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Read the “Questionable Medical History Conducted Case Study,” located in Chapter 10 of the textbook. You are a health care administrator and have come across a case study from a community hospital. In order to prevent this incident from occurring in your practice setting, prepare a 10-15 slide PowerPoint educational presentation for your staff. Include the following in your presentation:

Describe the ethical issues and principles that were violated in this case.

Describe the potential legal issues of concern.

What tools or resources should this organization pursue in order to ensure high quality history and physical (H&P)?

Explain whether negligence has occurred in this case.

Explain which requirements meet the criteria for determining negligence in court.

Describe how this situation can be prevented in your practice setting.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RACHEL L. THOMAS and
STEVEN N. THOMAS, husband
and wife,
Appellants,
v.
SARAH B. ARCHER and
PEACEHEALTH MEDICAL
GROUP d/b/a KETCHIKAN
OB/GYN,
Appellees.
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Supreme Court No. S-15372
Superior Court No. 1KE-10-00613 CI
OPINION
No. 7136 – December 2, 2016
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, William B. Carey, Judge.
Appearances: C. Keith Stump, Port Angeles, Washington,
for Appellants. Scott J. Gerlach and Donna M. Meyers,
Delaney Wiles, Inc., Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Fabe, Justice, not participating.]
MAASSEN, Justice.
I.
INTRODUCTION
A woman was admitted to a hospital emergency room with pregnancy-
related complications. The attending physician recommended that she be transported by
medivac to a different facility. The woman and her husband informed the physician that
they needed their insurer’s preauthorization for that course of action or they could be
personally liable for the costs. The physician allegedly promised to call the insurer and,
if it would not approve the medivac, have the hospital bear the costs itself. But the
physician failed to contact the insurer until much later, and the insurer declined coverage.
The couple sued the physician and the hospital, alleging that the physician
breached her fiduciary duty by failing to obtain preauthorization as promised; that her
promise created an enforceable contract, which was breached; and that if there was no
contract the physician’s promise should be enforced through the doctrine of promissory
estoppel. The superior court granted summary judgment to the physician and hospital.
The couple appeals.
We hold that the superior court did not err when it ruled in favor of the
physician and hospital on the claims for breach of fiduciary duty and breach of contract,
but that genuine issues of material fact precluded summary judgment on the claim for
promissory estoppel. We therefore reverse and remand for further proceedings.
II.
FACTS AND PROCEEDINGS
A.
Facts
Rachel Thomas was admitted to the emergency room at Ketchikan General
Hospital in October 2008 for pregnancy-related complications.1 She was seen by Dr.
Sarah B. Archer, who determined that Rachel was at risk of premature delivery and
needed an immediate transfer to a facility better equipped to handle her condition.
Because of weather conditions in Anchorage, Dr. Archer recommended that Rachel be
medivacked to Swedish Medical Center in Seattle. According to the Thomases, they told
1
Ketchikan General Hospital is operated by PeaceHealth Medical Group,
which also does business as Ketchikan OB/GYN.
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Dr. Archer they could not personally afford the medivac and needed preauthorization
from the Ketchikan Indian Corporation Tribal Health Clinic (KIC) and the Alaska Native
Medical Center (ANMC) before they could be covered for treatment outside of ANMC’s
Anchorage facilities.2 The Thomases allege that Dr. Archer told them “she would
contact KIC, not to worry, that everything will be taken care of, and that if KIC didn’t
cover it ‘we’ will.” According to the Thomases, they understood “we” to mean the
hospital.
In the process of arranging the transfer, Steven Thomas signed an
“Acknowledgment of Financial Responsibility,” which cautioned that the Guardian
Flight medivac charges could be significant. Though naming KIC as the “Payment
Source,” Steven agreed to be personally responsible for any unpaid charges and to “save
and hold the hospital harmless therefrom.”
The Thomases were eventually billed over $23,000 by Swedish Medical
Center and over $69,000 by Guardian Flight, the medivac provider. The Thomases
sought payment from KIC and ANMC under their coverage plan but were denied for
three stated reasons: (1) they failed to request preauthorization within 72 hours of
beginning treatment or of admission to the healthcare facility; (2) ANMC was “available
and accessible to provide the necessary medical services to the patient”; and (3) the
Thomases lacked a referral or authorization for the transfer from an ANMC physician.
The Thomases admit knowing about the preauthorization requirements and that obtaining
preauthorization was ultimately their responsibility; they allege, however, that they
boarded the flight based on Dr. Archer’s assurances that those requirements would be
satisfied by someone else. Dr. Archer did later write KIC and ANMC to explain her
2
KIC acts as an agent for the Thomases’ insurer, Contract Health Services
(CHS).
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decision to have Rachel transported to Seattle, but not until May 2009, over six months
after the transfer.
B.
Proceedings
In 2010 the Thomases filed suit against the hospital and Dr. Archer
(collectively “the hospital”)3 alleging breach of fiduciary duty, breach of contract,
promissory estoppel,4 and negligent or intentional infliction of emotional distress. The
claims were all based on Dr. Archer’s alleged promise to contact the Thomases’
insurance providers and ensure coverage for the expenses related to Rachel’s transport
to and treatment in Seattle. The superior court granted summary judgment to the hospital
on the Thomases’ fiduciary duty claim, agreeing with the hospital’s argument that a
physician’s fiduciary duty is limited to the context of medical treatment. The court later
granted summary judgment to the hospital on the remaining claims, holding that the facts
as alleged did not create an enforceable contract and that there was no actual promise to
the Thomases or substantial change in position by the Thomases sufficient to support
their promissory estoppel claim. The court also dismissed the claims for negligent and
intentional infliction of emotional distress, noting that the Thomases had agreed to
withdraw them, although they had not yet done so, and had produced no evidence or
legal authority to support the claims.5
3
The hospital and the physician shared the same counsel and the same
litigation position on all issues.
4
The Thomases did not articulate a promissory estoppel claim as such until
they filed their opposition to the hospital’s motion for summary judgment on the breach
of contract claim. The superior court nonetheless considered the promissory estoppel
claim as consistent with the Thomases’ other claims.
5
The Thomases also withdrew their claim for the costs of the Guardian
Flight after confirming they had a separate insurance plan that covered the medivac.
(continued…)
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The hospital moved for attorney’s fees as the prevailing party, supporting
its motion with an affidavit that summarized its fees and offering to file itemized billing
records under seal for in camera review. The Thomases opposed the motion. The
superior court ordered the hospital to submit its billings for in camera review but did not
require that they be shared with the Thomases. Following in camera review, the court
awarded the hospital approximately $25,000 in attorney’s fees (20% of the total billings)
and over $6,000 in costs. This appeal followed.
III.
STANDARD OF REVIEW
“We review grants of summary judgment de novo.”6 “We ‘will affirm a
grant of summary judgment if the evidence in the record presents no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.’ ”7
Whether there is a fiduciary duty and whether promissory estoppel applies
are both questions of law to which we apply our “independent judgment, adopting the
rule of law that is most persuasive in light of precedent, reason, and policy.”8
5
(…continued)
Thus, only the expenses of treatment at Swedish Medical Center remain at issue.
6
Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014)
(citing Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013)).
7
Copper River Sch. Dist. v. Traw, 9 P.3d 280, 283 (Alaska 2000) (quoting
Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)).
8
Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009) (citing K & K
Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 n.66 (Alaska 2003)) (fiduciary
duty); Ross v. State, Dep’t of Revenue, 292 P.3d 906, 909 (Alaska 2012) (citing Hidden
Heights Assisted Living, Inc. v. State, Dep’t of Health & Soc. Servs., Div. of Health Care
Servs., 222 P.3d 258, 268 (Alaska 2009)) (promissory estoppel).
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IV.
