- I. Overview of Basic Principles and Concepts
- II. Filing Deadlines for Medical Malpractice Claims
- III. Statute of Repose—Absolute Bar to Recovery
- IV. Immunities and Limitations on Liability
- V. Required Elements of a Medical Malpractice Complaint
- VI. Expert Medical Witnesses
- VII. Comparative Negligence
- VIII. Limitation on Noneconomic Damages
- IX. Limitations on Attorney Fees
- X. Apologies and Gestures of Sympathy
- XI. Website Disclaimer
Alaska medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Alaska are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Alaska exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Alaska by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Alaska medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.
Section I below discusses the broad basic principles and concepts of medical malpractice law in Alaska. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through X examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Alaska.
Below is a list of topics covered in this article.
-What is Medical Malpractice in Alaska?
-Required Elements of a Medical Malpractice Claim in Alaska
-The Basic Elements
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Alaska
-The Discovery Rule
-The Discovery Rule in Alaska
-Statute of Repose in Alaska
-Sovereign Immunity in Alaska
-Good Samaritan Law
-Good Samaritan Law in Alaska
-Additional Immunities and Limitations on Liability
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony in Alaska
-Expert Medical Witnesses: Experience-Based, Non-Scientific Testimony
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Alaska
I. Overview of Basic Principles and Concepts
What is Medical Malpractice in Alaska?
Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.
Under Alaska law, medical malpractice actions are governed by Chapter 09.55, Article 06 – Medical Malpractice Actions of the 2016 Alaska Statutes (“AS”). The state legislature made this clear in AS § 09.55.530, which states: “The legislature considers that there is a need in Alaska to codify the law with regard to medical liability in order to establish that the law in Alaska in this regard is the same as elsewhere.” Similarly, the Alaska Supreme Court instructed that “in Alaska, medical malpractice actions are governed entirely by statute.” D.P. v. Wrangell General Hospital, 5 P.3d 225, 229 (Alaska 2000).
Required Elements of a Medical Malpractice Claim in Alaska
It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Alaska law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.
Alaska medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.
The Basic Elements
Alaska has codified the basic elements of a compensable medical malpractice claim in AS § 09.55.540(a), which states:
In a malpractice action based on the negligence or wilful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence
(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
It is important to note that there is no presumption of negligence with respect to medical malpractice claims. Section 09.55.540(b) expressly states: “In malpractice actions there is no presumption of negligence on the part of the defendant.” Accordingly, it is clear that the plaintiff bears the burden of proving each essential element of a medical malpractice claim.
By statute, the jury must be advised of the applicable burden of proof and lack of presumption. AS § 09.55.550 provides:
In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving the health care provider’s negligence or wilful misconduct in accordance with the standard of proof specified in AS 09.55.540. The jury shall be further instructed that injury alone does not raise a presumption of the health care provider’s negligence or misconduct.
The Alaska Supreme Court has repeatedly stated that expert testimony is required to establish a medical malpractice claim. The Court frequently quotes the following passage: “In medical malpractice actions … the jury ordinarily may find a breach of professional duty only on the basis of expert testimony. The primary limitation to this rule is that expert testimony is not needed in non-technical situations where negligence is evident to lay people.” [internal quotations and citation omitted] Kendall v. State Division of Corrections, 692 P.2d 953, 955 (Alaska 1984). Similarly, expert testimony is generally required to establish causation in a medical malpractice claim. Parker v. Tomera, 89 P.3d 761, 766 (Alaska 2004).
Classic examples of situations that are generally considered within the comprehension of lay people include (1) a foreign object inadvertently left inside a patient’s body following surgery and (2) the amputation of the wrong limb, e.g., right leg amputated instead of left leg. In these types of situations, it is generally considered within a juror’s common knowledge and experience that the injury was one that would not ordinarily occur without negligence. Thus, expert medical witness testimony is typically not required to establish the applicable standard of care and breach in such cases.
II. Filing Deadlines for Medical Malpractice Claims
Introduction to Statute of Limitations
Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.
These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.
A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.
Statute of Limitations for Medical Malpractice Claims in Alaska
In general, medical malpractice claims are subject to the standard two-year statute of limitations contained in AS § 09.10.070(a), which states, in pertinent part, that “[e]xcept as otherwise provided by law, a person may not bring an action … for personal injury or death … unless the action is commenced within two years of the accrual of the cause of action.” The statute of limitations in AS § 09.10.070(a)(2) governs the time period in which a plaintiff must commence a medical malpractice action. Pedersen v. Zielski, 822 P.2d 903, 906 (Alaska 1991).
