Hagen v. Strobel , 353 P.3d 799 ( 2015 )

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THE SUPREME COURT OF THE STATE OF ALASKA
SHIRLEY HAGEN, Wife and Personal )
Representative for the Estate of ) Supreme Court No. S-15479
GREGORY HAGEN, )
) Superior Court No. 3AN-11-12832 CI
Appellant, )
) OPINION
v. )
) No. 7018 – July 10, 2015
GUNNAR STROBEL, M.D. and )
ALAN E. SKOLNICK, M.D., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: James Alan Wendt, Law Offices of James
Alan Wendt, Anchorage, for Appellant. Timothy J. Lamb,
Donna M. Meyers, and W hitney L. Traeger, Delaney Wiles,
Inc., Anchorage, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
A cardiologist performed pacemaker surgery on Gregory Hagen and then
ordered an x-ray to examine the placement of the pacemaker leads and check for
complications. A second cardiologist reviewed the x-ray and discharged Gregory from
the hospital. A radiologist also reviewed the x-ray, noted a potential “nodule” in
Gregory’s lung, and recommended follow-up x-rays. But these recommendations were
never relayed to Gregory, who died from lung cancer approximately two years later.
Gregory’s wife, Shirley Hagen,1 filed a medical negligence suit against the
two cardiologists, alleging that their failure to relay the radiologist’s recommendations
resulted in a lost chance of survival for Gregory. The superior court granted summary
judgment to the cardiologists on the grounds that expert testimony from a board-certified
cardiologist was required to establish the standard of care and that the Estate had failed
to identify such an expert. In this appeal, the Estate argues that there is a genuine issue
of material fact whether the cardiologist who ordered the x-ray later received the
radiologist’s report. But the Estate does not show how this issue is material to the
superior court’s decision regarding the necessity of expert testimony to establish the
standard of care. We therefore affirm.
II. FACTS AND PROCEEDINGS
A. Facts
In November 2007 Dr. Gunnar Strobel, a board-certified2 cardiologist with
the Alaska Heart Institute in Anchorage, implanted a pacemaker in Gregory Hagen at
Mat-Su Regional Medical Center in Palmer. The following day Dr. Strobel ordered an
x-ray to examine the “positioning of the pacemaker leads” and check for “implantation
1
Hereinafter, we refer to Shirley Hagen in her capacities as Gregory Hagen’s
wife and personal representative for Gregory’s estate as “the Estate.” We refer to
Gregory and Shirley Hagen individually by their first names where context requires.
2
Hereinafter, we use “board-certified” as synonymous with meeting the
requirement of AS 09.20.185(a)(3): “certified by a board recognized by the state as
having acknowledged expertise and training directly related to the particular field or
matter at issue.”
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complications.” He then returned to Anchorage. Dr. Alan Skolnick, another board-
certified cardiologist, reviewed the x-ray for complications and dictated a discharge
report. Gregory was then discharged from the hospital.
A radiologist also reviewed the x-ray and dictated a report (the Radiologist
Report). In addition to noting the placement of the pacemaker leads, the Radiologist
Report observed:
A 1 cm density projects in the right upper lobe. It is seen in
the second anterior interspace near the intersection with the
fourth posterior rib space. The possibility of the nodule is
raised. When the patient’s condition permits, PA, shallow
obliques, lateral[,] and apical lordotic views are suggested for
further evaluation.
And under the heading “Impression,” the Radiologist Report noted: “Equivocal for right
upper lobe nodule. Recommend followup with PA, lateral, obliques[,] and apical
lordotic when the patient’s condition stabilizes.”
In March 2008 Gregory saw Dr. Strobel for a follow-up appointment.
According to Dr. Strobel, the purpose of the visit was to “check the pacemaker, discuss
the chest pain [Gregory] had experienced in December 2007, and [discuss] the results of
[the] December nuclear stress test [that followed].” The parties agree that Gregory never
received any information about the contents of the Radiologist Report or the
recommendation for further x-rays.
Over one year later, Gregory was diagnosed with “poorly differentiated
non-small cell carcinoma,” a form of lung cancer. This cancer resulted in Gregory’s
death in December 2009.
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B. Proceedings
In December 2011 the Estate filed a wrongful death and survival action
against Dr. Strobel and Dr. Skolnick (collectively, the cardiologists).3 In its complaint
the Estate alleged that the Radiologist Report “included reference to a nodule that would
have been diagnosed as early stage lung cancer had further studies been administered.”
The Estate claimed that the cardiologists failed to meet prevailing standards of medical
care, resulting in a lost chance of survival for Gregory.
