Summary
The Alaska Supreme Court affirmed summary judgment against Harold F. Parker on his medical malpractice claim because he failed to provide expert testimony rebutting the defendants' expert evidence. The court reversed summary judgment on Parker's informed consent claim because the defendants' motion and supporting expert affidavit did not address whether infection, prostatitis, fever, or chills were risks of the catheterization procedure. The court remanded the issue of attorney's fees and costs for redetermination.
Topics
Practice areas
Questions Presented
- Whether Parker's medical malpractice claim could survive summary judgment without rebuttal expert testimony.
- Whether the superior court abused its discretion by declining to appoint an expert advisory panel under AS 09.55.536.
- Whether summary judgment was proper on Parker's informed-consent claim when the defendants' motion and expert affidavit did not address that claim or all alleged risks and injuries.
- Whether attorney's fees and costs had to be redetermined after reversal of summary judgment on the informed-consent claim.
Holdings
- Because Parker's alleged sexual dysfunction and its causation were technical medical matters not apparent to laypersons, he was required to present admissible expert testimony to rebut the defendants' expert evidence and establish a genuine issue of material fact. His failure to do so warranted summary judgment for all defendants on the medical malpractice claim.
- The superior court did not abuse its discretion by declining to appoint an expert advisory panel because the request was untimely, appointment was impractical given potential conflicts among Alaska urologists, and the statute did not require panels to protect pro se litigants or shift the plaintiff's burden of proof.
- Summary judgment was improper on the informed-consent claim because that claim was distinct from the medical-malpractice claim, the defendants' motion did not address it, and the defendants did not establish the absence of a genuine issue regarding whether catheterization could cause fever, chills, or prostatitis or whether those were risks that should have been disclosed.
- The award of attorney's fees and costs had to be redetermined after resolution of the informed-consent claim because summary judgment was reversed as to that claim.
Key quotations
“In medical malpractice actions ... the jury ordinarily may find a breach of professional duty only on the basis of expert testimony.” (89 P.3d at 766)
“It is virtually beyond dispute that the purpose of the numerous panel review procedures (including Alaska's) enacted during the early and mid-1970's was to alleviate the effects of the malpractice insurance crisis.” (89 P.3d at 768)
“A defendant is not entitled to complete summary judgment in Alaska unless it demonstrates as to each claim against it that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” (89 P.3d at 769)
Factual background
Parker underwent a catheter-based Parsons Test during a June 30, 1999 urological examination. He alleged that the procedure was performed negligently, caused burning, fever, chills, prostatitis, and permanent sexual dysfunction, and that he was not informed of the procedure's risks. The defendants supported summary judgment with a board-certified urologist's affidavit stating that the diagnostic procedure was appropriate, met the applicable standard of care, and could not physiologically or neurologically cause impotence; the expert did not address whether catheterization could cause fever, chills, or prostatitis.
Procedural history
Parker sued Dr. Tomera, Alaska Urological Associates, and unnamed defendants, alleging negligent performance of a catheter-based diagnostic procedure, resulting injuries, and failure to obtain informed consent. The superior court granted summary judgment after Parker failed to submit rebuttal expert testimony, but its motion and order addressed only the medical malpractice claim and did not separately address informed consent. Final judgment was entered for the defendants, and Parker appealed. The Alaska Supreme Court affirmed summary judgment on the medical malpractice claim, reversed it on the informed-consent claim, and remanded fees and costs for redetermination.
Remand instructions
Remand for further proceedings on Parker's informed-consent claim and for redetermination of attorney's fees and costs after resolution of that claim. The summary judgment on the medical malpractice claim remains affirmed.