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.gov.

THE SUPREME COURT OF THE STATE OF ALASKA

NIXOLA JEAN DOAN, Personal 

Representative of the Estate of 

TRISTANA LAURENE DOAN, and 

NIXOLA JEAN DOAN, Individually,

 Appellants,

v. 

BANNER HEALTH INC., d/b/a 

FAIRBANKS MEMORIAL 

HOSPITAL; NORTHERN HOSPITAL

ASSOCIATION, LLC; JAMES W. 

CAGLE, D.O.; GOLDEN HEART 

EMERGENCY PHYSICIANS; and 

FAYE LEE, M.D.,

 Appellees.

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Supreme Court No. S-17891

uperior Court No. 4FA-13-01538 CI

 P I N I O N

o. 7663 – June 30, 2023

S

O

N

Appeal from the Superior Court of the State of Alaska, 

urth Judicial District, Fairbanks, Brent E. Bennett, 

uglas Blankenship, and Raymond Funk, Judges. 

Fo

o

ppearances: Mike A. Stepovich, Fairbanks, for 

ppellants. Howard A. Lazar and Whitney L. Wilkson, 

elaney Wiles, Inc., Anchorage, for Appellee Banner 

ealth, Inc., d/b/a Fairbanks Memorial Hospital. John J. 

iemessen, Clapp Peterson Tiemessen Thorsness & 

ohnson, LLC, Anchorage, for Appellees Northern Hospital 

ssociation, James W. Cagle, D.O., Golden Heart 

mergency Physicians, and Faye Lee, M.D. 

D

A

A

D

H

T

J

A

E
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Before: Winfree, Chief Justice, Maassen, Carney, 

Borghesan, and Henderson, Justices.

MAASSEN, Justice.

INTRODUCTION

 A young woma

acting on her own behalf and 

hospital, several doctors, an

n died of heart failure while hospitalized. Her mother, 

as personal representative of the woman’s estate, sued the 

d the doctors’ employers for medical malpractice. In 

successive orders the superior court decided that all the witnesses proposed by the 

mother as medical experts failed to meet the statutory requirements for expert testimony 

on the relevant standards of care. The court also denied the mother’s motion to replace 

the rejected expert witnesses; granted summary judgment in favor of the defendants on 

the mother’s claim for damages for a lost chance of survival, deciding that such a claim 

was contrary to Alaska’s medical malpractice statutes; and — rejecting the mother’s 

request to file an amended complaint — found that the amended complaint sought to 

impermissibly allege a new claim for negligent infliction of emotional distress against 

the doctors. The mother appeals.

 We conclude that exclusion of the mother’s proposed expert witnesses 

rested on a misinterpretation of the statutes that govern standard of care testimony, and 

we therefore reverse the exclusion orders so that the court can reconsider the witnesses’ 

qualifications within the proper statutory framework. We conclude that the superior 

court did not abuse its discretion by denying the mother’s tardy request to replace one 

of her expert witnesses, who had lost the necessary board certification years earlier. We 

also affirm the superior court’s grant of summary judgment on the loss of chance claim, 

concluding, as the superior court did, that whether to recognize such a claim is a policy 

choice for the legislature to make.

 Finally, we conclude that under Alaska’s generous notice pleading rules, 

the mother adequately alleged a claim for negligent infliction of emotional distress 
-3- 7663

against the doctors, and it was not necessary for her to amend her complaint in order to 

pursue such a claim. We remand the case t

FACTS AND PROCEEDINGS

A. Facts

 In late February 2011 Tristana

receiving her regular maintenance dose 

o the superior court for further proceedings.

 Doan suffered a seizure several hours after 

of methadone.1 She was transported by 

ambulance to Fairbanks Memorial Hospital, where Dr. Faye Lee treated her in the 

emergency department before discharging her about four hours later. 

 The next morning Tristana was again given her usual dose of methadone.

Just over an hour later she returned to the hospital, complaining of shortness of breath. 

She was again seen by Dr. Lee, who found an erratic heart rate and low blood-oxygen 

saturation. Dr. Lee ordered an EKG, an X-ray, and a CT angiogram and placed Tristana 

on supplemental oxygen, medication for nausea and coughing, and saline for hydration. 

Dr. Lee then referred Tristana to Dr. James Cagle, who worked as a hospitalist and 

intensivist in the hospital’s intensive care unit (ICU).2 

 In the ICU Tristana’s condition continued to worsen. Dr. Cagle tried a 

number of interventions and medications, including benzodiazepines, throughout the 

day. But Tristana’s heart rate plummeted, and, notwithstanding multiple rounds of CPR 

and electric shock, she died la

B. Proceedings

In February 201

te that evening. 

3 Tristana’s mother, Nixola Doan, individually and as 

personal representative of Tristana’s estate, filed a complaint against the hospital’s 

1 Methadone is a “synthetic narcotic drug” and is “used during withdrawal 

treatment in morphine and heroin addiction.” Methadone Hydrochloride, STEDMANS 

MEDICAL DICTIONARY (28th ed. 2006).

2 A hospitalist is “[a] physician whose professional activities are performed 

chiefly within a hospital.” Hospitalist, STEDMANS MEDICAL DICTIONARY (28th ed. 

2006). An intensivist is an “intensive care specialist.” Id.
-4- 7663

operator, Banner Health, Inc.; Dr. Cagle and his employer, Northern Hospital 

Associates; and Dr. Lee and her employer, Golden Heart Emergency Physicians.

