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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marsingill v. O'Malley (01/27/2006) sp-5977
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| VICKI MARSINGILL, | ) |
| ) Supreme Court No. S- 11578 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-95-9909 CI |
| ) | |
| JAMES OMALLEY, M.D., | ) O P I N I O N |
| ) | |
| Appellee. | ) [No. 5977 - January 27, 2006] |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Robert H. Wagstaff, Law Offices
of Robert H. Wagstaff, Anchorage, and Richard
H. Friedman, Friedman Rubin & White,
Anchorage, for Appellant. Howard A. Lazar
and Donna M. Meyers, Delaney, Wiles, Hayes,
Gerety, Ellis & Young, Anchorage, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
BRYNER, Chief Justice.
I. INTRODUCTION
Vicki Marsingill sued Dr. James OMalley when, after
failing to follow his recommendation to report to the emergency
room, she suffered severe permanent injuries. At trial, she
argued that had Dr. OMalley adequately informed her of the risks
of her condition, she would have heeded his advice and thereby
avoided injury. A jury found in favor of Dr. OMalley.
Marsingill appeals, arguing that the jury instructions were
flawed, that the court allowed inadmissible expert testimony, and
that the award of attorneys fees was too high. We conclude that
the jury instructions adequately stated the law. We also
conclude that expert testimony concerning what a reasonable
patient wants to know and what doctors think patients want to
know is admissible in an informed consent case. But because the
uncontroverted evidence indicates that the trial court awarded
attorneys fees for non-compensable work, including political
lobbying and appellate work, we vacate the fee award and remand
the case so that the court can reevaluate the billing statements
submitted by Dr. OMalleys attorneys.
II. FACTS AND PROCEEDINGS
The facts leading up to the present lawsuit were
summarized in an earlier appeal as follows:
In October 1994 Dr. OMalley performed
surgery to remove staples that another
surgeon had previously placed in Vicki
Marsingills stomach to facilitate weight
loss. By January 1995 Marsingill had
recovered from the surgery and was cleared to
return to work.
While dining out with a friend on the
evening of February 14, 1995, Marsingill
suffered a sudden onset of illness, was in
pain, felt nauseous, and was unable to eat,
so [went] home. Her pain worsened over the
next few hours, and she eventually asked her
daughter to call Dr. OMalley. Her daughter
told Dr. OMalley that Marsingill looked bad,
that she was nauseous and in pain, that she
was unable to burp or have a bowel movement,
and that her stomach was as hard as a rock.
Dr. OMalley then spoke directly with
Marsingill, who sounded anxious and upset.
She informed him that she was having
abdominal pain, felt bloated, and could not
burp. Dr. OMalley advised Marsingill that he
could not evaluate her over the phone but
that if she felt bad enough to call him at
night she should go the emergency room. He
repeated this advice several times but did
not venture any opinion about the cause of
Marsingills symptoms or tell her that her
condition was potentially life-threatening or
serious. He left it up to her whether to
seek emergency room treatment.
When Marsingill asked what would happen
at the emergency room, Dr. OMalley informed
her that the doctors there would probably
take x-rays and insert a nasogastric tube to
relieve the pressure in her stomach.1 Dr.
OMalley knew that Marsingill had previously
had nasogastric tubes inserted and, like most
patients, strongly disliked them. Soon after
hearing that she would likely need to have a
nasogastric tube inserted if she went to the
emergency room, Marsingill ended the call,
telling Dr. OMalley that she thought that she
could burp and was feeling better.
After hanging up, Marsingill told her
daughter that she was feeling better and
would try to tough it out for awhile. But
later that night Marsingills husband found
her unconscious on the bathroom floor.
Paramedics rushed her to the hospital, where
an emergency operation later revealed that
she had experienced an intestinal blockage.
But by then the obstruction had caused
Marsingill to go into shock; as a result, she
suffered brain damage and partial
paralysis.[1]
__________________________
1 Inserting a nasogastric tube involves
placing a tube through the patients nose,
down the back of the throat into the
esophagus, and into the stomach.
Marsingill filed suit against Dr. OMalley alleging, in
part, that Dr. OMalleys treatment of her condition was negligent.
She claimed that Dr. OMalley lacked skill and knowledge in
general surgery and, as a result, committed malpractice by giving
Marsingill incompetent advice when she called about her symptoms.2
Marsingill tried unsuccessfully to introduce evidence regarding
the educational credentials of Dr. OMalley.3 Marsingill and Dr.
OMalley also each presented experts on the subject of the level
of care given. Marsingills experts uniformly agreed that Dr.
