The Alaska Supreme Court, in its opinion filed on April 23, 2021, stated: “A husband and wife sued medical care providers after the wife suffered a seizure, allegedly due to a doctor’s decision to abruptly discontinue her medication. The superior court granted summary judgment to the medical care providers, ruling that the couple’s only expert witness, a pharmacist, was unqualified to provide testimony about the matter at issue because he was not a doctor of internal medicine and was not board-certified in the doctor’s field or specialty … We conclude that the pharmacist’s testimony was not sufficient to create a genuine issue of material fact about the relevant standard of care. We therefore affirm the grant of summary judgment to the health care providers.”
The Underlying Facts
In early 2018, the Marci Beistline and her husband filed a medical malpractice suit against Dr. Footit and Banner Health, d/b/a Fairbanks Memorial Hospital, alleging that Marcie’s tonic-clonic seizure was the result of Dr. Footit’s decision to cut off all her medications, including benzodiazepines, and that this decision breached the applicable standard of care. Dr. Footit and the hospital moved for summary judgment in January 2019, almost a year after the complaint was filed, supporting their motion with the affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine physician, who concluded that “Dr. Footit met the standard of care and acted as a reasonable and prudent internist” and that the hospital’s “staff met the appropriate and applicable standard of care.”
The court granted summary judgment to Dr. Footit and the hospital. The court cited AS 09.20.185(a), which lays out the required expert witness qualifications in professional negligence cases. Among the statute’s requirements is that the witness be “certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.” The court concluded: “A doctor of pharmacy’s expert testimony is insufficient to rebut the testimony of a board-certified internist about the standard of care required of a board-certified internist practicing internal medicine.”
Alaska Supreme Court Opinion
AS 09.20.185, which is titled “Expert witness qualification,” states: (a) In an action based on professional negligence, a person may not testify as an expert witness on the issue of the appropriate standard of care unless the witness is (1) a professional who is licensed in this state or in another state or country; (2) trained and experienced in the same discipline or school of practice as the defendant or in an area directly related to a matter at issue; and (3) certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue. (b) The provisions of (a) of this section do not apply if the state has not recognized a board that has certified the witness in the particular field or matter at issue.
The Alaska Supreme Court stated, “The issue more squarely presented on this appeal is whether a plaintiff can prove the standard of care, as required by AS 09.55.540(a)(1), by the testimony of an expert witness who may satisfy the qualification standards of AS 09.20.185 but otherwise lacks expert perspective on “the field or specialty in which the defendant is practicing.” The Alaska Supreme Court held: “Alaska Statute 09.55.540(a)(1) requires that the plaintiff in a medical malpractice case prove “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.” (Emphasis added.) Regardless of how we interpret the board-certification requirement of AS 09.20.185(a)(3), Dr. Holmquist’s affidavit testimony — the Beistlines’ only evidence on the standard of care — was insufficient to create a genuine issue of material fact on that subject.”
Beistline v. Footit, Supreme Court No. S-17556.
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