Alaska Medical Malpractice Laws

Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point. This page provides a brief overview of what you may expect if you are pursuing a medical malpractice claim in Alaska; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Alaska. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim.

Suing for Medical Malpractice in Alaska

A medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Alaska places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Alaska allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, those damages will be capped depending upon the type of damages awarded.

How long do I have to file a medical malpractice case in Alaska?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Alaska mandates that an action for personal injury must be filed within two years from the date that the injury occurred. [1] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the two-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule known as the “discovery rule.”

It is not uncommon for an injury that occurred due to the negligence of a healthcare provider to be discovered almost immediately after occurring. In those situations, it is best to consult with an attorney and file a claim as soon as possible. However, situations do exist where the injury may not be discovered by the injured party for months, even years, after the act that caused the injury occurred. In order to prevent punishing the injured party for not discovering their injury, the lawmakers in Alaska created the discovery rule. The discovery rule freezes the two-year time limit and only begins to run once you either discover, or should have discovered, the injury that was caused by the medical malpractice. However, the time period to discover your injury is capped at 10 years.

Another exception to the statute of limitations exists if the injured party is a minor. The law in Alaska allows a minor injured by medical malpractice to file their claim within two years plus one day of their eighteenth birthday. [2]

In Alaska Medical Malpractice Cases, Who is Responsible?

The law in Alaska permits a medical malpractice suit to be filed when an injury was caused by the negligence or willful misconduct of a healthcare provider. [3]

Those that can be held responsible due to being included in the definition of a “healthcare provider” include:

  • Acupuncturists
  • Chiropractors
  • Dental hygienists
  • Dentists
  • Nurses
  • Dispensing opticians
  • An optometrist
  • Pharmacists
  • Physical therapists or occupational therapists
  • Physicians
  • Podiatrists
  • Psychologists and a psychological associates
  • Hospitals, including a governmentally owned or operated hospitals; and
  • Employees of a health care providers acting within the course and scope of employment [4]

When bringing a medical malpractice claim against any of the aforementioned, the burden of proof rests with you and you must prove by the preponderance of the evidence:

(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;

(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and

(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care you suffered injuries that would not otherwise have been incurred. [5]

What if I am partially to blame? Can I Still Recover Money for Alaska Medical Malpractice?

Alaska, along with 12 other states (Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. Under the doctrine of pure comparative fault any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.

For example, imagine if a patient, without permission, gets out of their hospital bed and begins running down the hospital's hallways, ignoring posted signs warning of the dangers of running in the hospital and the patient ends up slipping and breaking their leg. If a court finds that the hospital is 1% at fault for failing to properly supervise the patient, the patient will still be able to recover a monetary award that is reduced in proportion to their 99% contribution to their injury.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allow for only a partial apportionment of fault. Usually the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in Alaska?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of pure comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff's negligence. There are three types of damage awards you may receive:

Special Damages compensate you for any financial losses you incurred as a result of your injury. This can include financial losses like:

  • Medical bills
  • Prescription fees
  • Physical therapy costs
  • Wages lost from an inability to work
  • Loss of future wages

General Damages compensate you for occurrences that are hard to properly value. For example:

  • Pain and suffering
  • Loss of consortium
  • Loss of enjoyment of life [6]

Punitive Damages, are different from special and general damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Alaska, punitive damages may be awarded by the court only when you prove by clear and convincing evidence that the defendant's conduct was outrageous, including acts done with malice or bad motives; or evidenced reckless indifference to the interest of another person. [7]

The state of Alaska has imposed certain caps on damages in medical malpractice claims.

There is a $250,000 cap on general damages in a medical malpractice case. However, the cap can increase up to $400,000 for general damages in medical malpractice cases that involve wrongful death or “severe permanent physical impairment” that is determined to be over 70% debilitating. [8]

Punitive damages are limited to the greater of three times the compensatory damages awarded or $500,000. [9]

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.

However, the law in Alaska requires potential expert witnesses to meet certain criteria prior to being considered an expert worthy of providing testimony. The requirements that must be met are:

  • The witness must be licensed as a professional in any state in the U.S.
  • The witness must have training and experience in the same field or profession as the defendant or in an area directly related to the issue of the case
  • The witness must be certified by a board recognized in Alaska as having expertise in that field or issue [10]

Any expert wishing to testify is required to provide a report that contains a complete statement of their expert opinion and their reasons for their opinions. The report must also list the data or other information considered by the witness in forming their opinions; any exhibits that may be used; a list of the witness' qualifications; and a listing of the compensation that will be paid for the study and testimony. [11]

Are some parties immune from medical negligence cases?

