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Deal v. Kearney et al (5/14/93), 851 P 2d 1353
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
CLYDE F. DEAL, )
)
Petitioner, ) File No. S-4651
)
v. ) 3AN 89 9188 CI
)
L. JON KEARNEY, individually and ) O P I N I O N
as assignee of INSURANCE COMPANY )
OF NORTH AMERICA, CIGNA, INC., )
LUTHERAN HOSPITALS & HOMES )
SOCIETY OF AMERICA, INC., its )
affiliates, subsidiary, parent )
and successor corporations, )
KODIAK ISLAND HOSPITAL, as )
assignors to their rights of )
indemnity of contribution and as )
subrogees to the rights of L. )
JON KEARNEY, )
)
Respondents. ) [No. 3955 - May 14, 1993]
________________________________)
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Donna Burton, Delaney, Wiles,
Hayes, Reitman & Brubaker, Anchorage, and
Roger F. Holmes, Biss & Holmes, Anchorage for
Petitioner. John S. Hedland, Sara E.
Heideman, Hedland, Fleischer, Friedman,
Brennan & Cooke, Anchorage, for Respondents.
Dan A. Hensley, Paula M. Jacobson, Luce &
Hensley, Anchorage, for Amicus Curiae, Alaska
Academy of Trial Lawyers.
Before: Rabinowitz, Chief Justice, Burke,
and Compton, Justices. [Matthews and Moore,
Justices, not participating].
BURKE, Justice.
This matter is before the court on a petition for
review. See Alaska R. App. P. 402 and 403. Clyde F. Deal, M.D.,
the petitioner, seeks reversal of the superior court's denial of
his motion for summary judgment, on claims made against him by a
former patient, L. Jon Kearney, for indemnity, subrogation and
contribution. Such claims were assigned to Kearney by Lutheran
Hospitals & Homes Society of America, Inc., as part of a
settlement agreement.
In his motion for summary judgment before the superior
court, Dr. Deal first argued that the assigned claims were based
on non-assignable causes of action, and that the assignment of
those claims to Kearney was contrary to public policy. Dr. Deal
next argued that his own actions were immune from liability under
Alaska Statute 09.65.090(a), sometimes called the "Good
Samaritan"statute. Dr. Deal renews these arguments here.
I
After Kearney suffered a life-threatening injury, he
was taken by ambulance to the emergency room ("ER") of Kodiak
Island Hospital ("KIH"). When he arrived at KIH, at 3:45 p.m. on
September 16, 1984, Kearney was examined by the on-call ER
physician, Kevin Creelman, M.D., a family practitioner. Dr.
Creelman determined that a surgical consult was necessary and
called in Dr. Deal, a surgeon with staff privileges at KIH.
After ordering certain tests, Dr. Deal was of the opinion that
Kearney could not survive a transfer to Anchorage. Dr. Deal then
performed emergency surgery which lasted nine to ten hours, and
ended the following morning.
Dr. Deal gave numerous verbal and written orders
following the surgery, regarding the post-operative care to be
given Kearney. Dr. Deal contends that one such order, given
verbally to a nurse, was that arrangements be made for a medivac
flight to Anchorage by 12:00 noon, on September 17. Kearney,
however, was not moved until after 5:00 pm.
Kearney's condition upon arrival at Providence Hospital
in Anchorage was so critical that Dr. Marbarger, the physician to
whom Kearney was transferred, believed that Kearney was going to
die. Dr. Marbarger performed vascular surgery, and on September
18, Kearney underwent the first of a series of amputations.
Eventually, his right leg was amputated at the hip, and his left
leg was amputated at the knee.
Kearney claims that Dr. Deal was negligent.
Specifically, he contends that Dr. Deal negligently failed to
order a medivac flight or, if such order was given, was negligent
in failing to see that it was properly carried out. The delay in
transporting him to Anchorage, according to Kearney, resulted in
the loss of blood circulation and tissue death in both legs, so
that they required amputation upon his arrival in Anchorage.
Kearney brought suit against Lutheran Hospitals & Homes
Society of America, Inc. ("LHHS"), the administrator of KIH, on
September 12, 1986. In his complaint and later amended
complaint, Kearney alleged, inter alia, that LHHS was negligent
for its failure to promptly evacuate him to Anchorage. Neither
Kearney nor LHHS brought any action against Dr. Deal at that
time.