OMalleys actions fell below the accepted standard of care because
he failed to communicate the seriousness of Marsingills condition
and needlessly told Marsingill that she would likely be treated
with the painful use of nasogastric tubes.4 Dr. OMalleys experts
uniformly stated that Dr. OMalley had provided very good care and
had done his duty by not speculating on possible causes of
symptoms, but rather advising Marsingill to go to the emergency
room.5
Marsingill also argued that by failing to inform her
that her condition could be quite serious, Dr. OMalley breached
his duty to give Marsingill enough information to enable her to
make an informed choice about going to the emergency room for
treatment.6 The experts from each side weighed in on this issue.
Marsingills experts stated that Dr. OMalley had failed in his
duty to give enough information for Marsingill to make an
intelligent choice about whether to seek emergency room
treatment.7 Dr. OMalleys experts stated that simply advising
Marsingill to go to the emergency room was the appropriate action
to take, and that this advice fulfilled Dr. OMalleys duty to
provide information.8
Marsingill proposed jury instructions covering these
alternative theories of liability malpractice and a lack of
informed consent.9 Her proposed instructions on the informed
consent claim were rejected. As we noted in Marsingill I:
Marsingills proposed instruction would have
required the jury to decide the sufficiency
of Dr. OMalleys communications from the
standpoint of a reasonable patient in
Marsingills position. But the trial court
rejected the proposed reasonable patient
instruction, instead directing the jury to
measure Dr. OMalleys compliance by relying
exclusively on the expert testimony
addressing his compliance with a general
surgeons professional standard of care.[10]
At the end of the first trial, the jury returned a verdict for
Dr. OMalley on all counts. Marsingill appealed. We vacated the
judgment and remanded on the informed consent claim.11 We noted
that our cases had already established that a physician has a
duty to provide a patient with enough information to allow a
reasonable patient to make an informed and intelligent decision
concerning whether to proceed with treatment.12 We ruled that
whether a doctor had fulfilled this duty should be measured not
by the standard practice of physicians, but rather from the
perspective of the reasonable patient.13 We noted that [o]n
remand, the jury must be instructed to decide the claim from the
standpoint of a reasonable patient.14
On remand, two disputes arose. First, the parties
disagreed over the proper role of expert testimony in an informed
consent trial. Marsingill objected to two forms of expert
testimony offered by Dr. OMalley: she argued that Dr. OMalleys
experts should not be allowed to testify concerning the standard
of care for physician disclosures because their views were not
directly relevant to what a reasonable patient would want to
know; in addition, she argued that the experts should not be
allowed to testify concerning what a reasonable patient would
want to know, because Dr. OMalleys witnesses were not experts on
the subject. Marsingill further argued that expert testimony on
both issues would be prejudicial. The court allowed the experts
to testify, though it did provide limiting instructions. The
challenged experts for Dr. OMalley were Dr. Moossa (on a
videotape), Dr. Macho, and Dr. Gardiner, all surgeons, as well as
Dr. Braddock, a medical ethicist.
The second dispute involved how much information a
doctor was required to provide to a patient inquiring about
medical treatment. Relying on Marsingill I, Dr. OMalley argued
that the doctor was only required to provide the patient with
enough information to enable a reasonable patient to make an
informed and intelligent decision. Marsingill, in contrast,
argued that the jury should be instructed that [a] physician owes
a duty to disclose to his patient all information which would be
material to a reasonable patients informed and intelligent
decision regarding matters of treatment and health. The superior
court settled on an instruction describing the physicians duty as
a duty to provide material information, thus omitting Marsingills
proposed language referring to all material information.
The jury found in favor of Dr. OMalley. Based on the
verdict, the court awarded Dr. OMalley $96,354.92 in attorneys
fees.
Marsingill appeals.
III. DISCUSSION
Marsingill raises three points on appeal. She argues
that the admission of expert testimony concerning both the
standard of care and what a reasonable patient would want to know
amounts to reversible error. She argues that the failure to
include the word all in the jury instructions misstated the law.
And she argues that the award of attorneys fees was too high
that Dr. OMalleys attorneys billed unreasonably high hours for
some of their work and that Dr. OMalley sought attorneys fees for
non-compensable work.
A. Standard of Review
This court reviews jury instructions de novo.15
We review the admission of expert testimony for abuse
of discretion.16 An abuse of discretion exists when we are left
with a definite and firm conviction that an error has been made.17
But when the admissibility of evidence turns on whether the trial
court applied the correct legal standard, we review the courts
decision using our independent legal judgment.18
We similarly review a trial courts order of attorneys
fees for abuse of discretion.19 We will only reverse an award of
attorneys fees when the award is arbitrary, capricious,
manifestly unreasonable, or stems from an improper motive.20
B. Expert Testimony
Dr. OMalley presented three live testimony experts: Dr.