The superior court entered a pretrial order requiring the parties to identify
retained expert witnesses by September 2, 2013. In an email to opposing counsel, the
Estate’s attorney identified an oncologist whom the Estate planned to call as an expert,
but the Estate never filed a list of retained expert witnesses. On October 4 the
cardiologists filed an unopposed motion to preclude the Estate from calling any experts
other than the oncologist. The court granted this motion.
The cardiologists then filed a motion for summary judgment, supported
primarily by an affidavit from Dr. Strobel. Dr. Strobel attested that in his expert opinion,
the cardiologists “met the appropriate standard of care” throughout Gregory’s treatment.
Dr. Strobel further opined that he “did not have a duty to go back through the entire
chart, and check all other care providers[’] medical records” when Gregory returned for
his follow-up visit.
In their memorandum in support of summary judgment, the cardiologists
pointed to our statement in Trombley v. Starr-Wood Cardiac Group, PC that “[i]n
medical malpractice actions . . . the jury ordinarily may find a breach of professional duty
3
The Estate also named the radiologist who reviewed Gregory’s x-rays and
a family physician who had referred Gregory to Dr. Strobel. But both doctors were
subsequently dismissed from the suit.
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only on the basis of expert testimony.”4 The cardiologists also highlighted
AS 09.20.185(a), which provides that in a professional negligence case, an expert
testifying on the “appropriate standard of care” must be board-certified and “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.” Accordingly, the cardiologists argued that the
Estate was required to identify “a board certified cardiologist who would testify that [the
cardiologists’] medical care and treatment fell below the standard of care.”
The Estate had identified no such expert and was precluded from doing so
by the superior court’s prior order. And the Estate did not oppose the cardiologists’
motion for summary judgment or submit additional evidence. The superior court,
concluding that the Estate was required to identify a board-certified cardiologist to rebut
Dr. Strobel’s sworn affidavit, granted summary judgment and dismissed the suit against
the cardiologists with prejudice.
The Estate moved for reconsideration, contending that the court had
“overlooked a material fact or misconceived a material question.” Specifically, the
Estate argued that the cardiologists’ factual account was internally inconsistent: the
cardiologists initially admitted in their answer that the Radiologist Report was provided
to Dr. Strobel, but Dr. Strobel later claimed in his deposition testimony that he never
received it. The Estate also filed a motion to amend the complaint, pointing to Dr.
Strobel’s statement in his deposition that he did not read the Radiologist Report because
an Alaska Heart Institute employee failed to place a copy in his inbox. The Estate argued
that because the cardiologists failed to identify “all potentially responsible persons” as
4
3 P.3d 916, 919 (Alaska 2000) (second alteration in original) (quoting
Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984)) (internal quotation
marks omitted).
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required under Alaska Civil Rule 26(a)(1)(H),5 it should be granted leave to amend its
complaint to add allegations against Alaska Heart Institute.
The superior court denied the Estate’s motion for reconsideration and
entered final judgment in the cardiologists’ favor. The court did not rule on the Estate’s
motion to amend.
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
matter of law.”6 “We must determine whether any genuine issue of material fact exists,
and in so doing all factual inferences must be drawn in favor of — and the facts must be
viewed in the light most favorable to — the party against whom summary judgment was
granted.”7
“[A] party seeking summary judgment has the initial burden of proving,
through admissible evidence, that there are no [genuine] disputed issues of material fact
5
In relevant part, Rule 26(a)(1)(H) requires,
Except to the extent otherwise directed by order or rule, a
party shall, without awaiting a discovery request, provide to
other parties . . . the identity, with as much specificity as may
be known at the time, of all potentially responsible persons
. . . , and whether the party will choose to seek to allocate
fault against each identified potentially responsible person.
6
Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)
(quoting Beegan v. State, Dep’t of Transp. & Pub. Facilities, 195 P.3d 134, 138 (Alaska
2008)) (internal quotation marks omitted).
7
Id. (footnote omitted) (quoting Nielson v. Benton, 903 P.2d 1049, 1051-52
(Alaska 1995)) (citing Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005))
(internal quotation marks omitted).
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and that the moving party is entitled to judgment as a matter of law.”8 “Once the moving
party has made that showing, the burden shifts to the non-moving party to set forth
specific facts showing that he could produce evidence reasonably tending to dispute or
contradict the movant’s evidence and thus demonstrate that a material issue of fact
exists.”9
IV. DISCUSSION
A. The Superior Court Did Not Err In Granting The Cardiologists’
Motion For Summary Judgment.
“In an action for medical negligence, the plaintiff has the burden of
establishing the degree of care ordinarily exercised under the circumstances by health
care providers in the defendant’s field or speciality . . . .”10 And in such actions, “the jury
ordinarily may find a breach of professional duty only on the basis of expert
testimony.”11
The cardiologists argued in their motion for summary judgment that the
Estate would need to present expert testimony from a board-certified cardiologist to
8
Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)
(alterations in original) (quoting Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751,
760 n.25 (Alaska 2008)) (internal quotation marks omitted).
