MICHAEL D. BRANDNER, Appellant,
ROBERT J. PEASE, M.D., PROVIDENCE ALASKA ANESTHESIA GROUP, and PROVIDENCE ALASKA MEDICAL CENTER, Appellees
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge. Superior Court No. 3AN-11-10914 CI.
Charles W. Coe, Law Office of Charles W. Coe, Anchorage, for Appellant.
Roger F. Holmes, Biss & Holmes, Anchorage, for Appellees Robert J. Pease, M.D. and Providence Alaska Anesthesia Group. Robert J. Dickson and Christopher J. Slottee, Atkinson, Conway & Gagnon, Anchorage, for Appellee Providence Alaska Medical Center.
Before: Fabe, Winfree, and Bolger, Justices. [Stowers, Chief Justice, and Maassen, Justice, not participating.].
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.
II. FACTS AND PROCEEDINGS
A. Heart Surgery
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
Dr. Brandner could return to full activity within six weeks of surgery and authorized him to return to his plastic surgery practice. In March 2011 Dr. Stephens wrote a letter on Dr. Brandner's behalf indicating that " [h]is recovery has been quite exemplary" and that " he had steadily returned to practice."
In September 2011 Dr. Brandner filed a complaint against Dr. Pease, Providence Anchorage Anesthesia Group (the Anesthesia Group), and the Medical Center. Dr. Brandner alleged that " [t]he administration of anesthesia performed by Dr. Robert J. Pease was below the standard of care, . . . was negligently and recklessly performed[,]" and " cause[ed] [Dr. Brandner] to sustain permanent injuries." He also alleged that the Anesthesia Group and the Medical Center were vicariously liable for Dr. Pease's actions. Dr. Brandner alleged that he " suffered severe and permanent injuries, loss of past and future wages, . . . [and] loss of enjoyment of life[,]" and that he " incurred past and future medical expenses[.]" In response to interrogatories, Dr. Brandner specifically alleged " [i]njury to and loss of myocardium with severely compromised cardiac function and reserve" ; " [i]njury to brain with noticeable loss of short term memory function as demonstrated on testing" ; and " [s]evere de-conditioning, loss of calcium, with associated muscoloskeletal problems, displaced sternal incision/wound with prolonged healing and continued pain, as well as hemorrhoids requiring surgery and with ongoing problems."
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,"  (2) the " difficulty in securing [Dr.] Brandner's airway . . . directly contributed to [his] cardiac arrest," and (3) the " amount of damage to [Dr. Brandner's] heart, [the] time to hook up the by-pass machine, [and] the extent of surgery performed would have been reduced by the use of a TEE [probe] throughout his surgery." Following the submission of this affidavit, the providers withdrew their summary judgment motions.
In September 2013 Dr. Brandner was indicted in federal court on seven counts of wire fraud. The grand jury charged him with attempting to conceal millions of dollars in assets from his wife during divorce proceedings.
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.
With regard to Dr. Brandner's surgery, Dr. Yun reiterated his opinion that the use of propofol and the failure to intubate Dr. Brandner on the first attempt were " suboptimal," but he refused to say that either fell below the standard of care. Dr. Yun did state that the failure to replace the TEE probe fell below the standard of care and that cardiac patients generally tend to have better outcomes when a TEE probe is used during surgery. But he repeatedly declined to draw any conclusions about whether the lack of a TEE probe caused harm to Dr. Brandner specifically, explaining, " I think that goes a little beyond my area of expertise." Dr. Yun also confirmed that his affidavit, which stated that Dr. Brandner's outcome would have been improved by the use of a TEE probe throughout surgery, was based on his " generalized understanding" of the utility of TEE probes -- not his specific understanding of Dr. Brandner's situation.
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: " The [criminal proceedings] . . . do not prevent [Dr. Brandner] from putting on his evidence concerning his . . . surgery, the results from the surgery, his expert's opinions (to the extent that [the] trial court allows that testimony), and his testimony on damages" -- the essential elements of his case. The Medical Center also argued that Dr. Brandner's request was dilatory because his indictment had been issued five months before and he could have moved to continue trial at any time during the intervening months. The Anesthesia Group noted that it had hired an additional physician " at great expense . . . to cover the two weeks Dr. Pease is expected to be in trial" and that two out-of-state expert witnesses had already rearranged their schedules and purchased tickets to attend trial in Anchorage.
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 ...