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Ward v. Lutheran Hospitals & Homes (8/21/98), 963 P 2d 1031
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
RUTH E. WARD and JAMES WARD, )
JR., on their own, and on ) Supreme Court No. S-7592
behalf of their minor )
children: ) Superior Court No.
JAMES B., d/o/b 7/15/79, ) 4FA-93-3046 CI
GARETH L., d/o/b 5/30/81, )
ANNETTE K., d/o/b 3/7/88, and )
STEVEN R. WARD, d/o/b 5/27/89,)
)
Appellants, ) O P I N I O N
)
v. ) [No. 5028 - August 21, 1998]
)
LUTHERAN HOSPITALS & HOMES )
SOCIETY OF AMERICA, INC., )
d/b/a FAIRBANKS MEMORIAL )
HOSPITAL, )
)
Appellee. )
)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Thomas R. Wickwire, Fairbanks,
for Appellants. Donna M. Meyers, Delaney, Wiles, Hayes, Gerety &
Ellis, Inc., Anchorage, for Appellee.
Before: Compton, Chief Justice, Matthews,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]
FABE, Justice.
COMPTON, Chief Justice, with whom MATTHEWS,
Justice, joins (except as to footnote 1), dissenting in part.
I. INTRODUCTION
Ruth Ward was admitted to Fairbanks Memorial Hospital for
the birth of her fourth child. She was treated under the care of
her personal obstetrician and his associates, none of whom was a
hospital employee. At their direction, Ward received blood
transfusions at the hospital. She was later diagnosed with
hepatitis C. Ward sued Lutheran Hospitals & Homes Society of
America, Inc., d/b/a Fairbanks Memorial Hospital, for negligence in
testing the blood and for failure to obtain her informed consent
for the blood transfusions. The superior court granted summary
judgment to the hospital, and Ward appeals. We affirm.
II. FACTS AND PROCEEDINGS
Ruth Ward was admitted to Fairbanks Memorial Hospital
(FMH) on May 27, 1989, for the birth of her fourth child.
Complications following the birth caused substantial blood loss,
and over the next several days she received eight units of
transfused blood. Six of the units came from the FMH blood bank,
and two were provided by the Blood Bank of Alaska. In December
1992 Ward was diagnosed with hepatitis C, a blood-borne liver
disease.
Ward received her prenatal care from Dr. Lawrence Dunlap
at Tanana Valley Clinic (TVC). Dr. Dunlap also had provided
prenatal care to Ward for two of her previous pregnancies, and in
this instance was her treating physician from the pregnancy test
through delivery. Ward's first contact with FMH was on May 27,
when she went into labor and checked herself in through FMH's
emergency room. She was admitted to the maternity ward under Dr.
Dunlap's care.
While at FMH, Ward was treated by Dr. Dunlap and Drs.
Ralph Wells and Owen Hanley. Each physician ordered blood
transfusions for Ward at FMH. None of the three physicians has an
employment contract with FMH, maintains an office there, or is a
member of the group of physicians that staffs the emergency room.
Each has staff privileges at FMH allowing him to admit and treat
his patients there and see other patients in consultation. Drs.
Wells and Hanley are associated with TVC. They treated Ward
because she was under the care of Dr. Dunlap, a shareholder of TVC.
Ward began to experience symptoms of hepatitis shortly
after receiving blood at FMH. She sued FMH in December 1993,
alleging negligence in the testing of the blood. Ward amended her
complaint to add the Blood Bank of Alaska as a defendant and to
allege failure by FMH to obtain her informed consent for the blood
transfusions. In January 1995 the superior court granted FMH's
motion for summary judgment on Ward's claim that FMH was negligent
in testing the blood. [Fn. 1]
In February 1996 the superior court granted summary
judgment to FMH on all of Ward's remaining claims. In so doing, it
noted that two issues were addressed by the parties' cross-motions
for summary judgment:
1. Does a hospital have an independent duty
to obtain a patient's informed consent for a blood transfusion
ordered by a physician who is not an employee of the hospital; that
is does the hospital have a non-delegable duty to ensure that a
non-employee physician has obtained a patient's informed consent
for a blood transfusion?
2. Can a hospital be held liable for acts or
omissions of a non-employee physician (an independent contractor
physician) based on apparent authority?
III. DISCUSSION
Ward seeks recovery against FMH for its failure to obtain
her informed consent before her treating physicians ordered blood
transfusions. In support of her claim, Ward asserts five theories
of liability, including corporate negligence, [Fn. 2] apparent
agency, non-delegable duty, blood bank liability, and a statutory
duty to obtain informed consent. We reject all of Ward's theories.
[Fn. 3]
A. Standard of Review
Because all claims were resolved by the superior court on
summary judgment, we review the court's decision de novo. See
Alaska Continental, Inc. v. Trickey, 933 P.2d 528, 531 n.1 (Alaska
1997). We may affirm a grant of summary judgment on grounds other
than those advanced by the lower court or parties. See id.
