*1 ' POULIN, Appellant, Wilfred ZARTMAN, Appellee. Harvey
Dr. ZARTMAN, Cross-Appellant, Harvey
Dr. POULIN, Cross-Appellee.
Wilfred
Nos.
Supreme Court of Alaska. 12, 1975.
Nov.
Theodore R. Dunn and Warren W. Mat- thews, Matthews, Baily, Dunn & An- Jr. chorage, A. Parrish of Parrish Law James Office, Fairbanks, and cross- appellee. Delaney and Robert Eas- L. James J. Wiles,
taugh Delaney, Moore, Hayes & Reitman, Anchorage, appellee cross-appellant.
OPINION RABINOWITZ, J., Before C. CON- NOR, STEWART, Superior J., and Court Judge.
CONNOR, Justice. appeal arises from a medical mal- practice concerning It raises issues action. evidence, admissibility standards con- by physician, duct and the “informed consent” doctrine. brought by
A suit was Poulin Wilfred daughter, Courtney on of his infant behalf Poulin, Harvey against Zartman. Dr. brought damages action this alleging improperly adminis- Zartman Courtney, thereby causing oxygen tered blind, totally her to become and that Zart- properly jaundice man’s failure treat damage in the child. caused severe brain that’ admin- Poulin also contended Zartman Courtney istered treatment to without Courtney’s informed consent of either of parents. Superior
After a trial in the Court against a jury was rendered verdict August 25, him on Poulin moved al- notwithstanding ternatively judgment for a or a new trial. These motions verdict denied, appeal were followed. Dr. claiming cross-appeal Zartman has filed a attorneys’ costs error the denial of fees.
I. FACTS Zartman did not regard bilirubin test as necessary.- Today, Courtney Poulin is se- Courtney approxi- Poulin was born at verely mentally retarded. Plaintiff con- mately p. February 3:00 m. tended at trial that the retardation resulted premature She infant about from a kernicterus, disease known as gestation. baby weeks was delivered by which is caused elevated bilirubin in the Anchorage Dr. Renn at Claire A. blood. Plaintiff further contended that Community Hospital. Dr. summoned Renn “simple, non dangerous” bilirubin test Zartman, Harvey pediatrician Dr. then could have detected the condition and thus duty, Courtney Zartman Dr. saw led to alleviating However, plaintiff it. m., p. for the time at one-half first 3:30 acknowledges testimony concerning hour after her birth. the cause of Courtney’s mental retardation Zartman the infant in severe found Dr. was in conflict. respiratory diagnosed her distress he Poulin, mother, Mrs. Courtney’s was not “hyaline condition as either membrane dis- contacted Zartman February Dr. until syn- (HMD), respiratory ease distress Courtney 1968. While was in the hos- disagreement as (RDS)”.1 drome There pital Dr. Zartman did talk with Mr. Pou- properly diag- to whether Zartman Dr. lin, but there is conflict to whether he HMD, agreed nosed all witnesses discussed the risks oxygen attendant respiratory Courtney suffering Poulin was therapy with the father. require oxygen. distress and did Dr. Zart- Following Courtney’s discharge from the supplemental man at “5 oxygen ordered hospital it was noticed that she was not de- higher necessary per liters if minute veloping properly. was subsequently keep ordering She pink.” propriety diagnosed totally blind, as being resulting oxygen to be administered in manner fibroplasia from retrolental (RLF), and se- one of central in the issues trial. verely mentally retarded. The Poulins supple- continued to receive brought then against suit Dr. Zartman. oxygen p. ments of until Febru- 12:00 m. *6 16, ary Oxygen-weaning 1968. commenced Oxygen Administration 15, 1968, on February the afternoon of and oxygen all supplements at noon were ended key of the at One issues trial concerned 16, on February Poulin 1968. an whether Dr. Zartman ordered excessive subsequently totally became She is blind. oxygen Courtney, thereby of amount for suffering fibroplasia from retrolental fibroplasia causing retrolental (RLF) (RLF). undisputed It is that excessive resulted in which her total blindness. It oxygen higher results in of incidence oxygen will be recalled that excessive has However, RLF. there are indicat- studies been to increased shown cause an incidence ing premature that RLF can occur in ba- Alaska, 1968, Anchorage, of RLF. in virtually oxygen bies who have had no precise gauges 'monitoring for the amount supplement at all. oxygen of in the blood were not available. Thus, averting less accurate means of ex- At February 7:00 a. m. oxygen upon. cessive had to be relied baby jaundiced was noted to be and this degrees undisputed oxy- condition An varying continued index of insufficient through February 17, gen at least blood is the condition known as 1968. Jaun- may presence cyanosis. cyanotic, e., dice oxy- indicate the “indirect who is of One i. deficient, gen bilirubin” in becomes blue in the mucus the blood. Indirect bilirubin membranes, damage. Nevertheless, lips, vary can cause brain and skin. This can Dr. respiratory syndrome Apparently respiratory and HMS is one form of syndrome. distress distress (RDS) hyaline Schaffer, Diseases the New- not A. membranne disease are of Rather, (2d synonymous. genera term RDS is a horn 105 ed. nurses’ being a records reflect that from indicators 8:30 a. first m. degree with the February p. at Apparently to 5:00 appearance. m. on “duskiness” February 15, 1968, oxygen was oxygen administration concentra the time that above, always tion almost was commenced, cyanotic. and never Courtney was below, percent. During was cyanosis day pe of reported observation last 3½ riod,' Oxy- liter flow of was at 12, 1968, reached at 8:30 a. m. February p. February on 6:30 p. m. m. on It re to 12:00 gen continued treatment at mained that level for the flow next February 16, 1968. 43½ hours, during oxygen which time concen expert substantial Plaintiff offered tration was 40 percent.6 at least oxygen- system testimony endorsing a of to “titration”. minimization referred explanations Dr. Zartman three offers oxygen reduces the Essentially this method high for this oxygen. concentration of He baby point at which concentration states baby “kept that he ordered be is then cyanotic. The level begins to turn pink” cyanotic if that it is not it is point period slightly above that raised pink and gray there is “no in-between.” repeated. is Defendant ically process This, course, begs question of how of of experts,3 all with his own countered much oxygen concentration is the least methodology Dr. Zartman’s whom felt that necessary keep baby pink. methodology adequate.4 was Zartman's throughout doctor also stresses that down” “working apparently of consisted period baby experiencing dis- wholly ade from concentration that apnea, tress known as a condition tem- opposed to quate cyanosis, as avoid porary breathing. cessation Continuous up” from a concentration “working oxygen therapy often will relieve the se- e., cyanosis, prevent i. was insufficient verity apnea experts many titration. ap- acknowledged oxygen therapy is produced evidence propriate apnea present. Dr. when Academy Pediatrics American appeal attempt Zartman’s brief on does not oxygen atmospheric stated oxygen justify quantity kept the low concentration “should presence apnea, only the continuous possible will relieve est level days use oxygen nearly follow- symptoms given. possi which it is If 3½ ble, percent.” The it ing cyanosis. should be over the last recorded incident of Abramson, Atmospheric oxygen per- g., 2. E. David Dr. Chief concentration is the Neonatology, centage oxygen Division Newborn Medicine It the air. not strict- Hospital; Georgetown University oxygen *7 ly flow, through Dr. Leonard liter to correlated pe- Krassner, practitioner apparently rough and teacher of a is correlation. some there University turn, necessarily Medi- at Yale