As the Alaska Supreme Court observed, “[o]rdinarily, a personal injury action ‘accrues’ when the plaintiff is injured.” Id. In situations where it is immediately obvious that the patient sustained injury at the time of the medical treatment and as a result of such treatment, the limitations period clearly begins to run at that time. Accordingly, the injured patient must commence a medical malpractice claim within two years of the date of treatment or be forever time-barred from bringing an action based upon the alleged medical malpractice.
It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under Alaska law in calculating the exact date the applicable limitations period ends. Rule 6(a) of the Alaska Rules of Court – Rules of Civil Procedure sets forth how time is calculated. It states:
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven days, not counting any period for mailing added under subsection (c) of this rule, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.
The Discovery Rule
Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.
The Discovery Rule in Alaska
Alaska recognizes the Discovery Rule in medical malpractice cases. Pedersen v. Zielski, 822 P.2d 903, 906 (Alaska 1991). In fact, it was first adopted in the state in medical malpractice cases where, according to the Alaska Supreme Court, “its need was felt most strongly when the medical injury did not manifest itself until after the statute of limitations had run.” Id.
Under Alaska’s formulation of the Discovery Rule, the limitations period does not begin to run until the plaintiff discovers, or reasonably should have discovered, the existence of the elements essential to his or her cause of action. Hanebuth v. Bell Helicopter International, 694 P.2d 143, 144 (Alaska 1984). That is, the Discovery Rule operates to toll the standard two-year statute of limitations that applies to medical malpractice claims. Id.
If a plaintiff conducts a reasonable inquiry and still does not discover the existence of the essential elements of a cause of action, the statute of limitations does not begin to run until he or she receives actual knowledge of the elements or receives new information that would prompt a reasonable person to investigate further. Pedersen, 822 P.2d at 907. On the other hand, if the plaintiff’s inquiry is not reasonable, the statute of limitations begins to run on the date he or she was put on notice to conduct an inquiry. Id.
Discovery of the injury alone is not sufficient to trigger the running of the limitations period under the Discovery Rule. The Alaska Supreme Court explained that “the need for the discovery rule is most clear in cases where the plaintiff’s injury is undiscovered and reasonably undiscoverable within two years after it was caused, it also applies to cases where the injury is known but its cause is unknown and reasonable diligence would not lead to its discovery.” Id. In order for the limitations period to begin running under the Discovery Rule, the plaintiff must discover both the injury and the fact it was likely the result of the fault of someone else.
The Supreme Court stated that “the relevant inquiry is the date when [the plaintiff] reasonably should have known of the facts supporting her cause of action.” Russell v. Municipality of Anchorage, 743 P.2d 372, 375 (Alaska 1987). The Court added: “We look to the date when a reasonable person has enough information to alert that person that he or she has a potential cause of action or should begin an inquiry to protect his or her rights.” Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988).
As to the application of the Discovery Rule to actual cases, the Supreme Court instructed that the Discovery Rule “is dependent on facts that are often unclear. When a plaintiff first learned of an injury or its cause is a fact which may sometimes be in dispute. When a plaintiff first should have learned of an injury or its cause is frequently debatable.” Pedersen, 822 P.2d at 907. Accordingly, such factual determinations are left to the trier of fact to decide.
AS § 09.10.140(a) provides a tolling provision for minors during the period of their minority status (i.e., younger than 18 years of age). The statute provides, in pertinent part, “if a person entitled to bring an action … is at the time the cause of action accrues [is] under the age of majority” that time period “is not a part of the time limit for the commencement of the action.” Since the provision tolls the running of the standard two-year statute of limitations applicable to medical malpractice claims, the Alaska Supreme Court explained that “this provision would allow plaintiffs injured when they were minors to bring suit through the two-year period following their eighteenth birthdays, when they reach the age of majority.” Sands ex rel. Sands v. Green, 156 P.3d 1130, 1132 (Alaska 2007). That is, injured minors have two years following their eighteenth birthday to commence a medical malpractice action.
