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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christine Culliton, as Personal Representative of the Estate of Courtney Culliton v. Hope Community Resources, Inc. (7/30/2021) sp-7547

Christine Culliton, as Personal Representative of the Estate of Courtney Culliton v. Hope Community Resources, Inc. (7/30/2021) sp-7547

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                            

           corrections@akcourts.gov.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



CHRISTINE  CULLITON,  Personal                                    )  

Representative  of  the  Estate  of                               )    Supreme Court No. S-17580  

                                                                                       

                                                                                                         

COURTNEY  CULLITON,                                               )  

                                                                  )    Superior  Court  No.   1JU-17-00869  CI  

                                Appellant,                        )  

                                                                                            

                                                                  )    O P I N I O N  

           v.                                                     )  

                                                                                                         

                                                                  )    No. 7547 - July 30, 2021  

                                       

HOPE COMMUNITY RESOURCES,   )  

INC.,                                                             )  

                                                                  )  

                                Appellee.                         )  

                                                                  )  



                                                                                                                

                                            

                      Appeal from the Superior Court of the State of Alaska, First  

                                                                                          

                      Judicial District, Juneau, Daniel Schally, Judge.  



                                                                                                                         

                      Appearances:  Heather Gardner, Anchorage, for Appellant.  

                                                                                                                  

                      Laura  L.  Farley,  Farley  &  Graves,  P.C.,  Anchorage,  for  

                      Appellee.  



                                                                                                           

                      Before:  Bolger, Chief Justice, Winfree, Maassen, Carney,  

                                                 

                      and Borghesan, Justices.  



                                                  

                      BORGHESAN, Justice.  



I.         INTRODUCTION  



                                                                                                                              

                      The estate of a severely disabled woman sued her in-home care providers  



                                                             

for negligence in causing her death.  The superior court granted summary judgment in  



                                                                                                                                     

favor of the providers, ruling that the estate was required to support its negligence claim  


----------------------- Page 2-----------------------

 with expert testimony and had failed to present any.                                                                                                                                                                     We hold that the estate is not                                                                              



 required to present expert testimony to establish a breach of the duty of care because the                                                                                                                                                                                                                                             



 estate's theory of fault is one of ordinary negligence that does not turn on the exercise                                                                                                                                                             



 of professional skill or judgment.                                                                                                          The   estate's theory of causation, by contrast, is                                                                                                                                            



 complex and must be supported by the opinion of a medical expert.                                                                                                                                                                                                                But the treating                   



 physician's deposition testimony is sufficient evidence of causation to survive summary                                                                                                                                                                                                                        



judgment.   We therefore reverse the superior court's decision and remand for further                                                                                                                                                                                                                                   



 proceedings.   



 II.                       FACTS AND PROCEEDINGS                                     



                           A.                        Facts  



                                                     This casearisesout of the death of Courtney Culliton, a31-year-old woman                                                                                                                                                                                           



 with severe developmental disabilities and chronic seizure disorder.                                                                                                                                                                                                            Courtney began   

                                                                                                                                                                                                                                                                                                               1  and was  

 having seizures shortly after birth.                                                                                                    She was diagnosed with Batten syndrome                                                                                                                                                     



 considered terminal at 6 months.  The frequency of her seizures was reduced by placing  

                                                                                                                                                                                                                                                                                                                       



 her in a "bubble" environment and putting her on a specific diet, which allowed her to  

                                                                                                                                                                                                                                                                                                                                            



 live far longer than initially projected.  Yet her cognitive and physical capacities were  

                                                                                                                                                                                                                                   



 severely  limited.                                                          Near  the  time  of  Courtney's  death,  her  primary  care  physician,  

                                                                                                                                                                                                                                                                                                          



 Myanandi Than, M.D., described Courtney as "terminally ill" with a poor prognosis.  

                                                                                                                                                                                                                                                                                                                                                



                           1                         Batten syndrome, or                                                                  Batten   disease,   is "cerebral sphingolipidosis,                                                                                                                                          late  



juvenile type."                                              Batten Disease                                                  , S        TEDMAN'S   MEDICAL  DICTIONARY   (2014).   Cerebral  

 sphingolipidosis is "characterized by failure to thrive, hypertonicity, progressive spastic                                                                                                                                                                                                                             

 paralysis, loss of vision and occurrence of blindness, usually with macular degeneration                                                                                                                                                                                                        

 and optic atrophy, convulsions, and mental deterioration; associated with abnormal                                                                                                                                                                                                                          

 storage of sphingomyelin and related lipids in the brain."                                                                                                                                                                  Cerebral Sphingolipidosis                                                                                ,  id.  



                                                                                                                                                                     -2-                                                                                                                                                         7547
  


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                       1.         Background information   



                       Courtney received assisted-living services through the Medicaid Waiver                                          



                                                                                                                            2  

Program, which allows eligible individuals to receive services at home.                                                         Courtney's  



                                                                                                                                     

mother, Christine Culliton, contracted with Hope Community Resources, an in-home  



                                                                                                                                    

care provider certified under the waiver program, to receive services allowing Courtney  



                                                                                                                                              

to "reside and participate in her home safely with the appropriate level of monitoring and  



                                                                                                                                          

supervision to work on her skills of daily living, both in and out of the home."  Hope  



                                                                                                                                 

supplied Courtney with in-home caretakers to performmany different tasks: monitoring  



                                                                                                                                            

Courtney; taking her vital signs; giving her medication; prompting her to get out of bed;  



                                                                                                                                          

entertaining her with toys and television; providing skincare and wound dressing; doing  



                                                                                                                                             

laundry and other chores; helping her walk, stretch, and exercise; and preparing and  



                                                                                                                                     

serving  meals.              Hope  also  paid  Courtney's  sister  to  provide  services  and  "natural  



support."  