DISCUSSION
The Thomases argue three substantive points on appeal: (1) that the
superior court erred by deciding that Dr. Archer did not owe the Thomases a fiduciary
duty to contact KIC for authorization after having promised to do so; (2) that the superior
court erred by deciding on summary judgment that the parties’ words and actions did not
create an enforceable contract; and (3) that the superior court erred by rejecting
promissory estoppel as a basis for enforcement of Dr. Archer’s alleged promise to the
Thomases.9
“Alaska Civil Rule 56 provides for judgment to be granted to a party where
‘there is no genuine issue as to any material fact’ and ‘the moving party is entitled to
judgment as a matter of law.’ ”10 “[A] party seeking summary judgment has the initial
burden of proving, through admissible evidence, that there are no disputed issues of
material fact and that [it] is entitled to judgment as a matter of law.”11 “Once the moving
party has made that showing, the burden shifts to the non-moving party ‘to set forth
specific facts showing that he could produce evidence reasonably tending to dispute or
contradict the movant’s evidence and thus demonstrate that a material issue of fact
exists.’ ”12 The court “draw[s] all reasonable inferences in favor of the non[-]moving
9
The Thomases also appeal the superior court’s award of attorney’s fees and
argue they should be awarded the costs and fees associated with appeal, but we do not
find it necessary to reach these issues.
10
Christensen, 335 P.3d at 517 (quoting Alaska R. Civ. P. 56(c)).
11
Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 n.25 (Alaska
2008) (citing Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska
1995)).
12
Christensen, 335 P.3d at 517 (quoting State, Dep’t of Highways v. Green,
586 P.2d 595, 606 n.32 (Alaska 1978)).
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party.”13 “We require only that the evidence proposed for trial must not be based entirely
on ‘unsupported assumptions and speculation’ and must not be ‘too incredible to be
believed by reasonable minds.’ ”14 “After the court makes reasonable inferences from
the evidence in favor of the non-moving party, summary judgment is appropriate only
when no reasonable person could discern a genuine factual dispute on a material issue.”15
Accordingly, for purposes of our review of the superior court’s decision on
summary judgment, we assume that Dr. Archer made the statement, as described by the
Thomases, “that she would contact KIC, not to worry, that everything will be taken care
of, and that if KIC didn’t cover it ‘we’ will.”
A.
The Superior Court Did Not Err By Granting Summary Judgment To
The Hospital On The Thomases’ Fiduciary Duty Claim.
The Thomases first argue that the superior court erred by granting summary
judgment on the Thomases’ claim that Dr. Archer “owed a fiduciary duty to [the]
Thomases to contact KIC for authorization as she promised.” The superior court noted
in its order that “the parties do not dispute the existence of a fiduciary relationship, only
the scope of the duties that relationship imposes.” The court cited two Alaska cases
discussing fiduciary duties16 and relied heavily upon an unpublished Ohio decision with
facts and arguments similar to those here, Northern Ohio Medical Specialists, LLC v.
13
Greywolf v. Carroll, 151 P.3d 1234, 1240 (Alaska 2007).
14
Christensen, 335 P.3d at 520 (first quoting Peterson v. State, Dep’t of Nat.
Res., 236 P.3d 355, 367 (Alaska 2010); then quoting Wilson v. Pollet, 416 P.2d 381, 384
(Alaska 1966)).
15
Id. (internal citations omitted).
16
Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991); Greater Area Inc. v.
Bookman, 657 P.2d 828 (Alaska 1982).
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Huston.17 These precedents, the superior court decided, “indicate that the duties imposed
by the physician-patient fiduciary relationship should be kept to matters involving
medical treatment and advice, which are not at issue here.” The court observed that the
fiduciary relationship could nonetheless be relevant to the Thomases’ promissory
estoppel claim as evidence of the reasonableness of their reliance on what the doctor told
them.
We discussed the scope of a physician-patient fiduciary duty in Pedersen
v. Zielski.18 The plaintiff brought a malpractice action against a hospital and the surgeons
who operated on him following a car accident; the trial court ruled that the action was
barred by the statute of limitations.19 We reversed, holding that there were genuine
issues of material fact as to whether the plaintiff’s doctor should be estopped from
relying on the statute of limitations when he failed to disclose to the patient that a likely
cause of his permanent paralysis was the surgery rather than the underlying accident.20
Of importance here, we explained why the physician-patient relationship gives rise to a
fiduciary duty of full disclosure:
The physician-patient relationship is one of trust. Because
the patient lacks the physician’s expertise, the patient must
rely on the physician for virtually all information about the
patient’s treatment and health. A physician therefore
undertakes[] not only to treat a patient physically, but also to
respond fully to a patient’s inquiry about his treatment, i.e.,
17
No. E-09-13, 2009 WL 3683632 (Ohio App. Nov. 6, 2009).
18
822 P.2d at 909.
19
Id. at 905.
20
Id. at 905, 908-09.
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to tell the patient everything that a reasonable person would
want to know about the treatment.[21]
In Northern Ohio Medical Specialists, the plaintiff, whose case had been
dismissed on the pleadings, argued on appeal that he had pleaded “sufficient, operative
facts to support recovery under his claims that a doctor, . . . [has] a fiduciary duty to
submit claims to an insurance company when he promises to do so.”22 The Ohio
appellate court recognized that a fiduciary duty is “[a] duty to act for someone else’s
benefit, while subordinating one’s personal interests to that of the other person.”23 But
the court held that while “[a] physician undisputedly owes a fiduciary duty to his or her
patient with respect to diagnosing and treating diseases and injuries,” no such “duty
extends beyond the medical relationship”; accordingly, the physician’s fiduciary duties
did not include submitting insurance claims after promising to do so.24
This reasoning is consistent with our description of the physician’s
fiduciary duty in Pedersen. A physician’s expertise in the practice of medicine is unique,
respected, and highly valued.
The patient, lacking that expertise, relies on the
physician’s judgment and care and is especially vulnerable to the physician’s mistakes;
21
Id. at 909 (emphasis added; original emphasis omitted); see also Carson v.
Fine, 867 P.2d 610, 617 (Wash. 1994) (en banc) (“The [physician-patient fiduciary]
relationship is predicated on the proposition that the physician has special knowledge and
skill in diagnosing and treating diseases and injuries and that the patient has sought and
obtained the services of the physician because of this expertise.” (first citing 70 C.J.S.
Physicians and Surgeons § 58 (1987); then citing 61 AM. JUR. 2D, Physicians, Surgeons
and Other Healers § 167 (1981))).
22
2009 WL 3683632, at *1.
23
Id. at *2 (alteration in original) (quoting Fiduciary Duty, BLACK’S LAW
DICTIONARY (6th ed. 1990)).
24
Id. (citing Tracy v. Merrell Dow Pharm., Inc., 569 N.E.2d 875, 878-79
(Ohio 1991)).
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the law protects the patient’s vulnerability by imposing on the physician a heightened
duty of care when the physician is acting within the scope of that expertise.25
At the heart of this case are two different statements attributed to Dr.
Archer. The first and undisputed one is her recommendation that Rachel be immediately
transported by medivac to a hospital that was better equipped to treat her pregnancyrelated complications. The second is Dr. Archer’s alleged promise that she would obtain
preauthorization for the transport costs from the Thomases’ insurance providers and that
the costs would otherwise be covered by the hospital. The first recommendation is
plainly within the scope of Dr. Archer’s fiduciary duty; determining whether a transport
was necessary was a matter of medical expertise on which the Thomases had little choice
but to rely. The alleged promise regarding insurance and payment, on the other hand,
did not stem from Dr. Archer’s special expertise as a physician. The Thomases
themselves knew about the preauthorization procedure, having followed it already that
evening when Rachel was admitted to the emergency room. The Thomases did not need
Dr. Archer’s special expertise in order to understand the requirements of their insurance
coverage and to obtain the required preauthorization.
Because the physician-patient fiduciary duty exists to protect the vulnerable
patient relying on the physician’s special expertise in medicine, a physician’s promise
25
See, e.g., Brown v. Wells Fargo Bank, NA, 85 Cal. Rptr. 3d 817, 835 (Cal.
App. 2008) (“Fiduciary obligations ‘generally come into play when one party’s
vulnerability is so substantial as to give rise to equitable concerns underlying the
protection afforded by the law governing fiduciaries.’ ” (quoting City of Hope Nat’l Med.