Note that AS § 09.10.140(c) contains a provision that applies to minors younger than eight years of age when injured. It tolls the applicable two-year statute of limitations only until the minor reaches his or her eighth birthday, and at that point, the two-year statute of limitations begins to run. However, the Alaska Supreme Court held “that AS 09.10.140(c) violates the due process rights of minors to access the courts.” Id. at 1136. Therefore, the Court held that the provision is unconstitutional. Id. Accordingly, as a result of Sands, all injured individuals who were minors at the time of injury have two years after their eighteenth birthday in which to commence a medical malpractice action.
If at the time a person entitled to bring a medical malpractice claim is incompetent by reason of mental illness or mental disability, then the period of time the person is under such a disability “is not part of the time limit for the commencement of the action.” AS § 09.10.140(a). That is, the statute of limitations is tolled during the person’s period of disability due to mental illness or mental disability. A person suffering from such a disability may commence an action within two years after the disability ceases. Id.
The application of Alaska’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. This is especially true when the statute of repose is also implicated (see next Section of this article). The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Alaska medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Alaska attorney who specializes in medical malpractice law at the earliest possible opportunity.
III. Statute of Repose—Absolute Bar to Recovery
Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.
Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.
In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.
Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.
While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.
Statute of Repose in Alaska
Alaska has a ten-year statute of repose that runs from the date of the last act alleged to have caused the injury or death for which a medical malpractice claim is based. AS § 09.10.055(a). Subsection (b) of the statute states, in pertinent part, that the ten-year repose period does not apply if the personal injury or death resulted from an intentional act or gross negligence; the facts that would give notice of a potential cause of action are intentionally concealed; or the facts that would constitute accrual of a cause of action of a minor are not discoverable in the exercise of reasonable care by the minor’s parent or guardian. Finally, the ten-year repose period is tolled “during any period in which there exists the undiscovered presence of a foreign body that has no therapeutic or diagnostic purpose or effect in the body of the injured person and the action is based on the presence of the foreign body.” AS § 09.10.055(c).
Note that as of the date of this article it is an open question whether the statute of repose, as it applies to minors, constitutes an unconstitutional restriction on minors’ access to courts in light of the Alaska Supreme Court’s holding in Sands ex rel. Sands v. Green, 156 P.3d 1130 (Alaska 2007). McKay v. Longval, No. S-15806, No. 1592 (July 27, 2016) (fn.10).
IV. Immunities and Limitations on Liability
Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.
Sovereign Immunity in Alaska
To the extent provided for in AS § 09.50.250, Alaska has waived sovereign immunity so that the state and its political subdivisions may be held liable for its torts. The statute states that a “person or corporation having a … tort claim against the state may bring an action against the state in a state court that has jurisdiction over the claim.” Id.
However, an action is not permitted if the claim:
is an action for tort, and is based upon an act or omission of an employee of the state exercising due care in the execution of a statute or regulation, whether or not the statute or regulation is valid; or is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused…. AS § 09.50.250(1)
In identifying so-called discretionary acts for purposes of the statute, the Alaska Supreme Court established the planning or operational test. State v. Abbott, 498 P.2d 712, 720-722 (Alaska 1972). Under the test, the focus is on whether the act or function in question constitutes a planning or operational decision. Id. According to the Supreme Court, a “planning decision is one that involves policy formulation. In contrast, an operational decision involves policy execution or implementation. Only acts or functions occurring at the planning level are entitled to immunity as discretionary functions under AS 09.50.250.” [internal citations omitted] State Department of Transportation v. Sanders, 944 P.2d 453, 456 (Alaska 1997). The Supreme Court declared that under the planning/operational test, “liability is the rule, immunity the exception.” Johnson v. State, 636, P.2d 47, 64 (Alaska 1981).
Under the planning or operational test, furnishing medical treatment is clearly operational, not a planning—policy formulation—decision, so the performance of medical treatment is not entitled to immunity. Accordingly, medical malpractice claims may be brought against the state and its employees.
Good Samaritan Law
The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).
In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.
Good Samaritan Law in Alaska
Alaska has enacted a general Good Samaritan law that is codified in AS § 09.65.090(a). The statute provides immunity from civil damages for acts or omissions in rendering emergency aid. It states:
A person at a hospital or any other location who renders emergency care or emergency counseling to an injured, ill, or emotionally distraught person who reasonably appears to the person rendering the aid to be in immediate need of emergency aid in order to avoid serious harm or death is not liable for civil damages as a result of an act or omission in rendering emergency aid.