                                                              

                       2.         The aspiration protocol  



                                                                                                                                                  

                       Courtney frequently suffered aspiration pneumonia, which occurs when a  



                                                                                                                                            

foreign  substance  is  inhaled  and  enters  the  lungs,  causing  respiratory  distress  and  



                                                                                                                                               

bacterial infection.   Because of this recurring condition, Courtney's food had to be  



                                                                                                                                   

pureed to the consistency of yogurt or pudding. Courtney was hospitalized for aspiration  



                                                                                                                                                     

pneumonia on at least four occasions:  once in 2011, again in 2013, and twice in 2014.  



                                                                                                                                     

According to a 2015 plan of care created for Courtney, 22 aspirations had been reported  



                                                                                                    

to her mother and sister in the prior year.  The plan stated that Courtney's "aspirations  



                                                                                                                                               

range in severity and can often be difficult to detect[,] resulting in a lack of reporting by  



                                                                                                                                                   

staff, and often times not being noticed until Courtney's health is adversely affected."  



           2  

                                                                                                               

                       See 7 Alaska Administrative Code (AAC) 130.200 (2013).  



                                                                       -3-                                                                     7547  


----------------------- Page 4-----------------------

                                                                   On August 12, 2015, Christine drafted an aspiration protocol with specific                                                                                                                                                                                                                                                             



instructions for caretakers should Courtney choke on medication or food.                                                                                                                                                                                                                                                                                                      The protocol   



instructed caretakers to clear the blockage and, "[i]f she [wa]s gasping for air or . . . not                                                                                                                                                                                                                                                                                                                        



coughing out the blockage," to call 911 immediately.                                                                                                                                                                                                                           With any aspiration, caretakers                                                                               



were to notify Christine and document details of the event including what Courtney was                                                                                                                                                                                                                                                                                                                                        



 eating or drinking, the time of the incident, and how she responded after clearing the                                                                                                                                                                                                                                                                                                                                          



blockage.   Caretakers were also instructed to complete a critical incident report for the                                                                                                                                                                                                                                                                                                                                       



 State's Division of Senior and Disabilities Services and to provide a copy to Hope and                                                                                                                                                                                                                                                                                                                                       



 Christine.   The protocol asserted that these steps were required "due to [Hope's] refusal                                                                                                                                                                                                                                                                                                                    



to notify [Christine] so [she] can determine if medical intervention is necessary."                                                                                                                                                                                                                                                                                                                                         Dr.  



Than endorsed the plan.                                                                                                    



                                                                   Hope received the protocol on or around August 18, 2015.                                                                                                                                                                                                                                              In an email to                                                



Hope's medical director, one of Hope's officers acknowledged the protocol:                                                                                                                                                                                                                                                                                                                                    "As a   



request for action from the parent has been expressed and we have a signed physician                                                                                                                                                                                                                                                                                                            



protocol in our possession staff will need to follow the protocol at this time and should                                                                                                                                                                                                                                                                                                                      



be instructed in this protocol as soon as possible."                                                                                                                                                                                                         In the same email chain, another of                                                                                                                                      



Hope's officers expressed reservations about the protocol and wrote "this circumstance                                                                                                                                                                                                                                                                                         



warrants a sit down meeting" with other staff members.                                                                                                                                                                                                                                   



                                                                   3.                                Courtney died of aspiration pneumonia                                                                                                                 



                                                                   According toareport producedbyacaregiver for Hope, Courtneyaspirated                                                                                                                                                                                                                                                              

                                                                                                           3            The parties dispute whether Hope informed Christine of this  

on August 25, 2015.                                                                                                                                                                                                                                                                                                                                                                                                          



 aspiration before Courtney's death. On August 29, Courtney had a 30-second grand mal  

                                                                                                                                                                                                                                                                                                                                                                                                                               



                                  3  

                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                   This document was not shared with Christine at the time it was made; it was  

                                                                                                                                                                        

produced after Courtney's death.  



                                                                                                                                                                                                                  -4-                                                                                                                                                                                                    7547  


----------------------- Page 5-----------------------

                                      4  

 seizure.    On September 2, Courtney had two more seizures (including a two-minute                                                                                                                                                                                                                                                                                       



grand mal seizure).                                                                             On September 4, Courtney had seven grand mal seizures, appeared                                                                                                                                                                                                                               



to have a "head cold," and was in a poor mood.                                                                                                                                                                                                        By September 6, Courtney had not                                                                                                                                    



urinated in over a day; Christine called an emergency room doctor and agreed to a plan                                                                                                                                                                                                                                                                                                                          



of treatment that resulted in urination.                                                                                                                                                         However, after Courtney's condition failed to                                                                                                                                                                                  



improve further she was admitted to the emergency room on September 10.                                                                                                                                                                                                                                                                                                                      Hospital  



records upon her admission indicate that she "has been a little more lethargic than usual                                                                                                                                                                                                                                                                                                                       



the last couple of days and has not been making urine."                                                                                                                                                                                                                                      A doctor noted "[p]robable                                                          



aspiration   pneumonia"   and   wrote   that   Christine   was   "very   knowledgeable   about  



 [Courtney's] care and aggressive in terms of recommendations for treatment."                                                                                                                                                                                                                                                                                                                                     The  



doctor indicated that he was "going to try to go along with mom as long as it makes                                                                                                                                                                                                                                                                                                                       



 sense."    