Ctr. v. Genentech, Inc., 181 P.3d 142, 152 (Cal. 2008))); Dayna Bowen Matthew,
Defeating Health Disparities — A Property Interest Under the Patient Protection and
Affordable Care Act of 2010, 113 W. VA. L. REV. 31, 38 (2010) (“[I]n the physician­
patient relationship, superior expertise, knowledge, and skill place doctors in the position
of fiduciaries, and the dependent vulnerability of patients in their care are the
beneficiaries [sic].”).
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to obtain preauthorization of medical treatment for purposes of insurance coverage is
outside the scope of the physician’s fiduciary duty. The superior court did not err when
it granted summary judgment to the hospital on the Thomases’ breach of fiduciary duty
claim.26
B.
The Superior Court Did Not Err By Granting Summary Judgment To
The Hospital On The Thomases’ Breach Of Contract Claims.
The Thomases also challenge the superior court’s conclusion on summary
judgment that Dr. Archer’s alleged promise about insurance and payment did not give
rise to an enforceable contract. The court decided that “[t]he most apparent shortcoming
of the alleged contract is the lack of consideration” because in response to Dr. Archer’s
alleged promise the Thomases “made no return promise, and [the hospital] sought
none.”27 The court rejected the Thomases’ contentions that return consideration could
be found in either (1) the detriment to them when they failed to get preauthorization or
26
We also reject the Thomases’ argument that Dr. Archer’s statements
expanded the scope of what in normal circumstances would be the ordinary physicianpatient fiduciary duty limited to medical matters. If Dr. Archer’s promise to obtain
preauthorization created a duty to act, it was not a duty based on her special expertise as
a physician.
The Thomases also argue, most extensively in their reply brief, that by
making the alleged promise Dr. Archer agreed to act as their agent, thus creating another
type of fiduciary duty. But the Thomases did not advance an agency theory in the
superior court, instead focusing exclusively on the fiduciary duty inherent in the
physician-patient relationship. “It is well established that matters not raised at trial will
not be considered on appeal.” Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991) (quoting
Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987)).
27
“The formation of an express contract requires an offer encompassing its
essential terms, an unequivocal acceptance of the terms by the offeree, consideration[,]
and an intent to be bound.” Municipality of Anchorage v. Stenseth, 361 P.3d 898, 906
(Alaska 2015) (alteration in original) (quoting Childs v. Kalgin Island Lodge, 779 P.2d
310, 314 (Alaska 1989)).
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(2) the benefit to the hospital when the medivac to Seattle relieved it of the responsibility
of caring for Rachel and the risk that she would lose her unborn child while in the
hospital’s care. We agree with the court’s conclusion that the alleged contract failed for
lack of consideration.
“We have held that ‘[t]o constitute consideration, a performance or a return
promise must be bargained for. . . . A performance or return promise is bargained for if
it is sought by the promisor in exchange for his promise and is given by the promisee in
exchange for that promise.’ ”28 As the superior court reasoned, there is no evidence that
the hospital sought a detriment to the Thomases as consideration for Dr. Archer’s alleged
promise. While the Thomases’ failure to obtain preauthorization is relevant to their
claim for promissory estoppel, discussed below, it does not constitute bargained-for
consideration.
As for the benefit to the hospital conferred by Rachel’s departure, there is
no evidence this benefit was bargained for either. It is undisputed that the hospital did
not have the capability to manage Rachel’s medical needs and that she had to be
transported somewhere else. Rachel testified that she would have followed Dr. Archer’s
medivac recommendation regardless of whether there was insurance coverage for it:
“[M]y concern was not billing at that time. It was immediate health.” Thus, even
assuming that the Thomases’ departure conferred a benefit on the hospital, the hospital
received no benefit in exchange for Dr. Archer’s alleged promise; relying on Dr.
Archer’s medical advice, the Thomases were going to leave anyway.
28
Askinuk Corp. v. Lower Yukon Sch. Dist., 214 P.3d 259, 267 (Alaska 2009)
(alterations in original) (quoting Reust v. Alaska Petrol. Contractors, Inc., 127 P.3d 807,
811 n.4 (Alaska 2005)); see also Baker v. Ryan Air, Inc., 345 P.3d 101, 110 n.23 (Alaska
2015) (“To constitute consideration, a performance or a return promise must be
bargained for.” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 71(1) (AM. LAW
INST. 1981))).
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Because we agree with the superior court’s conclusion that the alleged
contract lacked the essential element of consideration, we do not address the other
elements required for the formation of an enforceable contract. The superior court did
not err by granting summary judgment on the breach of contract claim.
C.
It Was Error To Grant Summary Judgment On The Thomases’
Promissory Estoppel Claim.
The Thomases next argue that the superior court erred when it rejected their
claim that “[i]f the parties did not create a binding contract, their agreement is
nevertheless enforceable by the doctrine of promissory estoppel.” They argue that Dr.
Archer’s alleged promise induced them to leave the hospital immediately without their
insurer’s preauthorization, that this was a foreseeable response to the promise, that
because they left the hospital without preauthorization they incurred substantial medical
expenses, and that the interest of justice is served by enforcing Dr. Archer’s promise.
They argue that, at a minimum, a jury should have decided this claim.
“The doctrine of promissory estoppel allows the enforcement of contractlike promises despite a technical defect or defense that would otherwise make the
promise unenforceable.”29 Promissory estoppel has these elements: “1) [t]he action
induced amounts to a substantial change of position; 2) it was either actually foreseen or
reasonably foreseeable by the promisor; 3) an actual promise was made and itself
induced the action or forbearance in reliance thereon; and 4) enforcement is necessary
in the interest of justice.”30 The superior court, relying primarily on Sea Hawk Seafoods,
29
Kiernan v. Creech, 268 P.3d 312, 315 (Alaska 2012).
30
Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006) (quoting Zeman
v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985)); see also Dick
Fischer Dev. No. 2, Inc. v. Dep’t of Admin., 838 P.2d 263, 268 (Alaska 1992) (“A
promise which the promisor should reasonably expect to induce action or forbearance
(continued…)
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Inc. v. City of Valdez,31 held that Dr. Archer’s “alleged promise [was] not ‘definitive,’
‘clear,’ or ‘precise’ ” enough to constitute an “actual promise.” The court discussed what
it perceived to be “the lack of clarity in the alleged oral promises and the lack of
unequivocal acceptance,” noting “[Steven’s] signature on the Acknowledgment of
Financial Responsibility and [Rachel’s] deposition testimony that . . . she would have
taken the flight to Swedish even if it was not covered.” The court concluded that even
if all other elements of promissory estoppel were met, the Thomases “fail to show a
substantial change in position” because of Rachel’s testimony that she “would have gone
to Swedish even if she knew the [medivac] would not be covered.”
We conclude that there are genuine issues of material fact about whether
the elements of the doctrine were met. It was therefore error to grant summary judgment
on the Thomases’ promissory estoppel claim.
1.
Whether there was a substantial change of position
“Whether particular actions represent substantial changes [in position] is
a question of all the circumstances and is not determinable by reference to a set
formula.”32 Courts tend to “look for evidence of actual and substantial economic loss.”33
30
(…continued)
on the part of the promisee or a third person and which does induce such action or
forbearance is binding if injustice can be avoided only by enforcement of the promise.”
(quoting RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (AM. LAW INST. 1981))).
31
282 P.3d 359 (Alaska 2012).
32
Zeman, 699 P.2d at 1284 (citing 1A A. CORBIN, CORBIN ON CONTRACTS
§ 200, at 216 (1963)).
33
Id. (first citing Weiner v. Romley, 381 P.2d 581, 583-84 (Ariz. 1963); then
citing Brand S Corp. v. King, 639 P.2d 429 (Idaho 1981)).
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In deciding that the “substantial change in position” element was not met,
the superior court relied on the Thomases’ concession that they would have followed Dr.