In Alaska, a medical malpractice case may be brought against a healthcare provider who failed to meet the standard of care necessary in the field of medicine for which they practice and that failure caused an injury. A healthcare provider may be a doctor, a nurse, a medical technician or other healthcare provider.

However, the law specifically states that a hospital is not vicariously liable for the actions of an emergency physician so long as the physician carries insurance with limits of $500,000 per claim and $1,500,000 in the aggregate and the hospital displays a prescribed form of notice stating that the physician is an independent contractor. [12]

Settling medical malpractice cases in Alaska

In Alaska, if both parties agree, the medical malpractice claim can be settled in an arbitration proceeding. [13]

Arbitration is less formal than trial litigation and is often more streamlined in terms of procedures and rules of evidence.

Upon the filing of a malpractice claim that is subject to an agreement to arbitrate, the claim will be submitted to an arbitration board. The arbitration board will consist of three arbitrators who will hear the case:

  • one arbitrator designated by the plaintiff
  • one arbitrator designated by the healthcare provider
  • one arbitrator designated by mutual agreement who shall serve as chairperson of the board [14]

If the parties cannot agree on the third person, the court will provide a choice of three or more persons who might serve as chairperson of the arbitration board, which shall be from a list of qualified arbitrators furnished by the attorney general.

If the parties choose not to arbitrate, that does not necessarily mean that the case cannot settle. In fact, the parties are permitted to settle the claim at any time prior to the claim reaching the trial stage of litigation.

Litigating medical negligence cases in Alaska

A claim for medical malpractice in Alaska begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice that occurred and also designate expert witnesses who will testify on your behalf.

Initiating the Case

If the parties to a medical malpractice claim do not wish to engage in an arbitration proceeding, the claim will proceed to civil court. In Alaska, a civil action begins by filing a complaint with the court. A complaint should include:

  • The name of the court
  • The plaintiff's name, address and telephone number
  • Full name of all named defendants
  • The jurisdiction
  • Statement of the claim and the reason it is being brought before the court
  • A demand of the relief being sought

The complaint, in order to be accepted for filing, must be accompanied by a completed case description on a form provided by the clerk of court. The complaint must also be accompanied by an envelope addressed to you with sufficient postage to mail the envelope and all summonses that will be issued in the case. [15]

Upon the filing of the complaint the clerk must issue a summons and deliver it to you or your attorney, who shall cause the summons and a copy of the complaint to be served upon the named defendants.

The law in Alaska requires that each side disclose to the other the identity of any person who may be used at trial to present expert testimony. Further, the law limits the number of expert witnesses who may provide expert testimony to three. [16]

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor's notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

  • Deposition
  • Written interrogatories
  • Production of documents or
  • Requests for admission

A deposition is a fact finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. In Alaska, depositions are taken before an officer who is authorized to administer oaths or before a person appointed by the court where the case is scheduled to go to trial. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney's office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. Most witnesses may be deposed, including:

  • Independent expert witnesses
  • Treating physicians
  • Any party named in the case

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

The defendant(s) have twenty (20) days from the date of service in which to answer. If the defendant(s) do not answer, a motion to compel an answer may be filed with the court.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. In fact, settlement is often encouraged and both sides are able to work on a potential deal up until the date of trial.

Alaska encourages voluntary arbitration as a form of alternative dispute resolution in cases of medical malpractice. Arbitration is the private hearing of a dispute by an independent third party. The law in Alaska allows a patient and healthcare provider to execute an arbitration agreement prior to the beginning of treatment in the event a dispute arises in the future. [17] If the patient does decide to bring a medical malpractice claim against the healthcare provider after signing an arbitration agreement, the claim will be submitted to an arbitration board that consist of three arbitrators:

  • one arbitrator designated by the injured party
  • one arbitrator designated by the healthcare provider
  • one arbitrator designated by both parties who serves as the chairperson

If the parties refuse arbitration and are unable to come to a settlement agreement, a trial is likely the next step in the litigation process.

Trial

During a trial all admissible evidence will be presented to the 'trier of fact' who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Alaska: a judge or a jury. In Alaska, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the twelve (12) member jury is impaneled.