                                                                  Courtney's condition improved slightly on September 14, but                                                                                                                                                                                                                                                           Courtney  



aspirated   again   shortly   thereafter.     On   September   16,   Courtney   began   to   display  



 symptoms of pain.  She was given painkillers, and the decision was made to transition                                                                                                                                                                                                                                    



                                 4                                Agrandmal                                                   seizureissynonymous                                                                                             with a generalized tonic-clonicseizure,                                                                                                                 



which is "a generalized seizure characterized by the sudden onset of tonic contraction                                                                                                                                                                                                                                                                                            

of the muscles often associated with a cry or moan, and frequently resulting in a fall to                                                                                                                                                                                                                                                                                                                                        

the ground.                                                The tonic phase of the seizure gradually gives way to clonic convulsive                                                                                                                                                                                                                                                  

movements   occurring   bilaterally   and   synchronously   before   slowing   and   eventually  

 stopping, followed by a variable period of unconsciousness and gradual recovery."                                                                                                                                                                                                                                                                                                   

 Grand    Mal    Seizure    &    Generalized    Tonic-Clonic    Seizure,    STEDMAN'S    MEDICAL  

DICTIONARY   (2014);   see generally Tonic                                                                                                                                                                       ,   id. ("In a state of continuous unremitting                                                                                                                

action; denoting especially a prolonged muscular contraction.");                                                                                                                                                                                                                                                                     Clonic & Clonus                                                                     ,  id.  

(characterized by "[a] form of movement marked by contractions and relaxations of a                                                                                                                                                                                                                                                                                                                                                 

muscle, occurring in rapid succession seen with, among other conditions, spasticity and                                                                                                                                                                                                                                                                                                                                  

 some seizure disorders").                                        



                                                                                                                                                                                                               -5-                                                                                                                                                                                                 7547
  


----------------------- Page 6-----------------------

                                                                                                                         

her to end-of-life care.  Courtney died later that day.  The hospital reported her official  



                                                                                                                            

cause of death as "[b]ilateral aspiration pneumonitis, chronic recurrent seizures, [and]  



                          

cerebral palsy."  



          B.        Proceedings  



                     Christine, representing herself,  filed a complaint against Hope alleging a  

                                                                                                                                  



single cause of action for "Medical Negligence" on behalf of Courtney's estate.  The  

                                                                                                                              



estate alleged that Hope "breached its duty of care to Courtney Culliton in the following  

                                                                                                                     



non-inclusive ways":  "[f]ailure to properly monitor her for aspirations"; "[f]ailing to  

                                                                                                                                 



advise others of those aspirations"; "[f]ailing to timely respond to changes in her medical  

                                                                                                                        



condition"; [and] "[f]ailing to timely obtain higher level medical care."  

                                                                                                             



                    Following discovery, Hope filed a motion for summary judgment arguing  

                                                                                                                        



that because the estate's claim "raise[d] complex medical issues," it had to be proved  

                                                                                                                         



with expert testimony. Citing the deposition testimony of Courtney's treating physician,  

                                                                                                                     



Hope argued that because Dr. Than "[could not] opine that it is more likely than not that  

                                                                                                                              



the failure to report the August 25, 2015 suspected aspiration event to Christine caused  

                                                                                                                         



Courtney's death" and the estate had no other expert witnesses, the complaint should be  

                                                                                                                                



dismissed with prejudice. The superior court heard oral argument and granted summary  

                                                                                                                      



judgment in favor of Hope in a one-page order.  The superior court ruled that summary  

                                                                                                                      



judgment was appropriate because of the estate's failure to provide expert testimony,  

                                                                                                                    



incorporating  by  reference  the  arguments  Hope  made  in  its  motion  for  summary  

                                                                                                                     



judgment.  Final judgment in Hope's favor was entered.  

                                                                                        



                    The estate appeals the superior court's grant of summary judgment.  

                                                                                                                            



III.       STANDARD OF REVIEW  

                                        



                     "We review a grant of summary judgment de novo and will affirm the  

                                                                                                                               



decision . . . [only] if there are no genuine issues of material fact and if the moving party  

                                                                                                                            



                                                                -6-                                                        7547
  


----------------------- Page 7-----------------------

                                                                          5  

is entitled to judgment as a matter of law."                                 "Any dispute must not only be genuine and                              



material, but arise from admissible evidence, such as affidavits recounting personal                                                      

                                                   6   All reasonable inferences are drawn in favor of the non- 

knowledge of specific facts."                                                                                                                     

                         7   "After the court makes reasonable inferences from the evidence in favor  

moving party.                                                                                                                                    

                



of the non-moving party, summary judgment is appropriate only when no reasonable  

                                                                                                                                       

person could discern a genuine factual dispute on a material issue."8  

                                                                                                                            



                        "Whether expert testimony is required to show a breach of a duty of care  

                                                                                                                                     

represents a question of law to which we apply our independent judgment."9                                                              We apply  

                                                                                                                                                



the same de novo standard of review to determine whether expert testimony is required  

                                                                                                                                           

to show causation in a negligence action.10  

                                                              



IV.	        DISCUSSION  



                                                                                                                                        

            A.	         The Estate Need Not Proffer Expert Testimony About The Standard  

                               

                        Of Care.  



                                                                                                                                                       

                        The estate's theory of negligence in this case is clear. As Hope explains in  



                 

its brief:  



                                                                                                                              

                        [The  estate]  is  not  claiming  that  Hope  was  negligent  in  

                                                                                                                       

                        allowing Courtney to aspirate.  Rather, [the estate's] theory  

                                                                                                                            

                        is  that  had  Hope  promptly  notified  [Christine]  about  the  



            5           Parker  v.  Tomera,  89  P.3d  761,  765  (Alaska  2004).  



            6           Kaiser  v.  Sakata,  40  P.3d  800,  803  (Alaska  2002).  



            7          Id .  



            8           Christensen  v.  Alaska  Sales  & Serv.,  Inc.,  335  P.3d  514,  520  (Alaska  2014).  



            9          D.P.  v.   Wrangell  Gen.  Hosp.,  5  P.3d  225,  228  (Alaska  2000).  



            10          See  Punches  v.  McCarrey   Glen  Apartments,  LLC,  480  P.3d  612,  624-25  



(Alaska   2021)   (applying   de   novo   review   to   question   whether   expert   testimony   was  

required  to  show  causation);  Choi  v.  Anvil ,  32  P.3d   1,  3  &  n.1  (Alaska  2001)  (same).  