Archer’s advice regardless of whether they had insurance coverage. Rachel testified at
her deposition that “[a]t this point, [she] would have gone anywhere to save [her unborn]
son’s life.” She continued: “I mean, had [Dr. Archer] said you need to go to Anchorage,
I would have gone to Anchorage. She said, you need to go to Seattle, so I am going to
Seattle.” When asked whether she would have agreed to be transported to Seattle “if
[she] felt that it would have saved [her] son’s life” even if there was no insurance
coverage for it, she responded, “Again, my concern was not billing at that time. It was
immediate health.” This testimony, the superior court concluded, demonstrated that the
Thomases did not substantially change their position based on Dr. Archer’s alleged
promise.
But while there is no dispute that the Thomases would have flown to Seattle
regardless of insurance coverage, questions of fact remain because of their assertions that
they would have called their insurance providers for preauthorization had they not
believed that Dr. Archer was going to do so. A reasonable person could conclude that
the Thomases substantially changed their position in reliance upon Dr. Archer’s alleged
promise by failing to do what they otherwise would have done.
2.
Whether the change in position was foreseeable
“According to Corbin on Contracts, ‘[f]oreseeability of reliance raises a
question of fact for court and jury.’ ”34 The superior court did not address the
foreseeability prong in its order on summary judgment, nor does the hospital address it
on appeal, focusing its analysis instead on the elements of changed position and actual
34
Simpson, 129 P.3d at 441 (alteration in original) (quoting CORBIN ON
CONTRACTS, supra note 32, at 216).
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promise. We conclude that a reasonable person, when viewing the circumstances of Dr.
Archer’s alleged promise — including that it was made by a treating physician in the
context of a medical emergency — could find it was reasonably foreseeable that the
Thomases would rely on the promise and not seek preauthorization themselves.
3.
Whether there was an actual promise
The superior court’s rejection of the Thomases’ promissory estoppel claim
rested primarily on its conclusion that there was no “actual promise” on which the
Thomases were entitled to rely. “When a promissory estoppel claim is made in
conjunction with a breach of contract claim, the ‘actual promise’ element of promissory
estoppel is ‘analytically identical to’ the ‘ “acceptance” required for a contract.’ ”35
“Were it otherwise, promissory estoppel . . . would become a device by which parties
could be held to contracts they did not accept.”36 “An ‘actual promise’ is one that is
‘definitive, . . . very clear, . . . and must use precise language.’ ”37 “[A] promise . . . must
‘manifest an unequivocal intent to be bound.’ ”38
The superior court, in deciding that there was no actual promise, relied on
Sea Hawk Seafoods, Inc. v. City of Valdez, in which we reversed the trial court’s denial
of summary judgment to Valdez on Sea Hawk’s promissory estoppel claim.39 Valdez
35
Valdez Fisheries Dev. Ass’n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 668
(Alaska 2002) (quoting Brady v. State, 965 P.2d 1, 11 (Alaska 1998)).
36
Id.
37
Safar v. Wells Fargo Bank, N.A., 254 P.3d 1112, 1119 (Alaska 2011)
(alterations in original) (quoting Alaska Trademark Shellfish, LLC v. State, Dep’t of Fish
& Game, 172 P.3d 764, 767 (Alaska 2007)).
38
Id. (quoting Alaska Trademark Shellfish, 172 P.3d at 767).
39
282 P.3d 359, 361-62 (Alaska 2012).
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had made oral promises to Sea Hawk that it would submit a grant application for funds,
which it would then turn over to Sea Hawk to pay for the conversion of one of Sea
Hawk’s processing facilities.40 Valdez confirmed these promises in a letter, indicating
that it was in the process of finalizing the application but that a number of issues
remained to be resolved before it would accept the grant.41 After the grant application
was tentatively approved, Valdez sent Sea Hawk another letter reiterating that it would
not accept the grant until it had reached an agreement with Sea Hawk.42 The parties
could not agree and Valdez did not accept the grant, prompting Sea Hawk’s suit.43
The superior court in this case noted our holding in Sea Hawk that Valdez’s
“alleged oral promises were not sufficiently ‘definitive,’ ‘clear,’ and ‘precise’ to
constitute an actual promise, particularly when considered in conjunction with [Valdez’s]
letter.”44 The court reasoned that because “[t]he language of [Valdez’s] alleged
promises [in Sea Hawk] . . . was more certain than in the present case,” Dr. Archer’s
alleged promises could not be considered precise enough to constitute an actual promise.
We do not consider Sea Hawk controlling. Valdez’s oral offer in Sea Hawk
identified “three conditions prior to submitting the Sea Hawk grant application,” and its
later confirming letter again noted those “conditions, informing Sea Hawk these issues
would need to be resolved before Valdez accepted the grant funds, and stating the parties
would need to enter [into] an agreement once the State decided whether to award Valdez
40
Id. at 362.
41
Id.
42
Id. at 363.
43
Id. at 361, 363.
44
Id. at 367.
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the grant.”45 We therefore held that “even assuming [Valdez] made such promises, [it]
alerted [Sea Hawk] that Valdez would not accept the grant unconditionally and then
specifically outlined those conditions in the [confirming] letter.”46 The promises in that
case instead “demonstrate[d] [that] Valdez contemplated entering into a future agreement
with Sea Hawk addressing various issues.”47
The alleged promise at issue in this case, unlike the promises in Sea Hawk,
was not expressly conditional. As the Thomases describe Dr. Archer’s promise, it gave
no indication that it depended on the outcome of future negotiations. The alleged
promise defined Dr. Archer’s role — she would contact the insurers if the Thomases
boarded the medivac plane immediately — and it defined the Thomases’ role — they
would board the plane without taking time to contact their insurers. Because the
evidence could support a conclusion that the Thomases unequivocally accepted a clear
offer, a reasonable person could conclude that there was an “actual promise.”48
4.
Whether enforcement of the promise is necessary in the interest
of justice
“The fourth requirement, that enforcement is necessary in the interest of
justice, presents fact questions that ordinarily should not be decided on summary
45
Id. at 366.
46
Id. at 366-67 (emphasis added).
47
Id. at 365.
48
The superior court relied on Steven’s signing of the Acknowledgment of
Financial Responsibility as evidence that the Thomases were willing to assume personal
liability for Rachel’s treatment. But this evidence is subject to different interpretations
considering the emergency circumstances and Steven’s designation of KIC as the
“payment source,” which is consistent with the Thomases’ claim that they were relying
on Dr. Archer to contact their insurers.
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judgment.”49 This is a fact-intensive analysis in which reasonable people could reach
different conclusions.
Because the Thomases identified issues of fact that precluded summary
judgment, it was error to grant the hospital’s motion on the Thomases’ promissory
estoppel claim.
V.
CONCLUSION
We AFFIRM the superior court’s grant of summary judgment on the
Thomases’ fiduciary duty and breach of contract claims. We REVERSE the superior
court’s grant of summary judgment on the Thomases’ promissory estoppel claim and
REMAND for further proceedings consistent with this opinion. The award of attorney’s
fees to the defendants as prevailing parties is accordingly VACATED.50
49
Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996)
(citing State v. First Nat’l Bank of Ketchikan, 629 P.2d 78, 82 n.4 (Alaska 1981)).
50
Though we vacate the attorney’s fees award, we note our concern with the
superior court’s award of attorney’s fees to the hospital following in camera review of
itemized billing records that were not made available to the Thomases. We have held
that “where the rule authorizes reasonable actual fees, a court may not award attorney’s
fees to a party who has not itemized his or her requested fees, when the opposing party
has requested such itemization.” Roderer v. Dash, 233 P.3d 1101, 1113 (Alaska 2010)
(quoting Marron v. Stromstad, 123 P.3d 992, 1014 (Alaska 2005)). The reasonableness
requirement of Alaska Civil Rule 82 is best met by allowing a party who may be ordered
to pay attorney’s fees to review the other party’s time and billing records.
