MAASSEN, Justice.
A woman was admitted to a hospital emergency room with pregnancy-related complications. The attending physician recommended that she be transported by medivac to a different facility. The woman and her husband informed the physician that they needed their insurer's preauthorization for that course of action or they could be personally liable for the costs. The physician allegedly promised to call the insurer and, if it would not approve the medivac, have the hospital bear the costs itself. But the physician failed to contact the insurer until much later, and the insurer declined coverage.
The couple sued the physician and the hospital, alleging that the physician breached her fiduciary duty by failing to obtain preauthorization as promised; that her promise created an enforceable contract, which was breached; and that if there was no contract the physician's promise should be enforced through the doctrine of promissory estoppel. The superior court granted summary judgment to the physician and hospital. The couple appeals.
We hold that the superior court did not err when it ruled in favor of the physician and hospital on the claims for breach of fiduciary duty and breach of contract, but that genuine issues of material fact precluded summary judgment on the claim for promissory estoppel. We therefore reverse and remand for further proceedings.
Rachel Thomas was admitted to the emergency room at Ketchikan General Hospital in October 2008 for pregnancy-related complications.
In the process of arranging the transfer, Steven Thomas signed an "Acknowledgment of Financial Responsibility," which cautioned that the Guardian Flight medivac charges could be significant. Though naming KIC as the "Payment Source," Steven agreed to be personally responsible for any unpaid charges and to "save and hold the hospital harmless therefrom."
The Thomases were eventually billed over $23,000 by Swedish Medical Center and over $69,000 by Guardian Flight, the medivac provider. The Thomases sought payment from KIC and ANMC under their coverage plan but were denied for three stated reasons: (1) they failed to request preauthorization within 72 hours of beginning treatment or of admission to the healthcare facility; (2) ANMC was "available and accessible to provide the necessary medical services to the patient"; and (3) the Thomases lacked a referral or authorization for the transfer from an ANMC physician. The Thomases admit knowing about the preauthorization requirements and that obtaining preauthorization was ultimately their responsibility; they allege, however, that they boarded the flight based on Dr. Archer's assurances that those requirements would be satisfied by someone else. Dr. Archer did later write KIC and ANMC to explain her decision to have Rachel transported to Seattle, but not until May 2009, over six months after the transfer.
In 2010 the Thomases filed suit against the hospital and Dr. Archer (collectively "the hospital")
The hospital moved for attorney's fees as the prevailing party, supporting its motion with an affidavit that summarized its fees
"We review grants of summary judgment de novo."
Whether there is a fiduciary duty and whether promissory estoppel applies are both questions of law to which we apply our "independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy."
The Thomases argue three substantive points on appeal: (1) that the superior court erred by deciding that Dr. Archer did not owe the Thomases a fiduciary duty to contact KIC for authorization after having promised to do so; (2) that the superior court erred by deciding on summary judgment that the parties' words and actions did not create an enforceable contract; and (3) that the superior court erred by rejecting promissory estoppel as a basis for enforcement of Dr. Archer's alleged promise to the Thomases.
"Alaska Civil Rule 56 provides for judgment to be granted to a party where `there is no genuine issue as to any material fact' and `the moving party is entitled to judgment as a matter of law.'"
Accordingly, for purposes of our review of the superior court's decision on summary judgment, we assume that Dr. Archer made the statement, as described by the Thomases, "that she would contact KIC, not to worry, that everything will be taken care of, and that if KIC didn't cover it `we' will."
The Thomases first argue that the superior court erred by granting summary judgment on the Thomases' claim that Dr. Archer "owed a fiduciary duty to [the] Thomases to contact KIC for authorization as she promised." The superior court noted in its order that "the parties do not dispute the existence of a fiduciary relationship, only the scope of the duties that relationship imposes." The court cited two Alaska cases discussing fiduciary duties
We discussed the scope of a physician-patient fiduciary duty in Pedersen v. Zielski.
