BOLGER, Justice.
A cardiac patient who underwent open heart surgery sued the anesthesiologist and medical providers involved in the surgery. The superior court dismissed the patient's claims on summary judgment, concluding that the patient had offered no admissible evidence that the defendants breached the standard of care or caused the patient any injury. On appeal the patient relies on his expert witness's testimony that certain surgical procedures were suboptimal and that patients generally tend to have better outcomes when other procedures are followed. But we agree with the court's conclusion that this testimony was insufficient to raise any issue of material fact regarding whether the defendants had violated the standard of care in a way that caused injury to the patient. We also affirm the court's orders involving attorney's fees and costs.
Dr. Michael Brandner suffered a heart attack in September 2009 and was admitted to Providence Alaska Medical Center (the Medical Center) for emergency bypass surgery. Dr. Kenton Stephens was the cardiac surgeon who performed the operation; Dr. Robert J. Pease administered anesthesia. Dr. Brandner is also a medical doctor, licensed to practice plastic and reconstructive surgery.
The surgery lasted six hours. At the outset Dr. Pease intubated Dr. Brandner on his second attempt and used the drug propofol to induce anesthesia. Shortly thereafter Dr. Brandner's blood pressure precipitously dropped, but according to Dr. Stephens, Dr. Brandner did not suffer complete cardiac arrest. Dr. Stephens performed CPR while additional drugs were administered to counteract the drop in blood pressure. Dr. Brandner's blood pressure ultimately stabilized, and the operation continued.
Dr. Pease then placed a transesophageal echo (TEE) probe in Dr. Brandner's esophagus to take ultrasonographic pictures of his heart and obtain diagnostic information about its condition. The TEE probe soon failed, and Dr. Pease then notified Dr. Stephens of this failure. According to Dr. Stephens's deposition testimony, he responded by saying, "Okay, well, I'm pressing on with the operation, do what you can." The TEE probe was not replaced.
Dr. Stephens performed a six-vessel bypass. Dr. Brandner survived the operation and was discharged 12 days later. In his notes from a follow-up appointment about a week after discharge, Dr. Stephens indicated that "[Dr. Brandner] has been progressing quite well." Dr. Stephens also indicated that
In September 2011 Dr. Brandner filed a complaint against Dr. Pease, Providence Anchorage Anesthesia Group (the Anesthesia Group), and the Medical Center.
In February 2012 the providers jointly moved for summary judgment, arguing that the "lawsuit must be dismissed with prejudice unless [Dr. Brandner] can produce an affidavit from a qualified expert claiming Dr. Pease failed to meet the standard of care, [and] this failure caused or contributed to his injuries." The motion was supported by the affidavit of a board-certified anesthesiologist specializing in cardiovascular anesthesia who attested that "[t]he medical care provided by Dr. Pease to [Dr. Brandner] was appropriate in all respects and met the [s]tandard of [c]are."
In July 2012 Dr. Brandner submitted the affidavit of Dr. Steven Yun, a board-certified anesthesiologist, in connection with his opposition to the providers' motion for summary judgment. Dr. Yun attested that the "treatment, care[,] and services provided by . . . Dr. Robert Pease[] were suboptimal and contributed to [Dr. Brandner's] prolonged and delayed recovery." Specifically, Dr. Yun stated that "in all medical probability," (1) "[p]ropofol was not the optimal choice" of induction agent and its use "led directly to. . . [Dr.] Brandner's cardiac arrest,"
In September 2013 Dr. Brandner was indicted in federal court on seven counts of wire fraud.
In January 2014 the parties deposed Dr. Yun. During the deposition Dr. Yun admitted that although he was a practicing anesthesiologist, he had not practiced cardiovascular anesthesia or used a TEE probe since about 2001. He also stated that he was not qualified under the current standard of care to practice cardiovascular anesthesia because he lacked certification in the use of TEE probes.
