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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. Beach (07/10/2009) sp-6385
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
| SIDNEY R. HERTZ, | ) |
| ) Supreme Court No. S- 12884 | |
| Appellant, | ) |
| ) Superior Court No. 1 JU- 06-567 CI | |
| v. | ) |
| ) O P I N I O N | |
| IRIS BEACH, SHIRLEY HAWKINS, | ) |
| and LONNIE ANDERSON, | ) No. 6385 - July 10, 2009 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Sidney R. Hertz, pro se, Spring
Creek Correctional Center, Appellant. Ruth
Botstein, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
I. An inmate incarcerated by the Alaska Department of
Corrections sued two nurses and a dentist, alleging they violated
various professional duties and state and federal laws by failing
to treat his dental problems timely or adequately. The superior
court held that the inmate did not produce enough evidence,
expert or otherwise, to support his claims and granted summary
judgment in favor of the defendants. We affirm the superior
courts decision on all claims except one against the dentist; we
reverse the decision as to that single claim, vacate the judgment
against the prisoner for attorneys fees, and remand for further
proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
Sidney R. Hertz was incarcerated at the State of
Alaskas Lemon Creek Correctional Center in Juneau. Iris Beach
and Shirley Hawkins are nurses employed by the Department of
Corrections (DOC) at Lemon Creek. Dr. Lonnie Anderson, a private
dentist, provides dental care to Lemon Creek inmates under a
contract with DOC.
Hertz, who suffers from advanced periodontal disease,
wore an upper partial denture secured to his remaining teeth with
clasps. On April 28, 2005, an oral surgeon extracted two of
Hertzs upper teeth. That same day Hertz filed a medical request
for a new partial denture, complaining that his existing one no
longer fit properly because of the extractions. On April 30
Beach advised Hertz that he was on the dental list.
On May 24 Hertz filed a grievance (1) complaining that
he had requested a new upper partial denture on April 28, and
(2) requesting to see the dentist to have an impression made for
a new upper partial denture. On June 6 Hertz submitted a medical
request to have an impression made for a new upper partial
denture, noting that the dentist had been to the prison twice
without seeing him. Hertz was advised by Hawkins the next day
that his name had been placed on the list to see the dentist.
Hertz reiterated his medical request on June 27, and on June 30
received the same response, this time from Beach.
On July 28 Hertz wrote to the DOC Commissioners office
asking about the status of his May 24 grievance. On August 16
Hertz filed another grievance: (1) stating that there had been
no dentist at the prison for over eight weeks, he had been
waiting four months for a new upper partial denture, and his
existing upper partial denture was continually bruising the roof
of his mouth; (2) asking whether a lawsuit was necessary to get
dental treatment; and (3) requesting an appointment with a
dentist to get an impression for a new upper partial denture.
On August 22 Hertz submitted another medical request,
noting that it had been nine weeks since a dentist had been to
the prison, that he needed a new upper partial denture, and that
his existing upper partial denture was continually bruising the
roof of his mouth. Beach responded that day that Hertz was on
the dental list.
In a memo dated August 24 regarding Hertzs August 16
grievance, Beach advised the prison compliance supervisor of the
sequence of events for Hertzs medical requests, stated that Hertz
must be seen by the dentist and a request for a new partial plate
must be submitted to DOC Medical for approval or denial, and
recommended that Hertz see the dentist so the dentist could
complete the forms necessary for approval or denial.
On September 12 Hertz submitted another medical
request, noting that the dentist had been to the prison on
September 10 but had not called Hertz to see him. Hertz demanded
to see the dentist immediately and threatened to file a lawsuit.
The next day Hawkins replied that Hertzs name was on the list to
see the dentist.
Dr. Anderson saw Hertz on September 17 and took an
impression for a new upper partial denture. The record is
unclear as to when it did so, but DOC approved the replacement of
Hertzs upper partial denture.
Hertz filed another medical request in December 2005,
asking to see the dentist and receive his new upper partial
denture. He was advised by Beach that he was on the list to see
the dentist.
On February 11, 2006, Hertz was seen by Dr. Anderson.
The record does not reflect whether Dr. Anderson had received a
new upper partial denture from the September 17, 2005,
impression, but Dr. Anderson took another impression because
Hertzs teeth had shifted in the interim.
On February 13 DOC responded to Hertzs original May
2005 grievance about his upper partial denture, noting that
approval for a new partial plate had been granted. On February
14 DOC affirmed an earlier denial of Hertzs August 2005 grievance
as duplicative of his original grievance.
Hertz received his new upper partial denture on April
8, 2006. Hertz believed the new upper partial denture did not
fit and told this to Dr. Anderson when he received it.
A few days before receiving the new upper partial
denture, Hertz had submitted a medical request complaining of a
cavity that made brushing his teeth painful. Dr. Anderson
examined the cavity on April 8, 2006, when he installed the new
upper partial denture, and described the cavity as small and non-
acute . . . a low priority . . . requir[ing] only routine dental
treatment.
Hertz submitted a medical request on April 9,
complaining that nothing has been done about my cavity. He filed
a grievance on April 19, complaining that Dr. Anderson had again
visited Lemon Creek but had not seen Hertz or treated his tooth.
