MARCIE A. BEISTLINE and WILLIAM C. BEISTLINE v. BRUCE M. FOOTIT and BANNER HEALTH INC., d/b/a FAIRBANKS MEMORIAL HOSPITAL
Supreme Court No. S-17556
THE SUPREME COURT OF THE STATE OF ALASKA
April 23, 2021
Superior Court No. 4FA-18-01401 CI; OPINION No. 7518
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Mike A. Stepovich, Stepovich Law Office, Fairbanks, for Appellants.
Before: Bolger, Chief Justice, Maassen, Carney, and Borghesan, Justices. [Winfree, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A husband and wife sued medical care providers after the wife suffered a seizure, allegedly due to a doctor‘s decision to abruptly discontinue her medication. The superior court granted summary judgment to the medical care providers, ruling that the couple‘s only expert witness, a pharmacist, was unqualified to provide testimony about the matter at issue because he was not a doctor of internal medicine and was not board-certified in the doctor‘s field or specialty. The couple appeals.
We conclude that the pharmacist‘s testimony was not sufficient to create a genuine issue of material fact about the relevant standard of care. We therefore affirm the grant of summary judgment to the health care providers.
II. FACTS AND PROCEEDINGS
A. Facts
On February 6, 2016, William Beistline brought his wife Marcie to the Fairbanks Memorial Hospital emergency room with “generalized weakness, ataxia and confusion.” Marcie was admitted to the hospital by Dr. Bruce M. Footit, a hospitalist and internist who is board-certified in internal medicine.1 William provided his wife‘s medical history, as she was “too delirious” to do it herself.
Dr. Footit‘s written record includes the following information. In the days leading up to Marcie‘s admission, she had “been acting strangely, experiencing increasing confusion[,] lethargy,” and “unstead[iness] on her feet,” and was dealing with nausea, vomiting, and diarrhea. She had previously received some “very unorthodox” and “fairly nontraditional” treatments for “common medical problems” from “medical professionals” outside of Alaska. They had been treating her for Lyme disease “at [a] significant cost” and had also surgically implanted a port in her chest so she could self-administer “vitamin bags,” but these Outside providers did not give her any “followup or direct care for her port.” Marcie saw these providers annually and received “sporadic treatment” consisting of vitamin IV bags and “allopathic treatments for her insomnia, which [she] takes per her own regimen, which include: Ambien, benzodiazepines, muscle relaxants and other herbal remedies.”
One of Marcie‘s providers, “Dr. Fry,” had diagnosed her with a “blood parasite,” which was now “crawling out of her skin,” causing itchiness and skin lesions. William explained that Dr. Fry had prescribed an antibiotic, but according to Dr. Footit‘s notes it was actually some type of “herbal remedy that only [Dr. Fry was] able to prescribe at [a] significant cost.” Marcie‘s medical history also appeared to include depression, “potential psychiatric disease,” and chronic insomnia. No documentation was available to Dr. Footit about what was in the vitamin bags or the dosage or frequency of Marcie‘s medications; according to William, she was “somewhat secretive [about] her therapies.” She had “a box full of different medications,” but Dr. Footit could not determine which ones she was taking.
The next day, February 7, a surgeon removed Marcie‘s implanted port, having determined that her change in mental status was “most likely secondary to early sepsis/bacteremia.” On February 9 Marcie had a tonic-clonic seizure3 and was transferred to the Intensive Care Unit. Three days later she was discharged for outpatient treatment.
B. Proceedings
In early 2018 the Beistlines filed a medical malpractice suit against Dr. Footit and Banner Health, d/b/a Fairbanks Memorial Hospital. They alleged that Marcie‘s tonic-clonic seizure was the result of Dr. Footit‘s decision to cut off all her medications, including benzodiazepines,4 and that this decision breached the applicable standard of care.
