personal bias or prejudice concerning a party or a lawyer," when "judge believes  

                                                                                                                              

that he or she cannot be fair and impartial, or when a waiver is not permitted under AS  

                                                                                                                                      

22.20.020").  

                      



                                                                  -29-                                                            7517
  


----------------------- Page 30-----------------------

                                                      65  

 disqualification.                                           The statute specifically provides that if a judge discloses grounds for                                                                                                                                                  



 disqualification under subsections (2), (5), (6), (7), or (8), a party waives disqualification                                                                                                                                             

 by failing to object.                                            66  



                                                                                                                                                                                                                                                                       

                                             Bohn declined his opportunity to disqualify Judge Marston at the August  



                                                                                                                                                                                                                                                                                       

 2017 hearing when Judge Marston offered him the opportunity based on the fact that he  



                                                                                                                                                                                                                                                                          

 had presided  over the guardianship  proceedings.                                                                                                                            Later  in  the same  hearing Judge  



 Marston mentioned that he and Dr. Johnston were in the same book club.  Bohn made  



                                                                                                                                                                                                                                                                             

 no objection at that point or during the rest of the status hearing.  Nor did he later move  



                                                                                                                                                                                                                                                                

 to disqualify Judge Marston on this basis, or any other basis, either during summary  



                                                                                                                                                                                                                                                                                     

judgment proceedings or in his motion for reconsideration.  Bohn therefore waived his  



                                                                                                                                           

 opportunity to disqualify Judge Marston.  



 V.                    CONCLUSION  



                                             The  superior  court's  grant  of  summary  judgment  is  REVERSED  and  

                                                                                                                                                                                                                                                                                 



 REMANDEDfor further proceedings. Bohn's request to disqualify Judge Marston from  

                                                                                                                                                                                                                                                                               



 presiding over the proceedings on remand is DENIED.  

                                                                                                                                                      



                       65                    Alaska Statute 22.20.020(a) forbids a judge from participating in a matter                                                                                                                                                



 in which:                        (1) the judge is "a party"; (2) is "related to a party or a party's attorney by                                                                                                                                                                     

 consanguinity or affinity within the third degree"; (3) is a "material witness"; (4) the                                                                                                                                                                                           

judge's family stands to benefit financially or "has a direct financial interest in the                                                                                                                                                                                             

 matter"; (5) the judge previously represented or professionally counseled a party within                                                                                                                                                                                 

 the last two years; (6) previously represented a person against a party within 2 years; (7)                                                                                                                                                                                          

 a party's attorney previously represented the judge or a person who litigated against the                                                                                                                                                                                           

judge within 2 years; (8) the judge's former law firm represented or professionally                                                                                                                                                            

 counseled either party within the last 2 years; or (9) the judge feels that, "for any reason                                                                                                                                                                             

 . . . a fair and impartial decision cannot be given."                                                                                        



                       66                    AS 22.20.020(b) ("The disqualifications specified . . . may be waived by  



 the parties and are waived unless a party raises an objection.").  

                                                                                                                                                                        



                                                                                                                                         -30-                                                                                                                                  7517
  

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