B. FMH Is Not Liable under the Non-Delegable Duty to Provide
Quality Emergency Care or under a Theory of Apparent Agency.
Alaska is the only state that imposes on hospitals a non-
delegable duty to provide quality emergency medical care. Unless
the patient selects the physician herself, a general acute care
hospital will be liable for the physician's negligence in the
emergency room. See Jackson v. Power, 743 P.2d 1376, 1385 (Alaska
1987).
Other jurisdictions rely on the theory of apparent agency
to establish hospital liability for the negligence of independent
contractor physicians. We described this doctrine in Jackson:
One who employs an independent contractor to
perform services for another which are accepted in the reasonable
belief that the services are being rendered by the employer or by
his servants, is subject to liability for physical harm caused by
the negligence of the contractor in supplying such services, to the
same extent as though the employer were supplying them himself or
by his servants.
Id. at 1380 (quoting Restatement (Second) of Torts sec. 429
(1965)).
Despite the separate theoretical underpinnings of
apparent agency and Alaska's non-delegable duty doctrine, in
practice each theory will create liability in the same
circumstances. [Fn. 4] Under either doctrine, a hospital is not
liable for a physician's negligence if the physician is an
independent contractor selected by the patient. [Fn. 5] This rule
is explicit in the non-delegable duty doctrine and is evident in
the application of the apparent agency theory. [Fn. 6] A hospital
is always liable for a physician's negligence in the emergency
room, unless the physician is an independent contractor selected by
the patient.
Application of this standard to the facts of this case
shows that FMH is not liable to Ward. Ward was treated by her own
physician in an emergency room provided for the convenience of the
physician. Although she received the injurious transfusions at
FMH, she was there under the care of her personal physician, Dr.
Dunlap. He is not an employee of FMH and was not provided by the
hospital. He is Ward's obstetrician, he treated her during two of
her previous pregnancies, and he was her treating physician in this
case from her pregnancy test through birth of the child. We
conclude that FMH is not liable for any negligence of Dr. Dunlap in
failing to obtain Ward's informed consent under the non-delegable
duty doctrine. [Fn. 7]
The patient-selected physician exception to hospital
liability also extends to Drs. Wells and Hanley. Both physicians
ordered transfusions for Ward. However, Drs. Wells and Hanley
treated Ward at FMH only because she was under the care of Dr.
Dunlap; all three physicians are associated with TVC. Because Ward
was treated only by her own physician and his associates in an
emergency room provided for their convenience, FMH cannot be held
liable for the physicians' possible negligence under the non-
delegable duty doctrine.
C. Blood Banks Do Not Have a Duty to Obtain the Informed
Consent of Prospective Patients.
Ward argues that as an operator of a blood bank, FMH had
the duty to obtain her informed consent. First, Ward contends that
Alaska regulations governing hospital blood banks require a
hospital to obtain the patient's informed consent. Second, Ward
relies on the testimony of an expert witness, Dr. William Robinson,
that "in May-June 1989, a hospital in America which operated its
own blood bank would [have been] negligent if it failed to disclose
to a prospective blood transfusion patient"the risk of hepatitis.
As an initial matter, the Alaska Administrative Code is
not as explicit as Ward contends. It provides that a general acute
care hospital's medical staff must adopt rules providing for
appointment of a committee on transfusions. See 7 Alaska
Administrative Code (AAC) 12.110(b)(2) (1997). Hospital
laboratories are governed by 7 AAC 12.790-850. Section 12.790(f)
provides:
A laboratory must have or have readily
available from another source blood and blood products. A
laboratory must maintain storage areas for blood and blood products
under adequate control and supervision.
Section 12.850(e) provides:
Virology services must be in compliance with
the following requirements:
(1) systems for the isolation of
viruses and reagents for the identification of viruses must be
available to cover the entire range of viruses which are
etiologically related to those clinical diseases for which
laboratory testing services are offered.
These regulations do not require hospital laboratories to
inform prospective patients of risks inherent in blood
transfusions. They do not mention informed consent. Ward does not
have a cause of action against FMH based on the Alaska
Administrative Code.
The testimony of Ward's expert witness also does not
further her argument. Such testimony does not establish the
hospital blood bank's standard of care. Courts routinely have
rejected the testimony of experts as a basis for establishing this
standard. Instead, they have looked to industry practices and the
rules promulgated by national blood bank organizations and
regulatory authorities.
In Juneau v. Interstate Blood Bank, Inc., 333 So. 2d 354,
356 (La. App. 1976), the court refused to depart from official
industry practices when determining the standard of care for a
blood bank. It held that the patient failed to demonstrate "any
actionable breach of duty,"where the evidence indicated that the
"supplying blood bank screened donors and tested blood in
accordance with the latest guidelines in effect at the time." Id.