                                                                          -7-	                                                                   7547
  


----------------------- Page 8-----------------------

                                                 August 25, 2015 suspected aspiration event, Courtney would                                                                                                                                        

                                                 not have died.                                       [Emphasis in original.]                                                                  



 Hope argued below that the estate's claim is one of medical or professional malpractice                                                                                                                                                                                       



 that the estate must support with expert testimony, and the superior court, with little                                                                                                                                                                                                                



 explanation, agreed.                                                         But nothing in the record suggests the alleged failure to notify                                                                                                                                                     



 Christine of the aspiration on August 25 stems from the exercise of professional skill or                                                                                                                                                                                                                        



judgment. Hope internally acknowledged its obligation to notify Christine of suspected                                                                                                                                                                                                 



 aspirations,   and  Courtney's   caregiver   on   that   day   maintains   she   did   in   fact   notify  



 Christine.  This is a claim of ordinary negligence that jurors can competently evaluate                                                                                                             



 without the aid of an expert witness.                                                                 



                                                  1.	                    Expert testimony is not required to prove the standard of care                                                                                                                                                                  

                                                                         in claims of ordinary negligence against professionals.                                                                                                    



                                                 In medical malpractice actions "the jury ordinarily may find a breach of                                                                                                                                                                                        



 professional duty only on the basis of expert testimony," but expert testimony is not                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                   11        We  

 required "in non-technical situations where negligence is evident to lay people."                                                                                                                                                                                                                         



 recognized this distinction in D.P. v. Wrangell General Hospital, a case in which a  

                                                                                                                                                                                                                                                                                                                    



 patient hospitalized with schizophrenia and psychosis sued the hospital in negligence for  

                                                                                                                                                                                                                                                                                                               

 failing to adequately protect her.12                                                                                            The doctor who hospitalized the plaintiff gave staff  

                                                                                                                                                                                                                                                                                                          



 orders that the plaintiff "should stay in building, under observation/suicide precautions"  

                                                                                                                                                                                                                                                                            

 because she was a danger to herself and others.13                                                                                                                                   Yet a nurse lost track of the plaintiff,  

                                                                                                                                                                                                                                                                                          

 who left the building in a delusional state and had sex with a stranger.14  

                                                                                                                                                                                                                                                                            The plaintiff  

                                                                                                                                                                                                                                                                                            



                         11                       Wrangell Gen. Hosp.                                                         , 5 P.3d at 228.                      



                         12  

                                                                     

                                                 Id . at 226-27.  



                         13  

                                                                     

                                                 Id . at 226.  



                         14                      Id .  



                                                                                                                                                        -8-	                                                                                                                                            7547
  


----------------------- Page 9-----------------------

filed suit alleging that the hospital failed to provide "reasonable and attentive care,                                                              



                                                                                                                 15  

including, but not limited to, adherence to physician's orders."                                                                                        

                                                                                                                      When the plaintiff did  



                                                                                                                                               

not provide expert testimony about the duty of care, the hospital moved for and received  



                                 16  

                                      

                    

a directed verdict. 



                        We held that it was error to require the plaintiff to provide expert testimony  

                                                                                                                                            

about the medical standard of care in these circumstances.17                                                     The plaintiff's theory of  

                                                                                                                                                          



negligence did not attack the defendants' exercise of professional judgment; she did not  

                                                                                                                                                         



argue  that  defendants  failed  to  appreciate  her  mental  health  problems  or  prescribe  

                                                                                                                                             

reasonableprecautions.18  Rather, theplaintiff'stheorywasoneof"ordinary negligence":  

                                                                                                                                                               

the staff failed to follow precautions ordered by the treating physician.19  This theory did  

                                                                                                                                                        



not raise "strict" medical malpractice issues because it did not involve "specialized care  

                                                                                                                                                       

                                                                                       20      Expert  testimony  was  therefore  

that  requires  the  use  of  medical  judgment."                                                                                           

                                                                  



unnecessary,  as  the  question  "[w]hether  the  hospital  exercised  reasonable  care  in  

                                                                                                                                                          



supervising [the plaintiff] represent[ed] a factual question for the jury's resolution under  

                                                                                                                                                    

an ordinary negligence framework."21  

                                            



            15          Id . at 227.     



            16  

                                    

                        Id . at 228.  



            17          Id .  



            18          Id .  



            19  

                                    

                        Id . at 228-29.  



            20  

                                                

                        Id . at 229 & n.17.  



            21  

                                    

                        Id . at 229.  



                                                                            -9-                                                                     7547
  


----------------------- Page 10-----------------------

                         The   rule   that   expert   testimony   is   not   required   to   establish   ordinary  



                                                                                                                                                             22  

negligenceby               professionalsapplies                  to claimsagainstnon-medicalprofessionalsas well.                                                 



For example, in Clary Insurance Agency v. Doyle we affirmed the trial court's rejection  

                                                                                                                                                



 of a jury instruction stating that an insurance agent's failure to procure insurance may be  

                                                                                                                                                            

judged solely on the basis of expert testimony.23                                            In that case the insurance agent had  

                                                                                                                                              



 failed to submit the client's premiumto the worker's compensation insurance carrier and  

                                                                                                                                                          



then did not inform the client that it was uninsured; the client lacked coverage when one  

                                                                                                                                                          

 of its employees was seriously injured.24                                    Although we recognized that in some cases  

                                                                                                                                                      



procuring insurance might require the use of professional judgment, we held the failure  

                                                                                                                                                    



 in that case was a matter of ordinary negligence because it did not involve professional  

                                                                                                                                          

judgment and it was obvious how the duty of care was breached.25                                                               We reasoned that  

                                                                                                                                                         



 "expert testimony is not required where 'the subject of inquiry is one of such common  