School of re- diatrics cine; In does not concentration spe- Jeryl Gagliardi, actually oxygen a clinical in Nurse flect of the amount special baby experiencing at unit cialist in the case newborn A severe blood stream. problems might respiratory Center. Yale New Haven Medical able to be Today oxygen at all. the amount absorb the Barlow, g., professor of 3. E. Charles Dr. oxygen can meas- of in the blood stream be Hospital neurology Medical at the Children’s sophisticated However, in ured. School; Harvard Thom- Center of Medical Dr. possible. monitoring was not Oliver, Department of as Chairman of During period Zartman not at- did Dr. Pittsburg University and at the Pediatrics Approximately baby at all. hours tend the Hospital medical director of Children’s Peter- Drs. after the flow was reduced Polley, Pittsburg; pediatrician Dr. a Robert re- No did visit child. son Tower University faculty member at despite ap- an flow was ordered duction of Washington Medical School. cyanosis. parent 22 hours About absence February (at actually p. re- defendant’s witnesses after their visit 1:15 m. Some of 16, 1968), garded dangerous child cir- Dr. Zartman re-examined “titration” under the as weaning oxygen. all from ordered cumstances. Finally, points testimony Zartman rant a support Dr. bilirubin In test. of this suggesting that the monitoring machine contention he notes that two other doctors air (a myra oxygen analy- concentrations saw the infant and also failed to order the particularly Furthermore, zer) was He inaccurate. test. head 'nurse Gill testi- that due fied degree jaundice, stresses construction of the that the apparently impos- symptom infants, incubator at 4 liters it “almost common newborn percent sible” to have a concentration not unusual. response oxygen.7 Poulin’s is Zartman’s second defense is lack of
oxygen analyzer was never tested and the proof expert of causation. He solicited nurses’ notes are fact the record testimony suggesting Courtney’s symp- ac- available as to what the concentration toms are not reflective damage of brain re- tually was. bilirubin, sulting from excessive in- resulting summary, oxygen suggest stead mental deficiencies dangerous can substance, inadequate oxygen. from Poulin himself and excessive doses have been in, blindness-inducing acknowledges that causation was dis- associated with a dis- pute. fibroplasia ease known as retrolental (RLF). Courtney Poulin is blind The relevance of the aforementioned experts result of Poulin’s testified RLF. appeal facts issues legal as fol- preferred controlling method of contends, among lows. other titration, oxygen excessive in 1968 was i. support things, that the does not evidence e., up” cyanotic “testing from a state until alone, But, standing the verdict. the evi- Zartman’s the condition is relieved. Dr. dentiary ap- the issues conflicts on experts supported his method of monitor- administration, propriate oxygen method e., oxygen, relieve the ing excessive i. retardation, Courtney’s the cause of mental cyanos- symptom deficiency, in this case doctrine would and the informed consent is, at periodically “test For then down”. However, preclude reversal this court. re- period, Courtney Poulin a 40-hour
least conflicting is examined when the evidence oxygen with- concentrations of high ceived that was ad- eye testimony with an up any testing, or down. out objection, the instructions that mitted over denied, standard of care
were
Bilirubin,
Jaundice,
Retardation
jury,
the result
was submitted to
circumstances, a
problematic. In the
more
noted,
experi-
previously
As
appeal is
point raised on
review of each
continuing jaundice
least
enced
imperative.
11, 1968,
February
February
bilirubin
may indicate elevated
Jaundice
II. LEGAL ISSUES
lead to
Elevated bilirubin can
the blood.
causing
disease
which is a
kernicterus
sort-
clarity we have
purposes
For
can be detected
damage. Bilirubin
brain
cat-
into three
legal issues
the numerous
ed
test was ordered.
No such
by a blood test.
care, and
prejudice, standard
egories:
se-
Courtney Poulin suffers from
Today,
merely labels
These are
informed consent.
mental retardation.
vere
sepa-
urges 14
convenience.
trial court.
errors
rate reversible
two-fold
na-
defense is
Dr. Zartman’s
summary of
provides
*8
following
First,
degree of The
that the
he claims
ture.
appeal:
presented
questions
to war-
was insufficient
jaundice observed
capacity
assimilative
directly dispute
account
take into
7. Dr. Zartman
to
not
does
“many
concludes,
Thus,
patient.
he
percent
of
concentration
that
contention
higher
con-
require
environmental
symptoms
much
call
babies
when
be exceeded
should
percent.”
per-
than
Instead,
centrations
stresses
that
he
it.
rough
figure
and fails
of thumb
rule
is
cent
ceptibilities
(a)Prejudice
not
did
reduce the standard of
care with which defendant
comply?
must
(1)
admitting
Did the court err in
testi-
mony concerning
(6)Did
Patricia
lack of
grant
Poulin’s
the court err in failing to
prenatal
a judgment
care?
notwithstanding the verdict or
new trial on
negligent
the issue of
admin-
(2)
admitting
Did
court err in
testi-
oxygen?
istration of
mony
occupa-
concerning
Poulin’s
Wilfred
military background?
tional and
(c)Informed Consent
(3) Did the
refusing
court err in
to in-
(1) Did the court
in omitting
err
refer-
jury
struct the
that
fail-
Patricia Poulin’s
ence to the informed consent
in the
issue
prenatal
ure to obtain
care was irrelevant
general mandatory instruction?
negligence
duty
to
Dr. Zartman’s
his
of
Did
in failing
grant
the court err
to
(2)
disclosure ?
judgment notwithstanding
the verdict or
(4) Did the
refusing
sup-
court err in
new trial on
of informed
the issue
con-
plemental
stressing
Court-
that
sent?
Poulin,
infant,
ney
parents,
not
and
her
party
was the real
in interest and that she
(d)Denial
and Attorney’s
Costs
Fees
damages
would receive the
benefits
(1)
denying
Did the court err
costs
awarded ?
attorney's
to
Zartman ?
fees Dr.
(5) Did the
err
refusing
court
to con-
juror
support
sider
affidavits in
Pou-
III. PREJUDICE
trial,
lin’s
motion
a new
those
when
af-
Appellants'
claim of
asserts
first
error
jury
fidavits
asserted
influ-
improperly admitted testimo-
that the court
sym-
improper
enced
considerations of
prenatal
ny
Poulin’s lack of
on Patricia
pathy and bias?
care,
compounded
harm
then
(6) Did
court err in
refusing
ad-
supplemental in-
plaintiff’s
refusing
give
concerning
mit
liability
evidence
Zartman’s
which, paraphrased, states
4-A8
struction
insurance ?
prenatal care
mother’s lack
that the
negli-
defendant’s
to the issue of
irrelevant
(b)Standard
Care
concerning in-
duty
gence or breach
(1)
refusing
Did the court err in
to ad-
consent.
formed
concerning
mit medical textbooks
certain
lack
concerning the mother’s
Questioning
substantive issues?
points in the
at two
prenatal
care arises
(2)
instructing
Did
court err in
First, during cross-examination
trial.
jury
could
that certain medical textbooks
her
asked
Poulin,
counsel
defense
Mrs.
evidence?
not
used
substantive
upon dis-
a doctor
had seen
she
whether
refusing
give
(3) Did the
err in
court
time
pregnant,
covering she was
to a
holding the defendant
instructions
mother an-
Courtney’s birth.
prior to
normal,
higher
than
standard of care
had not.
objection, that she
swered, over
of care?
to nationwide standard
during de-
incident occurred
second
refusing
in-
err
(4) Did
court
of Mr.
cross-examination
counsel’s
fense
duty
concerning the defendant’s
structions
counsel, de-
defense
At that time
Poulin.
alert nurses to
nurses’ notes and
to read
es-
was able
objections,
spite repeated
comply
the doctor’s
their failure to
a doc-
seen
Poulins had
tablish
they
orders?
birth,
Courtney’s
prior
tor
they
favored
because
refusing to
so
in-
had
err in
not done
(5) Did the court
childbirth.