Other courts have made clear that industry practices establish the
standard of care, even when an expert witness testifies in favor of
a higher standard. In Wilson v. Irwin Memorial Blood Bank, 18 Cal.
Rptr.2d 517 (Cal. App. 1993), for example, the court held that a
blood bank would not be negligent for failing to use a particular
test despite expert testimony "in the strongest possible terms"
that such a failure fell below the standard of care. Id. at 524.
The court found dispositive the fact that no other blood bank ran
this test and no regulatory authority or blood banking association
recommended that it be used. [Fn. 8] See id.
Courts have deferred to industry practices and national
guidelines when determining a blood bank's standard of care because
it is reasonably certain that these standards are not negligent.
Common law tort principles allow a defendant's adherence to
industry custom to raise a possible inference that his conduct is
reasonable. See Restatement (Second) of Torts sec. 295A cmt. b
(1965). Generally, the patient can attack the custom itself as
negligent. See id. cmt. c. However, "[i]n particular instances,
where there is nothing in the situation or in common experience to
lead to the contrary conclusion, this inference [that adherence to
custom is reasonable] may be so strong as to call for a directed
verdict." Id. cmt. b. This is particularly so where the
practices in question are "the result of careful thought and
decision, [rather than] the kind of inadvertence, neglect, or
deliberate disregard of a known risk which is associated with
negligence." Id. at cmt. c.
Blood banking is an industry whose customs and practices
are entitled to judicial deference. The guidelines for the
industry are set by regulatory agencies and national blood banking
associations. The Alaska Administrative Code specifically applies
these guidelines to hospital laboratories. [Fn. 9] They are
indisputably the product of "careful thought and decision,"not
inadvertence or neglect.
Recipients of transfusions are best served when blood
banks devote their energies to adhering to these guidelines, rather
than attempting to develop their own methods. National
organizations and regulatory agencies have the resources and
expertise to evaluate new ideas. In effect, they act as
clearinghouses for experimental techniques. Rather than having
individual blood banks develop standards for the industry in a
piecemeal fashion, in anticipation of what an expert witness might
later require, courts have evaluated blood banks according to the
accepted practices of their industry. The standard of care for a
blood bank is defined by these practices. Should a medical expert
discover a novel technique that is worthy of implementation, it
will be imposed on blood banks through their national and
regulatory organizations, not through the tort system.
Ward offers no evidence that industry custom or practice
directs blood testing laboratories to obtain the informed consent
of prospective patients. [Fn. 10] In the absence of any showing
that national standards or official guidelines impose such a duty
on blood banks, we conclude that summary judgment was properly
granted to FMH on this issue.
D. FMH Did Not Have a Statutory Duty to Obtain Ward's
Informed Consent. [Fn. 11]
Finally, Ward contends that aside from any common law
theories of hospital liability, FMH owed her a statutory duty "to
obtain [her] informed consent before submitting her to medical
treatment or procedures." Alaska Statute 09.55.556(a) provides:
A health care provider is liable for failure
to obtain the informed consent of a patient if the claimant
establishes by a preponderance of the evidence that the provider
has failed to inform the patient of the common risks and reasonable
alternatives to the proposed treatment or procedure, and that but
for that failure the claimant would not have consented to the
proposed treatment or procedure.
Alaska Statute 09.55.560(1) includes in the definition of health
care provider "a hospital as defined in AS 18.20.130 . . . ."
Alaska Statute 18.20.130 gives an expansive definition of hospital
that clearly includes FMH.
We do not interpret AS 09.55.556(a) as imposing a duty on
FMH to obtain Ward's informed consent. Section (a) provides that
a health care provider is liable if it fails to inform a patient of
"common risks and reasonable alternatives to the proposed treatment
or procedure."(Emphasis added.) Although several health care
professionals and institutions may meet the definition of "health
care provider"under AS 09.55.560 and may be involved in a
patient's care, only the health care provider who proposes and
orders a procedure owes the patient the duty of obtaining her
informed consent. Mere status as a health care provider involved
in a patient's care is insufficient to trigger the duty. [Fn. 12]
In this case Drs. Dunlap, Wells, and Hanley, not FMH, proposed and
ordered Ward's blood transfusions. Because the hospital did not
order the procedure, we hold that it did not owe Ward a duty to
obtain her informed consent under AS 09.55.556(a). [Fn. 13]
In so holding, we are in accord with the consensus among
other jurisdictions that the duty to obtain informed consent does
not extend to hospitals. See Giese v. Stice, 567 N.W.2d 156, 162
(Neb. 1997) (noting that "[t]he vast majority of courts considering
the issue have declined to impose upon hospitals the general duty
of informed consent") (internal quotations omitted); Pauscher v.
Iowa Methodist Med. Ctr., 408 N.W.2d 355, 362 (Iowa 1987) (stating
that "other jurisdictions have held that the responsibility of
obtaining informed consent is the duty of the doctor and the
hospital should not intervene") (citations omitted).