On October 2, 1989, LHHS and Kearney entered into a
settlement agreement whereby LHHS paid $510,000 to Kearney. At
the same time, LHHS and Kearney executed a document in which
Kearney released LHHS, Dr. Deal, and other health care providers,
from liability. In return, LHHS assigned to Kearney its rights
to indemnity, equitable subrogation, and contribution against Dr.
Deal. See AS 09.16.010(d). Shortly thereafter, Kearney and LHHS
filed a stipulation for dismissal of Kearney's negligence action.
Kearney, as assignee of the rights of LHHS, brought the
present action against Dr. Deal on November 1, 1989, alleging
that LHHS had rights of indemnity, contribution, or subrogation
against Dr. Deal arising from Dr. Deal's negligent acts or
omissions in the care given Kearney on September 16-17, 1984.
Dr. Deal moved for summary judgment on two grounds: First, he
argued that the assignment of LHHS's claims to Kearney was
invalid. Second, Dr. Deal claimed to be immune from suit under
the Good Samaritan statute.
The trial court denied Dr. Deal's motion for summary
judgment, ruling that the claims brought against him were
properly assigned to Kearney, and that the Good Samaritan statute
was not applicable to Dr. Deal because he was acting under a pre-
existing duty to render the emergency care provided Kearney. Dr.
Deal petitioned for review, and his petition was granted. We
turn now to the merits.
II
A. The trial court did not err when it
concluded that the assignment to Kearney of
LHHS's claims for indemnity, subrogation, and
contribution did not violate public policy
The first issue that we address is whether, as Dr. Deal
contends, the assignment to Kearney of claims for indemnity,
subrogation and contribution is an assignment which violates the
public policy against champerty and maintenance. The answer to
this question, we believe, turns on whether Kearney should be
considered an injured party with respect to these claims, or a
stranger to the particular transaction between LHHS and Dr. Deal.
In Croxton v. Crowley Maritime Corp., 758 P.2d 97, 99 (Alaska
1988), we recognized an exception to the common law prohibition
against assignment of personal injury claims when a cause of
action for wrongful death, assigned by operation of law to the
deceased's employer, was reassigned by the employer to the estate
of the deceased. We held that such an assignment does not
violate the public policy against champerty and maintenance,
stating:
[T]he main purposes of the general rule
of non-assignability of claims for personal
injury are not offended by this type
reassignment. Those purposes, to prevent
unscrupulous strangers to an occurrence from
preying on the deprived circumstances of an
injured person, and to prohibit champerty,
simply have no applicability where the
assignment is to the injured person himself.
Id. at 99, quoting Caldwell v. Ogden Sea Transportation, 618 F.2d
1037, 1048 (4th Cir. 1980).
Dr. Deal notes this exception but distinguishes the
present case by contending that Kearney's claims do not fall
within the specific exception in Croxton. Dr. Deal argues that
Kearney never owned the original actions and therefore could not
reacquire them. Dr. Deal contends that implied indemnity,
equitable subrogation and contribution are tort claims personal
to LHHS, and that Kearney is a legal stranger to the relationship
between Dr. Deal and LHHS. Dr. Deal further notes that Kearney,
under this assignment, is not seeking recovery against Dr. Deal
for Kearney's own damages resulting from Dr. Deal's alleged
medical negligence.1 Any proceeds from this action would
constitute profit to Kearney rather than reimbursement to Kearney
for damages he incurred as a result of any negligence on Dr.
Deal's part.
In reply, Kearney argues that the claims for
contribution, indemnity, or subrogation are not personal tort
claims at all; instead, they are claims grounded in equity or
implied contract. See, e.g. Jackson v. Cupples, 212 A.2d 273
(Md. App. 1965); City of New York v. Keene Corp., 505 N.Y.S.2d
782 (N.Y. 1986); Kahn v. Weldin, 653 P.2d 1268 (Or. App. 1982);
Sydenstricker v. Unipunch Prod., Inc., 288 S.E.2d 511 (W. Va.
1982) (doctrines of implied indemnity and contribution are based
upon principles of equity). Kearney further argues that, even if
the claim for contribution or indemnity could be characterized as
a "tort,"arising out of injuries committed by joint tortfeasors
against each other, it could not be characterized as a tort for
personal injury, because the "victim"did not sustain an injury
to its "person." Rather, the injury would be an incurrence of a
monetary obligation to that party, the claim for which would be
clearly assignable.