Under Alaska’s Good Samaritan law, both medical and nonmedical would-be Good Samaritans may qualify for immunity from civil damages while rendering emergency care. According to the Alaska Supreme Court, the “legislature clearly intended this provision to encourage health care providers, including medical professionals, to administer emergency medical care, whether in a hospital or not, to persons who are not their patients by immunizing them from civil liability.” Deal v. Kearney, 851 P.2d 1353, 1357 (Alaska 1993).
However, medical professionals who are under a pre-existing duty to provide emergency care are not covered by the Good Samaritan law. Id. at 1358. It is important to note that the Alaska Supreme Court rejected the notion that the existence of a pre-existing duty of a medical professional is tied to whether the person is being compensated or has an expectation of compensation. Id. at 1357.
Acts or omissions that constitute “gross negligence or reckless or intentional misconduct” are excluded from the immunity otherwise provided by the statute. AS § 09.65.090(d).
Additional Immunities and Limitations on Liability
There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Alaska Statutes. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Chapter 09.65 – Actions, Immunities, Defenses, and Duties – of the Alaska Statutes.
V. Required Elements of a Medical Malpractice Complaint
In Alaska, there is only one recognized form of action, and it is known as a “civil action.” Rule 2 of the Alaska Rules of Court – Rules of Civil Procedure. A civil action is commenced by filing a complaint with the appropriate court. Rule 3. Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 7(a). Rule 3(a) requires that the complaint “in order to be accepted for filing, must be accompanied by a completed case description provided by the clerk of the court.”
Rule 8(a) requires that a complaint “shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.” However, a medical malpractice claim “may not contain an ad damnum clause or monetary amount claimed against the defendant health care provider, except as necessary for jurisdictional purposes.” AS § 09.55.547.
Under Rule 8(e)(1), “[e]ach averment [i.e., allegation] of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required.” The complaint may “set forth two or more statements of a claim … alternatively or hypothetically….” Rule 8(e)(2). In addition, the complaint may contain as many separate claims as the plaintiff has “regardless of consistency and whether based on legal or on equitable grounds or both.” Id.
The complaint must contain a caption “setting forth the title of the court, the judicial district in which the action is filed, the city in which the court is located, the title of the action (i.e., the names of the parties), the case number, and” a designation as a ‘complaint.’ Rule 10(a). The complaint must also include the names of all the parties, which must “include as much of each party’s full legal name as is known to the plaintiff.” Id.
Allegations of claim must “be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” Rule 10(b). If the complaint seeks relief under a specific statute, the statute must be cited “in parentheses following the title of the pleading or in the heading for the section asserting the statutory claim.” Rule 10(d). Finally, the complaint “must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented.” Rule 11(a).
Alaska is a notice pleading state. Bigley v. Alaska Psychiatric Institute, 208 P.3d 168, 181 (Alaska 2009). According to the Alaska Supreme Court, it is “a fairly lenient ‘notice pleading’ standard. Alaska Rule of Civil Procedure 8(a) requires that a complaint include ‘(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.’” Id. at 181. The Court described the notice pleading standard in Alaska as follows.
We have noted that we have not construed this rule to require details of evidence that a claimant will offer to establish a claim; to the contrary, we have emphasized that the rule is satisfied by a brief statement that gives the defendant fair notice of the claim and the grounds upon which it rests. [internal citations and quotation marks omitted] Id.
In determining the sufficiency of a complaint, the trial court “must presume all allegations in the complaint to be true and must draw all reasonable inferences in favor of the complainant. Because complaints must be liberally construed, motions to dismiss … are disfavored and should rarely be granted.” Estate of Mickelsen v. North-Wend Foods, Inc., 274 P.3d 1193, 1197 (Alaska 2012). The Alaska Supreme Court instructed that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.” [emphasis in original] Id. at 1197.
Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.
The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.
VI. Expert Medical Witnesses
The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.
Who Qualifies as An Expert Medical Witness
The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is AS § 09.20.185(a). The statute provides that a prospective expert medical witness may not testify on the issue of the appropriate standard of care unless the witness is:
- a professional who is licensed in this state or in another state or country;
- trained and experienced in the same discipline or school of practice as the defendant or in an area directly related to a matter at issue; and
- certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.