Courtney’s special
concept
sus-
of “natural”
struct
negligence or
question
defendant’s
seek
Patricia Poulin did not
fact
“The
duty
day
breached
defendant
prenatal
j)rior
or not
on which
whether
care
Poulin was
irrelevant
disclosure.”
born
*9
defense counters
claim re-
natal care and that blindness and brain
concerning
testimony
versible
damage
error
prevalent
are
premature
more
grounds. First,
two interrelated
defendant
babies
than
fullterm babies.
testimony
clearly
asserts that the
rele-
However, there
was no dispute
proximate
vant to
and
the issues of
cause
Courtney
about
Poulin’s prematurity. Dr.
Second,
damages.
it is asserted that the Zartman was called to treat an
born
infant
inquiry
extensive
thus any
was not
at about 26 to 28 weeks of gestation.
prejudice
may
which
have resulted did not Likewise,
dispute
there
concerning
was no
testimony.
outweigh the relevance of the
statistically
higher incidence of blind
appeal
The standard of review on
premature
ness and brain damage in
in
judge
is certain. A trial
will
be re
fants. The issue in this case
centers
admitting prejudicial,
versed for
but other
baby’s
whether the
prematurity or Dr.
relevant,
wise
if he has
evidence
committed Zartman’s
Courtney’s
care caused
maladies.
a “clear
Davis v.
abuse
discretion.”
Courtney
The reasons for
prema
Poulin’s
Chism,
475,
1973).9
(Alaska
P.2d
turity are simply not material
to
issue
Thus, we first must consider the relevance
in this
testimony
case. No
at
offered
testimony
then determine
any point
premature
suggesting that
babies
prejudicial
whether
so out
its
effect
prenatal
who lacked
higher
care have a
in
probative
weighed its
value that admission cidence of blindness
brain
disease than
by
judge
a “clear
trial
constituted
prematures
prenatal
with
care.11 And cer
See,
abuse of
Love v.
g.,
discretion”.
e.
tainly
parents’ philosophic
reasons for
State,
(Alaska 1969).
Alaska
law defines the test of
case
To use the
language
Hutchings v.
relevancy.
be of sufficient relevance
“To
State,
767,
(Alaska
P.2d
we
1974),
admission, testimony,
documents or
testimony
conclude that
was erro-
tendency in
other
must have some
evidence
neously admitted,
be of suffi-
since
proposition
“[t]o
reason
material
to establish
admission, testimony
cient relevance for
State,
Hutchings
518 P.2d
to the
case.”
tendency
. must have
in rea-
some
1974).
concepts
(Alaska
The dual
proposition
son to establish
material
relevance,
e.,
tendency
logical
some
i.
the case.”
The reasons
Pou-
point
for which
establish the ultimate
prematurity
lin’s
are not material to this
e.,
offered,
materiality,
i.
evidence is
testimony concerning
case. Thus the
lack
point to issues
germaneness
ultimate
of the
prenatal
care and the Poulins’ attitudes
repeat
trial,
emphasized
been
in the
towards “natural
should have
childbirth”
edly
opinions.10
in our
been excluded.
testimony
concern-
Zartman asserts
prenatal
philosophical
care and
lack of
ing
urges that Poulin has
Zartman
relevant
concerning
are
attitudes
childbirth
any objection
testimony
waived
dam-
proximate
issues
cause
submitting
an exhibit
itself refers
which
ages.
conclusion
prenatal
Appellee
He deduces
C.
lack of
cites
care.
pre-
undisputed
that the likelihood
McCormick,
(2d
fact
ed.
Evidence
§
pre-
in the
maturity
higher
absence
1972), for his waiver contention. How-
43(b),
comports
testimony
argues
Appellee
Civil Rule
one
admissibility
experts
plaintiff's
evidence
did
favors
own
establish such
contrary.
However,
rule to the
absence of a clear
our review
cited trans-
link.
script
to blindness or
shows no correlation
Casualty
Jeryl
See,
(Nurse
g.,
e.
v. Carolina
witness
brain disease
Gagliardi)
Kartsfield
Co.,
prenatal
Insurance
451 P.2d
that “lack of
concludes
1969) ;
Knight,
per se, probably
care,
Mitchell v.
doesn’t have as much
(Alaska 1964).
generally, McCormick,
See
C.
it.”
do with
(2d
Evidence
at 434
§
ed.