Indeed, this is the predominant view even where informed
consent statutes define hospitals as health care providers. See
Goss v. Oklahoma Blood Inst., 856 P.2d 998, 1007 (Okla. App. 1990)
(observing "consistent rejection of imposition of the duty to
inform on hospitals, even in the presence of a statutorily mandated
duty to inform,"and refusing "to impose upon hospitals the duty to
inform patients of the material risks of a procedure prescribed by
the patient's physician"). In Giese, the court considered an
informed consent statute that defined "health care provider"to
include hospitals. See 567 N.W.2d at 164. Giese sued a hospital
for failing to obtain her informed consent before performing a
breast implantation procedure. See id. at 160. The court rejected
her claim, holding "that a hospital has no independent duty to
obtain a patient's informed consent to a surgical procedure to be
performed by a physician who is not an employee of the hospital and
that such duty lies exclusively with the treating physician." Id.
at 164.
Similarly, an informed consent statute that defined
"health care provider"to include hospitals was at issue in
Alexander v. Gonser, 711 P.2d 347, 350 n.3. (Wash. App. 1985).
Alexander, who was pregnant at the time, was involved in an
automobile accident. See id. at 349. She admitted herself to a
hospital where her obstetrician examined her. See id. The
physician later learned that results of fetal monitoring were
"equivocal,"but did not inform Alexander of these results. Id.
The next day Alexander delivered a child suffering from permanent
brain damage. See id. Alexander sued, claiming that under the
informed consent statute the hospital had a duty to inform her of
the equivocal results. [Fn. 14] See id. The court declined to
impute a duty of disclosure to the hospital, reasoning that "[t]he
fact the hospital comes within the definition of health care
provider alone does not warrant the conclusion that every entity
and every individual that falls within the definition has equal
informed consent obligations." Id. at 351.
The Alexander court relied in part on Fiorentino v.
Wenger, 227 N.E.2d 296, 300 (N.Y. 1967), in which the court
observed that whether a doctor should advise a patient about a
proposed procedure depends upon the exercise of medical discretion
and that "a third party should not ordinarily meddle." With this
analysis in mind, the Alexander court concluded that requiring a
hospital to intervene in the physician/patient relationship "would
be far more disruptive than beneficial to a patient." 711 P.2d at
351. Consistent with this view, courts of other states have
uniformly held that only the patient's physician is in a position
to decide whether to seek the patient's informed consent. [Fn. 15]
The solicitude for physician discretion expressed in
these cases is also found in Alaska law. Alaska Statute
09.55.556(b) provides:
It is a defense to any action for medical
malpractice based upon an alleged failure to obtain informed
consent that
. . . .
(4) the health care provider after considering
all of the attendant facts and circumstances used reasonable
discretion as to the manner and extent that the alternatives or
risks were disclosed to the patient because the health care
provider reasonably believed that a full disclosure would have a
substantially adverse effect on the patient's condition.
Similarly, we have held that
[t]he physician retains a qualified privilege
to withhold information on therapeutic grounds, as in those cases
where a complete and candid disclosure of possible alternatives and
consequences might have a detrimental effect on the physical or
psychological well-being of the patient . . . .
Korman v. Mallin, 858 P.2d 1145, 1150 (Alaska 1993) (quoting Sard
v. Hardy, 379 A.2d 1014, 1022-23 (Md. 1977)). The physician who is
proposing and directing a procedure, not the hospital, is
sufficiently familiar with the patient and has the expertise
necessary to evaluate the patient's condition and to determine what
information the patient needs to give informed consent. See, e.g.,
Patrick v. Sedwick, 391 P.2d 453, 458 (Alaska 1964) ("[D]octors
frequently tailor the extent of their preoperative warning to the
particular patient to avoid the unnecessary anxiety and
apprehension which such appraisal might arouse in the mind of the
patient."); Giese, 567 N.W.2d at 163; Roberson v. Menorah Med.
Ctr., 588 S.W.2d 134, 137 (Mo. App. 1979). Rarely will a hospital
employee who is carrying out a doctor's orders possess the complete
and particularized knowledge of the patient necessary to exercise
the discretion to withhold information. As a matter of policy,
this delicate medical judgment is best left to the discretion of
the patient's treating physician who has proposed and ordered the
procedure.
Given our reading of AS 09.55.556(a), our consideration
of the decisions of other courts interpreting similar statutes, and
the deference to a physician's discretion found in Alaska law, we
conclude that FMH did not owe a statutory duty to obtain Ward's
consent before her physicians proposed and ordered blood
transfusions.
IV. CONCLUSION
The superior court's grant of summary judgment in favor
of FMH is AFFIRMED.
COMPTON, Chief Justice, with whom MATTHEWS, Justice, joins (except
as to footnote 1), dissenting in part.
I do not agree with the analysis in part III.D of Justice
Fabe's opinion. [Fn. 1] I would conclude that FMH has a statutory
duty to ensure that physicians using its facilities obtain the
informed consent of their patients.