The standard to qualify as an expert medical witness permitted to provide opinion testimony on the issue of the appropriate standard of care applicable to a doctor is more stringent than the baseline qualifications required to actually practice medicine in Alaska. The Alaska Supreme Court observed that “licensed physicians are allowed to practice surgery in Alaska without board certification, a physician’s inability to pass one or more board certification tests does not necessarily tend to prove that the physician lacks minimally necessary surgical skills or knowledge.” Marsingill v. O’Malley, 58 P.3d 495, 500 (Alaska 2002).
In contrast, the Court concluded that a duly licensed psychiatrist with the necessary training and experience in the area upon which her testimony was being offered did not qualify as an expert witness because she was not board certified in psychiatry as required in AS § 09.20.185(a)(3). Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010). Thus, under Alaska law, a doctor need not be board certified to practice but must be in order to qualify as an expert medical witness in a medical malpractice case.
The board certification requirement contained in AS § 09.20.185(a)(3) does not apply “if the state has not recognized a board that has certified the witness in the particular field or matter at issue.” AS § 09.20.185(b)
Rule 702(c) of the Alaska Rules of Evidence expressly states that in medical malpractice cases “a person may not testify as an expert witness on the issue of the appropriate standard of care except as provided in AS 09.20.185.” Although Rule 702(a) provides that a witness may qualify as “an expert by knowledge, skill, experience, training, or education[,]” the statutory requirements set forth in AS § 09.20.185 take precedence over the alternate witness qualification provision of Rule 702(a) in medical malpractice cases. This conclusion is dictated by the express terms of Rule 702(c).
Admissibility of Expert Testimony
Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.
Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Admissibility of Expert Testimony in Alaska
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Furthermore, the admissibility of expert witness testimony is subject to the Daubert standard, which the Alaska Supreme Court adopted in the 1999 case State v. Coon, 974 P.2d 386, 395 (Alaska 1999). The Court announced we “hold that the Alaska Rules of Evidence supersede the Frye test. We adopt the Daubert standard for determining the admissibility of scientific evidence.” Id. at 402.
The Alaska Supreme Court explained its formulation of the Daubert standard as applied in Alaska courts.
Daubert requires the trial judge to make a preliminary determination that the reasoning or methodology underlying [expert] testimony is scientifically valid and … properly can be applied to the facts in issue. In other words, at its most basic level, Daubert contains two essential requirements for the admission of scientific expert testimony: it must be reliable and it must be relevant. In reviewing trial court Daubert decisions, we have adopted the abuse of discretion standard used by federal courts, in light of Daubert’s goal of allowing trial courts greater flexibility in determining the admissibility of expert testimony. Marron v. Stromstad, 123 P.3d 992, 1003 (Alaska 2005).
In assessing reliability and relevance of proffered expert medical testimony, the Alaska Supreme Court approvingly cited to the factors enumerated in Daubert itself as providing useful guidance. Coon, 974 P.2d at 395. The factors are: (1) whether the proffered scientific theory or technique can be (and has been) empirically tested (i.e., whether the scientific method is falsifiable and refutable); (2) whether the theory or technique has been subject to peer review and publication; (3) whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the technique’s operation; and (4) whether the theory or technique has attained general acceptance. Id.
According to the Alaska Supreme Court, the standard for review upon appeal of a trial court’s determination of the admissibility of expert witness testimony is that of “abuse of discretion.” Id. at 398. The Court explained:
The principal reason for adopting the Daubert standard is to give the courts greater flexibility in determining the admissibility of expert testimony, so as to keep pace with science as it evolves. We think the abuse of discretion standard of review best comports with these aims, and we choose to apply it here. Id. at 399.
Rule 702(b) limits the number of independent expert witnesses who are permitted to testify for each party to a lawsuit. It provides:
No more than three independent expert witnesses may testify for each side as to the same issue in any given case. For purposes of this rule, an independent expert is a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony. The court, upon the showing of good cause, may increase or decrease the number of independent experts to be called.
Expert Medical Witnesses: Experience-Based, Non-Scientific Testimony
The Alaska Supreme Court explained that its application of Daubert and its progeny differs from that of the federal courts. Marron, 123 P.3d at 1004. The Court observed that “all expert testimony in federal courts must now meet the Daubert requirements of reliability and relevance.” Id. However, the Court instructed that in Alaska “we limit our application of Daubert to expert testimony based on scientific theory, as opposed to testimony based upon the expert’s personal experience.” Id.