*10
ever,
that if
goes
McCormick
to state
a
Appellant next claims that the court admitting testimony erred in concerning urges Poulin that at best the prejudicial military occupational Mr. Poulin’s testimony value of this outweighed pro- its background. bative flatly value and at worst violated proscription against using particular Mr. Poulin testified on direct examina- wrongful impeach acts to credibility. That concerning tion Dr. what Zartman had told proscription is contained in Civil Rule him Courtney’s about condition. The testi- 43(g) (11).14 Since 43(g) Civil Rule mony went to the issue informed con- (11)[b] clearly refutes claim that sent. On cross-examination Mr. questions credibility, are valid as to asked, among things, other about the and since beyond the issue of damages was military his discharge (mental reasons for scope examination, of direct unsuitability) and the jobs number of that justification conceivable for this line of during he had held period the nine-month questioning in providing rests sufficient that he lived in (five). Alaska Defense background to enable the jury judge continuing counsel elicited these facts over witness’ demeanor. objections plaintiff’s from attorney. This finally resulted in an extended in-chambers It recognized has been back that colloquy judge. recalling the trial On information, ground person’s such oc jury, ques- defense counsel commenced cupation, place residence, etc., is useful tioning Mr. Poulin about philosophy his placing “proper setting” witness his natural childbirth. This is above discussed jury may so that a judge better credi repeated and need not be here. bility. States, v. United 282 U.S. Alford 687, 693, 51 S.Ct. 624 (1931). L.Ed. counsel then and now Defense State, RLR justifies this line of questioning on the But, preliminary while ques such grounds it is background testimony that de tioning permitted, is generally is a “[t]here signed witness, to “flesh-out” a and im duty protect questions [a witness] peachment credibility since Dr. Zartman beyond go proper bounds of concerning contested Poulin’s statements harass, merely annoy cross-examination the content of their conversation. But or supra, Alford, humiliate.” at U.S. both at appeal trial and on defense counsel 694,51 S.Ct. 220.15 seems precise uncertain about the basis for this questioning. Appellee by begins reception talk Because we favor the ing “background” about strong “demeanor” evidence the absence of counter going credibility. argument considerations,16 vailing then we have on occa (11) judgment 43(g) provides: Rule 14.Civil that he been has convicted of may impeached by party (emphasis added) “A witness a crime.” against by whom he was called contradic- People Accord, Lane, Mich.App. 185, tory evidence, by gen- evidence that his 175 N.W.2d reputation bad, eral truth is 43(b) provides his moral : character such as to render him 16. Civil Rule unworthy may “(b) Admissibility. He of belief. not be im- Form and In all peached particular testimony wrongful evidence of witnesses shall be trials acts, except may open orally court, it be shown taken unless otherwise provided by admissibility examination the witness or record of these rules. The questioning allowing this line harm- admitting evidence rulings sion sustained less error. How prejudicial an nature.17 arguably ever, the curtail affirmed we also have urges that the trial court next cross-examination,18 wide-ranging ment of supple- refusing give plaintiff’s erred in per court which a trial and have reversed which, para- No. mental paint with an mitted a cross-examiner phrased, infant was stressed unreasonably broad stroke.19 interest, she, party real *12 Background preliminary or parents, ex- her would receive the sole and questions designed to discredit which are rejected benefit clusive of award. not as a wit person, the witness as instruction stated: ness, improper are cross-examination.20 plaintiff “You are instructed that the present testified case Poulin Wilfred is Poulin as father and this case Wilfred in daughter. his Defendant behalf of guardian of the child natural military dis troduced evidence of Poulin’s brings In law Wilfred Poulin. charge, lying did result from which not exclusively on be- solely and this action veracity, lack of but from “mental unsuita representa- Courtney Poulin in half of bility.” Defendant also elicited the fact capacity. This is because tive done plaintiff jobs during that five had held bring- prohibits minor law child time, period jive years nine month of over Nei- ing in her the action own name. ago. hardly These facts would indicate Patricia Poulin ther Poulin nor Wilfred likely that the witness was therefore capacity in plaintiffs in their are own perjury.21 questioning commit Such by any damages awarded this action and should not been allowed. you go to under these instructions will Although we have concluded that of sole and exclusive benefit Court- admitted, improperly evidence was we ney Poulin.” do not believe a reversal that it warrants
of the judgment.
reasoning
is
Poulin offers
three
Our
here
cumulative
points
support
similar
He
applied
to that
claim of error.
which we have
re
urges
statement of
garding
that this is an accurate
the admission of evidence
Pa
law;
approved of a
prenatal
Spe
tricia
that this court has
Poulin’s
of
care.
lack
prob
cifically,
question
“distinguishing”
we note
instruction when
that
line of
it
ing
confusing parties
high;
very
ability
consumed a
small
of
is
of time
amount
probability
preju
lengthy
in a
emphasized
Nor
it
critical where
trial.
high
none
during
or even
is as
it is here. We find
closing argument.
reiterated
dice
as
circumstances,
points persuasive.
Under these
these
we hold that
Newlin,
1971) ;
governed
(Alaska
by
v.
Veal
154
evidence shall be
491 P.2d
these
(Alaska 1961).
rules,
by
rule,
Inc.,
P.2d
the absence
367
155
principles
they may
of common law
be
Chism,
g.,
v.
475
e.
Davis
513 P.2d
See
interpreted
the courts of
the state
State,
(Alaska 1973) ; Bakken v.
489 P.2d
light
experience.
reason and
In the
(Alaska 1971).
120
rule,
pre-
absence of
be
evidence shall
State,
19. Eubanks v.
versing for that reason.26 verdicts hearing concerning pre-trial At a certain motions, favorably on a de- of cases from the court
Appellant cites a number
ruled
claims,
which,
support
preclude plaintiff
re-
fense motion
states
he
to
sister
ferring
obtaining
cases
insurance without first
have reviewed these
arguments. We
approval. Appellant
misc
effect
unpersuaded.
juror
are
court’s
Overt
during
prejudiced him
ruling
of bias
contends that this
onduct
or concealment
speculate
dire,28
requiring
jury
which
on Dr.
cases
existed
several
voir
impropriety
ability
pay.
Zartman’s
He bolsters
appellant relies on. No such
affidavits, previously
sup
juror
assertion with
The case
is most
exists
which
here.29
discussed,
portive
claim,
jurors
and a note
sent
appellant’s
v. Texas
Stepp
Co.,
judge asking
they
if
find lia-
(Tex.Civ.
could
Ry.
& P.
20 S.W.2d
bility
awarding damages.
for the
without
cited
App.1929), has never been
issue,
proposition
appears
here
Summarily, appellant
argue that
seems to
established
law
contravene other
case
proof
of insurance left
absence
Texas.30
jurors free
reason that ’Dr. Zartman
turn,
This,
allegedly
lacked
insurance.
suggests
Alaska case law
defendant,
created a bias in favor of the
juror
should be
serious
misconduct
particularly
requested
verdict
since
grounds
upsetting a
verdict.
large
plaintiff
and state aid for the
*14
the
ruled
Prior to statehood
Ninth Circuit
these, ap-
possibility. Under facts such as
“expres
juror
concerning
statements
pellant argues,
ruling precluding
a blanket
sions, arguments, motives and beliefs”
insurance,
reference to
even
voir
special
rejected in
absence of
should be
the
dire,
stumbling
a larger prejudicial
offers
Ry.
v.
statutes. Northern
Co.
Pacific
admission,
plaintiff
block to
than
199,
(9th
201 n. 3
Cir.
Mely, 219 F.2d
instruction,
present
de-
warning
would
to
this
1954). The touchstone case in which
fendant.
v.
court has addressed the issue is West
847,
However,
State,
1966),
ap-
(Alaska
the court’s order does not
409 P.2d
852
pear
precluded
held that
evidence which
to have
reference to insur-
where we
“clearly
required
absolutely,
appel-
ance
but rather
establishes
serious violation
duty”
approach
approval
juror’s
be
to
lant to
the court for
be-
the
should
sufficient
particular
impeach
embarking
fore
a verdict. The evidence
line
questioning
Appel-
type
juror
concerning
be
insurance.
case does not reveal the
part
lant has referred to
tran-
warrant
new trial.31
no
the
havior
would
they
Pless,
264,
jury
v.
26. McDonald
35
the
was uncertain
as to whether
238 U.S.
S.Ct.
(1915) ;
783,
damages
v. New
could award less
than the amount
59
Stein
L.Ed. 1300
1077,
for,
parents,
York,
156,
prayed
L.Ed.
the
felt
73 S.Ct.
97
disliked
346 U.S.
by
provided
(1953)
(dictum).
adequately
would be
for
1522
lawyers
aid,
state
and did not want
the
Kinzle,
27.
v.
See
Mont.
148
Goff
parents
primary
to be
beneficiaries
(1966) ;
Gallagher,
Va.
Hinton v.
190
105
award.
(1950) ;
v. Ma
S.E.2d 131
Gardner
lone,
(1962).