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Questionable Medical History Conducted
Smith was admitted to Community Hospital for surgery. Community Hospital medical staff
bylaws require that a history and physical (H&P) exam be completed prior to patients
undergoing surgery. Smith’s attending physician did not complete the H&P form. He simply
drew a diagonal line from the top right to the bottom left of the H&P, indicating that the
patient had no history of or current disease processes.The patient’s nurse, per hospital policy,
completed a nursing assessment. The nurse documented on the patient admission assessment
form that the patient had a history of transient ischemic attacks, diabetes, and
hypothyroidism.The anesthesiologist did not perform an anesthesia assessment before surgery.
General anesthesia was administered without knowing the patient’s previous experiences, if
any, with anesthesia.Failure of the attending physician to complete an appropriate H&P
examination and the anesthesiologist’s failure to perform a pre-anesthesia assessment placed
the patient’s life and health at risk. The physician did not complete the H&P. He merely went
through the motions of completing an H&P examination because it was mandated that the
patient have an H&P in his medical record prior to surgery.Ethical and Legal Issues.
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RACHEL L. THOMAS and
STEVEN N. THOMAS, husband
and wife,
Appellants,
v.
SARAH B. ARCHER and
PEACEHEALTH MEDICAL
GROUP d/b/a KETCHIKAN
OB/GYN,
Appellees.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Supreme Court No. S-15372
Superior Court No. 1KE-10-00613 CI
OPINION
No. 7136 – December 2, 2016
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, William B. Carey, Judge.
Appearances: C. Keith Stump, Port Angeles, Washington,
for Appellants. Scott J. Gerlach and Donna M. Meyers,
Delaney Wiles, Inc., Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Fabe, Justice, not participating.]
MAASSEN, Justice.
I.
INTRODUCTION
A woman was admitted to a hospital emergency room with pregnancy-
related complications. The attending physician recommended that she be transported by
medivac to a different facility. The woman and her husband informed the physician that
they needed their insurer’s preauthorization for that course of action or they could be
personally liable for the costs. The physician allegedly promised to call the insurer and,
if it would not approve the medivac, have the hospital bear the costs itself. But the
physician failed to contact the insurer until much later, and the insurer declined coverage.
The couple sued the physician and the hospital, alleging that the physician
breached her fiduciary duty by failing to obtain preauthorization as promised; that her
promise created an enforceable contract, which was breached; and that if there was no
contract the physician’s promise should be enforced through the doctrine of promissory
estoppel. The superior court granted summary judgment to the physician and hospital.
The couple appeals.
We hold that the superior court did not err when it ruled in favor of the
physician and hospital on the claims for breach of fiduciary duty and breach of contract,
but that genuine issues of material fact precluded summary judgment on the claim for
promissory estoppel. We therefore reverse and remand for further proceedings.
II.
FACTS AND PROCEEDINGS
A.
Facts
Rachel Thomas was admitted to the emergency room at Ketchikan General
Hospital in October 2008 for pregnancy-related complications.1 She was seen by Dr.
Sarah B. Archer, who determined that Rachel was at risk of premature delivery and
needed an immediate transfer to a facility better equipped to handle her condition.
Because of weather conditions in Anchorage, Dr. Archer recommended that Rachel be
medivacked to Swedish Medical Center in Seattle. According to the Thomases, they told
1
Ketchikan General Hospital is operated by PeaceHealth Medical Group,
which also does business as Ketchikan OB/GYN.
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Dr. Archer they could not personally afford the medivac and needed preauthorization
from the Ketchikan Indian Corporation Tribal Health Clinic (KIC) and the Alaska Native
Medical Center (ANMC) before they could be covered for treatment outside of ANMC’s
Anchorage facilities.2 The Thomases allege that Dr. Archer told them “she would
contact KIC, not to worry, that everything will be taken care of, and that if KIC didn’t
cover it ‘we’ will.” According to the Thomases, they understood “we” to mean the
hospital.
In the process of arranging the transfer, Steven Thomas signed an
“Acknowledgment of Financial Responsibility,” which cautioned that the Guardian
Flight medivac charges could be significant. Though naming KIC as the “Payment
Source,” Steven agreed to be personally responsible for any unpaid charges and to “save
and hold the hospital harmless therefrom.”
The Thomases were eventually billed over $23,000 by Swedish Medical
Center and over $69,000 by Guardian Flight, the medivac provider. The Thomases
sought payment from KIC and ANMC under their coverage plan but were denied for
three stated reasons: (1) they failed to request preauthorization within 72 hours of
beginning treatment or of admission to the healthcare facility; (2) ANMC was “available
and accessible to provide the necessary medical services to the patient”; and (3) the
Thomases lacked a referral or authorization for the transfer from an ANMC physician.
The Thomases admit knowing about the preauthorization requirements and that obtaining
preauthorization was ultimately their responsibility; they allege, however, that they
boarded the flight based on Dr. Archer’s assurances that those requirements would be
satisfied by someone else. Dr. Archer did later write KIC and ANMC to explain her
2
KIC acts as an agent for the Thomases’ insurer, Contract Health Services
(CHS).
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decision to have Rachel transported to Seattle, but not until May 2009, over six months
after the transfer.
B.
Proceedings
In 2010 the Thomases filed suit against the hospital and Dr. Archer
(collectively “the hospital”)3 alleging breach of fiduciary duty, breach of contract,
promissory estoppel,4 and negligent or intentional infliction of emotional distress. The
claims were all based on Dr. Archer’s alleged promise to contact the Thomases’
insurance providers and ensure coverage for the expenses related to Rachel’s transport
to and treatment in Seattle. The superior court granted summary judgment to the hospital
on the Thomases’ fiduciary duty claim, agreeing with the hospital’s argument that a
physician’s fiduciary duty is limited to the context of medical treatment. The court later
granted summary judgment to the hospital on the remaining claims, holding that the facts
as alleged did not create an enforceable contract and that there was no actual promise to
the Thomases or substantial change in position by the Thomases sufficient to support
their promissory estoppel claim. The court also dismissed the claims for negligent and
intentional infliction of emotional distress, noting that the Thomases had agreed to
withdraw them, although they had not yet done so, and had produced no evidence or
legal authority to support the claims.5
3
The hospital and the physician shared the same counsel and the same
litigation position on all issues.
4
The Thomases did not articulate a promissory estoppel claim as such until
they filed their opposition to the hospital’s motion for summary judgment on the breach
of contract claim. The superior court nonetheless considered the promissory estoppel
claim as consistent with the Thomases’ other claims.
5
The Thomases also withdrew their claim for the costs of the Guardian
Flight after confirming they had a separate insurance plan that covered the medivac.
(continued…)
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The hospital moved for attorney’s fees as the prevailing party, supporting
its motion with an affidavit that summarized its fees and offering to file itemized billing
records under seal for in camera review. The Thomases opposed the motion. The
superior court ordered the hospital to submit its billings for in camera review but did not
require that they be shared with the Thomases. Following in camera review, the court
awarded the hospital approximately $25,000 in attorney’s fees (20% of the total billings)
and over $6,000 in costs. This appeal followed.
III.
STANDARD OF REVIEW
“We review grants of summary judgment de novo.”6 “We ‘will affirm a
grant of summary judgment if the evidence in the record presents no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.’ ”7
Whether there is a fiduciary duty and whether promissory estoppel applies
are both questions of law to which we apply our “independent judgment, adopting the
rule of law that is most persuasive in light of precedent, reason, and policy.”8
5
(…continued)
Thus, only the expenses of treatment at Swedish Medical Center remain at issue.
6
Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014)
(citing Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013)).
7
Copper River Sch. Dist. v. Traw, 9 P.3d 280, 283 (Alaska 2000) (quoting
Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)).
8
Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009) (citing K & K
Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 n.66 (Alaska 2003)) (fiduciary
duty); Ross v. State, Dep’t of Revenue, 292 P.3d 906, 909 (Alaska 2012) (citing Hidden
Heights Assisted Living, Inc. v. State, Dep’t of Health & Soc. Servs., Div. of Health Care
Servs., 222 P.3d 258, 268 (Alaska 2009)) (promissory estoppel).
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IV.