On July 10 Hertz complained of a toothache and Beach
notified a doctor, who authorized the use of ibuprofen and a
topical pain reliever as needed for thirty days. Hertz filed a
grievance on July 26, stating that his toothache was under
control with his pain medications but demanding that his tooth
and his upper partial denture be fixed. That day DOCs medical
director authorized a referral to another dentist, Dr. David
Logan, to examine and treat the decayed tooth and to adjust the
upper partial denture if necessary. Dr. Logan extracted the
decayed tooth the next day after concluding it was mobile due to
periodontal disease. Dr. Logan noted that Hertzs denture fit
correctly and that there are no adjustments that will improve its
function. Dr. Logan also recommended removing the rest of Hertzs
upper teeth and constructing a full denture as a long-term
treatment goal.
In September Hertz was seen by a DOC staff dentist in
Anchorage, Dr. Geraldine Morrow, who advised Hertz that he should
have all remaining upper teeth extracted to make room for a full
denture. Hertz agreed and later received the full denture.
B. Proceedings
In February 2006, shortly before Hertz saw Dr. Anderson
for the second impression, Hertz filed suit against Beach,
Hawkins, Dr. Anderson, and DOC seeking: (1) a declaration that
the defendants had violated his state constitutional and other
rights; (2) injunctive relief ordering the defendants to give
Hertz a new upper partial denture; (3) $5,000 for his pain and
suffering; (4) punitive damages; (5) costs and attorneys fees;
and (6) such other relief the court believed appropriate. After
resolving filing fee issues, Hertz made service efforts in July.
Hertz did not effect proper service on DOC, and on August 29 an
order was issued directing Hertz to declare whether he was suing
DOC. On September 6 Hertz filed a motion for leave to file an
amended complaint eliminating DOC as a defendant. In his allowed
amended complaint Hertz alleged that Beach, Hawkins, and Dr.
Anderson committed medical malpractice and violated
constitutional prohibitions against cruel and unusual punishment.1
Hertz served interrogatories and a request for
production of a copy of Dr. Andersons employment contract with
DOC. When the contract was not produced, Hertz moved to compel
production of the contract and other documents. He also moved
for summary judgment as to Beach, arguing that because Beachs
interrogatory responses had been signed by her attorney, and not
by Beach personally, the interrogatories to her should be held
admitted as true. On December 5, 2006, the superior court denied
Hertzs motion for summary judgment, but ordered service of
properly signed interrogatory responses from Beach within twenty
days. The court also granted Hertzs motion to compel production
of the Anderson contract.
Hertz later moved for sanctions against the defendants
attorney, Paula Jacobson, for alleged failure to comply with the
courts December 5 order and for alleged false statements. The
court denied Hertzs motion.
The defendants moved for summary judgment in March
2007. They submitted Hertzs dental records from 1999 forward, an
affidavit from each defendant, and an affidavit from DOC staff
dentist Dr. Morrow, presented as an expert.
In their affidavits Beach and Hawkins described how
dental care is obtained at Lemon Creek to receive dental care an
inmate must be placed on the dental list, a list compiled by
Beach and Hawkins to record inmates dental needs. The nurses
described four ways for an inmates name to be placed on the
dental list:
(a) a DOC medical provider (physician or
physicians assistant) has determined that the
inmate needs a dental evaluation[;] (b) one
of the nurses has screened a newly remanded
inmate and determined that he has visible
dental problems that may require dental
treatment[;] (c) the dentist has asked to see
the inmate for continuing care[;] or (d) the
inmate has submitted a [medical request for]
care.
According to Beach and Hawkins their only role with
respect to dental services at Lemon Creek is to compile the list.
They stated that they [o]ccasionally . . . may ask Dr. Anderson
to see a newly remanded inmate who has an obvious dental
infection or another type of obvious dental problem that may
require urgent care, but [t]he ultimate decision regarding
treatment priorities lies with Dr. Anderson, who reviews the
dental list and determines which inmates need to be treated.
They also stated that they do not provide dental services to
inmates nor . . . assist the dentist in anyway [sic] when he
performs dental examinations or provides dental treatment to
inmates.
In his affidavit Dr. Anderson described Hertzs
treatment history: (1) when Hertz first requested his denture be
adjusted after the April 28, 2005, tooth extractions, Dr.
Anderson determined that under DOC policies and procedures Hertzs
request was not classified as . . . very urgent and that in Dr.
Andersons clinical and professional judgment, Hertzs request did
not have priority over inmates with more acute dental needs;
(2) in September 2005 he made an impression of Hertzs teeth to
begin the process of making a new plate; (3) he could not treat
inmates at Lemon Creek from October to December 2005 because the
dental facility was out of commission; (4) as a result it took
almost two months to work [his] way through the backlog of
inmates with urgent and moderately urgent dental needs; (5) in
February 2006 he took a second impression of Hertzs teeth because
they had shifted; (6) he gave Hertz the new upper partial denture
on April 8, 2006, and adjusted it; and (7) Hertzs cavity,
examined on April 8, 2006, was small and non-acute and in Dr.
Andersons professional and clinical judgment . . . not an urgent
matter.