60 Wash.2d
P.2d 651
g., Hogg
See,
Washington National
e.
v.
(Tex.
Co.,
Insurance
S.W.2d
Shipley
Hospital,
v. Permanente
127 Cal.
Civ.App.1973).
App.2d 417,
limiting urge reversible constitutes necessary, treatises are not argues experts error. He the treatises were least when can be obtained oxy- proper proponents relevant both the issue of of the textbooks. In some gen premature treatment for and states the ipsa loquitur babies doctrine res is issue of informed The rele- consent. claimed obviate the need for medical vance of prove the materials was not contested treatises to breach of the standard by appellee either at trial or his brief. due care.39 Instead, appellee claims that treatises Those favor who the admission of medi- hearsay constitute which fits no within cal treatises counter most argu- of these generally recognized exception to the rule. ments and doing justify so trea- medical Appellant urges recognize excep- tous an trustworthy tises as both necessary. many legal tion which scholars endorse37 They first contend that textbooks are trust- adopted.38 and which a few states have worthy because: traditionally rejected Hearsay has been (1) veracity An oath is guarantee no primary thought for the reasons that it is (nor demeanor). Furthermore, is logic untrustworthy unnecessary. to be both suggest would that one is less motivated Usually, particular hearsay type if a to distort the truth in the uncontentious trustworthy, be highly g., determined to e. scholarly context of in the research than interest, against pecuniary declaration partisan heat of a courtroom trial. declaration, necessary, dying g., e. highly exception hearsay (2) prime to the rule allows the The virtue of cross-examina- an capacity “filling admitted. tion rests its out” to be for evidence testimony. This will not be lost since Historically, treaties were medical experts used other treatises and can be untrustworthy or in- thought be either event, complete picture. necessary to ad- sufficiently warrant their frequently sacri- cross-examination is claiming Those mission as direct evidence. need, g., in the face of sufficient e. ficed untrustworthy bol- are that such treatises dying declarations. following with the their contention ster arguments: classic rapidly assertion (3) oath, nor is is not under (1) The author makes it an changing nature of medicine jury to observe present for the he testimony is subject printed improper demeanor. contrary to fact. rejected as tactic of adversarial crucial (2) The pressing claim proponents then cross-examination, its virtues rea- type evidence. Two need for this truth, impossible. uncovering the given: usually are sons *16 rapidly such a of science (3) Medical expert legal advice of (1) The costs printed work nature changing reduced; greatly be would may be obsolescent. as tlie medical treatises 38. Alabama allows McCormick, g., § Evidence e. C. 37. See Kansas, Massachusetts of law. result case ; Wigmore, (1954) § Evidence VI J. 621 at by statute. this also, Note, have allowed and Nevada (3rd Admis See ed. 1692 Virgin also Islands Expert Zone The Canal sibility Books in Iowa: Medical of adopt position which statutes Covers, enacted have L. Iowa 56 in Hardback Witnesses ,1. Wigmore, appellant’s. VI See (1971) ; Note, similar Medical 1043 Rev. (3rd 1940 & nn. 1 & 2 ed. 1693 § Work Evidence and in Evidence Court as Treatises Supp.). Proceedings, Compensation Cornell men’s Comment, (1967) ; 322-23 L.Rev. fact, and, doctrine has no Alaska such The Evidence: Direct as Learned Treatises any specifically rules out 09.55.550 Experience, AS L.J. Duke Alabama malpractice negligence presumptions Developments, of ; Mich.L. (1967) Recent cases. 183, 191-92 Rev. possibility “conspiracy (2) plaintiff of of 08.36, der AS shall have the by protecting their silence” doctors own burden of proving kind would be lessened. (1) degree knowledge or skill possessed degree of care ordinari- arguments supporting While ly physicians by exercised or dentists it positions intriguing, we find both are practicing same specialty in similar at this unnecessary to resolve issue communities to that which the appellant defend- bar was able In at time. the case practices; ant experts outstanding testify to obtain Furthermore, he did make use his behalf. (2) that the defendant either lacked on cross-examination. the treatises degree this knowledge or skill or appellant was see how Thus it is hard to care; failed to degree exercise this ruling and instruction. by harmed We any claimed error therefore concluded (3) proximate that as a result of this may have committed which the trial court lack of knowledge skill or the failure was harmless. degree exercise plain- this of care the Appellant argues also tiff injuries suffered that would not oth- truth for the as treatises were not offered erwise have been incurred. therein, Zart- to show Dr. serted what (b) malpractice In actions there shall about ox man known knew or should presumption no negligence on the point was also made ygen therapy. This part of the (§ defendant.” ch. testimony, multiple-use In trial. the case of 1967) SLA (emphasis added) sound always rests discre admission do not under judge. requested We types tion of the trial three of in- Dr. Zartman’s knowl structions stand what relevance concerning the medical standard techniques has to edge existing medical type care and each rejected. or informed con negligence type, the issue of first consisting separate of two in- malpractice cases no Appellant cited structions, suggested sent. that doctors with “su- operative knowledge is an perior suggesting that knowledge” or certified a Na- Appellee cites type of suit. in this element tional Board be higher held to a standard 130, 162 Grob, Mich.App. Naccarato v. than the “similar communities” test set out expressly holds which (1968), N.W.2d statute.40 type,' The second based on is not relevant. that such information the facts of case, in essence stated that position ex event, trial Zartman’s Dr. Dr. Zartman’s failure see that his orders being a “titration” pressly rejected were being properly administered breached sug hardly technique. “dangerous” “accepted standards of care.” The the method on gests lack of awareness type third simply any special held that sus- Therefore, in this re any error part. ceptibilities Poulin had did gard was harmless. not relieve the liability doctor negligence part. on his already noted, As Standard Concerning (b) Instructions each rejected Care argues that constitutes reversible er- ror. standard of care normal Alaska’s 09.55.540, in AS physicians is set forth Dr. Zartman was trained in large, *17 provides as follows:
which prestigious Chicago; medical school in he is practice licensed to based on medicine in malpractice action five “(a) In a ;41 states and been by he has certified the physician a licensed negligence of Appellant American Board un- Pediatrics. 08.64, a dentist licensed of under AS Massachusetts, York, 41. New Illi- These are 40. See 09.55.540. AS nois, California and Alaska.
269
“superior
Appellant
such
contends that AS 09.55.540
argues
doctors with
that
a
sets
“minimum standard” and that those
knowledge”
national board certification
special
held to
with
skills must be
higher standard than
doctors
be
to a
should
held
special
for those
skills. He cites
account
“similar
test of
09.-
communities”
AS
prop-
supporting that
appellant’s Professor Prosser as
judge rejected
trial
55.540. The
osition
state
superior
at common law. Prosser does
(on
proposed
#15
instruction
possessed
that
un-
physician
is
of
“a
who
knowledge),42
supplemental instruction
usual
knowledge
skill or
must use care
(on
certification),43 in
# 7
favor
national
spe-
light
which
reasonable in
of his
is
essential
embodying
of an
48
cial ability
he adds
and information”
Appellant
language
claims
of the statute.
that
or-
required
only
still
“the care
that this constitutes
error.
reversible
assuming
dinary
a
man
care of
reasonable
We have reviewed the law
special knowledge.”49
he
The
has such
subject44 and find that the various states
takes into ac-
language of AS 09.55.540
adopted myriad
positions,
have
a
of
“objective” higher
count
standard
Mexico,45
New
applies
strict
local-
specialists
stand-
proviso
with
test,46
ity
Michigan,47
which feels that
“physicians
ard
be based
geographic locale is
irrelevant
cases in-
in similar
practicing
specialty
the same
volving specialists.
majority
The
of states
added)
(emphasis
communities.”
adopted
have
locality
modified
rule such
nationally cer-
argues
as
also
the “similar communities” test contained
in AS
to nation-
09.55.540.
be held
specialists
tified
should
Requested
Care,
provided
42.