Braddock, Dr. Macho, and Dr. Gardiner. The videotaped testimony
of a fourth expert, Dr. Moossa, was presented at trial. Each
testified that he would have behaved similarly to Dr. OMalley and
that Marsingill had all the information she needed to make an
intelligent and informed decision. The testimony of the experts
was allowed over Marsingills pretrial motion to preclude it. She
argued that it was not relevant to what a reasonable patient
would want to know and that the doctors should not be allowed to
testify concerning what a reasonable patient would want to know,
because they were not experts on the subject. Marsingill also
argued that expert testimony on both issues would be more
prejudicial than probative. The trial court nevertheless allowed
the doctors to testify on a limited number of subjects:
Expert trial testimony will be limited
to the risks facing [Ms.] Marsingill on
February 14, and to what medically caused her
injuries on that date.
Experts may discuss the medical problems
confronting Ms. Marsingill, the information
available to [Dr. OMalley], and what the
expert believes would be material information
in the context of Feb 14, 95 to enable a
reasonable patient to make an intelligent
decision.
The experts may opine whether the
information provided was sufficient to enable
an intelligent decision based on material
information.[21]
Dr. Braddock testified that when a patient calls a
physician at night, the main question a patient wants answered
is, should I be really worried and go into the hospital right
now, or not. He testified that it is generally inappropriate to
tell patients that they might die, because it might unduly alarm
them or seem overly melodramatic and manipulative. Dr. Braddock
also testified that he believed that Marsingill had enough
information to decide whether to go to the emergency room. He
explained that he arrived at this conclusion by considering three
perspectives:
One is thinking about what most people would
. . . with a complaint of abdominal pain and
the kind of situation that she was in what
they would . . . need to hear to be able to
make a decision about, you know, do I stay
home, do I go to the emergency room. Second,
reflecting on . . . patients that Ive had or
other sort of more hypothetical people, if
they heard the advice that they got over the
phone, what they would likely actually do.
And I think that most anyone hearing the
advice that, you know, I cant tell whats
going on over the phone, you should go into
the emergency department, Ill call and
expedite things, Ill meet you there, you
know, thats conveying that I should probably
go. I think most people would go. I
certainly know I would go. And third, sort
of just reflecting on what I would say to a
patient who called me in the middle of the
night with those kind of complaints. Now, Im
not a surgeon so I might not know some of the
subtle nuances of what might be expected . .
. after the kind of surgeries that shed had,
but I have seen lots of people with bowel
obstructions, and I know the kinds of
symptoms, I know the kind of advice that I
would give. So based on those three things I
think that she had the information she needed
to make an informed choice.
Dr. OMalleys second expert, Dr. Macho, also testified
that he would have communicated the same information to
Marsingill that Dr. OMalley had. He noted that there were a
large number of conditions that might have caused Marsingills
symptoms. He testified that he would not have informed Marsingill
of any of the specific concerns that he had, both because there
were too many possibilities and because,
[y]ou would have to include possibilities
that are serious and possibilities that are
trivial. Some patients will focus on whats
serious and other patients will focus on
whats trivial. . . . So, you know, telling
them all this information could actually be
misleading or falsely reassuring to the
patient.
In addition, Dr. Macho testified that without examining
Marsingill in person, it would be impossible to know which of
those conditions was causing her symptoms:
[A]s a surgeon what you want to do is you
want to know what the problem is. You dont
want to know a whole list of possibilities.
And the way that you could narrow down on the
problem is by having the patient simply come
to the emergency room and be evaluated. So,
you know, it was really the only logical
thing to tell the patient.
Dr. Macho also believed that Marsingill had enough
information to make a decision. He said that in some
circumstances (e.g., where a patient is having a heart attack) it
might be appropriate to warn a patient that failure to go to the
emergency room might be fatal, but in Marsingills situation such
a warning would not have been appropriate.
Dr. Gardiner, another of Dr. OMalleys experts, agreed
with Dr. Macho that because patients sometimes hear what they
want to hear, giving patients a list of possibilities would not
be appropriate over the telephone. He testified that he faced
similar situations to the present case almost weekly and that he
had never responded significantly differently than Dr. OMalley.
Dr. Gardiner also testified that Dr. OMalley had
provided Marsingill with the information necessary to make an
informed and intelligent decision. Specifically, Dr. Gardiner
pointed out that Dr. OMalley communicated that he could not
diagnose Marsingill over the phone, that if Marsingill felt
enough pain to call at ten oclock at night she should go to the
emergency room, and that if she did go, Dr. OMalley would
facilitate her intake process when she arrived. Dr. Gardiner
further noted that by telling Marsingill that he would meet her
at the emergency room, Dr. OMalley communicated that he took
Marsingills condition very seriously. Dr. Gardiner also noted
that Dr. OMalley had accurately explained what Marsingill could
expect at the emergency room: that he would examine her, do some
blood work, do some x-rays, and possibly pass a nasogastric tube.