9
Id. (quoting State, Dep’t of Highways v. Green, 586 P.2d 595, 606 n.32
(Alaska 1978)) (internal quotation marks omitted).
10
Achman v. State, 323 P.3d 1123, 1129 (Alaska 2014) (citing
AS 09.55.540(a)).
11
Trombley v. Starr-Wood Cardiac Grp., PC, 3 P.3d 916, 919 (Alaska 2000)
(quoting Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984)) (internal
quotation marks omitted).
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establish “that a breach of duty owed occurred.”12 The superior court agreed, concluding
that
the medical issues in this litigation concerning the duties
owed by cardiologist[s] Dr. Strobel and Dr. Skolnick relative
to the care they provided to [Gregory] are beyond the
comprehension of lay jurors, and therefore they require
expert medical testimony from a board certified physician or
physicians in the area or areas of specialty at issue in this
case, which is cardiology.
As the superior court noted, the cardiologists submitted an affidavit from a board-
certified cardiologist, Dr. Strobel, while the Estate failed to similarly offer sworn expert
testimony as necessary to meet its burden of production. The court concluded that
summary judgment was therefore appropriate.
We must first determine whether the cardiologists met their burden, as the
moving parties, of showing that there was no genuine issue of material fact. With respect
to Dr. Skolnick, Dr. Strobel attested that in his opinion,
Dr. Skolnick did not need to wait until after the radiologist’s
typed report was available before authorizing the discharge
of [Gregory] from the hospital. The purpose of Dr.
Skolnick’s viewing the x-ray was to check that the leads in
12
Under AS 09.20.185(a) an expert witness testifying “[i]n an action based
on professional negligence” must be:
(1) a professional who is licensed in this state or in
another state or country;
(2) trained and experienced in the same discipline or
school of practice as the defendant or in an area directly
related to a matter at issue; and
(3) certified by a board recognized by the state as
having acknowledged expertise and training directly related
to the particular field or matter at issue.
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the wall of the heart had not become displaced, that
[Gregory] did not have a pneumothorax, etc. It was not to do
a thorough radiological evaluation of [Gregory’s] overall
health.
Dr. Strobel further opined that Dr. Skolnick “met the appropriate standard of care as
described in AS 09.55.540 . . . required of cardiologists in Alaska.”
As to his own actions, Dr. Strobel defined the appropriate standard of care
by stating in his affidavit:
It is . . . my expert opinion that when [Gregory] returned
approximately [four and one-half] months after implantation
of a pacemaker . . . for a pacemaker check . . . , I did not have
a duty to go back through the entire chart, and check all other
care providers[’] medical records, etc. The chest x-ray
review by Dr. Skolnick in November had already confirmed
the pacemaker implantation did not have complications. The
purpose of that visit was to check the pacemaker, discuss the
chest pain he had experienced in December 2007, and the
results of that December nuclear stress test . . . .
Dr. Strobel concluded that, like Dr. Skolnick, he “met the appropriate standard of care.”
In light of these statements — which were not challenged by conflicting
expert testimony — we conclude that the cardiologists met their burden as the moving
parties by showing that there was no genuine issue of material fact as to the standard of
care. Thus to avoid summary judgment, the Estate was required to demonstrate a
genuine issue of material fact as to the appropriate standard of care — an element on
which the Estate bore the burden of proof.13 But the Estate did not file an opposition
brief or submit additional evidence. The superior court’s grant of summary judgment
was therefore appropriate.
13
See Achman, 323 P.3d at 1129 (citing AS 09.55.540(a)).
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On appeal the Estate argues, as it did in its motion for reconsideration, that
the cardiologists’ narrative was inconsistent, and that this inconsistency created an issue
of material fact. The Estate notes the cardiologists’ admission in their answer that —
“[u]pon information and belief” — “[a] copy of the x-ray report containing [the
radiologist’s] recommendation was provided to [Dr.] Strobel.” The Estate contrasts this
admission with Dr. Strobel’s subsequent deposition testimony that, although the
Radiologist Report “was scanned in at the Alaska Heart [Institute] [o]ffice,” he never
received a copy in his office “inbox.”
We see no inconsistency in these statements. Critically, Dr. Strobel never
denied that he was “provided” the Radiologist Report; he merely testified that he never
received a copy in his office inbox. And in the cardiologists’ motion for summary
judgment, they admitted that “[a] copy of the radiology report was sent to Dr. Strobel at
[Alaska Heart Institute].” (Emphasis added.) Even “reading the record in the light most
favorable to the non-moving party and making all reasonable inferences in its favor,”14
the fact that a copy of the Radiology Report was “sent” to Dr. Strobel and “scanned in”
to the Alaska Heart Institute’s electronic record-keeping system does not suggest that Dr.