As such, the Alaska Supreme Court held that the testimony of the treating physician in a medical malpractice case is not subject to the Daubert standard in order to be admissible into evidence. Id. at 1001. The Marron Court stated: “We now hold that when a treating physician testifies regarding a course of treatment, the physician’s testimony need not be subjected to a Daubert analysis.” Id.
Under Alaska law, a medical expert witness’ opinion testimony must be stated with “reasonable medical certainty” or the equivalent “reasonable medical probability” in order to be admissible. Id. at 1008. What constitutes reasonable probability for purposes of an admissibility analysis “is determined by the expert’s own confidence in the expert’s testimony.” Id.
VII. Comparative Negligence
By statute, Alaska follows the doctrine of pure comparative negligence. AS § 09.17.060. It states:
In an action based on fault seeking to recover damages for injury or death to a person or harm to property, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for the injury attributable to the claimant’s contributory fault, but does not bar recovery.
The Alaska Supreme Court explained that pure comparative negligence was first introduced in the state in 1975 when the Court “rejected the doctrine of contributory negligence and adopted the doctrine of comparative negligence in Kaatz v. State.” Sowinski v. Walker, 198 P.3d 1134, 1149 (Alaska 2008). The state legislature subsequently codified the doctrine of pure comparative negligence in 1986 when it passed the Tort Reform Act. Id.
Comparative negligence is a fault and damages allocation system. Under Alaska’s version, fault is determined and apportioned among the parties involved (plaintiff, all defendants, and non-parties who have been allocated a percentage of fault), and how much compensation the plaintiff may recover is limited by his or her relative share of fault for causing the injury. AS § 09.17.080. Fault is determined and apportioned among the plaintiff, defendants, and at-fault non-parties by the trier of fact, and how much compensation the plaintiff can recover is limited by his or her relative share of fault. AS § 09.17.080(a)(2).
The statute directs the trier of fact to “consider both the nature of the conduct of each person at fault, and the extent of the causal relation between the conduct and the damages claimed” in determining the various percentages of fault. AS § 09.17.080(b). In all cases where there is more than one at-fault party (including third-party defendants and persons who have settled or otherwise been released), the trial court “shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating
(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded [that is, the total damage award without any consideration to reduction through the application of comparative negligence principles]; and
(2) the percentage of the total fault that is allocated to each claimant, defendant, third-party defendant, person who has been released from liability, or other person responsible for the damages….” AS § 09.17.080(a).
The Alaska Supreme Court described the doctrine of pure comparative fault as it exists in the state as follows.
Alaska has a system of pure comparative negligence with several liability. Alaska Statute 09.17.060 promulgates the basic comparative negligence principle that a claimant cannot recover the portion of damages attributable to the claimant’s own fault for the harm complained of. Alaska Statute 09.17.080 promulgates the additional rule that of the total fault for harm attributable to defendants—not the claimant—the court shall enter a judgment against each defendant only for the defendant’s own percentage of the total fault. Sowinski, 198 P.3d at 1150.
With pure comparative fault, the plaintiff can be 99% at fault and still be eligible to obtain a damage award. Accordingly, the plaintiff’s recovery is simply reduced by his or her assigned percentage of fault, but not barred. For example, if the trier of fact determines that the plaintiff is 60% at fault in contributing to his or her injuries, the plaintiff’s total damage award will be reduced by 60%. As a result, the maximum amount the plaintiff can receive is 40% of the total monetary recovery. Thus, if the total monetary recovery is $100,000, the plaintiff is entitled to only 40% of that amount or $40,000. Notice that the plaintiff in this example is actually deemed to be at greater fault than the defendant. Nevertheless, in a pure comparative negligence system, that is not a bar to recovery.
VIII. Limitation on Noneconomic Damages
Alaska law imposes a cap on noneconomic damages in personal injury and wrongful death cases. AS § 09.17.010. For purposes of the statutory cap, “all damage claims for noneconomic losses shall be limited to compensation for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary damage.” AS § 09.17.010(a).
As of the date of this article, the cap on noneconomic damages is set at “$400,000 or the injured person’s life expectancy in years multiplied by $8,000, whichever is greater.” AS § 09.17.010(b). The cap applies to damages arising out of a single injury or death. Id. The statute provides that “[m]ultiple injuries sustained by one person as a result of a single incident shall be treated as a single injury for purposes of” the statute. AS § 09.17.010(d).