In February 2014 the providers jointly moved to exclude Dr. Yun's testimony, arguing that Dr. Yun was not a qualified expert in the field of cardiovascular anesthesia. While this motion was still pending, and less than a month before trial was set to begin, Dr. Brandner requested a continuance. Citing the ongoing criminal proceedings against him, Dr. Brandner argued that "he [would not be able to] testify []or explain his circumstances" and that "exercising his right to remain silent is prejudicial even in a civil case" because "[i]f he is acquitted and/or the charges are dismissed, his current criminal charges become irrelevant and . . . [in]admissible under Evid[ence] Rule 404(b)." He also acknowledged the providers' motion to exclude Dr. Yun and stated that "[i]f [Dr. Yun] is struck from being a witness, the trial cannot proceed."
The providers opposed Dr. Brandner's request for a continuance. The Medical Center argued that postponing the trial was unnecessary because Dr. Brandner's "substantial rights" would not be violated:
Although the superior court called Dr. Brandner's motion to continue "dilatory," "inexplicable," and "inconvenien[t] [to] opposing litigants, opposing attorneys, and the [c]ourt," the court "reluctantly" granted his request. But the court ordered Dr. Brandner to pay the actual out-of-pocket costs the Anesthesia Group incurred as a result of postponing trial. The court later reconsidered this costs award on Dr. Brandner's motion and confirmed its decision to award costs. But the court reduced the award after learning that the Anesthesia Group's billings included costs that were avoidable since Dr. Pease was still available to work, including "travel, hotels, car rentals, per diem, overtime," and other costs associated with the substitute anesthesiologist. In addition the court granted the providers' motion to exclude Dr. Yun's testimony after finding that Dr. Yun was not a practicing, board-certified cardiovascular anesthesiologist. Dr. Brandner then asked the court to reconsider its exclusion of Dr. Yun's testimony, contending that "there is no such thing as board certification in cardiovascular anesthesia and use of the TEE probe is allowed by anesthesiologists without any certification."
In March the providers again moved for summary judgment, supporting their motions with four affidavits. Two of these affidavits were from board-certified anesthesiologists
The superior court granted the providers' summary judgment motions. Although acknowledging that its previous order excluding Dr. Yun was based on the erroneous premise that Alaska recognizes board certification for the subfield of cardiovascular anesthesia, the court nonetheless excluded Dr. Yun's testimony. The court also ruled that even if Dr. Yun were qualified as an expert witness, summary judgment would still be warranted because Dr. Yun did not causally connect any of Dr. Pease's allegedly negligent acts to any of Dr. Brandner's claimed injuries.
The providers moved for Alaska Civil Rule 82 attorney's fees and costs. The superior court granted their requests but reduced the awards slightly from the requested amount.
Dr. Brandner appeals.
"We review rulings on motions for summary judgment de novo, `reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor.'"
In a suit alleging negligence or willful misconduct by a health care provider, AS 09.55.540(a) requires a plaintiff to prove by a preponderance of the evidence:
"In medical malpractice actions . . . the jury ordinarily may find a breach of professional duty only on the basis of expert testimony."
Dr. Brandner contests both of these conclusions. With respect to the court's second conclusion, Dr. Brandner argues that if Dr. Yun had been found qualified to testify as an expert in cardiovascular anesthesia, then there would have been genuine issues of material fact regarding all three alleged instances of malpractice: the use of propofol, the two intubation attempts, and the failure to use a working TEE probe throughout the surgery.
Dr. Brandner contends that "[t]here is a genuine dispute of fact as to whether the use of the drug propofol and the second intubation attempt were suboptimal; taken together these [support] Dr. Yun's conclusion that [Dr.] Pease's actions fell below the standard of care." (Emphasis added.) But Dr. Brandner mischaracterizes Dr. Yun's testimony. In his affidavit Dr. Yun stated only that Dr. Pease's failure to use a working TEE probe during surgery fell below the standard of care; he did not make the same claim about Dr. Brandner's propofol and intubation theories or about Dr. Pease's actions generally. And in his deposition testimony Dr. Yun explicitly stated that he "[could not] make the argument that [the use of propofol] was below the standard of care" and that taking more than one attempt to intubate a patient was "suboptimal and . . . not ideal, but not necessarily below the standard of care." Under AS 09.55.540(a) the providers could not have been held liable for either of these alleged acts of malpractice on the basis of Dr. Yun's testimony.