L.Rev.
Instruction
15
tice:
11 Houston
#
as
Standard of
Etiology,
Kroll,
;
(1973)
follows:
Pulse and
22
Prognosis
physician may
possessed
Malpractice,
“A
with
8 Suffolk
Medical
of
greater degree
skill,
;
Coe,
knowledge
(1974) King
Wisdom
&
or intelli-
L.Rev. 598
of
gence
physicians
Rule,
Locality
practicing
L.
than other
3 Baltimore
the Strict
of
Rev.
specialty
(1974).
same
similar communities.
221
physician
required
In such a
case the
161,
Wilson,
P.2d
N.M.
509
45.
v.
Gandara
85
superior knowledge,
to use whatever
skill
(1973).
1356
intelligence
he has and the failure to
injury
Basically
him
do so will render
one
liable for
46.
have taken
the states
patient.”
added)
(emphasis
positions
view
issue. The oldest
on this
three
locality
rule
rule. Under
strict
Requested
provided
Instruction
as
# 7
fol-
the standards of
was held to
the doctor
lows :
locality only. in that
doctor
reasonable
degree
“You are instructed
many
g.,
presents
problems, e.
the town
view
knowledge
pediatricians
by
or skill exercised
majority
doctor,
one
Academy
the American
such
certified
adopted
appear
“similar
to have
states
subject
Pediatrics is not
to variation on a
increasing number
test. An
communities”
geographical
country.
basis in this
There-
beyond
have moved
of states
fore,
question
on the
of the defendant’s
geographic
role of
or reduced
abandoned
locality
knowledge,
skill or
no allowance should be
altogether. Appellant
several of
cites
type
community
made for
which he
in his brief.
these cases
practice.”
(emphasis added)
carries on his
248,
Grob,
180
v.
384 Mich.
Naccarato
generally,
44. See
16
Vol. No. 3 Ass’n of Trial
N.W.2d
791
Lawyers
America,
(April
Letter
News
107
1973) ;
Williams,
&
D. Louisell
H.
Medical
Jersey,
Iowa,
Massachusetts,
West
New
Malpractice
(1973
;
Supp.)
¶ 8.06
& 1973
Washington.
Virginia,
Two
Arizona and
Prosser,
(4th
;
1971)
Torts
161
ed.
§
appear
also
cited
states not
Annot.,
(1968 &
al, rather
than
geographically
localized
and unambiguous that we are foreclosed
standard of
opinions
care. He cites
from from broadening the standard contained
50
six
support
po
states
his
allegedly
therein through judicial construction.
Probably
strongest
sition.
cases Poulin
We now turn to the next claim of error.
Warburton,
cites are
22
Carbone v.
N.J.Su Appellant submitted two instructions stat
per. 5,
680,
94 A.2d
Kronke
(1953);
683
ing in essence that
proper
lack of
supervi
Danielson,
400,
v.
108
P.2d 156
Ariz.
499
sion could constitute a breach of a doctor’s
;
Dumouchel,
(1972) and
72
Pederson v.
standard of care.52 The trial judge reject
73,
Wash.2d
431 P.2d
Those
973
ed both instructions and Poulin claims er
clearly
general
courts
endorsed a
standard
ror, relying exclusively on Toth v. Commu
specialists.
Belinkoff,
for
Both
v.
Brune
nity Hospital, 22
255,
N.Y.2d
292 N.Y.S.
102,
(1968)
354
child at 2:00-3:00 m. on
rejected,
This instruction also was
and no
1968,but no reduction of
flow was or-
liter
instruction
the
expressly
trial court
and
dered, despite
apparent
cy-
an
absence of
specifically
jury’s
called the
attention to
again
Zartman
reexam-
anosis. When Dr.
Poulin’s contention that Zartman’s lack of
February 15, 1968,
ined
on
he or-
the child
supervision may
proximately
have
caused
oxygen.
to be weaned
all
dered her
Courtney’s blindness, and therefore consti-
malpractice.
tuted medical
submitted two instructions
Poulin
supervision
concerning
duty
gravely
Zartman’s
areWe
concerned
no
in-
Proposed
rejected.
supervision
and
were
instruc
regarding
given.
both
struction
was
tion
18 stated:
Dr. Zartman
oxy-
no.
realized
excessive
was
gen
dangerous, but he
on
relied
the
physician
“If a
of a
in
aware
risk
staff,
nursing
the
an
without
benefit of
ex-
therapy
the
he
relies
which
orders and
order,
periodically
plicit
oxy-
to
the
reduce
upon
nursing
proce-
staff
the
to follow
baby
pink.
if
gen
the
remained
He had
risk, he
lia-
dure to minimize that
will be
opportunity
period
the
during
hour
patient
43¾
injury resulting
ble
for
to the
procedure
safety
to ascertain whether this
so,
the nurses
to do
if the nurses
failure
out,
being
he
fact
did
carried
procedure anticipated
do not follow the
baby during
not visit
that time. Dr.
the
opportunity
and
has
to discover
he
an
personal knowledge
Zartman had no
of the
he
procedure
from the
and
deviation
background
nurses
training
on
and
fails to do so.”
period,
duty
and there
during this critical
opinion,
trial
to
In our
court’s refusal
that he asked
doc-
is also no indication
not
give proposed instruction no. 18 was
him determine
tors
“filled-in” for
to
who
error,
instruction
since we find that the
reducing
oxy-
were
whether the nurses
wholly lacking, as
incomplete, if
to
not
flow, may
appropriate.
have been
gen
as
cause,
proximate
which
crucial element of
liability predicated
to
is essential
stating
implying
are not
We
negligence.
pre
in the
that the omissions enumerated
However,
proposed
Poulin also submitted
negli
ceding paragraph constitute medical
provided:
no. which
instruction
is within the
a conclusion
gence. Such
be-
you
Zartman
“If
find that Dr.
However,
determine.
purview of a
lieved that
administration
continuous
complex
lengthy
in a
we believe that
in an
oxygen Courtney
amount
Poulin
liability
involving
theories of
two
case
necessary to maintain
greater than that
intertwined,
wholly
closely
yet
are
to her
pink
her
harmful
color would be
distinct,
upon
it is incumbent
separate and
continued
dosage
and that
jury, in
clear
judge to make
trial
necessary to
higher than that
amounts
manner,
recognizes
law
some
you further
pink
her
color
maintain
the theo
the distinctions
acknowledges
ascertain
failed to
the doctor
find that
likewise
jury must do
and that
ries
periodically
not
were
the nurses
rerdering its verdict.
level,
anticipat-
he
testing
oxygen
questions about
case
level of
ed,
minimum
to determine
prop
procedure,
therapeutic
proper
such failure
you
find
should
oxygen then
therapeutic pro
particular
aof
ac-
er execution
by him not to be
accord
made
cedure,
closely related.
diligence
are
cepted
of care
standards
instructions
separate requests
fail-
such
two
physicians and if
required of
distinc
highlighted
to cause
which would
part
ure
his
contributed
re-
Poulin,
court was
trial
While
tion.
injury to
aggravate the
quired
verbatim,
either
give
negligence
ant’s
or breach of
duty
we
give
hold that the
failure
in-
disclosure.”