We think Kearney has the better argument. Kearney,
while not the party directly injured with respect to the assigned
claims, is by no means a stranger to the litigation.2 Further,
we agree with Kearney that, regardless of whether the assigned
claims are thought of as originating in tort or contract, the
"injury" involved is not a "personal injury" subject to the
general rule on non-assignability. We hold that the assignment
to Kearney by LHHS, of the latter's claims for indemnity,
contribution, and subrogation, does not violate the public policy
of this state against champerty and maintenance.
B. The trial court did not err when it ruled that Dr.
Deal is not immune from liability under the Good Samaritan
statute, AS 09.65.090(a)
The superior court held that the immunity provided by
the Good Samaritan statute is unavailable to physicians with a
pre-existing duty to respond to emergency situations. The court
concluded that Dr. Deal was under a pre-existing duty in the
instant case by virtue of his contract with KIH, the duty being
part of the consideration which Dr. Deal gave to KIH in exchange
for staff privileges at the hospital. The court further found
that the Good Samaritan statute did not apply to Dr. Deal in any
event, because the actions allegedly constituting malpractice
occurred during the follow-up care and treatment given Kearney,
after surgery. By then, the court reasoned, Dr. Deal had become
Kearney's treating physician, and was no longer responding to an
emergency situation.
1. The trial court did
not err in ruling that AS
09.65.090(a) does not apply to
physicians already under a duty to
provide medical care
Alaska Statute 09.65.090(a) 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.
We interpreted an earlier version of the statute to exclude
persons under a pre-existing duty from the statute's protection.
Lee v. State, 490 P.2d 1206, 1210 (Alaska 1971), overruled on
other grounds by Munroe v. City Council of Anchorage, 545 P.2d
165, 170 n.11 (Alaska 1976).3 We now address for the first time
the issue of whether the immunity found in the amended statute
applies to persons under a pre-existing duty to provide emergency
care.4
The legislature amended AS 09.65.090 in 1976 to include
among those potentially immune from civil liability for emergency
aid "[a] person at a hospital or any other location who renders
emergency care." The legislature clearly intended this provision
to encourage health care providers, including medical profes
sionals, to administer emergency medical care, whether in a
hospital or not, to persons who are not their patients by im
munizing them from civil liability.
The legislative history favors Kearney's position. The
1976 version of the Good Samaritan statute was based on recommen
dations of the Medical Malpractice Insurance Commission ("Commis
sion"). See Report of the Governor's Medical Malpractice
Insurance Commission ("Commission Report"), Oct. 1, 1975. One of
the recommendations made by the Commission included the
following:
Medical professionals should be immune
from liability to a person who is not his
patient for administering emergency medical
care where the giving of immediate aid
appears to be the only alternative to death
or serious bodily injury or harm.
Commission Report at 5. The clear inference of this
recommendation is that those with a pre-existing duty would not
be covered by the statute.
The October 31, 1975, supplement to the Commission
Report added language which would have limited the immunity of
persons "at a hospital or at any other location" who provided
emergency aid "unless the circumstances are such that
remuneration for the services would normally be expected." See
Commission Supplement at 25. In the final amendment as enacted
in 1976, the legislature deleted both the Commission's suggested
reference to expected remuneration and the former statute's
limitation of immunity to those who rendered care "without
expecting compensation."
Dr. Deal equates an expectation of compensation with
the existence of a pre-existing duty. He therefore contends that
the legislature's decision to omit any reference to compensation
demonstrated the legislature's intent not to limit immunity under
AS 09.65.090 to persons not having a pre-existing duty to render
emergency care. Such an argument, however, assumes a causal
connection between compensation and pre-existing duty which
simply does not exist.
Dr. Deal further argues that the extension of immunity
even to physicians with a pre-existing duty serves a legitimate
public interest and is consistent with public policy. He
supports this assumption by citing various other statutes
granting immunity to other classes of persons in a position to
render emergency aid, paid or otherwise, including veterinarians
(AS 09.65.097), emergency medical technicians (AS 18.08.086), and
other rescue groups such as ski patrollers (AS 09.65.090(b)
(amended 1988). However, in the case of veterinarians, the
wording is essentially identical to that of the Good Samaritan
statute and thus does not independently support Dr. Deal's
proposition that either statute necessarily immunizes persons
with a pre-existing duty from liability.