Strobel actually received it in his inbox. And the Estate points to nothing else in the
record giving rise to a genuine issue of fact.
Moreover, “the existence of a disputed factual issue will only preclude
summary judgment if it is a material issue,”15 and “[a] factual issue will not be
considered material if, even assuming the factual situation to be as the non-moving party
contends, he or she would still not have a factual basis for a claim for relief against the
14
Bachner Co. v. Weed, 315 P.3d 1184, 1188 (Alaska 2013) (quoting Witt v.
State, Dep’t of Corr., 75 P.3d 1030, 1033 (Alaska 2003)) (internal quotation marks
omitted).
15
Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998) (emphasis in original).
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moving party.”16 Here the superior court granted summary judgment on the ground that
expert testimony from a board-certified cardiologist was required to establish the
standard of care, and the Estate put forth no such expert. On appeal, the Estate does not
explain how Dr. Strobel’s receipt of the Radiologist Report would have impacted this
determinative issue.17 And the Estate points to nothing else in the record creating a
material issue of fact as to the appropriate standard of care.
B. The Estate Waived Its Argument That The Superior Court Erred In
Denying Its Motion For Reconsideration.
The Estate appears to argue that the superior court should have granted its
motion for reconsideration, asserting that the court erred by concluding that there was
no “evidence [relevant] to the summary judgment motion that the court should pause to
reconsider.” But the Estate gives only cursory treatment to this issue in the argument
section of its opening brief and omitted the issue from the brief’s statement of points on
appeal.
“[W]here a point is given only a cursory statement in the argument portion
of a brief, the point will not be considered on appeal.” 18 We conclude that the Estate’s
argument regarding its motion for reconsideration was waived for inadequate briefing.
16
Id.; see also Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 519
(Alaska 2014) (“[A] material fact is one upon which resolution of an issue turns.”).
17
The Estate does argue that “[t]here clearly existed an issue [as to] whether
[Dr.] Strobel had indeed been provided a copy of the report. There is no issue that the
failure to follow-up on such a report is improper as [Dr. Strobel] admitted as much in his
deposition.” But Dr. Strobel did not admit that it would be “improper” not to examine
a report he had received; he merely stated that he would “normally” read these types of
reports.
18
See Glover v. Ranney, 314 P.3d 535, 545 (Alaska 2013) (internal quotation
marks omitted).
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C. The Estate Waived Its Argument That The Superior Court Should
Have Granted Its Motion to Amend The Complaint.
The Estate argues that the superior court should have granted its motion to
amend its complaint. In requesting leave to amend, the Estate pointed to Dr. Strobel’s
deposition testimony that an Alaska Heart Institute employee failed to place a copy of the
Radiologist Report in his “inbox” and argued that the cardiologists failed to identify all
“potentially responsible persons” as required under Civil Rule 26(a)(1)(H). Accordingly,
the Estate asked to amend its complaint to add the Alaska Heart Institute as a defendant;
to add new allegations concerning the Alaska Heart Institute’s alleged failure to deliver
a copy of the Radiologist Report to Dr. Strobel; and to add a negligence cause of action
against the Alaska Heart Institute. Although the superior court denied the Estate’s motion
for reconsideration, it never ruled on its motion to amend.
The Estate omitted this issue from its statement of issues presented for
review and discusses it only briefly in the argument portion of its brief, asserting that the
cardiologists violated Rule 26(a)(1)(H) and that this “prejudiced [the] [p]laintiffs.” But
the Estate cites no legal authority for the implied proposition that the superior court was
required to grant leave to amend even after granting summary judgment and dismissing
the cardiologists from the suit.19 Nor does the Estate cite Alaska Civil Rule 15 or any
other legal authority regarding a superior court’s discretion in considering a motion for
leave to amend a complaint.20 As we note above, we will not consider an issue “given
19
Cf. Bush v. Elkins, 342 P.3d 1245, 1250-52 (Alaska 2015) (analyzing a
superior court’s denial of a motion for leave to amend after the plaintiff had been
dismissed from the case).
20
See, e.g., Miller v. Safeway, Inc., 102 P.3d 282, 294 (Alaska 2004)
(recognizing several reasons to deny leave to amend a complaint).
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only a cursory statement in the argument portion of a brief.”21 We thus conclude that the
Estate has waived this argument through inadequate briefing on appeal.
V. CONCLUSION
We therefore AFFIRM the superior court’s judgment.
21
See Glover, 314 P.3d at 545.
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