Alaska Statute 09.55.556(a) provides:
A health care provider is liable for failure
to obtain the informed consent of a patient if the claimant
establishes by a preponderance of the evidence that the provider
has failed to inform the patient of the common risks and reasonable
alternatives to the proposed treatment or procedure, and that but
for that failure the claimant would not have consented to the
proposed treatment or procedure.
Alaska Statute 09.55.560(1) includes in the definition of health
care provider "a hospital as defined in AS 18.20.130." Alaska
Statute 18.20.130 gives an expansive definition of hospital that
clearly includes FMH.
There is no textual basis for concluding that, because
the statute references a "proposed"procedure, only the health care
provider who proposes the procedure is responsible for obtaining
informed consent. Until a procedure is proposed there is nothing
to which the patient may consent. This court should not blind
itself to the everyday practice whereby physicians leave
instructions for hospital staff to carry out medical procedures
that the physician neither attends nor directly supervises, but
that entail risks about which reasonable patients would want to be
informed. If a hospital's duty to obtain informed consent has any
real force, it must apply under such circumstances. Hospitals do
not practice medicine independently of the individuals they employ.
A hospital itself will never "propose"a procedure, as the court
suggests, yet the clear intent of the statute is to impose some
responsibility on hospitals to obtain patients' informed consent.
To the extent that hospitals may be said to propose procedures
through physician employees, they are already subject to liability
under a respondeat superior theory for any failure by such
employees to obtain informed consent. The liability imposed by
AS 09.55.556(a) becomes wholly superfluous under Justice Fabe's
reading, since the statute would impose no new liability on
hospitals. A logical construction of AS 09.55.556(a) requires
imposition of liability for failure to obtain informed consent on
both the health care provider proposing the procedure and on any
health care provider performing the procedure. Hospitals would be
responsible for obtaining informed consent, or ensuring that it is
obtained, when one of their employees performs a procedure proposed
by an independent physician.
Courts of other states have held that only the patient's
physician is in a position to decide whether to seek the patient's
informed consent. Those courts have therefore exempted hospitals
from the informed consent duty, in order to protect physicians'
discretion. [Fn. 2] But these cases, for the most part, did not
involve a statute specifically imposing on hospitals the duty to
obtain informed consent.
Giese v. Stice, 567 N.W.2d 156 (Neb. 1997) presents an
exception. In Giese the Nebraska Supreme court did indeed elect to
ignore clear statutory language (defining "health care provider"
and imposing a duty to obtain informed consent on "health care
providers") based on its own notion that following the language
would be a bad idea. Id. at 164. I can comment only that such a
case is poor precedent at best. It is not the function of this
court to rewrite clearly constructed statutes. "It is true that
there is no longer a plain meaning rule as such in Alaska law.
Where a statute's meaning appears clear and unambiguous, however,
the party asserting a different meaning bears a correspondingly
heavy burden of demonstrating contrary legislative intent."
University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997).
No such showing has been made in this case. Following an example
such as that set by Giese puts one in mind of a story about a
certain intoxicated farmer who left a tavern in his wagon late one
night, took a wrong turn, and found himself in a field of potholes.
The next morning many others followed the wagon ruts left by the
farmer, with predictable consequences.
Were it not for AS 09.55.556(a) and AS 09.55.560(1), I
might find the reasoning of the out-of-state cases discussed in
Justice Fabe's opinion to be persuasive, particularly in light of
the deference to physician discretion expressed in
AS 09.55.556(b)(4) and Korman v. Mallin, 858 P.2d 1145 (Alaska
1993). The language of AS 09.55.556(a), however, is clear. It
imposes a duty on hospitals to take measures to ensure that their
patients are fully informed of common risks and reasonable
alternatives to any proposed procedures that the hospitals
undertake to perform, whether at the direction of the treating
physician or on their own initiative.
Any duty imposed on hospitals by AS 09.55.556(a) would
have to be tempered by the discretion not to seek informed consent
that is guaranteed by AS 09.55.556(b)(4). [Fn. 3] This position is
in accord with the consensus among other jurisdictions that the
patient's physician is in the best position to decide whether to
inform the patient of the risks attendant to treatment. The role
assigned to hospitals by AS 09.55.556(a) does not displace the
physician's discretion. The hospital may fulfill its duty simply
by determining from a patient's chart that an informed consent form
has been signed under a physician's supervision. If no informed
consent is attached to the patient's chart, the duty may require
that the hospital contact the physician. The hospital must then
either determine that the physician has exercised his
AS 09.55.556(b)(4) discretion not to obtain informed consent or
request that the physician obtain an informed consent. That
failing, the hospital must obtain its own informed consent or
exercise its discretion not to obtain informed consent. The
hospital as well as the physician is performing the medical
procedure. Should the hospital neglect to carry out this duty, it
would be liable for failure to obtain informed consent under
AS 09.55.556(a).
