Alaska Medical Malpractice Summary
Statutes of Limitations
The limitations period for bringing an action for personal injury or death is two years. Alaska Stat. § 09.10.070 (Michie Supp. 1997). If the claimant is under the age of majority, or incompetent by reason of mental illness or disability, at the time the cause of action accrues, the statute begins to run when the disability is lifted, but this cannot extend the period for more than two years after the disability ceases. Alaska Stat. § 09.10.140 (Michie Supp. 1997).
An action for wrongful death must be brought within two years after death. Alaska Stat. § 09.55.580 (1996). A reasonable failure to discover an essential element of the cause of action tolls the running of the two-year wrongful death limitation period. Hanebuth v. Bell Helicopter International, 694 P.2d 143 (Alaska 1984).
Contributory or Comparative Negligence
Alaska, first by judicial decision and then by statute, has adopted the doctrine of pure comparative negligence. A claimant’s fault does not bar recovery, but his damages are reduced in proportion to the percentage of fault attributed to him. Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Alaska Stat. § 09.17.060 (Michie 1996).
Joint and Several Liability
Alaska has rejected the common law rule of joint and several liability and adopted allocated several liability. Alaska Stat. § 09.17.080 (Michie Supp. 1997). In all actions involving the fault of more than one party, the court will enter a judgment against each party liable in accordance with that party’s percentage of fault. Id. The word “party” for this purpose means parties to the action, including third-party defendants and settling parties, but excluding those who could have been sued but were not. Benner v. Wichman, 874 P.2d 949 (Alaska 1994).
Alaska repealed its contribution among joint tortfeasors act when it eliminated joint and several liability (see Joint and Several Liability). Alaska Stat. §§ 09.16.10 to 09.16.60 (Michie 1970) (repealed 1989).
The Alaska Supreme Court has recognized the doctrine of apparent or ostensible agency, at least with respect to emergency room physicians. A court may find the existence of an apparent agency relationship between a hospital and a physician if the hospital, by word or conduct, caused the patient to reasonably believe that the hospital consented to the physician’s acting on its behalf. Jackson v. Power, 743 P.2d 1376 (Alaska 1987) (holding that general acute-care hospitals have a non-delegable duty to provide non-negligent physician care in their emergency rooms). Legislation has recently been passed providing 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. Alaska Stat. § 09.65.096 (Michie Supp. 1997).
In medical malpractice actions in which the parties have not agreed to arbitrate, the court may appoint a three-member expert panel within twenty days of the filing of the answer. Alaska Stat. § 09.55.536 (Michie Supp. 1997). The expert panel may compel the attendance of witnesses, interview the parties, examine the claimant, and compel the production of materials. Id. Within thirty days after its appointment, the panel will make a written report to the court, and its report is admissible as expert testimony at trial. Id. Discovery may not commence except for good cause until after the committee has reported. Id.
In personal injury actions accruing before August 7, 1997, damages for non-economic losses, including pain, suffering, inconvenience, physical impairment, and loss of enjoyment of life, are limited to $500,000 per claimant. Alaska Stat. § 09.17.010 (Michie 1996) (before amendment). The $500,000 limit does not apply to damage awards for severe disfigurement or physical impairment. Id. For actions accruing on or after August 7, 1997, the amount of the basic cap is the greater of $400,000 or the plaintiff’s life expectancy, in years, multiplied by $8,000. There is a new, upper-tier cap for severe disfigurement or physical impairment—the greater of $1,000,000 or the plaintiff’s life expectancy, in years, multiplied by $25,000. Alaska Stat. § 09.17.010 (Michie Supp. 1997). The amended statute also clarifies that multiple injuries arising out of one incident invoke only one cap, and that consortium claims do not open up a second cap. Id.
Alaska also has a new cap on punitive damages, applicable to claims accruing on or after August 7, 1997. Ordinarily punitive damages will be limited to the greater of three times the compensatory damages or $500,000. However, if the defendant was motivated by financial gain and actually knew the adverse consequences of his actions, the limit is the greatest of four times the compensatory damages, four times the financial gain, or $7,000,000. Alaska Stat. § 09.17.020 (Michie Supp. 1997).
Statutory Cap on Attorneys’ Fees
Alaska does not limit the amount an attorney may recover in fees in a medical malpractice action.
The court may enter a judgment requiring that future damages be paid in whole or in part by periodic payments, rather than by a lump-sum payment. Alaska Stat. § 09.55.548 (Michie 1996). Future damages include the cost of future medical treatment, care or custody, loss of future earnings, and loss of bodily function. Id. At the election of the claimant, the court must enter an order requiring the defendant to pay the future damages portion of a judgment in periodic payments. Alaska Stat. § 09.17.040 (Michie 1996). The obligation of an authorized insurer is sufficient security. Id.
Collateral Source Rule
A claimant’s recovery is limited to damages in excess of that which the claimant received as compensation for the injury from collateral sources, with two exceptions: (a) benefits received from a federal program that by law must seek subrogation, and (b) death benefits paid under a life insurance policy. Alaska Stat. § 09.55.548(b) (Michie 1996). Evidence of collateral sources is admissible after the fact-finder has rendered an award. Id.
Successful medical malpractice claimants have a right to pre-judgment interest at the legal rate, computed from the date of the injury. Guin v. Ha, 591 P.2d 1281 (Alaska 1979). The current rate is 10.5 percent. Alaska Stat. § 45.45.010 (Michie 1996).
Patient Compensation Funds and Physician Insurance
Alaska does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.
Generally, the State of Alaska, including the University of Alaska, is subject to suit in the Superior Court of Alaska. Alaska Stat. § 09.50.250 (Michie Supp. 1997). However, tort actions against the state or its university may not be brought if based on an act or omission of an employee of the state exercising due care in the performance of a discretionary function or duty. Id. The state is not liable for punitive damages. Alaska Stat. § 09.50.280 (Michie Supp. 1997).
Similarly, actions may be maintained against municipalities in their corporate character and within the scope of their authority. Alaska Stat. § 09.65.070 (Michie 1996). There are a number of exceptions that apply to this general rule, including that no action may be brought based on the exercise or performance of a discretionary function by the municipality or its employees, and no action may be brought based upon the exercise or performance of a gratuitous extension of municipal services on an extra- territorial basis. Id.
A person or hospital who renders emergency care to an injured person who reasonably appears to be in immediate need of emergency care in order to avoid serious harm or death is not liable for civil damages as a result of an act or omission in rendering emergency aid. Alaska Stat. § 09.65.090 (1996). However, this statute does not extend immunity to physicians who have a pre-existing duty to render emergency care. Deal v. Kearney 851 P.2d 1353 (1993).
Alaska does not mandate the reference of medical malpractice actions to an arbitrator or screening panel, except for the expert panel described in Expert Testimony. It does, however, have a mechanism for encouraging voluntary arbitration. A patient and any health care provider may execute an agreement to submit to arbitration any dispute arising out of care or treatment. The agreement must clearly provide in bold print that it is not a prerequisite to receiving care or treatment. It must be revocable within 30 days. Parents may agree on behalf of their minor children. If the agreement is with a hospital, it must be re-executed at each admission. Alaska Stat. § 09.55.535 (Michie 1996).
Copyright © 1990-1998 McCullough, Campbell & Lane LLP. All Rights Reserved.
Revision Date: February 6, 1998