In addition, Dr. Gardiner expressed the view that Dr.
OMalley had given Marsingill all of the information that she
genuinely needed. He testified that communicating any of the
myriad possible causes to Marsingill would have been nothing more
than pure speculation, guess work, and that most patients do not
expect that over the phone.
Marsingill argues that the superior court should not
have allowed Dr. OMalleys experts to discuss the standard of care
for physician disclosures or what a reasonable patient would want
to know. According to Marsingill, this testimony was not
relevant or helpful, the doctors lacked expertise in what a
reasonable patient would want to know, and their opinions were
unfairly prejudicial. We consider each of these arguments below.
1. Relevance
Alaskas informed consent statute, AS 09.55.556(a),
requires physicians to disclose the common risks and reasonable
alternatives to a proposed treatment or procedure.22 But as we
noted in Marsingills first appeal, the statute fails to specify
what standard governs the scope of the disclosure requirement.23
We have rejected the traditional professional standard in the
field approach in favor of the modern trend of case law, which
measure[s] the physicians duty of disclosure by what a reasonable
patient would need to know in order to make an informed and
intelligent decision.24
As we stressed in Marsingill I, a physician must
disclose those risks which are material to a reasonable patients
decision concerning treatment.25 We held in Marsingill I that the
determination of materiality had two parts: (a) to define the
existence and nature of the risk and the likelihood of its
occurrence; and (b) to decide whether the probability of that
type of harm is a risk which a reasonable patient would consider
in deciding on treatment.26 We also recognized in Marsingill I
that while expert testimony may be necessary to satisfy the first
prong of the test, it is not necessary to satisfy the second
prong:27
The second prong of the materiality test is
for the trier of fact to decide whether the
probability of that type of harm is a risk
which a reasonable patient would consider in
deciding on treatment. The focus is on
whether a reasonable person in the patients
position would attach significance to the
specific risk. This determination does not
require expert testimony.[28]
Relying on this aspect of our ruling in Marsingill I,
Marsingill argues that Dr. OMalleys witnesses should not have
been allowed to testify either about the general standard of care
for physician disclosures or about what a reasonable patient
would want to know. She asserts that the testimony is
inadmissible because a physicians opinion concerning what
information the physician thinks is important is not directly
relevant to establish what a reasonable patient would deem to be
important. Marsingills arguments on this point are
unpersuasive.
To be admissible under our rules, evidence need not be
directly relevant to the fact that it seeks to establish. Alaska
Rule of Evidence 401 provides that evidence is relevant if it has
the tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence. This
definition of relevant evidence is a broad one.29 The Commentary
to the Rules of Evidence, cited in Denison v. Anchorage,30
stresses that
[t]he standard of probability under the Rule
is more . . . probable than it would be
without the evidence. Any more stringent
requirement is unworkable and unrealistic. .
. .
The words any tendency in the rule
suggest that the court should err, in
doubtful cases, on the side of
admissibility.[31]
Thus, [t]o be relevant [under Evidence Rule 401], evidence need
not be direct or conclusive; it need only have some tendency to
advance the proposition for which it is offered.32 And as Denison
also recognized, Evidence Rule 402 embodies a basic preference
for admission of all relevant evidence unless such evidence is
otherwise specifically made inadmissible by constitution, statute
or rule.33
The doctors who testified in this case had extensive
experience interacting with patients. Under the broad definition
of Rule 401, their testimony concerning the amount and kinds of
information that patients generally want in late night phone
calls was relevant to establish whether Dr. OMalley gave
Marsingill as much information as a reasonable patient would want
to know. In addition, their testimony was relevant to show what
a reasonable doctor is likely to think a patient might want to
know. When determining whether a doctor is liable for failing to
disclose sufficient information, the standard of liability is
negligence and not strict liability.34 A doctors failure to
provide sufficient information will not render him liable unless
the doctor knew or reasonably should have known that the patient
might have considered the information to be important. The jury
instruction defining materiality reflected this negligence
standard, telling the jury that material information is
information which the surgeon knows or should know would be
regarded as significant by a reasonable person in the patients
position when deciding to accept or reject medical treatment.
Marsingill did not object to this aspect of the instructions.
As a result, while the standard of care exercised by physicians
with regard to disclosures does not determine what a reasonable
patient would want to know, it is unquestionably relevant in
determining whether a doctor was negligent when assessing what a
reasonable patient would want to know.