Dr. Morrow stated in her affidavit that after examining
Hertz and his medical records, it was her opinion that: (1)
replacing the partial denture was not an emergent or urgent
problem; (2) Hertzs cavity was small and non-acute and [t]he
tooth needed to be extracted, not filled; and (3) the new upper
partial denture was properly fitted and there were no adjustments
that would improve its function. She concluded that Dr. Anderson
and DOC met the standard of care and did not cause any
medical/dental injury to Mr. Hertz.
After Hertz submitted responsive briefing, the superior
court issued a preliminary order on the defendants summary
judgment motion. The court stated that Hertzs medical
malpractice claims required proof that the defendant(s) failed to
exercise the knowledge or skill that similar health care
providers ordinarily exercise under the circumstances. Noting
that claims for breach of professional duty require expert
testimony, the court stated that [w]hether Mr. Hertzs original
partial plate was repairable; whether the new plate fit properly;
whether Hertz actually needed a plate or a set of dentures; [and]
whether Hertzs cavity required immediate attention . . . are
technical questions requiring expert testimony. The court
ordered Hertz to file an affidavit by a medical professional
disagreeing with Dr. Morrows expert opinion.
The court further stated that Hertz had not submitted
any admissible evidence to refute Beach and Hawkinss affidavits
indicat[ing] that the nurses were not responsible for and did not
provide dental treatment to Hertz and accordingly decided that
these claims were also subject to summary judgment (and no trial)
absent further action by Hertz. The court also stated that for
his Eighth Amendment claims Hertz needed to show that his dental
needs were serious, that the indifference to his needs was
substantial, and that defendants acted with serious disregard to
his serious needs. Finding that Hertz had presented no competent
evidence, expert or otherwise, to corroborate his theories, the
court gave Hertz [sixty] days to submit affidavits or other
evidence, beyond his unsworn statements, to create an issue of
material fact on his claims.
Hertz then submitted his own affidavit and additional
medical records. His relevant factual assertions were that:
(1) Beach made two diagnostic decisions concerning [his] dental
problems by giving him pain relief medication for his decayed
tooth and by notify[ing] Dr. Henry Luban, M.D., DOCs medical
director in Anchorage . . . to get approval to have [Hertzs]
tooth . . . pulled by Dr. Logan;2 (2) Beach and Hawkins were
deliberately indifferent towards [his] known dental problems by
allowing [him] to wait up to 5-6 months before [he] got to see
Defendant Anderson for dental treatment; and (3) the dental lab
was out of commission from June to September 2005, not October to
December 2005 as Dr. Anderson claimed. He also submitted a copy
of DOCs Medical Advisory Committees response to his appeal (from
the denial of his July 26, 2006, grievance), acknowledging that
[a] new treatment plan involving extractions and a full denture
has been proposed: You have agreed to this. Hertz argued the
response was expert testimony showing the defendants prior
negligence.
In September 2007 the superior court granted summary
judgment in favor of the defendants, finding Hertz had not
remedied the evidentiary deficiencies and thus had failed to
create a dispute of material fact for trial. The defendants
jointly moved for unallocated attorneys fees in the amount of
$10,034.20 under Civil Rule 82(b).3 Hertz opposed the motion on
the ground that he had been the actual prevailing party despite
losing on summary judgment because he received more than he had
requested in his relief sought a new full denture when he had
requested only a properly fitting partial denture. The court
rejected Hertzs argument, found the defendants were the
prevailing parties, and awarded the defendants the unallocated
lump sum attorneys fees requested.
Hertz appeals the superior courts denial of discovery
sanctions, grant of summary judgment, and award of attorneys
fees.
III. STANDARD OF REVIEW
I. Whether to impose sanctions on an attorney under Civil
Rule 95 is a matter within the discretion of the trial court, and
its decision will be reversed only for abuse of that discretion.4
We will find an abuse of discretion only where the record as a
whole leaves us with a definite and firm conviction that a
mistake has been made.5 Determinations of prevailing party
status and entitlement to attorneys fees are also reversed only
for abuse of discretion.6
Grants of summary judgment are reviewed de novo.7 We
will affirm summary judgment if the record contains no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. When considering a motion for
summary judgment, all reasonable inferences of fact from the
proffered evidence must be drawn against the moving party and in
favor of the non-moving party. 8
Whether a medical malpractice action requires expert
testimony is a question of law to which this court applies its
independent judgment, adopt[ing] the rule of law most convincing
in light of precedent, reason, and policy.9
IV. DISCUSSION
A. Hertzs Motion for Sanctions
A. Hertz argues that the superior court erred by denying his
motion to sanction the defendants counsel, Paula Jacobson, for
conduct during discovery. His motion identified three grounds
for sanctions under Civil Rule 95(b):10 (1) failing to timely
comply with the order to produce Beachs interrogatory responses;
(2) failing to send Hertz a copy of Dr. Andersons contract with
DOC after the courts production order; and (3) issuing false
statements denying the existence of certain evidence.
The superior court ordered Jacobson to serve properly
signed interrogatory responses within twenty days of its December
5, 2006, order. Jacobson provided evidence showing she mailed
the interrogatory responses to Hertz on December 19, 2006. The
Alaska Rules of Civil Procedure provide that [s]ervice by mail is
complete upon mailing,11 and Jacobson therefore complied with the
courts order. There was no basis for the superior court to
sanction Jacobson regarding Beachs interrogatory responses.
