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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
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.
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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).
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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.
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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").
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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
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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).
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----------------------- 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 .
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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.
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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 .
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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).
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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.
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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)).
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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))).
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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...)
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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).
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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.").
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----------------------- 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.
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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.
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V. CONCLUSION
We REVERSE the grant of summary judgment to Hope and REMAND for
further proceedings consistent with this opinion.
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