2. Helpfulness
Under Alaska Rule of Evidence 702 scientific,
technical, or other specialized knowledge may be heard only if it
will assist the trier of fact to understand the evidence or to
determine a fact in issue.35 Under this rule, we have held that
the primary criterion for determining whether a witness should be
permitted to give expert testimony is whether the jury can
receive appreciable help from this particular person on this
particular subject.36
For the same reasons that the disputed testimony was
relevant, it could also be considered helpful to the trier of
fact. The doctors had a broad range of experience in providing
information that their patients needed. Similarly, the doctors
were able to testify concerning the kinds and amount of
information that they, as experienced members of their field,
perceived patients to desire. The trial court could reasonably
find that both sorts of testimony might help the jurors to
determine whether Dr. OMalley gave Marsingill enough information
to enable her to make an informed treatment decision.
3. Reliability
Alaska Rule of Evidence 702 requires that the trial
court determine the reliability of expert testimony: the witness
must be qualified as an expert by knowledge, skill, experience,
training, or education.37 Our case law has described two general
categories of expert testimony: (a) expert testimony based on
technical or scientific research and testing;38 and (b) expert
testimony based on practical experience in the relevant field.39
Marsingill argues that Dr. OMalleys experts did not
possess adequate scientific knowledge to offer expert opinions
concerning what a reasonable patient would want to know. To
support this argument, Marsingill relies on State v. Coon;40
there, we approved the reliability and relevance requirements
adopted by the United States Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals, Inc.,41 for admitting expert testimony based
on scientific theory.42
In response to this argument, Dr. OMalley correctly
counters that his witnesses derived their expertise from
experience and so do not need to meet the requirements of Coon
and Daubert. In Marron v. Stromstad we limited our reliance on
the Daubert test to expert testimony based on scientific theory;
we noted that testimony based on personal experience is not
covered by this standard.43 Because the disputed evidence here
consisted of experience-based testimony, it did not need to meet
the stricter Daubert/Coon test.44
Dr. OMalleys experts possessed the relevant personal
experience. Each had extensive experience with patients and was
routinely called upon to respond to patients questions during
late night telephone calls. In addition, Dr. Braddock had
completed several studies on the amount of information that
doctors give patients in a variety of circumstances. As the
trial court correctly observed, an understanding of what a
patient needs to know . . . and understanding what a doctor needs
to say, is . . . related to what doctors do. We have
consistently recognized that experience-based expert testimony is
admissible when the expert witness has substantial experience in
the relevant field and the testimony might help the jury.45
4. Unfair Prejudice
Under Alaska Rule of Evidence 403, evidence may be
excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury[.]46 We will only overturn a superior courts Rule 403
balancing determination if we find an abuse of discretion.47
Marsingill suggests that even if the doctors testimony concerning
the standard of care and what a reasonable person would want to
know were otherwise admissible, it should have been excluded
because it could not help but confuse the jury. According to
Marsingill, [t]his confusion was prejudicial . . . and warrants a
reversal. We are not persuaded.
Marsingill in effect contends that the expertise of the
doctors and the fact that they were well respected rendered their
testimony overly persuasive. But if expertise renders a witnesss
otherwise relevant testimony unfairly prejudicial, all expert
testimony would be excluded. There is always a risk that juries
might weigh expert opinion too heavily; for precisely this
reason, jury instructions routinely remind jurors that they are
not bound to accept or believe the testimony of experts.48 This
was true of the instructions given in the present case.
Moreover, the instructions correctly emphasized that the standard
for determining whether sufficient information had been relayed
to Marsingill was that of the reasonable patient, not the
patients physician. Read together, the instructions in this case
adequately informed the jury that it need not defer to the
doctors conclusions concerning what a reasonable patient in
Marsingills position would have wanted to know. The trial court
did not abuse its discretion in determining that the challenged
expert testimony was not unfairly prejudicial.
C. Jury Instructions
Marsingills second claim of error is that the jury
instructions failed to accurately describe the standard for
informed consent.49 In Korman v. Mallin, we established that in
order to comply with Alaskas informed consent statute,
AS 09.55.556,
a physician must disclose those risks and
benefits of a proposed procedure which a
reasonable patient would need to know in
order to make an informed and intelligent
decision.[50]
We also held that materiality must ultimately be judged by asking
what a reasonable patient would want to know.51 This standard
requires the factfinder to determine the existence and nature of
the risk and the likelihood of its occurrence, and whether the
probability of that type of harm is a risk which a reasonable
patient would consider in deciding on a treatment.52
Here, after extensive briefing by the parties, an
unsuccessful petition for review by Marsingill, and objections by
both sides, the trial court settled on informed consent
instructions that described Marsingills claim as one alleging
that she was harmed because Dr. OMalley had failed to communicate
material information about the potential seriousness of her
condition and the risks of failing to seek immediate treatment,
thus leaving her with insufficient information to make an
informed decision as to whether she needed to report to the
emergency room.