When the court granted Hertzs motion to compel
production of Dr. Andersons contract with DOC, it did not set a
deadline for production. Hertz acknowledged he received the
contract sometime before February 6, 2007. The court therefore
did not abuse its discretion in refusing to sanction Jacobson for
any possible delay in production.
Finally, Hertz requested a copy of Dr. Morrows
recommendation/report concerning Hertzs teeth, and Jacobson
responded that Dr. Morrow did not make any specific
recommendations regarding Hertzs teeth. She did, however, make
notes in Hertzs medical chart. Those notes have been produced to
Hertz. Hertz contended this statement amounted to a sanctionable
lie. The superior court did not abuse its discretion in refusing
to impose sanctions for Jacobsons discovery response because no
discovery was withheld and Hertz was not misled.
We therefore affirm the superior courts denial of
Hertzs motion for sanctions against Jacobson.
B. Summary Judgment
1. Constitutional claims
Hertz alleged the defendants were guilty of deliberate
indifference in failing to adequately treat his dental
conditions. The superior court noted that Hertz was equivocal
about whether his claim rested on the Federal or State
Constitution, but construed it as stating violations of the
Eighth Amendment of the Federal Constitution. Because Hertz
relies on federal authority and because his putative parallel
claim for damages under the Alaska constitution would not be
viable,12 we too construe his deliberate indifference claim as
arising under 42 U.S.C. 198313 and the Eighth Amendment.
To prove an Eighth Amendment violation stemming from
prison medical or dental care, an inmate must prove deliberate
indifference to serious medical needs.14 The inmate must show a
serious medical need by demonstrating that failure to treat [the]
prisoners condition could result in further significant injury or
the unnecessary and wanton infliction of pain.15 The existence of
an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individuals daily
activities; or the existence of chronic and substantial pain are
examples of indications that a prisoner has a serious need for
medical treatment.16
After demonstrating a serious medical need, the inmate
must then show that prison officials were deliberately
indifferent to that need, with resulting harm.17 A prison
official acts with deliberate indifference . . . only if the
[prison official] knows of and disregards an excessive risk to
inmate health and safety. 18 Indifference may appear when prison
officials deny, delay or intentionally interfere with medical
treatment, or it may be shown by the way in which prison
physicians provide medical care.19
Hertz argues the defendants were deliberately
indifferent both to his need for a better-fitting partial denture
and to the pain caused by a decayed tooth.
a. Hertzs partial denture
An inmates need for properly fitting dentures might
amount to a serious need when, lacking them, the inmate suffers
disfigurement, inability to eat and consequent weight loss, or
great pain. In Hunt v. Dental Department the Ninth Circuit Court
of Appeals held that an inmate stated a claim of deliberate
indifference when he alleged that prison officials were aware of
his bleeding gums, breaking teeth and his inability to eat
properly, yet failed to take any action to relieve his pain.20 In
Farrow v. West the Eleventh Circuit Court of Appeals reversed
summary judgment in favor of a prison dentist after concluding an
inmate had demonstrated a serious medical need through evidence
show[ing] pain, continual bleeding and swollen gums, two
remaining teeth slicing into gums, weight loss, and such
continuing medical problems.21
Hertz did not lack dentures, but complained that his
upper partial denture fit loosely. He did not produce any
evidence that the loose-fitting denture caused him to lose
weight, bleed, suffer lacerations, or suffer additional dental
damage. In medical requests from May to September 2005, he
complained that the denture was bruising the roof of his mouth.
In contrast to the conditions described in Hunt and Farrow, the
bruising Hertz describes is not, without more, the kind of
chronic and substantial pain or injury that implicates the Eighth
Amendment.
We affirm the superior courts grant of summary judgment
in favor of the defendants on this claim of deliberate
indifference.
b. Hertzs decayed tooth
We also affirm the superior courts grant of summary
judgment on Hertzs deliberate indifference claim arising from his
tooth: even assuming that Hertz suffered pain from the cavity in
his tooth and that the pain was serious enough to implicate the
Eighth Amendment, the evidence does not show the defendants were
deliberately indifferent to his condition.
For deliberate indifference, the prison official must
not only be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, but that
person must also draw the inference. 22 [D]eliberate indifference
to medical needs may be shown by circumstantial evidence when the
facts are sufficient to demonstrate that a defendant actually
knew of a risk of harm.23 When the facts do not demonstrate that
the defendants had this knowledge, however, a deliberate
indifference claim must fail.24
Hertz first complained of the cavity in a medical
request dated April 2, 2006, in which he stated the cavity caused
him pain when brushing. Dr. Anderson examined the cavity on
April 8; he described it as small and non-acute and deemed it a
low priority . . . requir[ing] only routine dental treatment.
Hertz submitted another request for treatment the next day,
complaining that nothing has been done about my cavity, to which
Beach responded that his name had been placed on the dental list.
According to a grievance filed by Hertz on July 26, 2006, his
tooth began causing him excruciating pain on July 8 and the pain
subsided with the use of pain relievers by July 16. His medical
chart indicates he complained to Beach of pain in his tooth on
July 10, and a DOC receipt indicates he received ibuprofen and a
topical pain reliever that same day. Hertz was referred to Dr.
Logan (an outside dentist) on July 26, and Dr. Logan extracted
the tooth on July 27.