In Northern Ohio Medical Specialists, the plaintiff, whose case had been dismissed on the pleadings, argued on appeal that he had pleaded "sufficient, operative facts to support recovery under his claims that a doctor, ... [has] a fiduciary duty to submit claims to an insurance company when he promises to do so."
This reasoning is consistent with our description of the physician's fiduciary duty in Pedersen. A physician's expertise in the practice of medicine is unique, respected, and highly valued. The patient, lacking that expertise, relies on the physician's judgment and care and is especially vulnerable to the physician's mistakes; the law protects the patient's vulnerability by imposing on the physician a heightened duty of care when the physician is acting within the scope of that expertise.
At the heart of this case are two different statements attributed to Dr. Archer. The first and undisputed one is her recommendation that Rachel be immediately transported by medivac to a hospital that was better equipped to treat her pregnancy-related complications. The second is Dr. Archer's alleged promise that she would obtain preauthorization for the transport costs from the Thomases' insurance providers and that the costs would otherwise be covered by the hospital. The first recommendation is plainly within the scope of Dr. Archer's fiduciary duty; determining whether a transport was necessary was a matter of medical expertise on which the Thomases had little choice but to rely. The alleged promise regarding insurance and payment, on the other hand, did not stem from Dr. Archer's special expertise as a physician. The Thomases themselves knew about the preauthorization procedure, having followed it already that evening when Rachel was admitted to the emergency room. The Thomases did not need Dr. Archer's special expertise in order to understand the requirements of their insurance coverage and to obtain the required preauthorization.
Because the physician-patient fiduciary duty exists to protect the vulnerable patient relying on the physician's special expertise in medicine, a physician's promise to obtain preauthorization of medical treatment for purposes of insurance coverage is outside the scope of the physician's fiduciary duty. The superior court did not err when it granted summary judgment to the hospital on the Thomases' breach of fiduciary duty claim.
The Thomases also challenge the superior court's conclusion on summary judgment that Dr. Archer's alleged promise about insurance and payment did not give rise to an enforceable contract. The court decided that "[t]he most apparent shortcoming of the alleged contract is the lack of consideration"
"We have held that `[t]o constitute consideration, a performance or a return promise must be bargained for.... A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.'"
As for the benefit to the hospital conferred by Rachel's departure, there is no evidence this benefit was bargained for either. It is undisputed that the hospital did not have the capability to manage Rachel's medical needs and that she had to be transported somewhere else. Rachel testified that she would have followed Dr. Archer's medivac recommendation regardless of whether there was insurance coverage for it: "[M]y concern was not billing at that time. It was immediate health." Thus, even assuming that the Thomases' departure conferred a benefit on the hospital, the hospital received no benefit in exchange for Dr. Archer's alleged promise; relying on Dr. Archer's medical advice, the Thomases were going to leave anyway.
Because we agree with the superior court's conclusion that the alleged contract lacked the essential element of consideration, we do not address the other elements required for the formation of an enforceable contract. The superior court did not err by granting summary judgment on the breach of contract claim.
The Thomases next argue that the superior court erred when it rejected their claim that "[i]f the parties did not create a binding contract, their agreement is nevertheless enforceable by the doctrine of promissory estoppel." They argue that Dr. Archer's alleged promise induced them to leave the hospital immediately without their insurer's preauthorization, that this was a foreseeable response to the promise, that because they left the hospital without preauthorization they incurred substantial medical expenses, and that the interest of justice is served by enforcing Dr. Archer's promise. They argue that, at a minimum, a jury should have decided this claim.
"The doctrine of promissory estoppel allows the enforcement of contract-like promises despite a technical defect or defense that would otherwise make the promise unenforceable."
We conclude that there are genuine issues of material fact about whether the elements of the doctrine were met. It was therefore error to grant summary judgment on the Thomases' promissory estoppel claim.
"Whether particular actions represent substantial changes [in position] is a question of all the circumstances and is not determinable by reference to a set formula."