                                                                                                                                                



knowledge that men of ordinary education could reach a conclusion as intelligently as  

                                                                                                                                     



                           26  

the witness.' "                   

                          



                         In  light  of  these  decisions,  whether  Hope's  employees  are  medical  

                                                                                                                                                



professionals is not dispositive of whether expert testimony is required.  "Not every act  

                                                                                                                                                           

 of a professional requires an instruction on the professional standard of care"27  or the  

                                                                                                                                                          



             22          Clary Ins. Agency v. Doyle                        , 620 P.2d 194, 199-200 (Alaska 1980).
                      



             23          Id . at 200.
     



             24
         Id . at 197-98.  

                                    



             25          Id . at 199-200.  

                                    



             26          Id . at 200 (quoting               People v. Cole              , 301 P.2d 854, 856 (Cal. 1956)).                             



             27          Id .  



                                                                            -10-                                                                      7547
  


----------------------- Page 11-----------------------

testimony of an expert witness.  The key is whether the alleged negligence stems from                                                                                     



                                                                                               28  

the exercise of professional skill or judgment.                                                        



                                                                                                                                                                             

                            2.	           The estate's theory of fault is one of ordinary negligence, so the  

                                                                                                                                                                    

                                          estate  need  not  establish  the  standard  of  care  with  expert  

                                          testimony.  



                                                                                                                                          

                            The estate argued below that the aspiration protocol gave Hope a duty to  



                                                                                                                                                                       

notify Christine of any aspirations and that Hope failed to perform that duty. This theory  



                                                                                                                                                                  

of fault is essentially the same as the theory of fault in D.P. v. Wrangell General Hospital  



                                                                                   29  

                                                                      

- failure to follow a physician's orders.                                                                                                                          

                                                                                        Although Hope staff questioned the medical  



                                                                                                                                                                  

necessity of the aspiration protocol, their internal emails also suggest that they believed  



                                                                                                                                                                             

they had an obligation to follow it.  The record does not suggest, and Hope does not  



                                                                                                                                                                     

argue,  that  it  purposely  declined  to  follow  the  protocol  as  a  result  of  its  staff's  



                                                                                                                                                                             

professional judgment.   Instead its defense is the disputed factual assertion that the  



                                                                                                                                                                              

caretaker on duty did follow the protocol by notifying Christine of the aspiration on  



                                                                                                                                                                

August 25.  Because Hope is not claiming that the alleged failure to notify Christine  



                                                                                                                                                                  

reflects the exercise of professional skill or judgment, expert testimony is not required  



                                                                                                      

to establish the duty of care or the breach of that duty.  



                                                                                                                                                 30  

                                                                                                                                                                           

                            Hope  cites  Ayuluk  v.  Red  Oaks  Assisted  Living,  Inc.                                                                to  argue  that  



                                                                                                                                                                             

negligence claims against assisted-living providers require expert testimony, but the  



                                                                                                                                                                            

Ayuluk decision does not carve an exception for assisted-living providers out of the rule  



                                                                                                                                                                      

described above.  Rather, Ayuluk is consistent with that rule because it involved claims  



              28            For this reason we need not address Hope's argument that its staff are                                                                           



medical professionals or professionals of some other kind to whom a professional duty                                                                                     

of care applies.                   



              29            5 P.3d 225, 228 (Alaska 2000).  

                                                                                



              30            201 P.3d 1183 (Alaska 2009).  

                                                                             



                                                                                      -11-	                                                                              7547
  


----------------------- Page 12-----------------------

that assisted-living providers failed to exercise the experience and judgment required of                                                               

these providers.            31  



                        The  Ayuluk  case  involved  claims  against  an  assisted-living  home,  its  

                                                                                                                                                      



administrators,  and  a  caretaker  it  employed  based  on  allegations  that  the  caretaker  

                                                                                                                                          



improperly  had  sex  with  a  patient  with  cognitive  disabilities  and  that  the  home's  

                                                                                                                                             

administrators had been negligent in hiring and supervising the caretaker.32  The plaintiff  

                                                                                                                                             



proffered two expert witnesses to testify about the standard of care applicable to the  

                                                                                                                                                     



caretaker  (who  had  been  trained  as  a  certified  nursing  assistant)  and  the  home's  

                                                                                                                                             

administrators.33  The superior court ruled that the proffered witnesses were not qualified  

                                                                                                                                            



to testify.  We disagreed, holding that the experts were qualified to testify about and  

                                                                                                                                                    



helpful to the jury's understanding of two issues:  (1) the duty of a certified nursing  

                                                                                                                                             



assistant to avoid sexual contact with a client in his care, regardless of whether his  

                                                                                                                                                     



employment required that certification; and (2) the duty of an administrator of an assisted  

                                                                                                                                              

                                                                                                                                         34   Expert  

living home to monitor for sexual contact between caregivers and residents.                                                                    

                                                                                                                         



testimony was relevant and helpful to the jury in Ayuluk because the allegations of fault  

                                                                                                                                                   

turned on the exercise of professional skill and judgment.35                                                    Expert testimony is not  

                                                                                                                                                     



relevant, let alone required, in this case because the allegation of fault does not turn on  

                                                                                                                                                       



the exercise of professional skill or judgment.  

                                                                                    



            31          Id .  at   1191-94.  



            32          Id .  at   1188-90.  



            33          Id .  at   1191.   



            34          Id .  at   1192-94.  



            35          Although  we  held  that  the  expert  testimony  was  admissible  under  Alaska  



Evidence  Rule  702  because  it  was  relevant  and  helpful,  we  did  not  address  whether  the  

testimony  was  required.   See  id.   