The public policy grounds underlying the other two
statutes can be readily distinguished from those underlying AS
09.65.090(a). In the case of emergency medical technicians,
although they clearly have a pre-existing duty to provide aid,
without statutory protection from liability, their very existence
would be threatened, and there is a clear public interest in
having trained and certified emergency medical personnel.5 In
the case of rescue groups covered under AS 09.65.090(b), the
legislature was careful to require that to receive immunity a
person, "regardless of whether the member is under a preexisting
duty to render assistance,"must be a volunteer "who is paid not
more than $10 a day and a total of not more than $500 a year."
Indeed, Kearney cites this same statutory subsection (b) to
support his argument that the legislature deliberately did not
extend immunity to those with a pre-existing duty under
subsection (a), noting that the 1988 amendment adding subsection
(b) otherwise would have been unnecessary because such volunteers
already would have been included under subsection (a).
Good Samaritan statutes traditionally were designed to
protect persons from civil liability for negligent acts or omis
sions committed while voluntarily providing emergency assistance.
See Danny R. Veilleux, Annotation, Construction and Application
of "Good Samaritan"Statutes, 68 A.L.R.4th 294, 299-300 (1989).
"Courts have generally held that Good Samaritan statutes do not
apply to persons having a pre-existing duty to render [emergency]
aid, often reasoning that the added inducement of statutory
immunity is not necessary to encourage them to provide the
emergency care." Id. at 302. Decisions thus have focused on
determining whether a person had a pre-existing duty.
In Colby v. Schwartz, 78 Cal. App. 3d 885, 144 Cal.
Rptr. 628 (Cal. 1978), the defendant doctors operated on a
patient in an ER as part of their normal course of practice as
members of the hospital emergency call panel. The court held
that the doctors were not entitled to the protection of the
state's Good Samaritan statute because they were not acting as
volunteers but, rather, were acting in the normal course of their
practice. The court went on to note:
Physicians, like defendants, who treat
patients requiring immediate medical care as
part of their normal course of practice do
not need the added inducement that immunity
from civil liability would provide.
Moreover, excusing such physicians of their
negligence could have the adverse effect of
lowering the quality of their medical care
without justification. And further, to
extend immunity to such physicians would deny
an overly broad spectrum of malpractice
victims of their legal remedies.
78 Cal. App. 3d at 893, 144 Cal. Rptr. at 628. See 68 A.L.R.4th
at 323.
The Georgia Court of Appeals recently held that their
Good Samaritan statute was directed at persons who are not under
some pre-existing duty to rescue. The court noted that "public
policy would be ill-served if [the doctor] were relieved of the
usual physician's duty of care and given immunity in [a case
where she had a particular employment duty to aid the patient at
the hospital]." Henry v. Barfield, 367 S.E.2d 289, 290 (Ga. App.
1988) (citing Clayton v. Kelly, 357 S.E.2d 865, 868-69 (Ga. App.
1987)). The court went on to state that "[i]f there was no prior
duty to respond and there was no prior doctor-patient
relationship, one is not created by the event of the emergency.
But clearly the occurrence of an emergency will not invoke the
immunity, if it was the doctor's duty to respond to the
emergency." Id.
Courts in other cases have held that doctors were
entitled to claim immunity under a Good Samaritan statute where
they provided emergency medical care in a hospital that was not
part of the doctor's express or customary hospital function and
therefore did not have a pre-existing duty to treat the patients.
See e.g., McKenna v. Cedars of Lebanon Hospital, Inc., 93 Cal.
App. 3d 282, 155 Cal. Rptr. 631 (Cal. 1979); Matts v. Homsi, 308
N.W.2d 284 (Mich. App. 1981); see generally 68 A.L.R.4th 323-26.
In all of the above cases, the courts have found that a
pre-existing duty to render emergency care denied physicians the
protection of their Good Samaritan statutes. Dr. Deal attempts
to distinguish the Alaska statute from these other states'
statutes by noting that these other statutes contain either a
provision regarding the actor's "good faith"or the absence of
payment or compensation. However, the question of expectation of
compensation does not constitute a per se rule for determining
whether a rescuer had a pre-existing duty. Rather, the essential
issue is whether the individual has undertaken a responsibility.
See City of Kotzebue v. McLean, 702 P.2d 1309, 1313 (Alaska 1985)
(quoting Restatement (Second) of Torts, 323 and 324A).
The trial court was correct in holding that the Alaska
Good Samaritan statute, AS 09.65.090(a), does not extend immunity
to physicians who have a pre-existing duty to render emergency
care.