The evidence does not establish deliberate indifference
by Beach or Hawkins because there is no indication they knew of
but did not respond to Hertzs alleged severe pain. The evidence
indicates that Hertzs decayed tooth was not serious when
Dr. Anderson examined it on April 8; only when it allegedly began
causing him great pain on July 8 did the tooth arguably become a
serious condition.25 But when he complained of the pain to Beach
on July 10, Beach immediately notified the doctor on staff (not
Dr. Anderson), and Hertz received pain relievers.
Hertz does not assert by affidavit that he told Beach
or Hawkins his severe pain continued after July 10, nor does he
refer to any other evidence implying that Beach or Hawkins knew
that it did. There is thus no evidence that Beach or Hawkins
ever denied or delayed treatment. Hertzs medical chart indicates
that Hawkins took his blood pressure and heart rate on July 16,
but it makes no mention of tooth pain. Hertz himself admits that
the pain subsided by July 16. Beach and Hawkins cannot be
considered deliberately indifferent when, to the best of their
knowledge, medications had relieved Hertzs pain.26
There is also no evidence in the record that Anderson
knew about the pain Hertz began experiencing on July 8. Had
Anderson been aware that Hertz had complained to Beach about pain
from his decayed tooth, he would have known only that Hertz had
received pain medications and had not complained again. Without
knowledge that Hertz was suffering from a serious medical need,
Anderson could not have been deliberately indifferent.
2. Hertzs medical malpractice claims
1. The superior court granted summary judgment in favor of the
defendants on Hertzs medical malpractice claims after concluding
that Hertz had failed to supply expert testimony necessary to
carry his burden of proof. Hertz argues this conclusion was
erroneous for two reasons.
Hertz first contends that he did produce expert
testimony: the DOC Medical Advisory Committees response to his
grievance appeal of August 14, 2006, in which the Committee
observed that Hertzs decayed tooth had been extracted by a
contract dentist, his upper partial denture fit correctly and
needed no further adjustments, and he had been transferred to an
Anchorage correctional facility where [a] new treatment plan
involving extractions and a full denture has been proposed.
Although Hertz argues this response is expert testimony
sufficient to rebut Dr. Morrows opinion, it is not it does not
describe the standard of care ordinarily exercised by dentists
under similar circumstances, nor does it assert that the
defendants fell below this standard. Although the Committee
acknowledged a new course of treatment for Hertz, that
acknowledgment was not expert opinion that the old course of
treatment was negligent.27 The grievance response does not carry
Hertzs burden of proof in his medical malpractice claims.28
Hertz next contends that the superior court erred in
requiring expert testimony because his claim falls within a
narrow exception to the expert testimony requirement: the
negligence here is clear enough, he argues, that it is evident to
a layperson even without the aid of expert testimony.
In medical malpractice actions . . . the jury
ordinarily may find a breach of a professional duty only on the
basis of expert testimony.29 But we have recognized an exception:
expert testimony is not needed in non-technical situations where
negligence is evident to lay people.30
In a medical malpractice action by a prisoner against
DOC medical personnel, we recently drew a distinction between
actions that involve professional judgment or skill and those
that do not:
Most of the [plaintiffs] contentions involved
treatment decisions, prescriptions, or other
medical issues that are arguably technical;
if so, they must be supported by expert
evidence. But some of the allegations could
possibly fall into the non-technical
category, such as the failure to provide
medication and adequate access to licensed
physicians.[31]
Whether Hertzs claims require the support of expert testimony
depends on whether the actions from which they arise involve
specialized medical care, skill, or judgment.
a. Malpractice claims against Beach and Hawkins
Hertz argues Beach and Hawkins committed malpractice in
two ways: in failing to provide him treatment themselves and in
delaying his treatment with Dr. Anderson. The superior court
granted summary judgment in favor of Beach and Hawkins because
Hertz failed to supply expert testimony to support his claims.32
Nurses are health care providers under the medical
malpractice statutes, including the expert testimony requirements
of AS 09.55.540.33 To show that Beach and Hawkins committed
malpractice in failing to treat him themselves, Hertz needed to
provide expert evidence showing negligence. He did not.
As to his delayed treatment, Hertz does not deny that
Hawkins and Beach placed his name on the dental list when he
complained of his loose-fitting denture or his decayed tooth.
The nurses communicated names and conditions to a dentist,
Dr. Anderson, to determine the course and treatment priority for
Hertz and other inmates on the list. Hertz acknowledges that
Beach alerted a doctor and gave him pain relievers after he
informed Beach that his decayed tooth was causing severe pain.
Assuming the nurses actually had or exercised the authority to
make prioritization recommendations to Dr. Anderson, whether they
were negligent in not prioritizing Hertzs dental needs over those
of other inmates a medical judgment is a question the ordinary
layperson cannot answer without expert evidence describing the
standard of care required of nurses under the circumstances.
Hertz supplied no such evidence.
We therefore affirm the superior courts grant of
summary judgment in favor of the nurses on Hertzs medical
malpractice claims.
b. Malpractice claims against Dr. Anderson
Hertzs pleadings suggest four separate malpractice claims
against Dr. Anderson: (1) the delay in replacing his partial
denture between April 28, 2005, and April 8, 2006; (2) the delay
in adjusting his new partial denture between April 8, 2006, and
September 12, 2006; (3) the overall approach to treating Hertzs
longstanding periodontal disease between April 2005 and September
2006; and (4) the delay in treating the decayed tooth, which was
ultimately extracted on July 27, 2006.
