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Taylor v. Johnston (8/13/99) sp-5152
Notice: This opinion is subject to 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
CHARLES TAYLOR and CHARMAINE )
TAYLOR, husband and wife, and ) Supreme Court No. S-8316
as parents and next friends )
of Charles Michael Taylor, ) Superior Court No.
Jr.; Angelo Tishwan Taylor; ) 3AN-94-6414 CI
Anton Q-Terrio Taylor; )
Wilbert Levar Taylor; and ) O P I N I O N
Keianna Lillian Charmaine )
Taylor, ) [No. 5152 - August 13, 1999]
OLIVER JOHNSTON, as personal )
representative for GLENN )
FERRIS, M.D., deceased, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: William J. Donohue, Girdwood, for
Appellants. Donna M. Meyers and Howard A. Lazar, Delaney, Wiles,
Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellee.
Before: Matthews, Chief Justice, Fabe,
Bryner, and Carpeneti, Justices. [Eastaugh, Justice, not
After becoming a partial paraplegic following treatment
for migraine headaches, Charles Taylor sued his doctor, Glenn
Ferris, for medical malpractice. [Fn. 1] The jury found that
Ferris was not negligent. Taylor appeals the defense verdict,
arguing that the trial court erred by (1) denying his motion to
amend the complaint to include a claim for battery based on
Ferris's alleged fraud in obtaining his medical license, (2)
denying his motion to reopen discovery, and (3) allowing trial to
proceed without an expert advisory panel report. We affirm.
II. FACTS AND PROCEEDINGS
In June 1993 Charles Taylor's neurologist referred him to
Dr. Glenn Ferris for treatment of his migraine headaches. Taylor
visited Ferris for a consultation and examination on June 29. He
received the first of a series of trigger-point injections the next
day. A week later, Ferris performed a cervical epidural steroid
injection on Taylor at the Alaska Surgery Center. During this
procedure, Ferris injected a drug into an area of Taylor's neck
that lies very close to the spinal cord.
Soon after this injection, Taylor began to experience
complications and severe pain in his neck. An emergency room
doctor and a neurosurgeon determined that Taylor had developed a
blood clot. The neurosurgeon removed the blood clot, but a second
blood clot then developed. After removal of the second blood clot,
Taylor sustained permanent spinal cord injuries.
Taylor sued Ferris for medical negligence in July 1994.
Three months later, Taylor moved for appointment of an expert
advisory panel pursuant to AS 09.55.536, which provides for an
independent review process for medical malpractice claims. Ferris
did not oppose the motion but recommended that the court appoint an
expert from each of three specialties: physical medicine, any
medical specialty familiar with the use of injections of epidural
steroids for pain relief, and neurosurgery. Superior Court Judge
Joan M. Woodward granted this motion in November 1994 but did not
appoint a panel at that time. [Fn. 2] Judge Woodward held a
pretrial conference in October 1995 and scheduled trial for October
In March 1996 Taylor again moved for appointment of an
expert advisory panel. Judge Woodward informed the parties of the
Alaska State Medical Association's submitted nominations to the
panel -- all anesthesiologists -- and ordered the parties to
exchange documents and exhibits for the panel's review. Ferris
then moved to disqualify one nominee, claiming that the doctor had
personal animosity and bias toward him. At the same time, Ferris
asked to substitute a physiatrist and a neurosurgeon for two of the
panel nominees. Ferris also suggested that the panel process was
futile because trial was at that point only seven weeks away.
Taylor opposed this motion, asserting that Ferris did not support
his claim of bias with any evidence other than hearsay and that a
physiatrist is held to the same standard of care as an
anesthesiologist in a medical negligence action.
About a month before trial, Taylor moved for a
continuance and asked to reopen discovery in order to present newly
discovered evidence of Ferris's allegedly fraudulent actions in
obtaining his medical license to the expert advisory panel.
Taylor's stated reasons for the necessity of a continuance were
that (1) discovery of expert witnesses was not complete; (2) the
expert advisory panel had not reviewed the case; (3) Ferris had
challenged the panel composition; (4) the assigned judge had
retired; and (5) a party had preempted the newly assigned judge,
leaving no judge to decide the outstanding motions. In support of
his motion to reopen discovery, Taylor claimed that additional
discovery was necessary to refute Ferris's credibility and to prove
that Ferris lacked the degree of knowledge and skill required of
health care providers.