The instructions went on to state that a physician owes
a duty to disclose information that would be material to a
reasonable patients informed and intelligent decisions regarding
treatment and health, and that the sufficiency of a physicians
disclosure is measured from the standpoint of a reasonable
patient. They also specified that [m]aterial information is
information which the surgeon knows or should know would be
regarded as significant by a reasonable person in the patients
position when deciding to accept or reject medical treatment.
Furthermore, the instructions told the jury that failure to
disclose material information renders the physician liable for
any injury a cause of which was the patients declining to accept
treatment if a reasonable person in the patients position would
not have declined treatment if the material information had been
given.
The instructions laid out the ultimate jury decision as
follows:
If you decide that it is more likely true
than not true that (1) James OMalley failed
to disclose to Vicki Marsingill, or a family
member, material information necessary to
permit a reasonable person to make an
informed decision as to whether she should go
to the emergency room on February 14, 1995,
(2) a reasonable person, had she known this
information, would have gone to the emergency
room, and (3) the failure of Vicki Marsingill
to go to the emergency room was a legal cause
of her injuries, then you must return a
verdict for the plaintiff, otherwise you must
return a verdict for the defendant.
Although the standard established in Marsingill I and
Korman53 might have been described in many alternative ways, these
instructions accurately stated the law. They informed the jury
that Dr. OMalley had a duty to disclose information that would be
material to a reasonable patient. They defined material
information as information which the surgeon knows or should know
would be regarded as significant by a reasonable person in the
patients position. And they emphasized that if information would
lead a reasonable patient to accept treatment, the information
needed to be disclosed. Nothing more is required.
Relying on the instructions failure to specify that Dr.
OMalley was required to give her all material information,
Marsingill argues that they allowed the doctor to argue that
because he gave Marsingill some information, he satisfied his
duty despite failing to disclose all material information.
Marsingill insists that by merely requiring the doctor to
disclose material information, the court effectively allowed the
defense to nullify the standard altogether. Under the facts
presented here, we find this argument unpersuasive.
Initially, Marsingills argument incorrectly assumes
that omitting an express requirement to disclose all material
information equates to telling the jury that Dr. OMalley only had
to disclose some material information. Even if this assumption
might be plausible in some situations, it lacks plausibility
here, for it overlooks the instruction that defined material
information to include any information that a reasonable patient
would regard as significant. Reading the instructions as a
whole, then, it seems unlikely that a reasonable juror would have
concluded that Dr. OMalley met his duty to disclose material
information despite neglecting to disclose matters that
Marsingill would have deemed to be significant.
Moreover, the record undercuts Marsingills assertion
that the instructions allowed Dr. OMalley to argue this improper
interpretation. Our review of the record establishes that Dr.
OMalleys attorney never advanced this argument to the jury. Dr.
OMalleys attorney maintained that Dr. OMalley was correct in not
telling Marsingill that she might have a bowel obstruction and
that this condition could be life threatening, because such a
warning was not even information . . . much less material
information. . . . [G]uesses are not material information.
In short, because the jury instructions correctly
stated the law and because Dr. OMalleys attorney did not argue
that Dr. OMalley was only required to disclose some of the
material information, we find no error in the challenged
instructions.
D. Attorneys Fees
Marsingills final point on appeal is that the trial
courts award of attorneys fees was an abuse of discretion. After
the verdict, Dr. OMalley moved for attorneys fees. Dr. OMalley
noted that after the first trial he had been awarded $51,160.50
in attorneys fees. He stated that in the second trial he had
incurred attorneys fees of $150,648.00. Under Civil Rule
82(b)(2), he calculated that he should get $45,194.42 in
attorneys fees for the second trial.54 He added the awards from
both trials together for a total of $96,354.92. Over Marsingills
objection, the trial court awarded Dr. OMalley the exact amount
of attorneys fees he sought: $96,354.92. The court did not
explain its award.
Marsingill argues that the fee award was too high. She
contends that Dr. OMalleys billing statement included non-
compensable work, such as lobbying the legislature for a
statutory reversal of Marsingill I, and appellate work relating
to Marsingill I. She also argues that Dr. OMalleys attorneys
billed unreasonably high hours for some of their work. Finally,
Marsingill contends that the trial courts award of fees for time
spent on the appeal of Marsingill I conflicts with this courts
order granting Marsingill fees and costs for the prior appeal.
Dr. OMalley responds that the fee award was appropriate
and that so long as a trial court did not depart from the fee
schedule in Rule 82(b)(2), it did not need to explain its
decision. He also notes that we have previously given trial
courts great discretion in determining whether the amount of
hours billed is reasonable and appropriate.