Dr. Yun did testify that Dr. Pease's failure to use a working TEE probe—and the Medical Center's alleged failure to have a working backup probe on hand—fell below the standard of care. But the superior court concluded that "Dr. Yun failed to causally connect the TEE shutdown and the physician's decision to proceed without a spare with any injury suffered by [Dr.] Brandner." We agree.
Dr. Brandner argues that Dr. Yun, in his deposition, "describe[d] the effects [that] the [defendants'] negligence caused to [Dr.] Brandner." Dr. Brandner cites several instances in Dr. Yun's deposition testimony where Dr. Yun suggested that Dr. Brandner probably would have had a better outcome if a TEE probe had been used. But when these statements are read in the context of Dr. Yun's full testimony, it becomes clear that Dr. Yun was opining only that patients in general tend to have better outcomes when a TEE probe is used—not that the failure to use a working TEE probe throughout the surgery harmed Dr. Brandner specifically. Dr. Yun testified elsewhere in the deposition: "I can't make any specific conclusions. I can only say, in general, that patients who have a TEE probe used in their cardiac surgery tend to do better than those who do not." And when asked whether it was "outside the scope of [his] training and expertise to be able to testify about the impact the surgery had on [Dr.] Brandner in his particular case," Dr. Yun simply replied, "Yes."
As a matter of statistical probability, evidence that patients generally do better with a given treatment does not necessarily provide causal support that a specific patient will do better. The United States Court of Appeals for the First Circuit recently examined the logical pitfall inherent in attempting to prove causation with regard to a specific patient based on studies demonstrating correlation among patients in general. An expert
In the present case, Dr. Yun stated that "patients who have a TEE probe used in their cardiac surgery tend to do better than those who do not"—in other words, the chances of a better outcome increase when a TEE probe is used. But Dr. Yun provided no specific figures about what percentage of patients do better, in which ways, and by how much. Without this information, Dr. Yun's statements about general patient outcomes provides no support for Dr. Brandner's specific claim that his recovery would have been better had a working TEE probe been used throughout his surgery.
Here the Anesthesia Group presented an expert who stated that the failure to use a working TEE probe had no effect on the surgery, and Dr. Yun declined to offer testimony to the contrary. The uncontested evidence that the lack of a working TEE probe had no impact on Dr. Brandner's specific surgery overrides any marginal relevance of Dr. Yun's testimony about patient outcomes in general.
For these reasons the superior court was correct to conclude that Dr. Yun's testimony provided no evidence that the failure to use a working TEE probe was the likely cause of Dr. Brandner's alleged injuries. Dr. Brandner pointed to no other evidence of causation in his opposition to summary judgment, nor does he cite any such evidence on appeal. We therefore affirm the grant of summary judgment in the providers' favor.
Prior to the superior court's summary judgment ruling, Dr. Brandner moved to depose Dr. T. Andrew Bowdle, Thomas Vasquez, and Dr. Pease, whose affidavits supported the providers' summary judgment motions. The providers opposed the motion, pointing out that Dr. Brandner had ample time to depose all three witnesses before the discovery deadline. The superior court denied Dr. Brandner's motion as moot because "[his] only expert cannot testify that . . . the lack of a TEE [probe] caused any injury to [Dr.] Brandner." Dr. Brandner contends that this order was an abuse of discretion.