In deciding that the "substantial change in position" element was not met, the superior court relied on the Thomases' concession that they would have followed Dr. Archer's advice regardless of whether they had insurance coverage. Rachel testified at her deposition that "[a]t this point, [she] would have gone anywhere to save [her unborn] son's life." She continued: "I mean, had [Dr. Archer] said you need to go to Anchorage, I would have gone to Anchorage. She said, you need to go to Seattle, so I am going to Seattle." When asked whether she would have agreed to be transported to Seattle "if [she] felt that it would have saved [her] son's life" even if there was no insurance coverage for it, she responded, "Again, my concern was not billing at that time. It was immediate health." This testimony, the superior court concluded, demonstrated that the Thomases did not substantially change their position based on Dr. Archer's alleged promise.
But while there is no dispute that the Thomases would have flown to Seattle regardless of insurance coverage, questions of fact remain because of their assertions that they would have called their insurance providers for preauthorization had they not believed that Dr. Archer was going to do so. A reasonable person could conclude that the Thomases substantially changed their position in reliance upon Dr. Archer's alleged promise by failing to do what they otherwise would have done.
"According to Corbin on Contracts, `[f]oreseeability of reliance raises a question of fact for court and jury.'"
The superior court's rejection of the Thomases' promissory estoppel claim rested primarily on its conclusion that there was no "actual promise" on which the Thomases were entitled to rely. "When a promissory estoppel claim is made in conjunction with a breach of contract claim, the `actual promise' element of promissory estoppel is `analytically identical to' the `"acceptance" required for a contract.'"
The superior court, in deciding that there was no actual promise, relied on Sea Hawk Seafoods, Inc. v. City of Valdez, in which we reversed the trial court's denial of summary judgment to Valdez on Sea Hawk's promissory estoppel claim.
The superior court in this case noted our holding in Sea Hawk that Valdez's "alleged oral promises were not sufficiently `definitive,' `clear,' and `precise' to constitute an actual promise, particularly when considered in conjunction with [Valdez's] letter."
We do not consider Sea Hawk controlling. Valdez's oral offer in Sea Hawk identified "three conditions prior to submitting the Sea Hawk grant application," and its later confirming letter again noted those "conditions, informing Sea Hawk these issues would need to be resolved before Valdez accepted the grant funds, and stating the parties would need to enter [into] an agreement once the State decided whether to award Valdez the grant."
The alleged promise at issue in this case, unlike the promises in Sea Hawk, was not expressly conditional. As the Thomases describe Dr. Archer's promise, it gave no indication that it depended on the outcome of future negotiations. The alleged promise defined Dr. Archer's role — she would contact the insurers if the Thomases boarded the medivac plane immediately — and it defined the Thomases' role — they would board the plane without taking time to contact their insurers. Because the evidence could support a conclusion that the Thomases unequivocally accepted a clear offer, a reasonable person could conclude that there was an "actual promise."
"The fourth requirement, that enforcement is necessary in the interest of justice, presents fact questions that ordinarily should not be decided on summary judgment."
Because the Thomases identified issues of fact that precluded summary judgment, it was error to grant the hospital's motion on the Thomases' promissory estoppel claim.
We AFFIRM the superior court's grant of summary judgment on the Thomases' fiduciary duty and breach of contract claims. We REVERSE the superior court's grant of summary judgment on the Thomases' promissory estoppel claim and REMAND for further proceedings consistent with this opinion. The award of attorney's fees to the defendants as prevailing parties is accordingly VACATED.
Fabe, Justice, not participating.
The Thomases also argue, most extensively in their reply brief, that by making the alleged promise Dr. Archer agreed to act as their agent, thus creating another type of fiduciary duty. But the Thomases did not advance an agency theory in the superior court, instead focusing exclusively on the fiduciary duty inherent in the physician-patient relationship. "It is well established that matters not raised at trial will not be considered on appeal." Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991) (quoting Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987)).