Dr. Footit and the hospital moved for summary judgment in January 2019, almost a year after the complaint was filed. They supported their motion with the affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine physician. Dr. McIlraith noted that Dr. Footit lacked any records of Marcie‘s “unorthodox treatments, drugs, drug dosages, [and] drug frequency [or of] the rationale and diagnoses for the unusual and unconventional unorthodox treatments.” He attested that because Marcie was delirious, “[t]he standard of care require[d] that potential causes of the pathology be treated and eliminated.” He explained that Dr. Footit did this by first “correcting the hyponatremia and treating the sepsis from the implanted port.” He further attested that “because Marcie was on medications that could cause delirium, in prescribed dosages exceeding recommended amounts, and because Dr. Footit could not ascertain how Marcie was taking her medications,” Dr. Footit acted competently by withdrawing them; in fact, Dr. McIlraith asserted, “[i]t would be irresponsible NOT to eliminate a potential drug cause of delirium.”5 Finally, he concluded that “Dr. Footit met the standard of care and acted as a reasonable and prudent internist” and that the hospital‘s “staff met the appropriate and applicable standard of care.”
The Beistlines were granted an unopposed 10-day extension of time to respond to the summary judgment motion. They then moved pursuant to
The Beistlines then filed an opposition to the summary judgment motion that relied solely on the affidavit of Dr. Gregory Holmquist, a pharmacist and educator. Dr. Holmquist, unlike Dr. McIlraith, assumed that Dr. Footit had discontinued Marcie‘s use of benzodiazepine drugs and Ambien, which Dr. Holmquist characterized as a “Z-drug.” Dr. Holmquist attested that there were strict protocols governing how patients were removed from these drugs, and that a failure to follow the protocols could contribute to seizure. He opined that “following proper protocols for weaning and discontinuing medication is the standard of care” and that these protocols “should be general knowledge to a board certified internal medicine physician, but, if not, then [in Marcie‘s case] there should have been a consult between the internist and the hospital‘s pharmaceutical department.”
The court granted summary judgment to Dr. Footit and the hospital. The court cited
The Beistlines moved for reconsideration, arguing again that they had no obligation to produce qualified experts before the pretrial deadline for the exchange of expert reports. They also asserted, however, that they now had an expert witness who was qualified under
III. STANDARD OF REVIEW
“We review a grant of summary judgment de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law.”8 “We must determine whether any genuine issue of material fact exists, and in so doing all factual inferences must be drawn in favor of — and the facts must be viewed in the light most favorable to — the party against whom summary judgment was granted.”9 “We interpret statutes ‘according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.’ ”10
A. The Sufficiency Of Expert Testimony In A Medical Malpractice Case Depends On Both AS 09.20.185 (Expert Witness Qualifications) And AS 09.55.540 (Burden Of Proof).
The legislature, by statute, has imposed particular requirements for establishing the standard of care in professional negligence cases, including those involving claims of medical malpractice. In any “malpractice action based on the negligence or wilful misconduct of a health care provider,” the plaintiff is required to prove “by a preponderance of the evidence” both the standard of care and the defendant‘s breach of that standard, i.e., “(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or speciality in which the defendant is practicing” and “(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care.”11 We have held repeatedly that these elements of the plaintiffs’ case require the support of expert testimony except “in non-technical situations where negligence is evident to lay people.”12
The admissibility of expert testimony is governed by
That statute, titled “Expert witness qualification,” reads in full:
(a) In an action based on professional negligence, a person may not testify as an expert witness on the issue of the appropriate standard of care unless the witness is
(1) a professional who is licensed in this state or in another state or country;
(2) trained and experienced in the same discipline or school of practice as the defendant or in an area directly related to a matter at issue; and
(3) certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.
(b) The provisions of (a) of this section do not apply if the state has not recognized a board that has certified the witness in the particular field or matter at issue.
This appeal requires us to again consider the relationship between these two statutes:
B. The Testimony Of An Expert Who Is Qualified Under AS 09.20.185(a) Is Not Necessarily Sufficient To Carry The Plaintiff‘s Burden Under AS 09.55.540 .