The superior court did not abuse its discretion. Dr. Brandner had produced no evidence of causation, while, in contrast, the providers submitted four affidavits to support their summary judgment motion. Dr. Brandner asked to depose three of the four witnesses, but he did not attempt to depose or strike the testimony of Dr. Beerle, who stated that "[t]he medical care provided by Dr. Pease to [Dr. Brandner] was appropriate in all respects and met the [s]tandard of [c]are," and that a working TEE "would not have changed the surgeon's plans to bypass the vessels chosen." Accordingly, even if the superior court had struck the affidavits of Dr. Bowdle, Vasquez, and Dr. Pease in their entirety, the providers would have remained entitled to judgment as a matter of law because Dr. Brandner produced no evidence of causation to counter Dr. Beerle's expert testimony.
Dr. Brandner moved for a continuance less than one month before trial was set
Dr. Brandner argues that it was unfair for him to pay for a temporary anesthesiologist who was "[n]ever needed." He points out that the temporary anesthesiologist was hired to allow Dr. Pease to attend trial, and he claims "revenue or wage loss due to a party attending a trial is not recoverable under any rule, and there was nothing to show that a [temporary anesthesiologist] was needed to replace Dr. Pease, who was available [to work] when the trial was continued." Dr. Brandner further argues that the cost award "opens the doors for parties to claim loss of income to attend trial as a component of damages or as a component of litigation costs." He argues that the court "penalized him for exercising his Fifth Amendment rights." And he contends that the requirement that he pay the Anesthesia Group for their costs within 30 days was "inconsistent with the civil rules" and "amount[ed] to a[n] [unreasonable] sanction." These arguments are unpersuasive.
Alaska Civil Rule 40(e)(2) grants the superior court "significant discretion" in requiring a party moving for a continuance to pay the costs resulting from the delay of trial.
Recently, in Cooper v. Thompson, we affirmed a costs award for "travel, lodging, and. . . attorney's hours of trial preparation that would have to be duplicated" as a result of a party's request to continue trial.
It is uncontested that the Anesthesia Group committed to paying these costs under the assumption that the trial would commence on the scheduled date. The postponement of that trial, which Dr. Brandner requested and the Anesthesia Group opposed, made the costs unnecessary but did not absolve the Anesthesia Group's contractual duty to pay them. And the Anesthesia Group could have avoided committing to
For this reason Dr. Brandner is incorrect that the award "opens the doors for parties to claim loss of income to attend trial as a component of damages or as a component of litigation costs." Affirming the costs award here merely recognizes that when a party's delay in filing a motion to continue causes another party to incur nonrefundable costs that could have been avoided had the motion been filed earlier, the superior court has discretion to assign those costs to the moving party. It in no way affects the general rule that such costs are normally each party's respective responsibility.
Dr. Brandner is also incorrect that the imposition of these costs was intended to "penalize[] him for exercising his Fifth Amendment rights." The superior court's order explicitly stated: "The delay in filing the motion—not the fact that [Dr.] Brandner had decided to exercise his [Fifth] Amendment rights . . . —is the direct cause of the. . . cost[s] unnecessarily [in]curred. . . ." And when the superior court reduced the costs award on reconsideration, the court reiterated that "[i]t was the [c]ourt's intention to award only costs that could not be avoided because of the dilatory filing of the motion to continue." (Emphasis added.) There is simply no evidence in the record that the superior court intended to punish Dr. Brandner for exercising a constitutional right.
Dr. Brandner also argues the requirement that he pay the Anesthesia Group's costs within 30 days was intended to "sanction" him and was "inconsistent with the civil rules." But Rule 40(e)(2) grants the superior court significant discretion to "impose such terms as it sees fit" and to "require the payment of . . . costs by the party at whose request the continuance has been made." Setting a 30-day deadline was within the court's discretion in this matter.
Dr. Brandner finally argues that "[i]f this cost is to be imposed, [he] should at least be allowed to depose the billing department of [the providers'] expert and [the] Anesthesia Group to find out what, if anything, was paid and what income was earned as a result of using a [temporary anesthesiologist] and Dr. Pease [simultaneously] once trial was continued." Dr. Brandner made this argument before the superior court, which rejected it while noting that "[Dr. Brandner] is entitled to a copy of [the] documentary proof of payment, which defendants shall timely provide." The court's order was reasonable. There is little reason to think the demand for anesthesia necessarily increases with the supply of anesthesiologists. And the Anesthesia Group did provide proof of payment, which already resulted in the reduction of the costs award. The court could reasonably conclude that Dr. Brandner's request for depositions on this matter was excessive and unreasonable.