We have held that when a trial court issues a fee award
that accords with the presumptive percentages in Rule 82(b)(2),
the court need not offer an explanation of its award.55 We have
also held that it is . . . for the trial judge to determine
whether too much time was spent by attorneys for the prevailing
party or whether too many attorneys were employed.56 Here, as to
a $10,172.25 portion of Dr. OMalleys total billings of $150,648,
Marsingill simply advances a general claim of excessive billing.
We find no merit to this claim. The general reasonableness of
the billings was a matter within the discretion of the trial
court.
In contrast, we agree with Marsingill that it was error
to award attorneys fees for legislative work and for work related
to the first appeal. We have previously held that attorneys fees
under Civil Rule 82 may be awarded only for work that is
reasonably related to the matter directly before the trial court.57
In Torrey v. Hamilton, we held that Rule 82 fees must relate
solely to attorneys services performed in the case in which the
judgment is entered and that the rule only provides compensation
for attorneys services performed up to the time of the judgment.58
We have also held that attorneys fees for appeals are not
awardable by the trial court or governed by Civil Rule 82, but
may ordinarily be awarded by an appellate court acting in
accordance with Appellate Rule 508.59
Here, Dr. OMalleys billings appear to have included
specific amounts attributable to appellate work and lobbying
efforts before the legislature.60 The superior court failed to
address these parts of the billings or to explain why it found
them to be compensable. Because these aspects of the award turn
on an incorrect interpretation of the applicable legal rule
rather than an exercise of allowable discretion, we vacate the
award of attorneys fees and remand for reconsideration by the
trial court.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the jurys verdict
in favor of Dr. OMalley but VACATE and REMAND the award of
attorneys fees so that the trial court can reconsider the amount
of the award in light of this opinion.
_______________________________
1 Marsingill v. OMalley, 58 P.3d 495, 497-98 (Alaska
2002) (Marsingill I).
2 Id. at 498.
3 Id.
4 Id.
5 Id. at 498-99.
6 Id. at 498.
7 Id. at 499.
8 Id.
9 Id.
10 Id.
11 Id. at 505.
12 Id. at 503.
13 Id. at 503-04, 505.
14 Id. at 505.
15 See Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 141
(Alaska 2004).
16 See Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1030
(Alaska 2002).
17 See Samaniego v. City of Kodiak, 80 P.3d 216, 218-19
(Alaska 2003).
18 Alderman v. Iditarod Properties, Inc., 104 P.3d 136,
140 (Alaska 2004) (Alderman I).
19 Id. at 140.
20 Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303
(Alaska 2000) (quoting Jones v. Jones, 925 P.2d 1339, 1340
(Alaska 1996)).
21 In allowing the expert testimony to be admitted for
these limited purposes, the court also asked the parties to
consider the possibility of instructing the jury:
Some opinions expressed by experts in
this case on the topic of what a reasonable
person would expect or what a reasonable
person would need to know are not being
admitted as expert opinion (or testimony) in
the classic sense, but simply as opinions on
a topic relevant to trial about which they
have considered thoughts. The experts are
not appearing before the court as linguists
or expert reasonable patients. What weight
is to be given their testimony on this topic
is wholly for the jury to determine in light
of all the evidence and instructions.
22 AS 09.55.556(a) provides that:
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.
23 See Marsingill I, 58 P. 3d at 503 (citing Korman v.
Mallin, 858 P.2d 1148-49 (Alaska 1993)).
24 Marsingill I, 58 P.3d at 503 (quoting Korman, 858 P.2d
at 1148-49).
25 Id. (quoting Korman, 858 P.2d at 1149).
26 Id. at 504.
27 Id.
28 Id.
29 See Van Meter v. State, 743 P.2d 385, 392 (Alaska App.
1987).
30 See Denison v. Anchorage, 630 P.2d 1001, 1003 (Alaska
App. 1981).
31 Alaska R. Evid. 401 Commentary.
32 McLaughlin v. State, 818 P.2d 683, 687 (Alaska App.
1991). See also Byrne v. State, 654 P.2d 795 (Alaska App. 1982);
Denison, 630 P.2d at 1003.
33 Denison, 630 P.2d at 1003.
34 See, e.g., Jaskoviak v. Gruver, 638 N.W.2d 1, 6-7 (N.D.
2002); McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex. 1989);
Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D. 1983) ([T]he
doctrine of informed consent is a form of negligence which
essentially relates to a duty of a doctor to disclose pertinent
information to a patient.).
35 Alaska R. Evid. 702(a) (providing that qualified
experts may testify thereto).
36 Handley v. State, 615 P.2d 627, 631 (Alaska 1980)
(quoting Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965)).
37 Alaska R. Evid. 702(a).
38 See generally State v. Coon, 974 P.2d 386 (Alaska
1999).
39 See Getchell v. Lodge, 65 P.3d 50, 56-57 (Alaska 2003).
40 974 P.2d 386.