The actions underlying the latter three claims of
malpractice all required expert evidence. Dr. Anderson gave
Hertz his new partial denture and adjusted it on April 8, 2006.
Although Hertz complained the new partial denture was loose, both
Dr. Logan, who examined Hertz in July 2006, and Dr. Morrow, who
examined him in September 2006, believed that the denture was
properly fitted and there were no adjustments that would improve
its function. Whether the partial denture needed to be adjusted
and whether Dr. Andersons failure to do so was negligent are
questions of medical judgment that a layperson is ill-equipped to
evaluate. To avoid summary judgment Hertz needed to produce
expert opinion evidence disputing Dr. Morrows opinion that
Dr. Anderson met the standard of care; when Hertz did not, it was
not error to grant summary judgment in Dr. Andersons favor.
Hertzs theory that Dr. Andersons overall approach to
treating Hertzs periodontal disease replacing and adjusting the
partial denture as necessary was negligent also required
supporting expert evidence. The proper course of treatment for
periodontal disease is a matter of professional judgment;
laypeople are not ordinarily equipped with the knowledge to
second-guess a dentists approach. Hertz suggests that the more
aggressive treatment ultimately proposed by Drs. Logan and Morrow
extracting Hertzs remaining teeth and constructing a full denture
implies Dr. Andersons approach was inadequate. That these
dentists opted for one approach, however, does not establish that
Dr. Andersons approach fell below the standard of care required
of dentists under the circumstances.34 More than one approach may
meet the applicable standard of care; without testimony
describing that standard, the ordinary layperson would not know
whether Dr. Andersons approach fell below it. When Hertz failed
to produce expert evidence to support this claim, it was not
error to grant summary judgment in Dr. Andersons favor.
Finally, Hertzs claim that the treatment of his decayed
tooth amounted to malpractice also required supporting expert
evidence to survive summary judgment. Dr. Anderson first
examined the decay on April 8, 2006. He described the cavity as
small and non-acute, and in [his] professional and clinical
judgment, the cavity was not an urgent matter nor did it take
priority over other inmates with more acute and urgent dental
needs. Dr. Andersons April 8 diagnosis, his decision to postpone
treatment, and his decision to prioritize other inmates needs all
involved the exercise of medical judgment and skill; Hertz needed
expert evidence to show those decisions were negligent. When
Hertz failed to produce expert evidence, it was not error to
grant summary judgment in Dr. Andersons favor.
When all inferences are drawn in Hertzs favor the delay
of almost a year in replacing his upper partial denture may not
have been due entirely to the exercise of Dr. Andersons
professional judgment. Hertz began requesting a new denture in
April 2005 after two of his teeth had been extracted. Dr.
Anderson made an impression of Hertzs teeth on September 17,
2005, and sent it to the laboratory. Dr. Anderson stated that he
was unable to treat inmates from mid-October 2005 to mid-December
2005 because the Lemon Creek dental facility was out of
commission at that time. He then explained that, due to the
resulting backlog of inmates with more urgent dental needs, he
was unable to see Hertz until February 11, 2006. Although there
is nothing in the record to indicate whether Dr. Anderson had a
new upper partial denture ready to install that day, Hertzs teeth
had shifted during the interim, so Dr. Anderson made a new
impression. Dr. Anderson delivered the new upper partial denture
to Hertz on April 8, 2006.
Hertz asserts that the Lemon Creek dental facility was
not out of commission in the fall of 2005, but rather from June
to September 2005, before his impression was taken. If true,
this statement calls into doubt Dr. Andersons assertion that his
failure to treat Hertz between September 2005 and February 2006
was due to closure of the facility and to his subsequent
professional judgment about whom to treat first. Without knowing
whether the months-long wait resulted from the lack of an
appropriate facility or appropriate staffing, from Dr. Andersons
professional judgment regarding Hertzs needs relative to those of
other inmates, or from some other factor, we cannot determine
whether expert evidence is necessary to evaluate Dr. Andersons
actions. On the current record, it was error to grant summary
judgment for lack of expert evidence on this particular
malpractice claim.35
We affirm the grant of summary judgment on Hertzs
malpractice claims against Dr. Anderson, except for the claim
arising from the year-long delay in replacing his denture. We
remand that claim to the superior court for further proceedings.
C. Attorneys Fees
The superior court granted the defendants joint motion
for attorneys fees after finding that the defendants were the
prevailing parties and that their attorneys fees were reasonable
and necessarily incurred. The award did not specify the amount
of attorneys fees incurred on behalf of each individual
defendant. In light of our rulings, the judgment against Hertz
for attorneys fees must be vacated.
Because we reverse one part of the summary judgment
ruling in favor of Dr. Anderson and remand for further
proceedings, Dr. Anderson is not a prevailing party and is not
entitled to an attorneys fees award.
Because we affirm the superior courts grant of summary
judgment in favor of Beach and Hawkins, we also affirm its
determination that they were prevailing parties entitled to an
attorneys fee award.36 But Beach and Hawkins may not be awarded
attorneys fees incurred in Dr. Andersons defense or in defending
against Hertzs deliberate indifference claims unless the court
finds that his action was frivolous, unreasonable, or without
foundation.37 We therefore remand for further proceedings on the
attorneys fees award in favor of Beach and Hawkins.