In Alaska, a person is considered to be qualified to be a juror if they are:

  • a citizen of the United States;
  • a resident of Alaska
  • at least 18 years of age
  • of sound mind;
  • in possession of the person's natural faculties
  • able to read or speak the English language

After the jury selection is completed, opening statements will begin. During opening statements, both attorneys are permitted to make statements that explain their client's position and may also outline the evidence they expect to present during the trial that will support their claims.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witnesses will be questioned by the plaintiff's attorney and then likely cross-examined by the

opposing side's attorney. After all the plaintiff's witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician's side of the case and attempt to show why negligence was not involved in creating the patient's injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side's attorney will explain to the jury what they believe the evidence proves.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal allows a higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

A notice of appeal must be filed within 30 days after the entry of the final judgment from the lower court. [18]

In Alaska, rulings of the Superior Court are appealed to the Alaska Supreme Court. Rulings of the District Court are appealed to the Superior Court.

How to find the best Alaska Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice. It is likely that you would rather focus on healing and seeking the proper medical treatment than worry about contacting your healthcare provider's attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. For this reason, it is of utmost importance that you find competent, diligent and personable counsel to represent your interests.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time when looking for legal counsel and do not hesitate to interview more than one law firm. Looking at a variety of firms will give you a good sense of what each firm brings to the table and help you decide which fit is best for you.

When looking for legal representation, experience is the key. You will want to hire an attorney or law firm that is well versed in in medical malpractice cases. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be.

You may also want to get a feel for if you actually like the attorney or law firm that you are interviewing. Communication between attorneys and clients is incredibly important. Is this attorney someone you will enjoy communicating with? Further, you should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Alaska

These cases represent awards to plaintiffs in medical malpractice cases in Alaska. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Kroener v. Wright

Plaintiff, Marvin Kroener, brought a lawsuit against Anchorage neurosurgeon, Kim Wright, based upon the claim that the surgeon acted recklessly and negligently when he performed a procedure on the plaintiff in 2009. Kroener claimed that the doctor's actions resulted in irreversible nerve damage.

The plaintiff was first injured at work and after suffering back and leg pain post injury, decided to go see Dr. Wright with the hopes of seeking relief. Dr. Wright recommended a spinal procedure that he thought would place Mr. Kroener in a better condition. However, Dr. Wright found a cyst filled with cerebrospinal fluid during the procedure that caused extensive bleeding and resulted in a large opening of a thick membrane and one of the layers surrounding the spinal cord.

The day after the procedure, the plaintiff returned to Dr. Wright's office in a wheelchair, stating that he was now experiencing neck pain and headaches. Upon being admitted to the hospital, the plaintiff was diagnosed with chemical meningitis.

The plaintiff later decided to get a second opinion by Dr. Kralick. Dr. Kralick ended up performing surgery on the plaintiff's cervical spine. But his condition continued to worsen. During a second operation, Dr. Kralick discovered material used to stop bleeding during procedures stuffed into the Plaintiff's spine.

Dr. Kralick informed the patient that his complications were caused by instrumentation. It was then that the plaintiff filed his lawsuit.

The jury unanimously found that Dr. Wright had acted negligently and recklessly in providing care to the plaintiff and awarded a $1.72 million damaged award.

Justice v. Humana Hospital

The plaintiff, Timothy Justice, went to the hospital twice after suffering a seizure. The plaintiff was sent home after both visits. After the plaintiff went home, he suffered a brain aneurysm that erupted, leaving him partially paralyzed.

The plaintiff brought a lawsuit claiming malpractice and that he received substandard care and treatment. The court agreed and found that the hospital failed to properly diagnose and treat a subarachnoid bleed.

An award of over $1 million was ordered by the court.

Footnotes

[1] Alaska Stat. § 09.10.070

[2] Alaska Stat. § 09.10.140(c)

[3] Alaska Stat. § 09.55.540

[4] Alaska Stat. § 09.55.540

[5] Alaska Stat. § 09.55.540

[6] Alaska Stat. § 09.55.540

[7] Alaska Stat. § 09.17.020 (b)

[8] Alaska Stat. § 09.17.020 (f)

[9] Alaska Stat. § 09.55.549

[10] Alaska Stat. § 09.20.185

[11] Alaska Civ. R. 26(a)(1).

[12] Alaska Stat. § 09.65.096

[13] Alaska Stat. § 09.55.535

[14] Alaska Stat. § 09.55.535(f)

[15] Alaska Civ. R. 3

[16] Alaska Civ. R. 26

[17] Alaska Stat. § 09.55.535

[18] Alaska App. R. 204(a)(1)

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