41 509 U.S. 579 (1993).
42 Coon, 974 P.2d at 395.
43 Marron v. Stromstad, 123 P.3d 992 (Alaska 2005)
(explicitly rejecting the extension of Daubert suggested in Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).
44 We note that the concurring opinion in Marron favored
retaining the Daubert/Coon test for experience-based expert
testimony but advocated a lenient and flexible application of
that test. Marron, 123 P.3d at 1014-17 (Bryner, Chief J.,
concurring). In our view, the expert testimony disputed in this
case would have been readily admissible under the alternative
approach set out by the concurring opinion in Marron.
45 See, e.g., Getchell, 65 P.3d at 57; Johns Heating Serv.
v. Lamb, 46 P.3d 1024, 1039 (Alaska 2002).
46 Alaska R. Evid. 403.
47 See, e.g., City of Kodiak v. Samaniego, 83 P.3d 1077,
1087 (Alaska 2004); Alaska Northern Dev., Inc. v. Alyeska
Pipeline Serv. Co., 666 P.2d 33, 42 (Alaska 1983).
48 Alaska Pattern Civil Jury Instruction 2.10 (rev. 1999)
provides in part:
As with other witnesses, you must decide
whether to believe an expert and how much
weight to give to expert testimony. You may
believe all, part, or none of the testimony
of an expert witness. You need not believe
an expert even if the testimony is
uncontradicted. However, you should act
reasonably in deciding whether or not you
believe an expert witness and how much weight
to give expert testimony.
49 Our review of this claim is governed by Lynden Inc. v.
Walker, 30 P.3d 609, 612 (Alaska 2001) (A legally erroneous
instruction will lead to reversal only where it prejudices a
party.); cf. Wilson v. State, 967 P.2d 98, 102-03 (Alaska App.
1998) (observing that the test for determining the legitimacy of
jury instructions is not whether a clearer and [a] more accurate
statement of the law is possible but rather whether the trial
judges wording wrongly stated the law or was otherwise likely to
have led the jury astray.).
50 858 P.2d 1145, 1146 (Alaska 1993).
51 Marsingill I, 58 P.3d at 504.
52 Id. (quoting Korman, 858 P.2d at 1149).
53 Compare the statement of the standard in Alaska Civil
Pattern Jury Instruction 8.03 (rev. 2002):
In order for the plaintiff to prevail on [a
failure to obtain informed consent] claim,
you must find it is more likely true than not
true that:
(1) the defendant failed to provide enough
information about the material risks of the
[insert treatment or procedure], the
likelihood that the risks would occur, and
the reasonable alternatives to [insert type
of treatment or procedure] to allow a
reasonable person in the plaintiffs position
to make an informed and intelligent decision
whether or not to proceed with the [insert
type of treatment or procedure];
(2) the plaintiff would have decided against
the [insert type of treatment or procedure]
if [he] [she] had been provided such
information; and
(3) the [insert type of treatment or
procedure] was a legal cause of the
plaintiffs harm.
Alaska Civil Pattern Jury Instruction 8.05 (rev. 2002) specifies
that [a] risk is material if a reasonable person in the patients
position would have attached significance to the risk in deciding
on treatment.
54 Alaska Civil Rule 82(b)(2) states:
In cases in which the prevailing party
recovers no money judgment, the court shall
award the prevailing party in a case which
goes to trial 30 percent of the prevailing
partys reasonable actual attorneys fees which
were necessarily incurred. . . . The actual
fees shall include fees for legal work
customarily performed by an attorney but
which was delegated to and performed by an
investigator, paralegal or law clerk.
55 Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 305
(Alaska 2000).
56 Integrated Res. Equity Corp. v. Fairbanks N. Star
Borough, 799 P.2d 295, 304 (Alaska 1990).
57 Torrey v. Hamilton, 872 P.2d 186 (Alaska 1994); Aloha
Lumber Corp. v. University of Alaska, 994 P.2d 991, 1003 (Alaska
2000) ([T]he superior court had discretion to award [the
prevailing party] fees for services in addition to those provided
exclusively in the superior court, but only if they closely
related to and were made necessary by the superior court
proceeding.).
58 Torrey, 872 P.2d at 187.
59 See, e.g., Aloha Lumber, 994 P.2d at 1003; Stalnaker v.
Williams, 960 P.2d 590, 597 (Alaska 1998).
60 The appellate billings include work on the petition for
rehearing and opposing the appellate cost bill. Apparent
lobbying efforts include such items as: Prepared letter re
Marsingill opinion to Jordan of State Medical Association in
response to request re legislative change; Email from Holmes re
changing statute to eliminate telehpone [sic] advice problem;
Review proposed statute and sent email to Jordan and Holmes re
same and protection for doctors among others.
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