In this case, it does not appear that FMH adopted
measures to ensure that its patients are fully informed of common
risks and reasonable alternatives to proposed procedures that the
hospital undertakes to perform. I would remand for a determination
of this issue, requiring the superior court to allow FMH to
supplement the record with information on any such measures it had
in place at the time of Ward's transfusion. [Fn. 4]
FOOTNOTES
Footnote 1:
The trial court also approved the parties' stipulation for
dismissal of Blood Bank of Alaska as a party.
Footnote 2:
Ward failed to present her corporate negligence theory to the
superior court. Indeed, in her reply brief Ward does not dispute
FMH's contention that Ward neither expressly nor impliedly raised
the issue below. An issue cannot be considered for the first time
on appeal. See Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska
1993). We therefore consider Ward's corporate negligence claim
waived.
Moreover, we note that the argument appears meritless.
Under the corporate negligence doctrine, "hospitals have a duty to
their patients to verify the qualifications of admitted physicians
and to review their performance." Kenneth Abraham and Paul Weiler,
Enterprise Medical Care Liability and the Evolution of the American
Health Care System, 108 Harv. L. Rev. 381, 390 (1994); see also
Jackson v. Power, 743 P.2d 1376, 1378 n.2 (Alaska 1987) (explaining
corporate negligence doctrine). A corporate negligence claim
requires proof that the hospital should have known that the
physician would act negligently before the negligence at issue
occurred. See Tuscon Med. Ctr. v. Misevch, 545 P.2d 958, 960
(Ariz. 1976). Such a showing generally will consist of evidence
that the physician either lacked standard credentials or previously
had been the subject of a malpractice suit or disciplinary
proceedings. See Abraham and Weiler, supra, at 391. Ward failed
to present any evidence of this nature.
Additionally, other courts have held that the corporate
negligence doctrine does not encompass a claim for a hospital's
failure to obtain a patient's informed consent. See, e.g.,
Petriello v. Kalman, 576 A.2d 474, 478 (Conn. 1990); Cox v.
Haworth, 283 S.E.2d 392, 394-95 (N.C. App. 1981).
Footnote 3:
We note in passing that the superior court's memorandum and
order of summary judgment states, "The court takes no position
regarding actual authority or any contractual duty. This is not an
issue that is before the court at this time." This disposition
suggests that Ward may still litigate as-yet unexplored theories of
liability against FMH. This is not correct. Because Ward failed
to make these arguments in a proceeding on which final judgment was
entered below, any future attempt to raise these claims against FMH
on the basis of the transaction at issue in this case would be
precluded by the doctrine of res judicata. See DeNardo v. State,
740 P.2d 453, 456 (Alaska 1987).
Footnote 4:
As applied by the courts in the hospital context, the apparent
agency doctrine has been broadened. We noted in Jackson that
apparent agency
does not require an express representation to
the patient that the treating physician is an employee of the
hospital. Nor is direct testimony as to reliance required absent
evidence that the patient knew or should have known that the
treating physician was not a hospital employee when the treatment
was rendered.
Jackson, 743 P.2d at 1382 n.10. On the other hand, we specifically
narrowed the non-delegable duty doctrine when we applied it to the
hospital context in Jackson. We held that the hospital would not
be liable for the physician's negligence "where the patient is
treated by his or her own doctor in an emergency room provided for
the convenience of the doctor." Id. at 1385.
Footnote 5:
One pair of commentators has remarked on the contiguity
between the two doctrines. Kenneth Abraham and Paul Weiler note
that in theory, a patient asserting apparent agency must show
reliance, and courts cannot impose liability when the hospital has
dispelled the appearance that the physician is its agent. See
Kenneth Abraham and Paul Weiler, Enterprise Medical Care Liability
and the Evolution of the American Health Care System, 108 Harv. L.
Rev. 381, 389 (1994). In practice, however, few jurisdictions have
required a showing of reliance, and courts virtually never dismiss
a claim because the hospital dispelled the appearance of agency.
See id. Abraham and Weiler conclude that although only Alaska
makes the duty to provide quality emergency room care non-
delegable, "the effect in other jurisdictions is the same." Id.
The non-delegable duty doctrine simply makes it explicit that "the
hospital bears vicarious liability for the torts of at least some
of its independent-contractor physicians." Id.
Footnote 6:
Because we now acknowledge that the two doctrines cover the
same area, a litigant need not separately plead apparent agency in
order to establish a hospital's liability for a physician's
emergency room negligence. Thus, although Ward's apparent agency
theory was not adequately briefed, it was preserved by her claim
under the non-delegable duty doctrine.
Footnote 7:
Our resolution of this issue is consistent with the
overwhelming weight of authority in this area. All other
jurisdictions have refused to impose apparent agency liability on
hospitals for failure to obtain informed consent where the
connection between the hospital and physician is insufficient to
hold the hospital vicariously liable for the physician's
negligence. See Cox v. Haworth, 283 S.E.2d 392, 396 (N.C. App.