DISCUSSION
The Thomases argue three substantive points on appeal: (1) that the
superior court erred by deciding that Dr. Archer did not owe the Thomases a fiduciary
duty to contact KIC for authorization after having promised to do so; (2) that the superior
court erred by deciding on summary judgment that the parties’ words and actions did not
create an enforceable contract; and (3) that the superior court erred by rejecting
promissory estoppel as a basis for enforcement of Dr. Archer’s alleged promise to the
Thomases.9
“Alaska Civil Rule 56 provides for judgment to be granted to a party where
‘there is no genuine issue as to any material fact’ and ‘the moving party is entitled to
judgment as a matter of law.’ ”10 “[A] party seeking summary judgment has the initial
burden of proving, through admissible evidence, that there are no disputed issues of
material fact and that [it] is entitled to judgment as a matter of law.”11 “Once the moving
party has made that showing, the burden shifts to the non-moving party ‘to set forth
specific facts showing that he could produce evidence reasonably tending to dispute or
contradict the movant’s evidence and thus demonstrate that a material issue of fact
exists.’ ”12 The court “draw[s] all reasonable inferences in favor of the non[-]moving
9
The Thomases also appeal the superior court’s award of attorney’s fees and
argue they should be awarded the costs and fees associated with appeal, but we do not
find it necessary to reach these issues.
10
Christensen, 335 P.3d at 517 (quoting Alaska R. Civ. P. 56(c)).
11
Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 n.25 (Alaska
2008) (citing Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska
1995)).
12
Christensen, 335 P.3d at 517 (quoting State, Dep’t of Highways v. Green,
586 P.2d 595, 606 n.32 (Alaska 1978)).
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party.”13 “We require only that the evidence proposed for trial must not be based entirely
on ‘unsupported assumptions and speculation’ and must not be ‘too incredible to be
believed by reasonable minds.’ ”14 “After the court makes reasonable inferences from
the evidence in favor of the non-moving party, summary judgment is appropriate only
when no reasonable person could discern a genuine factual dispute on a material issue.”15
Accordingly, for purposes of our review of the superior court’s decision on
summary judgment, we assume that Dr. Archer made the statement, as described by the
Thomases, “that she would contact KIC, not to worry, that everything will be taken care
of, and that if KIC didn’t cover it ‘we’ will.”
A.
The Superior Court Did Not Err By Granting Summary Judgment To
The Hospital On The Thomases’ Fiduciary Duty Claim.
The Thomases first argue that the superior court erred by granting summary
judgment on the Thomases’ claim that Dr. Archer “owed a fiduciary duty to [the]
Thomases to contact KIC for authorization as she promised.” The superior court noted
in its order that “the parties do not dispute the existence of a fiduciary relationship, only
the scope of the duties that relationship imposes.” The court cited two Alaska cases
discussing fiduciary duties16 and relied heavily upon an unpublished Ohio decision with
facts and arguments similar to those here, Northern Ohio Medical Specialists, LLC v.
13
Greywolf v. Carroll, 151 P.3d 1234, 1240 (Alaska 2007).
14
Christensen, 335 P.3d at 520 (first quoting Peterson v. State, Dep’t of Nat.
Res., 236 P.3d 355, 367 (Alaska 2010); then quoting Wilson v. Pollet, 416 P.2d 381, 384
(Alaska 1966)).
15
Id. (internal citations omitted).
16
Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991); Greater Area Inc. v.
Bookman, 657 P.2d 828 (Alaska 1982).
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Huston.17 These precedents, the superior court decided, “indicate that the duties imposed
by the physician-patient fiduciary relationship should be kept to matters involving
medical treatment and advice, which are not at issue here.” The court observed that the
fiduciary relationship could nonetheless be relevant to the Thomases’ promissory
estoppel claim as evidence of the reasonableness of their reliance on what the doctor told
them.
We discussed the scope of a physician-patient fiduciary duty in Pedersen
v. Zielski.18 The plaintiff brought a malpractice action against a hospital and the surgeons
who operated on him following a car accident; the trial court ruled that the action was
barred by the statute of limitations.19 We reversed, holding that there were genuine
issues of material fact as to whether the plaintiff’s doctor should be estopped from
relying on the statute of limitations when he failed to disclose to the patient that a likely
cause of his permanent paralysis was the surgery rather than the underlying accident.20
Of importance here, we explained why the physician-patient relationship gives rise to a
fiduciary duty of full disclosure:
The physician-patient relationship is one of trust. Because
the patient lacks the physician’s expertise, the patient must
rely on the physician for virtually all information about the
patient’s treatment and health. A physician therefore
undertakes[] not only to treat a patient physically, but also to
respond fully to a patient’s inquiry about his treatment, i.e.,
17
No. E-09-13, 2009 WL 3683632 (Ohio App. Nov. 6, 2009).
18
822 P.2d at 909.
19
Id. at 905.
20
Id. at 905, 908-09.
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to tell the patient everything that a reasonable person would
want to know about the treatment.[21]
In Northern Ohio Medical Specialists, the plaintiff, whose case had been
dismissed on the pleadings, argued on appeal that he had pleaded “sufficient, operative
facts to support recovery under his claims that a doctor, . . . [has] a fiduciary duty to
submit claims to an insurance company when he promises to do so.”22 The Ohio
appellate court recognized that a fiduciary duty is “[a] duty to act for someone else’s
benefit, while subordinating one’s personal interests to that of the other person.”23 But
the court held that while “[a] physician undisputedly owes a fiduciary duty to his or her
patient with respect to diagnosing and treating diseases and injuries,” no such “duty
extends beyond the medical relationship”; accordingly, the physician’s fiduciary duties
did not include submitting insurance claims after promising to do so.24
This reasoning is consistent with our description of the physician’s
fiduciary duty in Pedersen. A physician’s expertise in the practice of medicine is unique,
respected, and highly valued.
The patient, lacking that expertise, relies on the
physician’s judgment and care and is especially vulnerable to the physician’s mistakes;
21
Id. at 909 (emphasis added; original emphasis omitted); see also Carson v.
Fine, 867 P.2d 610, 617 (Wash. 1994) (en banc) (“The [physician-patient fiduciary]
relationship is predicated on the proposition that the physician has special knowledge and
skill in diagnosing and treating diseases and injuries and that the patient has sought and
obtained the services of the physician because of this expertise.” (first citing 70 C.J.S.
Physicians and Surgeons § 58 (1987); then citing 61 AM. JUR. 2D, Physicians, Surgeons
and Other Healers § 167 (1981))).
22
2009 WL 3683632, at *1.
23
Id. at *2 (alteration in original) (quoting Fiduciary Duty, BLACK’S LAW
DICTIONARY (6th ed. 1990)).
24
Id. (citing Tracy v. Merrell Dow Pharm., Inc., 569 N.E.2d 875, 878-79
(Ohio 1991)).
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the law protects the patient’s vulnerability by imposing on the physician a heightened
duty of care when the physician is acting within the scope of that expertise.25
At the heart of this case are two different statements attributed to Dr.
Archer. The first and undisputed one is her recommendation that Rachel be immediately
transported by medivac to a hospital that was better equipped to treat her pregnancyrelated complications. The second is Dr. Archer’s alleged promise that she would obtain
preauthorization for the transport costs from the Thomases’ insurance providers and that
the costs would otherwise be covered by the hospital. The first recommendation is
plainly within the scope of Dr. Archer’s fiduciary duty; determining whether a transport
was necessary was a matter of medical expertise on which the Thomases had little choice
but to rely. The alleged promise regarding insurance and payment, on the other hand,
did not stem from Dr. Archer’s special expertise as a physician. The Thomases
themselves knew about the preauthorization procedure, having followed it already that
evening when Rachel was admitted to the emergency room. The Thomases did not need
Dr. Archer’s special expertise in order to understand the requirements of their insurance
coverage and to obtain the required preauthorization.
Because the physician-patient fiduciary duty exists to protect the vulnerable
patient relying on the physician’s special expertise in medicine, a physician’s promise
25
See, e.g., Brown v. Wells Fargo Bank, NA, 85 Cal. Rptr. 3d 817, 835 (Cal.