V. CONCLUSION
We AFFIRM the superior courts denial of sanctions
against the defendants counsel. We AFFIRM the superior courts
grant of summary judgment in favor of Beach and Hawkins. We
AFFIRM the superior courts grant of summary judgment in favor of
Dr. Anderson on all claims except Hertzs medical malpractice
claim arising from the delay in replacing his upper partial
denture, and we REVERSE the grant of summary judgment on that
claim and REMAND for further proceedings consistent with this
decision. We VACATE the judgment against Hertz for attorneys
fees and REMAND for entry of a new attorneys fees award in favor
of Beach and Hawkins.
_______________________________
1 At about the time of Hertzs amended complaint, Hertz
agreed to have his remaining upper teeth removed so that a full
denture could be fitted. This mooted his request for injunctive
relief, leaving only his claim for damages.
Hertz also alleged Dr. Andersons conduct violated the
terms of the settlement agreement between DOC and state prisoners
in Cleary v. Smith, No. 3AN-81-4274 CIV (Alaska Super., Sept. 21,
1990), and DOCs own policies and procedures regarding access to
health care. Both the Cleary settlement and DOC policies and
procedures require that prison care meet the standard of care
that non-prisoners expect in effect, that prison health care not
be negligent. Id. at 16 (All inmates shall be entitled to
necessary medical, dental and mental health services comparable
in quality to those available to the general public.). Thus even
assuming Hertz had a private cause of action against the named
defendants under the settlement or internal DOC regulations,
which we need not address, it would be resolved the same way as
his medical malpractice claims.
2 The document Hertz relied on for this assertion is an
authorization for Hertz to see Dr. Logan, signed by Beach on
behalf of DOCs Dr. Luban. There is no indication that Beach
initiated or requested this referral, or that she faxed this
document to Dr. Luban; rather, it appears to have been sent to
Dr. Logan, who noted on the document his diagnosis and treatment
of Hertz.
3 Alaska Civil Rule 82(b)(2) provides in pertinent part:
In cases in which the prevailing party recovers no money
judgment, the court shall award . . . the prevailing party in a
case resolved without trial 20 percent of its actual attorneys
fees which were necessarily incurred.
4 In re Schmidt, 114 P.3d 816, 819 (Alaska 2005) (citing
Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989)).
5 Wooten v. Hinton, 202 P.3d 1148, 1151 (Alaska 2009)
(citing Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007)).
6 Id.; Gwichin Steering Comm. v. State, Office of the
Governor, 10 P.3d 572, 584-85 (Alaska 2000); see also Interior
Cabaret, Hotel, Rest. & Retailers Assn v. Fairbanks N. Star
Borough, 135 P.3d 1000, 1002 (Alaska 2006) (citing Jerue v.
Millett, 66 P.3d 736, 740 (Alaska 2003)) (Prevailing party
determinations will ordinarily be overturned only if they are
manifestly unreasonable.).
7 Wilson v. MacDonald, 168 P.3d 887, 888 (Alaska 2007)
(citing DeNardo v. Bax, 147 P.3d 672, 676 (Alaska 2006)).
8 Id. at 888-89 (quoting DeNardo, 147 P.3d at 676-77).
9 D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 228 (Alaska
2000) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
10 Alaska R. Civ. P. 95(b) provides in pertinent part:
[A] court may, after reasonable notice and an
opportunity to show cause to the contrary,
and after hearing by the court, if requested,
impose a fine not to exceed $50,000.00
against any attorney who practices before it
for failure to comply with these rules or any
rules promulgated by the supreme court.
11 Alaska R. Civ. P. 5(b).
12 Hertz did assert that the dental treatment he received
at Lemon Creek violated article I, section 12 of the Alaska
Constitution, which prohibits cruel and unusual punishment. But
we will not imply a private cause of action for damages under the
Alaska Constitution except in cases of flagrant constitutional
violations where little or no alternative remedies are available.
Lowell v. Hayes, 117 P.3d 745, 753 (Alaska 2005) (quoting Dick
Fischer Dev. No. 2 v. State, Dept of Admin., 838 P.2d 263, 268
(Alaska 1992) (internal quotation marks omitted)). Medical
malpractice and federal constitutional law provide adequate
remedies to redress inadequate dental treatment. We therefore
affirm the implicit dismissal of Hertzs state constitutional
claim.
13 42 U.S.C. 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law . . . .
14 Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding
that deliberate indifference to prisoners serious medical needs
constitutes violation of Eighth Amendments prohibition of
unnecessary and wanton infliction of pain).
15 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
(quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991),
overruled on other grounds by WMX Techs., Inc. v. Miller, 104
F.3d 1133 (9th Cir. 1997) (en banc)) (internal quotation marks
omitted).
16 McGuckin, 974 F.2d at 1059-60.
17 Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at
1060).
18 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
(quoting Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187
(9th Cir. 2002)).
19 Hutchinson v. United States, 838 F.2d 390, 394 (9th
Cir. 1988).
20 865 F.2d 198, 200 (9th Cir. 1989).