1981) ("[T]he Hospital had no duty to inform [the patient] of the
risks and procedures to be used . . . or to secure his informed
consent when [the procedure was performed by patient's] own
privately retained physician."); Lincoln v. Gupta, 370 N.W.2d 312,
318 (Mich. App. 1985) ("[T]he hospital did not have a duty to
obtain the informed consent of [the patient where the physician]
. . . was [patient's] private physician."); Roberson v. Menorah
Med. Ctr., 588 S.W.2d 134, 137 (Mo. App. 1979) (finding no "duty on
the part of the defendant hospital to inform the patient of risks
attendant upon . . . surgical procedure, or to inform her of
alternative methods of treatment"where there was "no suggestion in
the evidence that either physician was an agent of the hospital");
Cross v. Trapp, 294 S.E.2d 446, 459 (W. Va. 1982) ("when a patient
asserts that a particular method of medical treatment, such as
surgery, was performed . . . without the patient's consent, the
hospital where that treatment was performed will ordinarily not be
held liable to the patient . . . where the [privately retained]
physician . . . was not an agent or employee of the hospital"
during the period in question).
In Texas, courts have gone so far as to make the
physician's duty to obtain the patient's informed consent non-
delegable. See Boney v. Mother Frances Hosp., 880 S.W.2d 140, 143
(Tx. App. 1994) ("In Texas, this duty is imposed solely on the
treating doctor; it is his non-delegable duty. The hospital [is
not] . . . required to secure a patient's informed consent prior to
surgery.").
Footnote 8:
See also Hutchins v. Blood Servs. of Montana, 506 P.2d 449,
452-53 (Mont. 1973) (holding one expert's testimony in favor of a
blood test was insufficient to establish lack of ordinary care
where "no one in the blood banking business used"the test and
"neither the government's regulating agency, the blood bankers'
accrediting association, [or] the American Medical Association
. . . had ever asked blood bankers to use"the test).
There is one exception to the courts' otherwise unalloyed
deference to industry practices. Some are willing to review blood
banks' donor screening policies. See, e.g., Gilmore v. St. Anthony
Hosp., 598 P.2d 1200, 1206 (Okla. 1979) (finding whether blood bank
exercised reasonable care in screening and selecting donors is jury
question); Hutchins, 506 P.2d at 453 (holding that blood bank not
negligent where it did not accept blood from "dangerous donor[s]"
such as addicts).
Footnote 9:
See 7 AAC 12.820(a) and (d):
A laboratory must successfully participate
annually in a nationally recognized proficiency test program or a
proficiency test program administered by the department [of Health
and Social Services] for each testing service offered by the
laboratory.
. . . .
In this section, "nationally recognized
proficiency test program"means a proficiency test program that is
recognized by the American Association of Bioanalysts, Center for
Disease Control, College of American Pathologists, or any other
nationally recognized testing authority.
Footnote 10:
No court has ever required a blood bank to obtain a blood
recipient's informed consent. One jurisdiction has specifically
rejected the existence of such a duty. A Georgia court found no
liability in the laboratory or hospital where hepatitis-infected
blood had been tested and handled in conformity with standards
promulgated by the American Association of Blood Banks, and the
transfused units were tested for compatibility with the patient.
See Sanders v. Colquitt County Hosp. Auth., 348 S.E.2d 490, 491-92
(Ga. App. 1986). The court found the defendant had no duty to
inform patients of "the specific risk of contracting hepatitis as
a result of blood transfusions." Id. at 492 (citing Parr v.
Palmyra Park Hosp., 228 S.E.2d 596 (Ga. App. 1976)).
Footnote 11:
Four justices have participated in the decision of this
appeal, two of whom dissent from this section of the opinion. "A
decision by an evenly divided court results in an affirmance."
Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997). Because we agree
with the view previously expressed by Chief Justice Matthews that
"appellate opinions require reasons for the conclusions reached,"
we set forth our analysis in this section. City of Kenai v.
Burnett, 860 P.2d 1233, 1245-46 (Alaska 1993) (Matthews, J.,
concurring) (citation omitted). In doing so, we follow the recent
practice of this court. See, e.g., Hayes v. A.J. Assocs., Inc.,
___ P.2d ___, Op. No. 4992 at 38 (Alaska, May 22, 1998); Thoma, 947
P.2d at 824.
Footnote 12:
The statutory definition of "health care provider"includes a
wide variety of health care professionals, such as chiropractors,
dental hygienists, naturopaths, and optometrists. See AS 09.55.560.
Their inclusion in the statute, however, does not require them to
obtain the patient's informed consent when another of the patient's
health care providers orders a procedure. Rather, a health care
provider must obtain the patient's informed consent only when
proposing and directing the procedure.