For these reasons, we affirm the imposition of costs to Dr. Brandner under Rule 40(e)(2).
The superior court awarded attorney's fees to the providers pursuant to Rule 82, which provides in part that "[i]n cases [resolved without trial] in which the prevailing party recovers no money judgment, the court shall award the prevailing party . . . 20 percent of its actual attorney's fees which were necessarily incurred."
As an initial matter, Dr. Brandner argues that the providers' attorney's fees were facially excessive given that the "case involved [only] six depositions and a limited motion for summary judgment." But this argument ignores the fact that the case nearly went to trial, and that Dr. Brandner claimed damages
Dr. Brandner also raises four specific criticisms regarding Dr. Pease and the Anesthesia Group's billings. We reject these arguments as well.
First, Dr. Brandner criticizes Dr. Pease and the Anesthesia Group's attorneys for "reviewing the same chart notes and medical records . . . on multiple occasions." But these documents were the critical evidence in this case, upon which both sides' expert testimony relied. But Dr. Brandner has not demonstrated that it was unreasonable for the providers' attorneys to review in depth critical documents upon which both sides' experts relied.
Second, Dr. Brandner criticizes the attorneys' billings for "joint meetings with counsel for [the Medical Center], and work with experts not used in this case." But because the providers' interests and legal defenses were largely aligned, it seems reasonable that they would want their attorneys to meet to coordinate legal strategy. As for the experts, Dr. Pease and the Anesthesia Group explained to the court that "[h]ad the case progressed to trial, each [expert] would have testified." Dr. Brandner does not explain why obtaining the opinions of experts not ultimately called to testify at trial was in any way unreasonable in a case that was resolved before trial and turned on expert testimony.
Third, Dr. Brandner criticizes the attorneys for time spent investigating his criminal case, which he claims had "nothing to do with this case." But Dr. Pease and the Anesthesia Group told the superior court that "[t]he defendants were trying to untangle Dr. Brandner's complicated financial picture as a part of defending [against] his multimillion dollar loss of earnings claim," and that "[Dr.] Brandner . . . used his criminal issues as a basis for a last minute continuance[,] which also required the court and the defendants to delve into those issues." Given the relevance of Dr. Brandner's criminal indictment to the case, Dr. Brandner has not demonstrated that it was unreasonable for the attorneys to bill time spent investigating the issue.
Finally, Dr. Brandner criticizes the attorneys for billing time spent preparing the 2012 motion for summary judgment, which was later withdrawn. But Dr. Pease and the Anesthesia Group pointed out that summary judgment was eventually granted for the same reasons advanced in the original summary judgment motion, and they maintained that "[a]ll the work which went into the original motion was utilized when filing the second, successful summary judgment motion." Dr. Brandner has not demonstrated that the superior court erred in awarding fees for time spent preparing the original summary judgment motion.
In addition to disputing Dr. Pease and the Anesthesia Group's legal billings, Dr. Brandner argues that the attorney's fees awards should be remanded because the superior court provided "no explanation of the reasoning behind [the Medical Center's] award" and granted Dr. Pease and the Anesthesia Group's attorney's fees request "without ruling on [his] objections."
The court was not obliged to provide reasons for rejecting—or accepting
The superior court did not err in granting summary judgment to the defendants because Dr. Brandner did not produce any evidence that the defendants' actions caused his injuries. Nor did the superior court abuse its discretion in ordering Dr. Brandner to pay attorney's fees and costs associated with his motion to continue. We therefore AFFIRM the superior court's judgment.
STOWERS, Chief Justice, and MAASSEN, Justice, not participating.