On October 8, 1996, Superior Court Judge Rene J. Gonzalez
held a status conference at which he postponed the trial date to
June 1997; he did not rule on the motion to reopen discovery. On
the same day, Taylor moved to file a second amended complaint that
included a battery claim against Ferris. In his opposition to this
motion, Ferris argued that the motion was untimely and that the
amended complaint would fail to state a claim upon which relief
could be granted.
In support of his motions for continuance, to reopen
discovery, and to amend the complaint, Taylor pointed to evidence
that Ferris had lied to the Alaska Medical Board and the Alaska
Surgery Center when he told them that he had never been barred from
receiving a license in any other state. Taylor also offered to
prove that the Texas Board of Medical Examiners had denied Ferris's
application to be licensed in Texas in 1988 because of "concerns
relating to his medical education, falsification of his application
for licensure, questionable professional ability, and lacking
documentation." Taylor further alleged that Ferris had failed to
complete the requirements for a medical degree from the University
of Montemorelos in 1981 because he was in Powell, Wyoming during
his required year of social service training. Finally, Taylor
stated that Ferris never completed the requirements for
certification by the American Board of Physical Medicine and
Rehabilitation because he did not complete a year of clinical
practice. [Fn. 3] Because of these alleged misrepresentations,
Taylor claims that Ferris was not properly licensed in Alaska in
1993, when Taylor was his patient.
The court denied Taylor's motion to file a second amended
complaint. While the court found the motion untimely, it did not
believe that the untimeliness was a sufficient ground for denying
the motion. Instead, it based its ruling on the conclusion that a
cause of action for battery by medical fraud did not exist.
In October 1996 the superior court appointed the three
originally submitted nominees to the expert advisory panel. The
court denied Ferris's motion for disqualification of one panel
nominee and his motion for substitution of a physiatrist or
neurosurgeon. The court instructed the panelists to answer
specific questions regarding the medical treatment that Ferris
provided to Taylor.
The parties submitted lists of documents for panel review
in November 1996. Taylor's proposed submissions included documents
supporting his claim that Ferris had fraudulent credentials.
Ferris sought to include a medical summary of Taylor's medical
records and certain depositions. Both parties moved to limit the
other's submissions. But the court never ruled on these motions,
[Fn. 4] and the expert advisory panel never issued a report because
it did not receive the documents.
The trial proceeded on June 2, 1997, addressing only the
issue of negligence. The jury found that Ferris was not negligent.
Taylor appeals the trial court's denial of his motion to file an
amended second complaint including battery, his motion to reopen
discovery to support that battery claim, and the trial court's
failure to submit the case to the panel.
A. Standard of Review
Superior courts have broad discretion to determine
whether to allow or refuse an amendment to a complaint [Fn. 5]
after a responsive pleading has been filed; [Fn. 6] we will
interfere only if we find an abuse of discretion. [Fn. 7]
Similarly, we review a motion to reopen discovery for an abuse of
discretion. [Fn. 8] "We will find an abuse of discretion when we
are left with a definite and firm conviction after reviewing the
whole record that the trial court erred in its ruling."[Fn. 9]
We apply our independent judgment to questions of
statutory interpretation, [Fn. 10] such as whether the trial court
properly construed and fulfilled its statutory duty to appoint an
expert advisory panel. This court's duty is "to adopt the rule of
law that is most persuasive in light of precedent, reason, and
B. The Trial Court Properly Denied Taylor's Motion to File
a Second Amended Complaint.
Taylor argues that he should have been allowed to amend
his complaint to include a battery claim because Ferris obtained
his consent to the cervical injections by fraud. Alaska Civil Rule
15(a) provides that, after responsive pleadings have been filed,
"leave [to amend] shall be freely given when justice so requires."
But "[i]f the proposed change clearly is frivolous or advances a
claim or defense that is legally insufficient on its face, the
court may deny leave to amend."[Fn. 12] In deciding a motion to
amend a complaint, the trial court must balance "the degree of
prejudice to the opposing party against the hardship to the movant
if the amendment is denied."[Fn. 13]
Ferris asserts that the trial court correctly concluded
that justice did not require allowing the amendment because
allowing the amendment would have resulted in "significant delay,
time and expense"for "an amendment that on its face would not
withstand a motion to dismiss." In particular, Ferris claims that
"[t]he additional battery claim would have substantially changed
the theory of the case and required additional discovery and
preparation for trial."