*20
struction
the
supervi-
on
issue of medical
The instruction
rejected
was
and
sion constitutes error.
rejection
claims
prejudicial
error.
Appellee argues
trial
court in-
pattern jury
relies on
instructions
jury
generally
negligence.
structed the
in
Jury
(Cal
Instructions —Civil
California
So did the trial court in Toth v. Communi-
1959) and
Jury
Alexander’s
Instruc-
Jic
ty Hospital, supra.
appellee
But
distin-
tions in Medical
Issues
He also
guishes
by claiming
two
the
cases
that in
cites three out-of-state
alleged-
cases which
jury,
Toth the
from
issue was withheld
the
ly support
position.
None of these au-
jury.
argued
whereas here Poulin
it to the
persuasive.
thorities is
argument
This
certainly would not have
The Cal Jic
#
(5th
instruction
14.65
ed.
There,
persuaded
Toth
although
court.
1969) is under the broad label of “Dam
plaintiff
pleaded
argued
had not
ages Aggravation
Preexisting
condi
—
“supervision”
court,
theory,53 the
with one
Basically,
designed
tion.”
it is
to ensure
dissenting,
member
found
The dis-
error.
unusually
susceptible person,
some
senting judge
join
majority
refused
times
“egg-shelled” plaintiff,
called the
will
supervision
theory
because
not been a
had
receive
recovery
injuries.
full
for his
supervision
of the case. Here lack of
was
goes
Thus
question
damages
it
to the
theory
an
and the Toth court sure-
obvious
liability
once
established,
not
to the
ly
found this
error.
would have
to be
scope
duty in establishing liability
in the
place.
Koenen,
first
Rubano v.
152 Conn.
Appellee
argues
also
that this
134,
verdict for either in side. On the issue of Evidence Sufficiency (c) consent, formed which the next section opinion detail, this addresses in we hold any standard urges that under Appellant present adequate Poulin’s failure to such evidence was of care prove proximate evidence to cause renders Judge Buck- wrong and was jury’s verdict jury’s unassailable the verdict on this issue. notwithstand- judgment denial of a alew’s least, was trial or, a new at ing the verdict sup- not record does error. The reversible V. INFORMED CONSENT
port contention. this in- concerning raises issues test Appellant correctly cites separate formed consent under two rubrics. not judgment of a reviewing a denial for First, he contends that instructions essence, we In withstanding the verdict. liability precluded for concerning the basis light fa most record review the must jury reaching ever the issue only if reverse appellee, and vorable to Second, he contends informed consent. persons would and fair-minded reasonable presented weight that the of the evidence City appellant. invariably have found for consent, coupled with when informed 607, Nesbett, 432 P.2d doctrine, Fairbanks v. made version of that the modern 1967). (Alaska 609-610 notwithstanding the verdict judgment Therefore, is imperative. it new trial proper test Appellee offers the urged denial of the motion that the trial of a new of a denial for the review notwithstanding the verdict judgment insufficiency of evidence. alleged error. new trial is reversible only we if reversal standard allows That “in- claims that the Appellant in essence judge abused trial determine anot subset doctrine context, formed consent” such sound discretion. malprac- concept of "medical generic sup only if evidence found abuse will be jury instruction Judge Buckalew’s tice.” lacking completely porting verdict alia, mandated, ver- a defense # inter 12 as to be unconvincing slight and or so malprac- medical no jury dict if the found Ahlstrom unjust. plainly unreasonable prevented Appellant claims tice. 262 (Alaska P.2d Cummings, v. 388 reaching the issue ever jury from an evi- the absence of Thus re- constituted and thus informed consent miscarriage justice dentiary aor basis error. grounds versible trial on the grant a new will we 4-23, Issues, Jury Alexander, Medical 307 Instructions point is argument on this numerous Alaska cases Appellant’s which hold instructions, authority which when persuasive. entirety, read None their is be Helicopters, that “informed consent” non-reversible. ERA he cites holds See And, Alaska, Inc., malpractice. Digicon in medical v. not an issue Inc. 518 P.2d (Alaska Baker, 1974); has Breitkreutz as one court noted: 1973); P.2d National jury to de . issue for the “The . . McHugh, Bank Alaska v. P.2d be whether termine should (Alaska 1966); Knight, Mitchell v. P. informed given with the treatment 2d (Alaska 1964). In the case at bar not, if patient, and it was consent of superior specifically gave court two mal physician gtdlty ... separate instructions on informed consent. skillfully the how no matter practice significant particular Even more is the lan may been administered treatment very guage in the instruction about which Kline, 186 Kan. . .” Natanson appellant complains.56 part In the first (emphasis (1960) judge instruction the summarized d).55 adde plaintiff issues this case. He stated that alleged distinction had negligent practice if the semantic medical Even *22 malpractice respects including consent and several ob between informed the failure to be, ap Thus, appears infirm as it to tain informed even if in were as consent. untenable. pellant’s position gives would still be formed consent rise to a different faulty holding type liability malpractice, that than in- He several cases the cites formulary be corrected instructions cannot stuction rendered that difference immateri appellant, fails to cite No to and But he al. harm was done other instructions. Ariz.App. Rochell, solely you understanding you in v. to aid the 55. See also Shetter you (1965) Comment, decide, ; Val It is for to from all of of issues. P.2d case, any the in Need the the whether id Consent to Medical Treatment: evidence proven. Duq.L.Rev. 450, Know?, have been these claims Patient Consequently, issues to determined by you in this case are these: defendant liable for medi- as follows: First: Is the 56. Instruction No. reads malpractice? your plaintiff Zart- If that answer to claims that defendant cal question “The you proper “no”, comply stand- will return a verdict with the is man failed to your “yes”, practice therefore If answer is medical and was the defendant. ard of for following determine, negligent you will have a second issue to in one more of the proximate malpractice namely respects: a : Was such plaintiff? any injury to the a result administration 1. That as cause question “no”, supervision your oxygen is answer to that under the direction and If developed recover, plaintiff plaintiff if not entitled but is to defendant of the your “yes”, you causing fibroplasia find will become answer to then her to retrolental plaintiff damage has been caused what thus blind. suffer, you perform in all will return a verdict and failed to 2. The defendant for amount the clinical favor blood tests which her indicated signs thereof.” required plaintiff liable for medi- the fail- Is defendant First: your plain- malpractice? damage that If to the cal question answer to so act resulted ure tiff’s “no”, you system. will return a verdict is central nervous “yes”, your oxygen If answer is defendant. for the you The administration and/or determine, appropriate tests issue will have second blood failure to obtain proximate malpractice namely: plaintiff con- such without the Was was done for tlie plaintiff? any injury to the Patricia cause of Wilfred sent of Poulin, and/or “no”, plaintiff. question your parents is to that minor If answer of the recover, plaintiff if entitled to the defendant’s is not claims that also Plaintiff inju- “yes”, you your find proximate will then answer is was the cause conduct damage plaintiff has been caused thus what Poulin. ries to you suffer, will return verdict these claims Zartman