App. 2008) (“Fiduciary obligations ‘generally come into play when one party’s
vulnerability is so substantial as to give rise to equitable concerns underlying the
protection afforded by the law governing fiduciaries.’ ” (quoting City of Hope Nat’l Med.
Ctr. v. Genentech, Inc., 181 P.3d 142, 152 (Cal. 2008))); Dayna Bowen Matthew,
Defeating Health Disparities — A Property Interest Under the Patient Protection and
Affordable Care Act of 2010, 113 W. VA. L. REV. 31, 38 (2010) (“[I]n the physician­
patient relationship, superior expertise, knowledge, and skill place doctors in the position
of fiduciaries, and the dependent vulnerability of patients in their care are the
beneficiaries [sic].”).
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to obtain preauthorization of medical treatment for purposes of insurance coverage is
outside the scope of the physician’s fiduciary duty. The superior court did not err when
it granted summary judgment to the hospital on the Thomases’ breach of fiduciary duty
claim.26
B.
The Superior Court Did Not Err By Granting Summary Judgment To
The Hospital On The Thomases’ Breach Of Contract Claims.
The Thomases also challenge the superior court’s conclusion on summary
judgment that Dr. Archer’s alleged promise about insurance and payment did not give
rise to an enforceable contract. The court decided that “[t]he most apparent shortcoming
of the alleged contract is the lack of consideration” because in response to Dr. Archer’s
alleged promise the Thomases “made no return promise, and [the hospital] sought
none.”27 The court rejected the Thomases’ contentions that return consideration could
be found in either (1) the detriment to them when they failed to get preauthorization or
26
We also reject the Thomases’ argument that Dr. Archer’s statements
expanded the scope of what in normal circumstances would be the ordinary physicianpatient fiduciary duty limited to medical matters. If Dr. Archer’s promise to obtain
preauthorization created a duty to act, it was not a duty based on her special expertise as
a physician.
The Thomases also argue, most extensively in their reply brief, that by
making the alleged promise Dr. Archer agreed to act as their agent, thus creating another
type of fiduciary duty. But the Thomases did not advance an agency theory in the
superior court, instead focusing exclusively on the fiduciary duty inherent in the
physician-patient relationship. “It is well established that matters not raised at trial will
not be considered on appeal.” Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991) (quoting
Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987)).
27
“The formation of an express contract requires an offer encompassing its
essential terms, an unequivocal acceptance of the terms by the offeree, consideration[,]
and an intent to be bound.” Municipality of Anchorage v. Stenseth, 361 P.3d 898, 906
(Alaska 2015) (alteration in original) (quoting Childs v. Kalgin Island Lodge, 779 P.2d
310, 314 (Alaska 1989)).
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(2) the benefit to the hospital when the medivac to Seattle relieved it of the responsibility
of caring for Rachel and the risk that she would lose her unborn child while in the
hospital’s care. We agree with the court’s conclusion that the alleged contract failed for
lack of consideration.
“We have held that ‘[t]o constitute consideration, a performance or a return
promise must be bargained for. . . . A performance or return promise is bargained for if
it is sought by the promisor in exchange for his promise and is given by the promisee in
exchange for that promise.’ ”28 As the superior court reasoned, there is no evidence that
the hospital sought a detriment to the Thomases as consideration for Dr. Archer’s alleged
promise. While the Thomases’ failure to obtain preauthorization is relevant to their
claim for promissory estoppel, discussed below, it does not constitute bargained-for
consideration.
As for the benefit to the hospital conferred by Rachel’s departure, there is
no evidence this benefit was bargained for either. It is undisputed that the hospital did
not have the capability to manage Rachel’s medical needs and that she had to be
transported somewhere else. Rachel testified that she would have followed Dr. Archer’s
medivac recommendation regardless of whether there was insurance coverage for it:
“[M]y concern was not billing at that time. It was immediate health.” Thus, even
assuming that the Thomases’ departure conferred a benefit on the hospital, the hospital
received no benefit in exchange for Dr. Archer’s alleged promise; relying on Dr.
Archer’s medical advice, the Thomases were going to leave anyway.
28
Askinuk Corp. v. Lower Yukon Sch. Dist., 214 P.3d 259, 267 (Alaska 2009)
(alterations in original) (quoting Reust v. Alaska Petrol. Contractors, Inc., 127 P.3d 807,
811 n.4 (Alaska 2005)); see also Baker v. Ryan Air, Inc., 345 P.3d 101, 110 n.23 (Alaska
2015) (“To constitute consideration, a performance or a return promise must be
bargained for.” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 71(1) (AM. LAW
INST. 1981))).
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Because we agree with the superior court’s conclusion that the alleged
contract lacked the essential element of consideration, we do not address the other
elements required for the formation of an enforceable contract. The superior court did
not err by granting summary judgment on the breach of contract claim.
C.
It Was Error To Grant Summary Judgment On The Thomases’
Promissory Estoppel Claim.
The Thomases next argue that the superior court erred when it rejected their
claim that “[i]f the parties did not create a binding contract, their agreement is
nevertheless enforceable by the doctrine of promissory estoppel.” They argue that Dr.
Archer’s alleged promise induced them to leave the hospital immediately without their
insurer’s preauthorization, that this was a foreseeable response to the promise, that
because they left the hospital without preauthorization they incurred substantial medical
expenses, and that the interest of justice is served by enforcing Dr. Archer’s promise.
They argue that, at a minimum, a jury should have decided this claim.
“The doctrine of promissory estoppel allows the enforcement of contractlike promises despite a technical defect or defense that would otherwise make the
promise unenforceable.”29 Promissory estoppel has these elements: “1) [t]he action
induced amounts to a substantial change of position; 2) it was either actually foreseen or
reasonably foreseeable by the promisor; 3) an actual promise was made and itself
induced the action or forbearance in reliance thereon; and 4) enforcement is necessary
in the interest of justice.”30 The superior court, relying primarily on Sea Hawk Seafoods,
29
Kiernan v. Creech, 268 P.3d 312, 315 (Alaska 2012).
30
Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006) (quoting Zeman
v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985)); see also Dick
Fischer Dev. No. 2, Inc. v. Dep’t of Admin., 838 P.2d 263, 268 (Alaska 1992) (“A
promise which the promisor should reasonably expect to induce action or forbearance
(continued…)
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Inc. v. City of Valdez,31 held that Dr. Archer’s “alleged promise [was] not ‘definitive,’
‘clear,’ or ‘precise’ ” enough to constitute an “actual promise.” The court discussed what
it perceived to be “the lack of clarity in the alleged oral promises and the lack of
unequivocal acceptance,” noting “[Steven’s] signature on the Acknowledgment of
Financial Responsibility and [Rachel’s] deposition testimony that . . . she would have
taken the flight to Swedish even if it was not covered.” The court concluded that even
if all other elements of promissory estoppel were met, the Thomases “fail to show a
substantial change in position” because of Rachel’s testimony that she “would have gone
to Swedish even if she knew the [medivac] would not be covered.”
We conclude that there are genuine issues of material fact about whether
the elements of the doctrine were met. It was therefore error to grant summary judgment
on the Thomases’ promissory estoppel claim.
1.
Whether there was a substantial change of position
“Whether particular actions represent substantial changes [in position] is
a question of all the circumstances and is not determinable by reference to a set
formula.”32 Courts tend to “look for evidence of actual and substantial economic loss.”33
30
(…continued)
on the part of the promisee or a third person and which does induce such action or
forbearance is binding if injustice can be avoided only by enforcement of the promise.”
(quoting RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (AM. LAW INST. 1981))).
31
282 P.3d 359 (Alaska 2012).
32
Zeman, 699 P.2d at 1284 (citing 1A A. CORBIN, CORBIN ON CONTRACTS
§ 200, at 216 (1963)).
33
Id. (first citing Weiner v. Romley, 381 P.2d 581, 583-84 (Ariz. 1963); then
citing Brand S Corp. v. King, 639 P.2d 429 (Idaho 1981)).