2. The trial court
erred when it ruled that Dr. Deal,
as a matter of law, was under a pre-
existing duty to provide emergency
room consultation and assistance
The superior court ruled, as a matter law, that Dr.
Deal was under a pre-existing duty to render emergency aid to
Kearney, by virtue of his contract with KIH, and that he is,
therefore, not entitled in the present litigation to claim the
protection of the Good Samaritan statute. The Bylaws of the
Medical and Dental Staff of the Kodiak Island Hospital in effect
in 1984, when Kearney's accident occurred, stated in pertinent
part as follows:
Article III: MEDICAL STAFF MEMBERSHIP
. . . .
Section 3. Conditions and Duration of
Appointment.
. . . .
D. As a condition to membership on the
medical staff, each practitioner shall
acknowledge his obligation to provide
continuous care and supervision of his
patient; to abide by the medical staff
bylaws, rules and regulations; to accept
consultation assignments; and to participate
in rotating staffing of the Emergency Room in
accordance with established policies.
Bylaws of the Medical and Dental Staff, Oct. 28, 1983. (Emphasis
added.)
This section of the bylaws was replaced with new
wording adopted by the KIH medical staff in 1985 and again in
1986. While the court must interpret the bylaws in effect in
September 1984, we examine the new wording in the hope that it
may shed some light on what was meant by "established policies."
The section adopted in 1985 stated:
Section 3. Conditions of Appointment
. . . .
d. . . . The Emergency Room Call Policy
is as follows: All primary care physicians -
family practice and general practice will
rotate call.
Bylaws of the Medical and Dental Staff, adopted by medical staff
on Apr. 17, 1985.
The bylaws were further amended the following year.
The above section as adopted in 1986 by the active medical staff
states:
Section 3. CONDITIONS AND DURATION OF
APPOINTMENT
. . . .
D. Each practitioner shall acknowledge
his obligation to provide continuous care and
supervision of his patients; to abide by the
Medical Staff Bylaws, Rules and Regulations;
to accept consultation assignments.
E. Each general practitioner or Family
Physician on the Medical Staff shall serve in
rotation of first call in the Emergency Room
in accordance with established policies.
F. Each specialist shall serve as
consultant when requested by the physician on
first call in the Emergency Room.
Consultants may rotate call when more than
one is resident in the community.
Bylaws of the Medical and Dental Staff, Feb. 12, 1987.
The Rules and Regulations adopted in 1982 and in effect
in 1984 are not particularly illuminating as to the medical
staff's responsibilities with respect to emergency care.
However, they do define and describe the term "consultation."
The bylaws do not specifically state, until the 1987 version,
that specialists shall serve as consultants when requested by the
physician on first call in the ER, but it is instructive to note
that the rules and regulations do make an exception to the
general recommendations regarding consultation in an emergency
situation.
The 1982 Rules and Regulations state in pertinent part:
G. CONSULTATION
1. The term "consultation"means an
opinion from a physician regarding the
diagnosis, management or disposition of a
patient.
. . . .
6. Consultation is strongly
recommended under the following circumstances
except in emergencies where the delay
occasioned by such consultation would likely
be harmful to the patient:
A. Serious or critical
patients where the diagnosis is
obscure.
B. Serious or critical
patients not improved after 48
hours of treatment.
C. When optimal
treatment is in doubt.
D. Where there is a
question of criminal action.
E. Acute myocardial
infarction complicated by serious
rhythm disturbance or cardiogenic
shock.
F. Hysterectomy in
women of child bearing age.
G. Prolonged labor
(more than 36 hours).
H. Premature rupture of
membranes (greater than 24 hours).
I. First ceasarean
[sic] section (consultation may not
be the surgeon).
J. Newborn less than
four pounds or with 5 minute Apgar
less than 6.
(Emphasis added.) The Rules and Regulations of Kodiak Island
Hospital Medical Staff.
An interpretation of the emphasized language in the
section above is that the on call physician in the ER has the
duty to provide emergency care. Additionally, if a specialist is
called in solely to provide an opinion, such delay should not be
undertaken if it would be harmful to the patient.
However, it is unclear under the above rules what the
ER physician should do in the case of an emergency, such as
Kearney's, where the physician clearly does not have the
expertise to proceed with the appropriate treatment. Does the
above language imply that mere consultation would be
inappropriate? In other words, does the combination of the above
definition of consultation with the wording of the 1983 bylaws at
III(3)(D), which separates the acceptance of consultations from
ER staffing, create a duty for specialists to treat emergency
patients whose treatment requires their particular expertise?