denies Defendant allegations. amount thereof.” her favor summary merely foregoing of the given parties, been and has claims need point must‘be re We not reach the error on difficult claim of complex questions jected. the briefs regarding duty scope raise of dis by appel question raised The next required closure the informed consent and ele proper standards lant concerns doctrine. This is because the evidence is note consent.” It “informed ments of proximate trial failed to establish the cause not claim worthy does required element which is claim point.57 error in instructions on upon Spe based lack of informed consent. the issue correctly states that cifically, Poulin was asked whether he im one of first “informed consent” procedure would have consented to the only law ex pression in Alaska. titration had he known Although about it. Sedwick, P.2d pounded Patrick Poulin indicated that he would con undisputed seemingly is the (Alaska 1964), sented to the administration alterna cause proximate must prin ciple58 procedure, tive conceivably he could have lack of to recover be shown order procedures, consented to both leaving the requires evidence informed consent. final choice doctor. The record “plaintiff declined would have that, fails to establish had he known of the ” Pa adequately informed. [procedure] if alternative, he would have declined the Sedwick, supra, at trick procedure employed. which was Patrick v. testi- Dr. Zartman’s Appellant sets forth Sedwick, supra, 391 P.2d at There deposition, deposition. In that mony at his fore, appellant’s claim of error is over stated, alia, inter Zartman ruled, proximate causation was not “ proven at trial. . . . I told [the father] baby’s life we in order to save *23 oxygen, and I said it use would have to VI. CONCLUSION risk, might baby actually a was that, summary conclude with one we blind, . it was be ... exception, rulings trial were ei- court’s one . . as to whether academic . ther harmless error. not erroneous were live, baby baby who or a had a blind However, give instruc- the failure to dead, father clarify duty of distinguish tion to my agreed completely with decision supervision regarding the duties
proper methodology informed consent was reversible error. trial, Zart- that' At Poulin denied that when recognized rule It is the him risk of blind informed of the man had fairly separa requiring issue reversal is an testimony presented conflicting ness. in involved from the other issues ble cannot be question which jury a valid trial, case, may partial new set grant a urges we appellant appeal. But on overturned judgment as only much of the ting aside so advise the father if Zartman did that even balance of by error. The blindness, is affected dis the failure to the risk of of Corridon v. may intact. judgment remain availability an “alternative of cuss 393, 324 N.J.Super. City Bayonne, 129 i.e., prima titration, was a facie therapy”, Const. 42, Terminal (1974); A.2d justifying judgment material omission Hackensack River Corp. Bergen County new trial. v. notwithstanding verdict or injuries duty liable renders the doctor 22 stated court’s # The trial resulting proximately therefrom. dis- a reasonable must be there essence necessary significant facts all closure Canterbury Spence, See, g., 150 U.S. v. intelligent e. Such dis- consent. and informed an (1972) ; 772, 263, App.D.C. 464 F.2d available choices include should closure 11, 1, Grant, 229, 502 P.2d in each 8 Cal.3d inherent Cobb risks and material treatment (1972). Cal.Rptr. perform disclosure Failure choice. Sanitary Sewer Authority, Dist. provides, AS 09.55.540(a) in part: N.J. 294, 113 A.2d 812 (1955). Whether In malpractice action based requiring sep- the issue fairly reversal is negligence physician of a . . . adju- arable from the other issues plaintiff shall prov- have the burden of depends upon dicated the trial court our ing (1) degree knowledge or skill view of the facts and circumstances of possessed degree of care ordinari- Gyerman each case. v. United States ly by physicians exercised Co., Lines 7 Cal.3d 498 P.2d practicing specialty the same in similar Cal.Rptr. We communities to that in which the defend- applied principles these in other cases practices; ant . . . appeal. Nesbett, City Fairbanks v. legislative The relevant report committee (Alaska 1967); State v. expressly states 09.55.540(a) AS Stanley, 509P.2d 279 “ attempts . . codify . the law with noteworthy It that the court in Toth respect proof to the burden of in medical Community Hospital, supra, considered malpractice . actions . .1 duty supervision sufficiently to be report makes no reference to the malpractice ques- distinct from the other standard of care to are physicians presented tions there that new trial was or- Thus, to be I held. find I am in only duty supervision dered as to the is- agreement posi- Poulin’s sue, judgment the balance of favor tion only subject that this statute treats physician remaining intact. proof burden of in malpractice litiga-
tion. Even if AS 09.55.540is construed to embody care, are of We the same view the standards of I think it should Consequently, case at providing bar. we hold that read minimum stand- methodology plaintiff the issues of and informed ards and that a should be able to may retried, prove, consider, consent not be new trial but a that a regarding proper supervision higher degree the issue of of actual skill and knowl- required. disposition edge possessed particular physi- Because of our case, question we need not reach the cian which in phy- turn result in that could attorneys’ costs being fees which Zart- sician stringent Dr. held to a more stand- ard of care. man cross-appeal. raises *24 my disagreement crux of with the reversed, part, part, in in Affirmed opinion court’s majority’s centers on the proceedings remanded for consistent with language assertion that “The of AS 09.55.- opinion. this ‘objective’ takes into high- account this specialists er standard for proviso with the ERWIN, BURKE, BOOCHEVER and ‘physicians the standard be based on JJ., participating. practicing specialty the same in ” similar communities.’ correctly urges special that doctors with RABINOWITZ, Chief (concur- Justice skills must be held to account for those ring part, part). dissenting special skills. argu- accord dispositions I concur the court’s of the ment is Professor suggests Prosser who “ complex numerous and presented by issues physician . . . pos- who is appeal exception with the of the ma- sessed of unusual skill or knowledge must jority’s construction of AS 09.55.540. use light care which is reasonable Judiciary Report 1. amended, p. 492, House Committee on Com House March Journal mittee Substitute for Senate Bill No. ” litigation, . even if is held special ability and . . . AS 09.55.540 information “ care, stand- . . care re- establish standards these and adds that . ordinary standards, ards are quired care minimal I conclude still requested pertaining Poulin’s man, assuming he instruction reasonable has such physi- special flowing standard of care from a knowledge.” greater degree superior cian’s skill per- my belief 09.55.540 that AS Given knowledge given.3 should have been malpractice proof tains to burdens spe- physicians practicing Prosser, other in the same Law of Torts W. Handbook cialty 1961), 161, 162, (4th In such a in similar communities. n. § 30. See ed. required physician (Second) what- case to use § also Restatement of Torts intelligence knowledge, superior (m) 299A, (d). ever skill and comment § comment Cf. Co., render will he has and failure to do so & Sehler 177 Mich. Gerkin Brown injury patient. him liable N.W. 48 requested read: greater may possessed physician awith A intelligence skill, knowledge degree than