The superior court‘s summary judgment order is factually premised on its description of Dr. Footit, the defendant physician, as “a board-certified internist practicing internal medicine.” The court determined that the defendant in a medical malpractice case is entitled to summary judgment “if the plaintiff fails to present expert testimony from an expert who is board-certified in [the] same field as the physician who committed the alleged malpractice who can establish the standard of care.” The court observed that
We agree with the superior court‘s conclusion that Dr. Holmquist‘s expert testimony was not sufficient to carry the Beistlines’ burden of proof, though our analysis is different. Because this is a medical malpractice case, we consider the expert witness qualification requirements of
First, Dr. Holmquist appears to meet the requirement of
As the Beistlines contend, we addressed a similar issue in Hymes v. DeRamus, which involved a prisoner‘s treatment by Department of Corrections medical staff.16 We held in Hymes that the testimony of a rheumatologist was relevant to the standard of care for a prison doctor treating arthritis because he could testify about “the physical effects of abrupt discontinuation of” an arthritis medication.17 We also considered the affidavit testimony of a psychiatrist, rejecting the argument that she needed to be trained in correctional medicine and observing that she had “sufficient training and experience in psychiatry and psychotherapy and related fields to meet the requirements of subsection (a)(2) (training and experience in an area directly related to a matter at issue) to testify regarding the psychological effects of failing to adequately treat [the prisoner‘s] physical conditions.”18 For both experts, thus, we concluded that their testimony about the physical effects of the alleged malpractice would be relevant to establishing the standard of care.19 Hymes supports the Beistlines’ argument that the area in which Dr. Holmquist is “trained and experienced” — i.e., the “proper protocols for weaning and discontinuing medication” — is “directly related to . . . a matter at issue” for purposes of
Because of Hymes’ procedural posture, however, we were not called upon to determine in that case whether the testimony of the plaintiffs’ two proposed experts, either singly or in combination, would be enough to establish the standard of care. Although the superior court had refused to consider the experts’ affidavits, it granted summary judgment on an unrelated ground: the plaintiffs’ failure to exhaust their administrative remedies.20 Reversing the superior court‘s decision of that issue, we observed that the experts’ affidavits would now be relevant on remand when the superior court took a renewed look at the merits.21
C. Dr. Holmquist‘s Affidavit Was Not Sufficient To Create A Genuine Issue Of Material Fact About An Internist‘s Standard Of Care.
As noted above, the focus of the superior court‘s decision was Dr. Holmquist‘s lack of board certification in a relevant field as required by
We find it unnecessary to address these arguments. Alaska Statute
Dr. Holmquist‘s affidavit describes his credentials as a Doctor of Pharmacy, a former assistant professor at a university school of pharmacy, and an educator certified by the American Society of Pain Educators and the American Medical Association. Dr. Holmquist identifies the drugs at issue in this case and the protocols for patient withdrawal, briefly describes Marcie‘s symptoms upon her admission to the emergency room, and concludes that rather than immediately discontinuing her benzodiazepines and Z-drugs, “Dr. Footit and the hospital staff should have been focused on rapidly raising her sodium levels.” Dr. Holmquist‘s conclusion about the standard of care is this:
[G]iven the risks of abruptly discontinuing benzodiazepines and Z-drugs in a patient with long-term physical dependence on these medications, following proper protocols for weaning and discontinuing medication is the standard of care. This standard of care should be general knowledge to a board certified internal medicine physician, but, if not, then there should have been a consult between the internist and the hospital‘s pharmaceutical department.
Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols he describes, known to a pharmacy expert, are also “general knowledge to a board certified internal medicine physician,” although he believes that they “should be.” And nothing in his affidavit indicates that he has a basis in training or experience for knowing the answer to that question or for knowing the circumstances under which an internist would consider it necessary to consult “the hospital‘s pharmaceutical department.” This is in contrast to the testimony of the defendants’ expert, Dr. McIlraith, who testified based on his own training and experience as an internist. According to Dr. McIlraith, Dr. Footit acted appropriately by withdrawing Marcie‘s medications because she “was on medications that could cause delirium, in prescribed dosages exceeding recommended amounts, and because Dr. Footit could not ascertain how Marcie was taking her medications.”
Dr. Footit and the hospital had the initial burden of proving that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
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7518