Dr. Deal contends that there are unresolved issues of
material fact that go to whether the hospital bylaws and rules
and regulations created a pre-existing duty for him to treat
Kearney. The trial court concluded:
[B]y contract with the hospital,
specialists such as Dr. Deal were relieved
from regular rotational on-call duty in the
emergency room of the hospital, and instead,
Dr. Deal as such a specialist agreed that he
would not serve rotational emergency room on-
call duty, but instead would be on-call to
respond to the general practitioners who were
on duty in the emergency room and consult
with such emergency room physicians in lieu
of doing regular rotational emergency room on-
call service.
Tr. of Decision on Record, 3AN-89-9188 CI, June 14, 1991. Dr.
Deal claims that the trial court erred by concluding as a matter
of law that a duty to consult encompasses a duty to provide
emergency services or post-operative care. He argues that it
should be a question of fact as to whether surgery and post-
surgical care are included within the framework of the word
"consult."
In support of his contention that a genuine issue of
fact remains, Dr. Deal claims that Dr. Juergens' testimony
demonstrates that the emergency room staffing policy in effect in
1984, although not formally adopted until April 1985, was the
same as that in effect in 1988. See Juergens' deposition,
Kearney v. LHHS, June 2, 1988, at 7-8. Dr. Deal further argues
that this policy required only family and general practitioners
to staff the ER and that specialists would serve solely as
consultants upon request by the physician on first call in the
ER.
Kearney argues that the bylaws in fact create a legal
pre-existing duty for the specialists. He claims that the
"established policies"referred to in the 1983 bylaws, III(3)(D),
"were that general practitioners took initial emergency room
call, and specialists had to respond to calls from the general
practitioner when his or her expertise was required to treat the
emergency patient." Kearney then cites testimony from Drs. Deal,
Creelman, and Juergens to support this interpretation.
Given the ambiguity of the language in the bylaws and
rules and regulations in effect at the time of Kearney's accident
and Dr. Deal's alleged malpractice, we conclude that the trial
court erred in determining, as a matter of law, that these bylaws
and rules created a pre-existing duty which deprives Dr. Deal of
the right to claim that he is immune under the Good Samaritan
statute. Although the factual evidence may be viewed as heavily
weighted toward a finding of such a duty, when deciding a motion
for summary judgment the court must view the facts in the light
most favorable to the opposite view, that is: in the light most
favorable to the non-moving party. Loyal Order of Moose, Lodge
1392 v. International Fidelity Ins. Co., 797 P.2d 622, 628
(Alaska 1990).
Despite this error in the trial court's reasoning, Dr.
Deal's motion for summary judgment was properly denied. Whether
Dr. Deal is immune from suit under the Good Samaritan statute, AS
09.65.090(a), cannot be determined as a matter of law on the
record before us.
AFFIRMED.
_______________________________
1. Kearney filed a separate direct personal injury action
for malpractice against Dr. Deal on June 25, 1991, nearly seven
years after Kearney's accident.
2. Compare: Ogle v. Craig Taylor Equipment Co., 761 P.2d
722 (Alaska 1988); Fellows v. Tlingit-Haida Reg. Elec. Auth., 740
P.2d 428 (Alaska 1987).
3. The statute interpreted in Lee v. State, 490 P.2d 1206
(Alaska 1971), read:
(a) A person, who, without expecting
compensation, renders care to an injured or
sick person, who appears to be in immediate
need of aid is not liable for civil damages
as a result of an act to or omission in
rendering emergency care, or as a result of
an act or failure to act to provide or
arrange for further medical treatment or care
for the injured person.
4. The independent judgment standard of review is
exercised by this court when the interpretation and application
of a statute is at issue. Hertz v. Carothers, 784 P.2d 659, 660
(Alaska 1990), citing Barcott v. Department of Public Safety, 741
P.2d 226 (Alaska 1987).
5. See Danny R. Veilleux, Annotation, Construction and
Application of "Good Samaritan"Statutes, 68 A.L.R.4th 294, 298
(1989) (Statutes covering emergency medical technicians, hospital
"rescue teams,"or ambulance operators are discussed separately
from Good Samaritan statutes "since these subjects address
specific problems requiring separate attention.").
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