                                                                          -12-                                                                    7547
  


----------------------- Page 13-----------------------

                           Hope's emphasis on its certification under the Medicaid Waiver Program                                                           



                                         36  

is equally misplaced.                                                                                                                                        

                                              Hope's certification is irrelevant because this is a case of ordinary  



                                                                                                                                                          

negligence, and thus no expert testimony is required.   Surgeons undergo extensive  



                                                                                                                                                                      

licensing and certification, but "[w]here the surgeon saws off the wrong leg, . . . the jury  

                                                                                                        37   The same principle applies here.  

                                                                                                                                                                               

may infer negligence without the aid of any expert." 



                           Finally, the estate is not bound to present expert testimony on the standard  

                                                                                                                                                             



of care just because its complaint used the term "medical negligence."  Although the  

                                                                                                                                                                       



complaint includes some allegations that suggest medical malpractice, it also clearly  

                                                                                                                                                                



articulates  the  theory  that  Hope  was  negligent  in  "[f]ailing  to  advise  others  of  

                                                                                                                                                                        



[Courtney's] aspirations."  The estate's discovery responses describe this theory of the  

                                                                                                                                                                        



case in elaborate detail, and Hope's own summary judgment briefing shows that it  

                                                                                                                                                                          



understood the estate's theory of the case.   We therefore reject the argument that a  

                                                                                                                                                                           



reference to "medical negligence" in the complaint obligated the estate to present expert  

                                                                                                                                                                  



testimony otherwise unnecessary to prove the standard of care.  

                                                                                                                     



             B.	           The  Testimony  Of  Courtney's  Treating  Physician  Is  Sufficient  

                                                                                                                                                       

                           Evidence Of Causation To Preclude Summary Judgment.  

                                                                                                                                



                           Although the estate's theory of negligence is simple, its theory of causation  

                                                                                                                                                           



is not.  The estate asserts a three-step causal chain.   First, the pneumonia that killed  

                                                                                                                                                                  



Courtney was caused by the August 25 aspiration, not some other aspiration, ailment, or  

                                                                                                                                                                          



her  underlying  condition.                               Second,  had  Hope  promptly  told  Christine  about  this  

                                                                                                                                                                     



aspiration,  she  would  have  sought  earlier  treatment  at  the  hospital.                                                                     Third,  earlier  

                                                                                                                                                                



treatment would have prevented the pneumonia from causing Courtney's death.  

                                                                                                                                                                   



             36            7 AAC 130.205(d)(2)(C) (to be found eligible, recipient must "require . . .                                                                      



a level of care provided in a nursing facility").                         



             37            Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 2000) (omission in  

                                                                                                                                                                          

original) (quoting W. Prosser, LAW OF  TORTS  § 32, at 165 (4th ed. 1971)).                                                            

                                                              



                                                                                   -13-	                                                                           7547
  


----------------------- Page 14-----------------------

                             Hopearguesthat thelinks                                 in this causal chain cannot beestablished without                                        



expert testimony that the estate has failed to supply, so summary judgment should be                                                                                    



affirmed.     We   agree   with   Hope   that   the   estate's  negligence   claim   cannot   survive  



summary judgment without expert opinion to support its argument that Hope's actions                                                                                            

                                                                                                     38     But we agree with the estate that the  

were a substantial cause of Courtney's death.                                                                                                                                          



deposition testimony of Courtney's treating physician, Dr. Than, suffices. Although this  

                                                                                                                                                                                       



testimony is at times equivocal, when all inferences are drawn in favor of the estate -  

                                                                                                                                                                                         

as they must be on summary judgment39  - it creates a dispute of material fact about  

                                                                                                                                                                                  



causation.  It was therefore error to grant summary judgment to Hope.  

                                                                                                                                                            



                              1.	           The estate's theory of causation must be proved with the aid of  

                                                                                                                                                                                          

                                            expert medical opinion.  

                                                                                                     



                             To prove a negligence claim, the plaintiff must show that the defendant's  

                                                                                                                                                                     

conduct  caused  the  plaintiff's  injury.40  

                                                                                                                                                                   

                                                                                             A  complete  lack  of  evidence  establishing  



                                                                                                                                                       41  

                                                                                                                                                                                           

causation is grounds for summary judgment in favor of the defendant.                                                                                         Even if there is  



               38            "Asageneral rule, Alaskafollows the'substantialfactor test' ofcausation."                                                                



 Vincent by Staton v. Fairbanks Mem'l Hosp.                                                       , 862 P.2d 847, 851 (Alaska 1993).                                              



               39	           Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).  

                                                                                                                              



               40            Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012) ("In  

                                                                                                                                                                                      

order to succeed on a negligence claim, a plaintiff must prove duty, breach of duty,  

                                                                                                                                                                                   

causation, and harm.").  

                                 



               41             Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) ("[A] complete  

                                                                                                                                                                          

failure  of  proof  concerning  an  essential  element  of  the  nonmoving  party's  case  

                                                                                                                                                                                   

necessarily renders all other facts immaterial." (quoting Celotex Corp. v. Catrett, 477  

                                                                                                                                                                                      

U.S. 317, 323 (1986))).  

                                



                                                                                           -14-	                                                                                   7547
  


----------------------- Page 15-----------------------

some evidence showing causation, it "must not be too conclusory, too speculative, or too                                                               



                                                                                                                    42  

incredible to be believed" in order to defeat summary judgment.                                                         



                        In some cases the causal connection between the defendant's conduct and  

                                                                                                                                                      

the plaintiff's injury must be proved with the aid of a medical expert.43  We alluded to  



this possibility in  Choi v. Anvil, which involved a negligence claim arising out of an  

                                                                                                                                                        

automobile crash.44                   We reasoned that "where alleged injuries . . . are of a common  

                                                                                                                                            



nature and arise from a readily identifiable cause, there is no need for the injured party  

                                                                                                                                                   

to produce expert testimony."45                           The causal connection at issue in that case - between  

                                                                                                                                             



a rear-end automobile collision and the plaintiffs' neck, back, and arm injuries - was  



"easily understood by a jury" using "everyday experience," so no expert testimony was  