Footnote 13:
As noted above, a hospital may be liable under the non-
delegable duty doctrine for the negligence of a physician who is
not an independent contractor selected by the patient. Moreover,
where a hospital employee proposes or orders a procedure, the
hospital may have a duty to obtain the patient's informed consent
under AS 09.55.556(a). Because Drs. Dunlap, Wells, and Hanley were
independent contractors selected by Ward, and not hospital
employees, such is not the case in this appeal.
Footnote 14:
Alexander is arguably distinguishable from the case at hand to
the extent that it involves the failure to inform the patient of
the risks of a doctor's inactive treatment of her condition, while
this case involves the failure to inform the patient of the risks
of a doctor's proactive treatment of her condition. The two,
however, are opposite sides of the same coin. As the Alexander
court concluded, "[i]nformed consent focuses on the patient's right
to know his or her body's condition and to decide what should be
done about it." Alexander v. Gonser, 711 P.2d 347, 350 (Wash. App.
1985). In both cases, regardless of whether the physician pursued
an active or inactive course of treatment, the patients were denied
adequate information about what to do about their conditions. In
this respect, the cases are fundamentally similar.
Footnote 15:
See, e.g., Roberson v. Menorah Med. Ctr., 588 S.W.2d 134, 137
(Mo. App. 1979):
The one dealing with the patient at this point
must have knowledge of the patient -- his temperament, his
intelligence, his mental condition and his physical condition. He
must also have a knowledge of the surgery itself --its risks,
whether imminent or remote, and whether it is pressing, deferrable
or optional. He must know the availability of conservative methods
of treatment, if any, and their promises for success as compared to
the surgery. All these factors must be placed in the equation.
The physician alone is equipped to make the delicate judgments
called for.
See also Krane v. Saint Anthony Hosp. Sys., 738 P.2d 75, 77 (Colo.
App. 1987) ("It is the surgeon, and not the hospital, who has the
technical knowledge and training necessary to advise each patient
of the risks of the surgery prior to the patient giving his
consent."); Kershaw v. Reichert, 445 N.W.2d 16, 17 (N.D. 1989)
(holding that because only the physician has personal knowledge of
the patient's condition, the hospital has no duty to secure the
patient's informed consent); Kelly v. Methodist Hosp., 664 A.2d
148, 151 (Pa. Super. Ct. 1995) ("It is the surgeon and not the
hospital who has the education, training and experience necessary
to advise each patient of risks associated with the proposed
surgery. Likewise, by virtue of his relationship with the patient,
the physician is in the best position to know the patient's medical
history and to evaluate and explain the risks of a particular
operation in light of the particular medical history.").
FOOTNOTES (Dissent)
Footnote 1:
I have written that this court should have retained its former practice, when affirming
a decision by an evenly-divided vote, of issuing an order stating only that the decision is
affirmed. See Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d 99, 103 (Alaska 1988)
(Compton, J., stating reason for declining to express basis of disagreement with superior
court's decision). Because such affirmances are not precedent, "[s]tating personal opinions
for affirmance or reversal . . . is at best advisory, at worst confusing and misleading.
Individual justices' opinions are simply immaterial." City of Kenai v. Burnett, 860 P.2d 1233,
1246 (Compton, J., concurring) (Alaska 1993). In this case, however, I feel that Justice
Fabe's advisory discussion of her reasons for voting to affirm the superior court's judgment
requires a reply, albeit equally advisory. Justice Fabe and I obviously each hope that some
future party will persuade a majority of this court to adopt our respective views as law. While
I think that it would be better for us each to leave those views unexpressed until then, it
seems the lesser of two evils that the Pacific Reporter print advice on both sides of the issue
for future parties to peruse.
Footnote 2:
See, e.g., opinions quoted and summarized in Justice Fabe's opinion, supra, at 18
n.15.
Footnote 3:
Alaska Statute 09.55.556(b)(4) provides:
It is a defense to any action for medical malpractice based upon
an alleged failure to obtain informed consent that
. . . .
(4) the health care provider after considering all of the
attendant facts and circumstances used reasonable discretion as to the manner and extent
that the alternatives or risks were disclosed to the patient because the health care provider
reasonably believed that a full disclosure would have a substantially adverse effect on the
patient's condition.
Similarly, we have held that
[t]he physician retains a qualified privilege to withhold
information on therapeutic grounds, as in those cases where a complete and candid disclosure
of possible alternatives and consequences might have a detrimental effect on the physical or
psychological well-being of the patient.
Korman v. Mallin, 858 P.2d 1145, 1150 (Alaska 1993) (quoting Sard v. Hardy, 379 A.2d
1014, 1022 (Md. 1977)).
Footnote 4:
The superior court would also consider on remand whether Ward was owed a duty of
informed consent at the time she was treated at FMH. If it was too late to pursue alternative
sources of blood or alternatives to blood transfusion by the time Ward was admitted to FMH,
then Ward could not have been harmed by a failure by FMH to ensure that its physicians
would seek informed consent, and Ward would have no cause of action against FMH.