In denying the motion to amend, the trial court focused
on the futility of the battery claim rather than the potential
prejudice to Ferris. The trial court found that no cause of action
for battery existed because Ferris performed the procedure with
"the intent of curing Taylor":
Taylor alleges that the performance by Ferris
of the injection upon Taylor constitutes a battery as Ferris was
not a validly licensed physician. . . . Taylor, however, has
provided no indication whatsoever that Ferris intended to commit a
harmful contact with Taylor. To the contrary, given the proffered
materials, it is clear that Ferris intended to help Taylor through
the injection, and it was anything but his intention to harm
Relying on the Restatement (Second) of Torts sec.sec. 18,
and 34 comment a, we recognized in Merrill v. Faltin [Fn. 14] that
motive is not a critical element of a battery claim:
To make one liable for an assault and battery
it is not necessary that he be inspired by malicious motives. If
one acts intending to cause a harmful or offensive contact with the
person of another, and if the latter is put in imminent
apprehension of such a contact, and an offensive contact results,
one is liable for an assault and battery even though he acted with
no feeling of hostility or ill will or enmity toward the other.[[Fn. 15]]
We reemphasized this reasoning in Lowdermilk v. Lowdermilk, [Fn.
16] when we again noted that an actor may be liable for an assault
and battery despite a lack of intent to cause injury. [Fn. 17]
Thus, under Alaska law, an assault and battery claim turns not on
the motive of the actor but on the consent of the victim.
We have not had an occasion to address a medical battery
claim in which a physician obtains a patient's consent by fraud.
But the commentary to the Restatement (Second) of Torts sec. 892B
states that "if [a person] is induced by the fraud, mistake or
duress to consent to a harmful or offensive contact with his
person, he may maintain an action for battery."[Fn. 18] The
Restatement specifically notes that fraud may negate the element of
consent between a patient and a doctor, providing the following
example: "A, a physician, called to attend B in childbirth, takes
C, a layman, with him. B, believing as C knows, that he is a
physician, permits him to attend her during her confinement. C,
under A's direction, holds B's hands. C is subject to liability to
In a factually analogous Connecticut case, Khouri v.
Koloniaris, [Fn. 20] the plaintiff alleged that the removal of his
teeth by the defendant constituted an assault and battery because
the defendant had falsely claimed to be a licensed dentist. [Fn.
21] The plaintiff claimed that he would not have consented to the
act if he knew the defendant was not a licensed dentist. [Fn. 22]
The defendant moved to strike the claim because the plaintiff
failed to allege that the defendant intended to cause the injuries.
[Fn. 23] In rejecting the defendant's argument, the Connecticut
superior court reasoned:
[I]ntent is gist of action only where battery
is committed in performance of act not otherwise unlawful; if cause
of action is battery committed in performance of unlawful or
wrongful act, intent of wrongdoer to injury is immaterial; he is
answerable for what directly and actually results from his conduct,
even though he did not intend the particular injury which follows.[[Fn. 24]]
While the court noted that medical battery has generally been
reserved for situations in which a physician fails to obtain any
consent to the particular treatment, [Fn. 25] it nevertheless
concluded that "[b]ecause the plaintiff has alleged that the
defendant fraudulently misrepresented himself as a licensed dentist
and that the plaintiff allowed the defendant, based on that
misrepresentation, to provide dental treatment . . . , the
plaintiff has indeed alleged sufficient facts to support an action
for battery."[Fn. 26]
Because we find these authorities convincing, we conclude
that a battery claim may lie if a person falsely claiming to be a
physician touches a patient, even for the purpose of providing
medical assistance. But here, Taylor was not treated by someone
who was falsely representing himself as licensed. In fact, Ferris
had a medical degree, was certified by the American Board of
Physical Medicine and Rehabilitation, and was licensed to practice
in Alaska. Accordingly, Ferris's representations to Taylor that he
was a licensed and board-certified doctor were accurate. Thus,
Taylor may not sue for battery on the basis that Ferris falsely
claimed to be a licensed doctor.
Taylor does not dispute that Ferris is licensed; instead,
he contends that Ferris improperly obtained his license by
misrepresenting his credentials. But as Ferris argues, "the
superior court and the jury lack authority to declare Dr. Ferris'
license to be void or voidable." Alaska's statutory scheme confers
exclusive authority to grant or revoke licenses to the Alaska State
Medical Board. [Fn. 27] Such a delegation makes sense because
"[m]edicine is a complex subject and . . . [t]he Board is a
competent body equipped with the necessary medical knowledge to
determine whether a doctor's license to practice should be
revoked."[Fn. 28] And as Ferris notes, "[i]f a plaintiff could
bring a fraud claim by simply alleging a licensed physician was not
properly licensed, nearly every medical negligence action would
include a fraud claim."