21 320 F.3d 1235, 1244-45 (11th Cir. 2003).
22 Toguchi, 391 F.3d at 1057 (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)).
23 Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.
2003) (citing Farmer, 511 U.S. at 842).
24 See id. (reversing grant of summary judgment in favor
of certain defendants when evidence showed prisoner alerted them
to his diabetic condition and need for food, but affirming
summary judgment in favor of other defendants because prisoner
failed to introduce sufficient evidence that [these defendants]
knew of [prisoners] diabetic condition).
25 We assume without deciding that Hertzs painful cavity
was a serious need, recognizing that tooth pain may be a serious
medical need implicating the Eighth Amendment. See, e.g.,
Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (noting
plaintiff had presented evidence that he suffered extreme pain
from loose and infected teeth, which caused blood to seep from
his gums, swelling, and difficulty sleeping and eating. This
constituted a need for medical attention that would have been
obvious to a layperson . . . .).
26 See Reeves v. Caldwell, No. CIV. 98-363-ST, 1999 WL
375580, at *5 (D. Or. Mar. 3, 1999) ([Defendant] responded
promptly to plaintiffs medical/dental requests. She immediately
provided pain medication in the form of extra-strength Tylenol,
and when it became apparent to her that plaintiffs tooth pain was
not alleviated, she scheduled a dental appointment and then
changed his medication to a stronger one. The fact that
plaintiff complains that the Tylenol he received for 21 days did
not sufficiently alleviate his pain, and that [defendant] should
have either scheduled the dental appointment or increased his
pain medication earlier does not rise to the level of deliberate
indifference sufficient to constitute a constitutional
violation.).
27 See Hutchins v. Blood Servs. of Mont., 506 P.2d 449,
452 (Mont. 1973) (Nor does the fact that other physicians might
have adopted other methods necessarily render the attending
physician liable, nor show negligence or want of skill or care.
If the method adopted . . . has substantial medical support, it
is sufficient. (ellipses in original) (quoting Dunn v. Beck, 260
P. 1047, 1050 (Mont. 1927))); Lawless v. Calaway, 147 P.2d 604,
607 (Cal. 1944) ([T]he fact that another physician or surgeon
might have elected to treat the case differently or use methods
other than those employed by defendant does not of itself
establish negligence.).
28 See AS 09.55.540(a), which
places the burden of proof on
the plaintiff in a medical
malpractice action to show:
(1) the degree of knowledge or skill
possessed or the degree of care ordinarily
exercised under the circumstances, at the
time of the act complained of, by health care
providers in the field or specialty in which
the defendant is practicing;
(2) that the defendant either lacked this
degree of knowledge or skill or failed to
exercise this degree of care; and
(3) that as a proximate result of this lack
of knowledge or skill or the failure to
exercise this degree of care the plaintiff
suffered injuries that would not otherwise
have been incurred.
29 Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska
1980).
30 Kendall v. State, Div. of Corr., 692 P.2d 953, 955
(Alaska 1984) (citing Clary Ins. Agency, 620 P.2d at 200).
31 Hymes v. DeRamus, 119 P.3d 963, 968 n.23 (Alaska 2005).
32 The superior court also ruled that Hertz had not
contested Beach and Hawkinss affidavits indicating that they were
not responsible for and did not provide dental treatment to
Hertz, and granted summary judgment in favor of Beach and Hawkins
on that ground as well. Because we conclude Hertz was required
to produce expert testimony in support of claims against the two
nurses, we need not reach this ground of the courts decision.
33 AS 09.55.560(2).
34 See Hutchins, 506 P.2d at 452; Lawless, 142 P.2d at
607.
35 We observe that inordinate delays in dental treatment
due to inoperative facilities or insufficient staff to handle the
volume of prisoner needs may implicate DOCs duties to prisoners.
Because Hertz did not raise this issue, and actually removed DOC
from his lawsuit by way of his amended complaint, we need not
address it.
36 Hertz argues that the superior court erred in deciding
the defendants were prevailing parties because he received more
than he requested, a full set of dentures. Prevailing party
status does not automatically follow [from] . . . an affirmative
recovery but rather . . . is based upon which party prevails on
the main issues. Hutchins v. Schwartz, 724 P.2d 1194, 1204
(Alaska 1986). To decide which party prevails, the court must
determine, in an overall sense, which party the decision favors.
Gwichin Steering Comm., 10 P.3d at 584 (quoting Alaska Wildlife
Alliance v. Rue, 948 P.2d 976, 981 (Alaska 1997)). The main
issues in this case were whether the defendants were negligent or
deliberately indifferent regarding Hertzs dental care. As
discussed above, Hertzs eventual receipt of a full denture does
not prove that they were negligent or deliberately indifferent
(nor was it provided in exchange for dismissal of his claims).
The superior courts decision granted summary judgment in favor of
Beach and Hawkins on all claims. The decision therefore favored
Beach and Hawkins, and it was not an abuse of discretion to
determine they were the prevailing parties.
37 DeNardo v. Mun. of Anchorage, 775 P.2d 515, 518 (Alaska
1989) (quoting Hughes v. Rowe, 449 U.S. 5, 15 (1980)) (internal
quotation marks omitted) (reversing award of attorneys fees to
city government when trial court remarked that plaintiffs claim
under 1983 appeared to have merit).
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