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Martinez v. Ha11/17/2000
[No. 5332 - November 17, 2000]
INTRODUCTION
Arthur Martinez appeals the superior court's grant of summary judgment to Dr. Young H. Ha on Martinez's claims of medical malpractice and failure to obtain informed consent. Because Martinez's appeal relies upon facts and allegations that were not properly submitted to the superior court, Martinez may not rely upon them in this court. We therefore affirm the grant of summary judgment by the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
Dr. Young H. Ha is an orthopedic surgeon who performed a total left knee replacement on Arthur Martinez in September 1995. Martinez alleges that after removing his stitches in October 1995, Dr. Ha rubbed Bacitracin into Martinez's wound with his bare hand, and that Dr. Ha did not wash his hands before doing so.
During the course of treatment, Martinez received a deep infection of his left knee, which ultimately necessitated, among other things, a left knee fusion. An expert advisory panel concluded that the infection "most likely occurred as a result of poor wound healing." The panel noted that Martinez's "underlying medical condition . . . included insulin dependent diabetes and vascular disease" and that this medical condition put Martinez "at significant risk" of developing the relevant complications. One panel member suggested that diabetics are about twice as likely as non-diabetics to develop infections.
B. Proceedings
Martinez filed suit in 1997, alleging that Dr. Ha's surgery and post-operative care were negligent. He later amended his complaint to allege that Dr. Ha failed to obtain his informed consent.
The superior court appointed an expert advisory panel at the request of Dr. Ha. The panel found, among other things, that there "was no evidence that the medical injury was caused by unskillful care."
A pretrial order originally scheduled trial for September 1998. Under the order, expert lists and reports were due on July 20, 1998.
Because Martinez had continuing medical problems, the trial was continued by stipulation of counsel. Superior Court Judge Charles R. Pengilly rescheduled the trial for May 3, 1999. Judge Pengilly also extended the deadline for the disclosure of expert witness lists to January 29, 1999, and stated that discovery would remain open until April 2, 1999.
Dr. Ha filed his expert witness list and disclosure on February 1. The list included members of the expert advisory panel and other physicians who would testify on the issues of the standard of care, informed consent, and causation.
Martinez failed to disclose a list of experts by the due date. On February 9 Dr. Ha moved for an order to show cause why Martinez's experts should not be stricken. Dr. Ha argued that Martinez violated both the pretrial order and Civil Rule 26(a)(2), and that these violations prejudiced him.
Martinez did not respond to the motion. On March 2 Judge Pengilly issued an order to show cause, stating:
The Court, having concluded that the Plaintiff failed to comply with this Court's order requiring the disclosure of expert witnesses by January 29, 1999, and further finding the Plaintiff in non-compliance with A.R.C.P. Rule 26(A)(2), enters the following order:
Pursuant to the reasoning set forth in Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164 (Alaska 1998), the Plaintiff is ORDERED to prove to this Court why his failure to comply with court orders was not willful;
The Plaintiff is further ORDERED to show cause why this Court should not strike all, or some, of his proposed expert wit
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