For these reasons, we choose not to look behind the
Board's decision to license Ferris. Taylor could have requested a
stay of the case in order to apply to the licensing board for an
action on Ferris's license or a declaration that Ferris's license
was void from its issuance, but he did not do so. The fact that
Ferris was licensed in Alaska at the time of the procedure defeats
Taylor's claim for medical battery based on fraud.
C. The Trial Court's Failure to Rule on the Motion to Reopen
Discovery Does Not Require Reversal.
The trial court never ruled on Taylor's motion to reopen
discovery to further explore the representations Ferris made to
obtain his medical degree and license. Taylor now argues that the
trial court's failure to rule on the motion, thereby preventing
Taylor from supporting his battery claim or impeaching Ferris's
credibility, requires reversal and a new trial. We disagree.
Ferris maintains that Taylor effectively abandoned his
motion to reopen discovery when he requested that the superior
court not delay the trial if this court refused to grant Taylor's
petition for review. Taylor initially moved to reopen discovery in
order to submit further evidence to the expert advisory panel. But
he later petitioned this court for review of the motion to reopen
discovery for impeachment purposes. He then conceded a month
before trial that "[i]f the Supreme Court ruling is against Taylor,
then there is no reason to delay the trial. As matters now stand,
Taylor does not want to vacate the trial date." When the trial
court ordered that the summary judgment hearing would take place as
scheduled, it commented that "[t]he parties have made it clear that
the trial date of June 2, 1997, [should] remain undisturbed."
Moreover, Taylor did not alert the trial court after we denied the
petition for review that the motion to reopen discovery was still
pending. Because Taylor failed to request a ruling on the motion
to reopen discovery after denial of the petition for review and
insisted that the trial date not be postponed, the trial court had
no reason to understand that it needed to rule on the motion for
the purpose of allowing Taylor to develop impeachment material for
Even if the trial court erred in failing to reopen
discovery, we conclude that any error was harmless. [Fn. 29] The
trial court permitted Taylor to introduce a substantial amount of
impeachment evidence at trial, allowing him to question the
validity of Ferris's medical degree and the fulfillment of the
social service required to complete his training. During trial,
Taylor was also permitted to accuse Ferris of misrepresenting and
falsifying his credentials to obtain board certification from the
American Board of Physical Medicine and Rehabilitation. Finally,
the court admitted testimony from Taylor's experts that Ferris had
fraudulently obtained his medical degree and board certification
and that other states had denied his license for these reasons.
Because the trial court gave Taylor substantial latitude to present
this impeachment evidence, any error in the trial court's failure
to rule on the motion to reopen discovery for impeachment purposes
D. The Trial Court Did Not Err in Proceeding to Trial
Without an Expert Advisory Panel Report.
Because the trial court never ruled on the parties'
motions regarding submission of documents to the expert advisory
panel and that panel subsequently never issued a report, Taylor
contends that the case should be remanded for a new trial on
negligence, causation, and damages. Alaska Statute 09.55.536
"provides for mandatory pre-trial review of medical malpractice
claims by an expert advisory panel and makes the panel's written
report admissible in evidence at trial."[Fn. 30] The Alaska panel
review process "ensure[s] that a malpractice plaintiff's case
proceeds along the normal path to litigation after a maximum delay
of eighty days."[Fn. 31] The trial court has discretion to bypass
this review process, however, if it "decides that an expert
advisory opinion is not necessary for a decision in the case."[Fn.
Although Ferris is correct in noting that AS 09.55.536
does not require the completion of a panel report in order for a
malpractice trial to proceed, the trial court's actions gave the
parties a reasonable expectation that the panel would complete a
report before trial. Although difficulties in securing panel
nominees delayed the panel process for two years, the trial court
nevertheless acknowledged the requirements of the statute and
accordingly appointed a panel seven months before trial in October
1996. In November 1996 the parties agreed to submit a list of
documents for panel review but proceeded to disagree over the
appropriate submissions. At this point, the parties had a
reasonable expectation that the expert advisory panel process would
proceed. Yet the trial court never ruled on the parties' various
motions regarding submissions to the panel nor did it submit the
case to the panel for review. Thus, although AS 09.55.536 does not
require the completion of a panel report before trial, the trial
court should have waited for a report in this case.
