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Gerber v. Juneau Bartlett Memorial Hosptial5/19/2000
[No. 5276 - May 19, 2000]
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Larry R. Weeks, Judge.
I. INTRODUCTION
Mark Gerber brought a medical malpractice claim against Juneau Bartlett Memorial Hospital for injuries to his sciatic nerve allegedly resulting from an improper injection. Without interviewing Gerber, an expert advisory panel determined that Gerber had received proper care. Relying upon the panel's uncontradicted findings, the superior court granted summary judgment. Because the panel was not required to interview Gerber, and because Gerber did not submit any admissible evidence rebutting the panel's finding of proper care, we affirm the superior court's decision granting summary judgment.
II. FACTS & PROCEEDINGS
On May 2, 1995, Mark Gerber sought treatment for a rash in the emergency room of the Juneau Bartlett Memorial Hospital. A physician examined Gerber and prescribed a Benadryl injection. A nurse then administered the Benadryl injection into Gerber's right buttock. The injection caused injury to the sciatic nerve and resulted in symptoms in Gerber's right leg and foot.
In April 1997 Gerber filed a medical malpractice complaint in superior court against the hospital. An expert advisory panel was requested by the hospital and appointed by the superior court. The parties agreed to stay all activity of the panel until April 20, 1998 so that the parties could collect deposition testimony, medical records, reports of medical consultants, and medical literature. While Gerber presented no such material to the panel, he did request on April 20 that the panel interview him. The panel did not personally interview Gerber.
The panel filed its report with the superior court on June 9. The report concluded that the nurse "appropriately carried out the order given by the physician." The report further stated that unskillful care did not cause the injury: "Documentation indicates the injection was given in the proper anatomical location, right ventrogluteal muscle. The injury is a known potential, although rare, complication of a properly administered injection."
In September the hospital moved for summary judgment. Gerber filed an opposition, arguing that the injection was administered in an improper location. He further contended that he had been unable to "communicate the location of the nurse's injection into his buttock to the expert advisory panel." But Gerber failed to submit any affidavit evidence from himself or medical professionals contesting the conclusions of the expert advisory panel. Instead he argued that the expert advisory panel report was not sufficient to support summary judgment because the panel failed to interview him.
The superior court granted summary judgment in favor of the hospital. The court reasoned that under the applicable rules, "the panel does not have to interview people on request." Gerber appeals.
III. STANDARD OF REVIEW
This court reviews a decision granting summary judgment de novo. This court will affirm a grant of summary judgment if, "construing all reasonable inferences in favor of the nonmoving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law."
This court also reviews matters of statutory interpretation de novo. In interpreting a statute, the court's objective is to give effect to the legislative intent with due regard for the meaning that the provision's language conveys to others. Where the statute's meaning appears "clear and unambiguous . . . the party asserting a different meaning bea
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