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In deciding that the “substantial change in position” element was not met,
the superior court relied on the Thomases’ concession that they would have followed Dr.
Archer’s advice regardless of whether they had insurance coverage. Rachel testified at
her deposition that “[a]t this point, [she] would have gone anywhere to save [her unborn]
son’s life.” She continued: “I mean, had [Dr. Archer] said you need to go to Anchorage,
I would have gone to Anchorage. She said, you need to go to Seattle, so I am going to
Seattle.” When asked whether she would have agreed to be transported to Seattle “if
[she] felt that it would have saved [her] son’s life” even if there was no insurance
coverage for it, she responded, “Again, my concern was not billing at that time. It was
immediate health.” This testimony, the superior court concluded, demonstrated that the
Thomases did not substantially change their position based on Dr. Archer’s alleged
promise.
But while there is no dispute that the Thomases would have flown to Seattle
regardless of insurance coverage, questions of fact remain because of their assertions that
they would have called their insurance providers for preauthorization had they not
believed that Dr. Archer was going to do so. A reasonable person could conclude that
the Thomases substantially changed their position in reliance upon Dr. Archer’s alleged
promise by failing to do what they otherwise would have done.
2.
Whether the change in position was foreseeable
“According to Corbin on Contracts, ‘[f]oreseeability of reliance raises a
question of fact for court and jury.’ ”34 The superior court did not address the
foreseeability prong in its order on summary judgment, nor does the hospital address it
on appeal, focusing its analysis instead on the elements of changed position and actual
34
Simpson, 129 P.3d at 441 (alteration in original) (quoting CORBIN ON
CONTRACTS, supra note 32, at 216).
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promise. We conclude that a reasonable person, when viewing the circumstances of Dr.
Archer’s alleged promise — including that it was made by a treating physician in the
context of a medical emergency — could find it was reasonably foreseeable that the
Thomases would rely on the promise and not seek preauthorization themselves.
3.
Whether there was an actual promise
The superior court’s rejection of the Thomases’ promissory estoppel claim
rested primarily on its conclusion that there was no “actual promise” on which the
Thomases were entitled to rely. “When a promissory estoppel claim is made in
conjunction with a breach of contract claim, the ‘actual promise’ element of promissory
estoppel is ‘analytically identical to’ the ‘ “acceptance” required for a contract.’ ”35
“Were it otherwise, promissory estoppel . . . would become a device by which parties
could be held to contracts they did not accept.”36 “An ‘actual promise’ is one that is
‘definitive, . . . very clear, . . . and must use precise language.’ ”37 “[A] promise . . . must
‘manifest an unequivocal intent to be bound.’ ”38
The superior court, in deciding that there was no actual promise, relied on
Sea Hawk Seafoods, Inc. v. City of Valdez, in which we reversed the trial court’s denial
of summary judgment to Valdez on Sea Hawk’s promissory estoppel claim.39 Valdez
35
Valdez Fisheries Dev. Ass’n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 668
(Alaska 2002) (quoting Brady v. State, 965 P.2d 1, 11 (Alaska 1998)).
36
Id.
37
Safar v. Wells Fargo Bank, N.A., 254 P.3d 1112, 1119 (Alaska 2011)
(alterations in original) (quoting Alaska Trademark Shellfish, LLC v. State, Dep’t of Fish
& Game, 172 P.3d 764, 767 (Alaska 2007)).
38
Id. (quoting Alaska Trademark Shellfish, 172 P.3d at 767).
39
282 P.3d 359, 361-62 (Alaska 2012).
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had made oral promises to Sea Hawk that it would submit a grant application for funds,
which it would then turn over to Sea Hawk to pay for the conversion of one of Sea
Hawk’s processing facilities.40 Valdez confirmed these promises in a letter, indicating
that it was in the process of finalizing the application but that a number of issues
remained to be resolved before it would accept the grant.41 After the grant application
was tentatively approved, Valdez sent Sea Hawk another letter reiterating that it would
not accept the grant until it had reached an agreement with Sea Hawk.42 The parties
could not agree and Valdez did not accept the grant, prompting Sea Hawk’s suit.43
The superior court in this case noted our holding in Sea Hawk that Valdez’s
“alleged oral promises were not sufficiently ‘definitive,’ ‘clear,’ and ‘precise’ to
constitute an actual promise, particularly when considered in conjunction with [Valdez’s]
letter.”44 The court reasoned that because “[t]he language of [Valdez’s] alleged
promises [in Sea Hawk] . . . was more certain than in the present case,” Dr. Archer’s
alleged promises could not be considered precise enough to constitute an actual promise.
We do not consider Sea Hawk controlling. Valdez’s oral offer in Sea Hawk
identified “three conditions prior to submitting the Sea Hawk grant application,” and its
later confirming letter again noted those “conditions, informing Sea Hawk these issues
would need to be resolved before Valdez accepted the grant funds, and stating the parties
would need to enter [into] an agreement once the State decided whether to award Valdez
40
Id. at 362.
41
Id.
42
Id. at 363.
43
Id. at 361, 363.
44
Id. at 367.
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the grant.”45 We therefore held that “even assuming [Valdez] made such promises, [it]
alerted [Sea Hawk] that Valdez would not accept the grant unconditionally and then
specifically outlined those conditions in the [confirming] letter.”46 The promises in that
case instead “demonstrate[d] [that] Valdez contemplated entering into a future agreement
with Sea Hawk addressing various issues.”47
The alleged promise at issue in this case, unlike the promises in Sea Hawk,
was not expressly conditional. As the Thomases describe Dr. Archer’s promise, it gave
no indication that it depended on the outcome of future negotiations. The alleged
promise defined Dr. Archer’s role — she would contact the insurers if the Thomases
boarded the medivac plane immediately — and it defined the Thomases’ role — they
would board the plane without taking time to contact their insurers. Because the
evidence could support a conclusion that the Thomases unequivocally accepted a clear
offer, a reasonable person could conclude that there was an “actual promise.”48
4.
Whether enforcement of the promise is necessary in the interest
of justice
“The fourth requirement, that enforcement is necessary in the interest of
justice, presents fact questions that ordinarily should not be decided on summary
45
Id. at 366.
46
Id. at 366-67 (emphasis added).
47
Id. at 365.
48
The superior court relied on Steven’s signing of the Acknowledgment of
Financial Responsibility as evidence that the Thomases were willing to assume personal
liability for Rachel’s treatment. But this evidence is subject to different interpretations
considering the emergency circumstances and Steven’s designation of KIC as the
“payment source,” which is consistent with the Thomases’ claim that they were relying
on Dr. Archer to contact their insurers.
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judgment.”49 This is a fact-intensive analysis in which reasonable people could reach
different conclusions.
Because the Thomases identified issues of fact that precluded summary
judgment, it was error to grant the hospital’s motion on the Thomases’ promissory
estoppel claim.
V.
CONCLUSION
We AFFIRM the superior court’s grant of summary judgment on the
Thomases’ fiduciary duty and breach of contract claims. We REVERSE the superior
court’s grant of summary judgment on the Thomases’ promissory estoppel claim and
REMAND for further proceedings consistent with this opinion. The award of attorney’s
fees to the defendants as prevailing parties is accordingly VACATED.50
49
Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996)
(citing State v. First Nat’l Bank of Ketchikan, 629 P.2d 78, 82 n.4 (Alaska 1981)).
50
Though we vacate the attorney’s fees award, we note our concern with the
superior court’s award of attorney’s fees to the hospital following in camera review of
itemized billing records that were not made available to the Thomases. We have held
that “where the rule authorizes reasonable actual fees, a court may not award attorney’s
fees to a party who has not itemized his or her requested fees, when the opposing party
has requested such itemization.” Roderer v. Dash, 233 P.3d 1101, 1113 (Alaska 2010)
(quoting Marron v. Stromstad, 123 P.3d 992, 1014 (Alaska 2005)). The reasonableness
requirement of Alaska Civil Rule 82 is best met by allowing a party who may be ordered
to pay attorney’s fees to review the other party’s time and billing records.
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