For medical providers in Alaska and across the nation, a professional negligence, or malpractice suit, can have long-ranging repercussions. Even where there is insufficient evidence of negligence or medical error, the reputational damage of a lawsuit can affect the credibility of the practice or the medical provider.
Having a strong legal advocate to fight against unjust or misguided claims is a start. It is also important to understand what options are available that will protect your rights and, where appropriate, provide effective alternatives to litigation.
Defenses to a negligence claim
Medical providers owe a duty to their patients to provide care with the same degree of knowledge or skill or degree of care ordinarily exercised under the circumstances by health care providers in the field or specialty in which the provider is practicing.
Any breach of this duty that more likely than not is a substantial factor in causing harm to the patient is compensable through an award for damages. Depending on the seriousness of the breach, the medical provider can suffer disciplinary action against their license if found liable, with discipline up to and including license suspension or revocation.
There are several defenses that a medical provider may offer to a claim of negligence:
- If the medical professional proves by a preponderance of the evidence that the care provided to the patient was within the standard of care for a provider with the same knowledge and skill in the same field or specialty in which the professional is practicing, then the professional was not negligent.
- If a patient’s damages are not proximately caused by the alleged malpractice of the provider, then the provider may not be held liable.
- A provider may be able to show that the actions of the patient were negligent, either in their neglect of treatment, an abuse of prescribed medication, or failure to disclose everything in their medical history while under the doctor’s care.
- Patients have a duty to mitigate their damages. Patients who exacerbate their injuries by failing to follow reasonable care instructions or by failing to seek treatment following an injury may not recover for the additional harm they have caused themselves.
- A provider is not negligent for providing treatment which was within the standard of care at the time it was provided to a patient but has since fallen out of favor.
- Under the respectable minority principle, providers who pursue an unorthodox form of treatment that, although outside the mainstream, has the support of a respectable minority of professionals, and who disclose the risks of the treatment to the patient beforehand, may be shielded from liability.
- Good Samaritan laws can shield those who come to the aid of those who are ill or are in distress. In the event of an injury occurring in an emergency, a medical provider may receive protection from liability.
Medical malpractice in Alaska
Under Alaska laws, the burden of proving that a medical provider was negligent falls on the Plaintiff to establish through expert testimony. Lay witnesses may not testify that a breach of the standard of care for a provider occurred. Any such opinion by a lay witness is to be excluded.
There is no presumption of negligence or misconduct on the part of the medical provider, and the fact that a Plaintiff has been injured alone does not raise a presumption of negligence. Thus, Alaska has legislatively nullified the doctrine of res ipsa loquitur in regards to medical malpractice actions. A Plaintiff must prove a provider was negligent on a more likely than not basis by presenting testimony from experts who are qualified in the same field or specialty in which the provider is practicing. A Plaintiff must further prove that the alleged malpractice was a substantial factor in causing their injuries.
A medical provider may provide expert testimony that a breach of the standard of care did not occur, or that a Plaintiff’s injuries were not the proximate result of a breach by the provider. Whether a breach occurred is a question of fact for the fact-finder, which is typically a jury. However, a provider may move for summary judgment on professional negligence claims by utilizing a qualified expert affidavit. The burden then shifts to Plaintiff to produce a rebuttal affidavit by a qualified expert, or lose at summary judgment.
In general, there is a two-year statute of limitations for personal injury claims and a ten-year statute of repose except in cases of gross negligence. The discovery rule applies in calculating statutes, which means that the applicable periods begin when the Plaintiff has information sufficient to alert a reasonable person to the fact that he has a potential cause of action, not on the date of the procedure or treatment. At that point, a Plaintiff should begin an inquiry to protect his or her rights and is deemed to have notice of all facts which reasonable inquiry would disclose. However, in most cases the day of procedure or treatment constitutes Plaintiff’s discovery date.