                                                                                                                                                     

required.46           But we recognized that expert testimony on causation may be necessary  

                                                                                                                                          



"when the nature or character of a person's injuries require the special skill of an expert  

                                                                                                                                                 

to help present the evidence to the trier of fact in a comprehensible format."47                                                            In Azimi  

                                                                                                                                                  



v. Johns, we suggested that the plaintiff's lack of an expert witness likely precluded him  

                                                                                                                                                     



proving that his post-traumatic stress disorder was the result of a car accident because  

                                                                                                                       

PTSD is not a "typical result[] of auto accidents."48   And in Punches v. McCarrey Glen  

                                                                                                                                                   



            42          Christensen  v.  Alaska  Sales  & Serv.,  Inc.,  335  P.3d  514,  516  (Alaska  2014).  



            43          Choi  v.  Anvil ,  32  P.3d   1,  3-4  (Alaska  2001).  



            44          Id .  at  2.  



            45          Id .  at  4.  



            46          Id .  at  2-4.  



            47          Id .  at  3.  



            48          254  P.3d  1054,  1068  (Alaska  2011)  (reversing  dismissal  pursuant  to  Alaska  



Civil Rule   41(b)  because  plaintiff's   claim   that   car   accident   caused    "general   'bodily  

                                                                                                                                   (continued...)  



                                                                          -15-                                                                     7547
  


----------------------- Page 16-----------------------

Apartments, LLC                 we affirmed partial summary judgment in favor                                         of the defendant     



because the plaintiff failed to present expert testimony to establish a connection between                                            



mold   exposure   in   her   apartment   and   her   alleged   injuries,   which   included   a   fungal  

                                                                                     49     If  the  connection  between  the  

infection,   skin   abscesses,   and   chronic   fatigue.                                                                                     



defendant's conduct and the plaintiff's injury is not readily apparent to a lay person  

                                                                                                                                         



relying on "everyday experience," the opinion of a medical expert is required to establish  

                                                                                                                                      



this connection.  

        



                       The estate's theory of causation is not one that lay people relying on their  

                                                                                                                                             



everyday experience can reliably evaluate without the aid of an expert.  As described  

                                                                                                                                    



above, there are three links in the estate's causal chain, and two of them require jurors  

                                                                                                                    



to evaluate a causal connection that is not commonly part of lay people's everyday  

                                                                                                                                    



experience.  

                      



                       The first link in the causal chain is the estate's theory that the aspiration  

                                                                                                                                   



occurring on August 25 caused the pneumonia that killed Courtney. Courtney aspirated  

                                                                                                                                     



on at least 22 occasions while under Hope's care and aspirated again at the hospital  

                                                                                                                                       



shortly before her death.   Courtney had several chronic conditions, and her treating  

                                                                                                                                       



physician described her as terminally ill.  Without the aid of medical expertise, a lay  

                                                                                                                                               



person cannot reliably decide whether one particular aspiration event was a substantial  

                                                                                                                                  



cause of Courtney's death.  

                                    



            48         (...continued)  



                                                                                                                                              

injury' and 'pain'" could be supported with lay testimony alone, in contrast to claim that  

                                   

car accident caused PTSD).  



            49         480 P.3d 612, 624-25 (Alaska 2021).  

                                                                            



                                                                      -16-                                                                 7547
  


----------------------- Page 17-----------------------

                           The third link in the chain is the estate's theory that earlier treatment would                                                      



                                                        50  

have saved Courtney's life.                                                                                                                                   

                                                               Even assuming that the August 25 aspiration caused  



                                                                                                                                                                

Courtney's pneumonia, the prognosis for and treatment of pneumonia "cannot be easily  

                                                                                     51  Jurors cannot reliably determine on their  

understood 'using everyday experience.' "                                                                                                                   



own whether bringingCourtney to thehospitalearlier would havealtered theprogression  

                                                                                                                                                     



of her disease.  They need the opinion of a medical expert to do so, and therefore the  

                                                                                                                                                                      



estate's negligence claim cannot survive summary judgment without this evidence.  

                                                                                                                                                  



                          2.	           The opinions of Courtney's treating physician, when viewed in  

                                                                                                                                                                        

                                        the light most favorable to Courtney, are sufficient evidence of  

                                                                                                                                                                        

                                        causation to defeat summary judgment.  

                                                                                                       



                          Dr.  Than  was  Courtney's  primary  care  physician  from  2011  until  

                                                                                                                                                                 



Courtney's death in 2015.  As a treating physician, Dr. Than may testify as a "hybrid"  

                                                                                                                                                          



witness, describing facts within her personal knowledge as well as offering an expert  

                                                                                                                                                               

opinion about what caused  Courtney's pneumonia and death.52  

                                                                                                                                                                     

                                                                                                                                     And Hope has not  



                                                                                                                                                                     

suggested any procedural reason why Dr. Than would be barred from offering her  



                                                                                                                                                          

opinion at trial.   The estate's witness list includes "[a]ll persons named in [Hope's]  



                                                                                                                                                         

[w]itness [l]ist" - which identifies Dr. Than as someone who "[m]ay testify regarding  



             50            The second link in the chain - the estate's theory that Christine would                                                             



havepursued                earlier or moreaggressivetreatmenthadsheknown                                                      that Courtney aspirated  

on August 25 - does not require the support of expert medical testimony.                                                       



             51	          Punches, 480 P.3d at 625 (quoting Choi, 32 P.3d at 4).  

                                                                                                                                  



             52           See Thompson v. Cooper, 290 P.3d 393, 400 (Alaska 2012) (holding that  

                                                                                                                                                                    

treating physicians may offer opinion on causation based on "subjectively applying their  

                                                                                                                                                                   

practical experience to the particular facts of [plaintiff's] injury"); Miller ex rel. Miller  

                                                                                                                                                               

v. Phillips, 959 P.2d 1247, 1250 (Alaska 1998) ("When physicians are called to testify  

                                                                                                                                                               

about matters pertaining to the treatment of their patients, the distinction between an  

                                                                                                                                                                       

expert witness and a fact witness inevitably becomes blurred.").  