But because Taylor failed to object at the trial level to
allowing the trial to proceed before the panel completed its
review, he has waived this issue on appeal. To preserve a claim
based on a superior court's failure to rule on a motion, a party
must make every effort to request and obtain a ruling before
proceeding to trial. [Fn. 33] For example, in Coulson v. Marsh &
McLennan, Inc., [Fn. 34] a party requested a ruling on her motion
on three separate occasions: in an opposition to a summary
judgment motion, at an oral argument, and in a motion for
reconsideration. [Fn. 35] We concluded that the plaintiff had not
waived her claim that the trial court failed to rule on her motion.
Here, while Taylor objected to the lack of a panel report
in his September 1996 motion to continue the trial, he failed to
raise the issue again. In fact, a month before trial in May 1997
Taylor affirmatively requested that the trial proceed as scheduled:
"As matters now stand, Taylor does not want to vacate the trial
date." Because Taylor proceeded to trial without a ruling and
without requesting one, he cannot now object to the lack of such a
ruling. Thus, although the trial court failed to rule on the
panel-related motions, Taylor has waived his objection to that
Because the trial court correctly denied Taylor's motion
to amend his complaint, because any error in the trial court's
failure to rule on the motion to reopen discovery was harmless, and
because the trial court properly proceeded to trial without a panel
report, we AFFIRM.
Appellee Oliver Johnston is the personal representative for
Glenn Ferris, who died during the pendency of this appeal.
The clerk of court sent a first request for panel nominees to
the Alaska State Medical Association in September 1995 and a second
request in January 1996 because the medical association had not
Although Ferris claimed to have fulfilled his clinical
practice requirement at Broken Arrow Medical Center in Oklahoma
from August 1987 to July 1988, an administrator of Broken Arrow
testified that Ferris resigned from the program. The administrator
noted that, had he not resigned, Ferris would have been discharged
because of personality and character problems.
In April 1997 Judge Gonzalez ordered all motions held in
abeyance while Taylor petitioned this court for review of the
denial of the motion to amend the complaint. But even upon denial
of the petition for review, the trial court only proceeded to
address the pending summary judgment motions and never addressed
the other pending motions, including each party's motion to limit
documents in the panel's review.
See Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348
(Alaska 1987); Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d
1050, 1054 (Alaska 1986).
See Alaska Rule of Civil Procedure 15(a).
See Betz, 742 P.2d at 1348; Rutledge, 727 P.2d at 1054.
Cf. Mount Juneau Enters., Inc. v. City & Borough of Juneau,
923 P.2d 768, 773 (Alaska 1996) (reviewing motion to continue
discovery under Civil Rule 56(f) for an abuse of discretion).
Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998).
See Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
6 Charles Alan Wright et al., Federal Practice & Proceduresec.
1487 (2d ed. 1990).
Betz, 742 P.2d at 1348 (citations and internal quotation marks
omitted); see also Rutledge, 727 P.2d at 1055.
430 P.2d 913 (Alaska 1967).
Id. at 917 (citing the Restatement).
825 P.2d 874 (Alaska 1992).
Id. at 879.
Restatement (Second) of Torts sec. 892B cmt. a (1979); see
also 6A C.J.S. Assault and Battery sec. 16 (1975 & 1998 Supp.)
("Consent, in order to constitute a defense, must be knowingly and
intelligently given, and not the result of fraud . . . ."
Restatement (Second) of Torts sec. 55 cmt. b, illus. 3 (1965).
No. CV 330880, 1997 WL 80676 (Conn. Super. Feb. 10, 1997).
See id. at *1.
See id. at *2, *4.
Id. at *4 (quoting Stuart M. Speiser et al., 7 The American
Law of Torts 891 n.87) (internal quotation marks omitted).
See id. at *2.
Id. at *3.
See, e.g., AS 08.64.101 (requiring Board to admit, license,
and discipline physicians); AS 08.64.170 (mandating that all Alaska
physicians be licensed by the Board); AS 08.64.230 (empowering
Board to grant licenses); AS 08.64.331 (describing the Board's
disciplinary powers, including license revocations).
Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983).
See Alaska R. Civ. P. 61.
Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 345 (Alaska
Id. at 350.
See Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146
(Alaska 1999) (party preserved issue by requesting a ruling on her
motion on three occasions); see also Russell v. State, 934 P.2d
1335, 1340-41 (Alaska App. 1997) (defendant did not preserve issue
for appeal because he failed to object at trial or to remind the
judge that he had yet to rule on a motion); Marino v. State, 934
P.2d 1321, 1327 (Alaska App. 1997) (defendant could not raise issue
on appeal because he chose to proceed to trial without seeking a
ruling on his motion).
973 P.2d 1142 (Alaska 1999).
See id. at 1146.