The cap on noneconomic damages is increased to “$1,000,000 or the person’s life expectancy in years multiplied by $25,000, whichever is greater, when the damages are awarded for severe permanent physical impairment or severe disfigurement.” AS § 09.17.010(c). The statute does not define the term ‘severe permanent physical impairment.’ According to the Alaska Supreme Court, the “question whether a plaintiff suffers from a severe physical impairment is one of fact,” which is generally presented to the jury. State Department of Corrections v. Johnson, 2 P.3d 56, 64 (Alaska 2000). As one example, the Supreme Court identified “permanently losing the normal use of a body system necessary for day-to-day life” as constituting severe physical impairment. Id. at 65.
Similarly, the statute does not define the term ‘severe disfigurement.’ The Alaska Supreme Court attempted to provide a working definition of the term in the 2004 case City of Bethel v. Peters, 97 P.3d 822, 829 (Alaska 2004).
A disfigurement is that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect…. Because the definition of disfigurement depends on judgments of a plaintiff’s appearance or unsightliness, it must be determined by an objective test gauging the views of the reasonable person. If a reasonable person would see the injury as detracting from the plaintiff’s appearance, the injury has caused disfigurement. Disfigurement is severe if a reasonable person would find that the injury mars the plaintiff’s physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment…. the court and the jury themselves supply the views of the reasonable person. [internal citations and quotation marks omitted]
IX. Limitations on Attorney Fees
Contingent Fee Arrangement
Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.
This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.
It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.
Limitations on Attorney Fees in Alaska
Alaska law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Alaska under Rule 1.5 of the Alaska Rules of Professional Conduct. Rule 1.5(a) states:
A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
- the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
- the fee customarily charged in the locality for similar legal services;
- the amount involved and the results obtained;
- the time limitations imposed by the client or by the circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation, and ability of the lawyer or lawyers performing the services; and
- whether the fee is fixed or contingent.
Rule 1.5(c) provides:
A fee agreement which is in whole or in part contingent shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
Finally, Rule 1.5(f) instructs lawyers to do their utmost to avoid fee controversies with clients. It states: “A lawyer should be zealous in his or her efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject.”
X. Apologies and Gestures of Sympathy
Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.
Alaska is among the states that have enacted an “I’m Sorry” law. It is contained in AS § 09.55.544(a)(1) and is specific to healthcare providers. The statute shields healthcare providers who communicate expressions of sympathy by making them inadmissible as evidence of liability in an action for medical malpractice. The statute states that the following are not admissible as evidence:
an expression of apology, sympathy, commiseration, compassion, or benevolence made orally, by conduct, or in writing by a health care provider or an employee of a health care provider to a patient, the patient’s relative, or a legal representative of a patient concerning an unanticipated outcome of medical treatment or care regarding the patient’s discomfort, pain, suffering, injury, or death….
However, if an expression of apology, sympathy, commiseration, compassion, or benevolence otherwise covered by the statute “is made in conjunction with an admission of liability or negligence, only the expression of apology, sympathy, commiseration, compassion, or benevolence is inadmissible, and the admission of liability or negligence may be admissible as evidence.” AS § 09.55.544(b).
For purposes of the statute, the term ‘relative’ means the spouse of the patient, a parent, grandparent, stepparent, child, stepchild, grandchild, brother, sister, half-brother or half-sister of the patient, a parent of the patient’s spouse, or an individual adopted by the patient. AS § 09.55.544(d).
Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Alaska understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.
XI. Website Disclaimer
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 In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/
 Note that while the statute uses the term ‘contributory fault,’ the Alaska Supreme Court regularly refers to the principle as ‘comparative negligence.’ Sowinski v. Walker, 198 P.3d 1134, 1149 (Alaska 2008). As such, the terms are used interchangeable in this article.
 Under this doctrine, a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury. Pure contributory negligence is extremely unforgiven. If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages. In that scenario, contributory negligence operates to shield the defendant from all liability for the plaintiff’s injury despite the fact the defendant was 99% at fault in causing such injury.
 In general, a third-party defendant is one who is brought into a lawsuit by one of the original defendants to the suit.