                                                                                                           



                                                                                  -17-	                                                                          7547
  


----------------------- Page 18-----------------------

observations,   treatment   and/or   diagnosis(es)"   -   satisfying   the   civil   rules'   limited  

disclosure requirements for non-retained experts.                                                      53  



                            Dr. Than's deposition testimony, when viewed in the light most favorable  

                                                                                                                                                                  



to the estate, is sufficient evidence of causation to defeat summary judgment.  First, her  

                                                                                                                                                                               



testimony can support the estate's theory that Courtney's aspiration on August 25 caused  

                                                                                                                                                                        



the fatal bout of pneumonia.  Dr. Than did not have access to Hope's records at the time  

                                                                                                                                                                             



of her deposition, so she was not aware of a specific aspiration event.  Yet she believed  

                                                                                                                                                                    



that an aspiration had caused Courtney's pneumonia and opined that the aspiration  

                                                                                                                                                                



occurred  "[p]robably  two  weeks  or  10  days"  before  Courtney  was  hospitalized.  

                                                                                                                                                                                       



August  25  was  two  weeks  and  two  days  before  Courtney's  hospitalization  on  

                                                                                                                                                                               



September 10 - roughly consistent with the timeframe Dr. Than suggested.   Hope  

                                                                                                                                                                         



argues that Dr. Than "cannot opine that it is more likely than not" that the aspiration on  

                                                                                                                                                                                



August 25 caused Courtney's pneumonia.  But had Dr. Than seen Hope's records and  

                                                                                          



known that Courtney did in fact aspirate on August 25, Dr. Than's testimony may well  

                                                                                                                                                                             

have been more confident.54  

                                   



                            Hope also argues that Dr. Than's testimony about the typical onset of  

                                                                                                                                                                                



pneumonia symptoms rules out the August 25 aspiration as the cause of Courtney's  

                                                                                                                                                              



death.  Dr. Than stated that symptoms of aspiration pneumonia "usually" appear within  

                                                                                                                                                                        



              53            Alaska R. Civ. P. 26(a)(2)(A) ("[A] party shall disclose to other parties the                                                                      



identity of any person who may be used at trial to present evidence under Evidence Rules                                                                                  

702, 703, or 705.");                      Fletcher v. S. Peninsula Hosp.                                 , 71 P.3d 833, 844-45 (Alaska 2003)                             

(observing that requirements of Rule 26, such as production of an expert report, do not                                                                                        

apply to non-retained experts such as treating physicians).                                      



              54            Hope points to Courtney's aspiration at the hospital on September 15 or 16  

                                                                                                                                                                                 

as a potential superseding cause of her death. However, Dr. Than testified that Courtney  

                                                                                                                                                                  

was already "pretty sick" at that time. Viewing this evidence in the light most favorable  

                                                                                                                                                                  

to the estate, a reasonable jury could believe that the later aspiration was deadly because  

                                                                                                                                                                     

Courtney was already weakened by pneumonia caused by the August 25 aspiration.  

                                                                                                                                                          



                                                                                      -18-                                                                                 7547
  


----------------------- Page 19-----------------------

                                                                                                                              

72 hours of the aspiration.   Hope argues that "[t]he undisputed evidence shows that  



                                                                                                                               

Courtney did not have any symptoms of clinical progression within 72 hours of the  



                                                                                                                        

suspected  aspiration  event  on  August  25."                          Although  true,  this  argument  ignores  



                                                                                                                     

Courtney's 30-second grand mal seizure on August 29.  Dr. Than stated that increased  



                                                                                                                      

seizures are a symptom of aspiration pneumonia.  And although the seizure occurred  



                                                                                                                           

slightly more than 72 hours after the aspiration, it is close enough to the period in which  



                                                                                                                          

symptoms "usually" appear to support an inference that the August 25 aspiration caused  



                                                                         

the pneumonia that ultimately killed Courtney.  



                                                                                                                      

                    Second, Dr. Than's testimony can also support the inference that Courtney  



                                                                                                                    

would have survived had she been brought to the hospital earlier. Dr. Than's deposition  



                                                                                                                             

testimony was circumspect on this point.  She opined that Courtney should have been  



                                                                                                                       

brought to the hospital earlier than she was (on September 10).  When asked if bringing  



                                                                                                                      

Courtney to the hospital on September 6 would have "improved her ability to recover,"  



                                                                                                                      

Dr. Than stated it is "hard to decide, to make that assumption."  But given the evidence  



                                                                                                                   

of Courtney's symptoms starting on August 29, it is plausible to think that her mother  



                                                                                                                           

would have brought her to the hospital even earlier than September 6 (the date on which  



                                                                                                                               

she called the hospital about Courtney's failure to urinate) had she known about the  



                                                                        

aspiration.  Therefore, when all inferences are drawn in favor of the estate, Dr. Than's  



                                                                                                                                     

testimony can be read to suggest that earlier treatment would have changed the outcome.  



                                                                                                                         

This evidence creates a reasonable dispute of material fact about whether Hope's alleged  



                                                                                                                   

failure to notify Christine of the aspiration delayed lifesaving treatment for Courtney's  



                                                                                                               

pneumonia and was therefore a substantial cause of her death.  For this reason, it was  



                                                                               

error to grant summary judgment in favor of Hope.  



                                                              -19-                                                         7547
  


----------------------- Page 20-----------------------

V.       CONCLUSION  



                 We REVERSE the grant of summary judgment to Hope and REMAND for  

                                                                                                               



further proceedings consistent with this opinion.  

                                                                  



                                                       -20-                                                7547
  

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