3 

Doan’s second amended complaint, filed in 2015, alleged medical malpractice by Dr. 

Lee, Dr. Cagle, and Banner Health, wrongful death by Dr. Cagle and Banner Health, 

negligent infliction of emotional distress (NIED) “by the Defendants,” reckless 

administration of drugs by the hospital’s pharmacy department, and negligent 

credentialing of Dr. Lee and Dr. Cagle by Banner Health.

4

 Two of the complaint’s 

counts alleged that the defendants’ negligence caused Tristana to lose “the chance of 

survival.” 

 1. Expert witness proceedings

 a. The experts

 Doan identified nine retained experts by September 2015, five of whom 

are relevant to this appeal: Gregory Holmquist, Ph.D., a pharmacist; John Olsen, M.D., 

and Mori Krantz, M.D., both cardiologists; Michael Schiesser, M.D., a doctor of 

internal medicine and addiction medicine; and Paul Bronston, M.D., an emergency 

room physician. 

 Holmquist had a pharmacy license and worked for over 20 years at a 

Seattle hospital “as a hospitalist-pharmacist that specialized in oncology medicine.” In 

this role he responded to emergency room calls “asking for advice regarding everything 

from treatment of infections to correct dosing of different medicines to just a variety of 

different . . . pharmacological decisions they were making.” But he did not go to

medical school or work as an emergency physician, and his only board certification, in 

3

 Unless the context requires otherwise, we generally refer to Dr. Lee and 

her employer collectively as “Dr. Lee” and to Dr. Cagle and his employer collectively 

as “Dr. Cagle.”

4 Both complaints also included allegations against two other defendants 

who later settled. See Doan v. Banner Health, 485 P.3d 537, 539 (Alaska 2021). 
-5- 7663

oncology pharmacy, expired in 2006. At his deposition he testified that when he heard 

the case involved “a young woman who had died related with a methadone thing,” he 

was “curious why [he] would be an expert.” 

 Dr. Olsen was a “highly trained and experienced cardiologist.” He was 

not an emergency medicine physician, though he testified that he “moonlight[ed] as an 

emergency room physician and also was assigned [emergency medicine] as a medicine

resident” at two hospitals in the 1980s. He was certified by the National Board of 

Medical Examiners and the American Board of Internal Medicine (including its 

cardiovascular disease certification), but he had never been board certified in 

emergency medicine. At the time of his deposition he was teaching internal medicine 

at the University of Washington medical school. When asked if he had ever worked as 

an intensivist or a hospitalist, he responded, “Thank God, no.” 

 In his expert report Dr. Olsen wrote that “[s]everal aspects of Ms. Doan’s 

care [we]re below the standard of care required of a reasonable and prudent physician 

caring for a patient with her problems.” He identified several actions taken by Dr. Lee 

that he believed fell below the standard of care; at his deposition, however, he testified, 

“I’m not a board certified emergency medicine physician; so no, I won’t be testifying 

as to the standard of care.” When asked about Dr. Cagle’s performance and whether 

“there was a failure to recognize congestive heart failure and then treat it and if . . . there 

had been that recognition of treatment, it’s possible the patient may have survived,” Dr. 

Olsen answered that such a characterization would be fair. 

 Dr. Schiesser had been board certified in both internal medicine and 

addiction medicine, though his internal medicine certification had lapsed by 2019. He 

had not worked in an emergency room since at least 2000 and had not managed a patient 

in the ICU since his residency in the late 1990s. But Dr. Schiesser was unclear as to 
-6- 7663

whether he would testify that Dr. Cagle’s actions fell below the standard of care.5 At 

his deposition, Dr. Schiesser opined that Dr. Cagle’s actions fell below the standard of 

care “[w]hen he prescribed Xopenex to the patient when the patient had just received 

the maximum dose of Xopenex for the eight-hour period.”6 He also opined that “[a]

reasonable physician . . . would understand that adding the [benzodiazepines] will 

accelerate the respiratory collapse[, and a] reasonable and prudent physician would 

work to establish an airway much sooner, and avoid the benzo/methadone combination, 

understanding [the patient] is unlikely to be able to breathe on her own when exposed 

to that.” 

Dr. Schiesser also said he would testify that Dr. Lee’s actions fell below 

the standard of care, but he then testified he would defer on that issue to experts who

were board certified in emergency and critical care medicine. He acknowledged that 

he would normally turn down a request to opine on the standard of care for emergency 

physicians, “because there’s other people more qualified than me to . . . sift through the 

data. This case . . . took me a long time to . . . review and understand what I was looking 

at . . . to the point where I could actually have an opinion.” 

 Dr. Bronston was once board certified in emergency medicine, but his 

board certification lapsed on December 31, 2015. 

 Dr. Krantz was “a board certified [c]ardiologist” who “worked as an 

Emergency Room (ER) and urgent care physician for two years.” In 2015, when he 

5

 Dr. Schiesser stated at one point that he was “comfortable challenging the 

care that [Dr. Cagle] provided as being below the standard of care,” though he had said 

earlier that he did not think he was qualified to do so. 

6 See National Library of Medicine, Label: Xopenex, DAILYMED,

https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?setid=7e2644e6-36c5-4988-

8e52-bec90e2cd2f0 (Sept. 14, 2022) (noting Xopenex is used for the “[t]reatment or 

prevention of bronchospasm in adults . . . with reversible obstructive airway disease”); 

see also Bronchial Asthma, STEDMANS MEDICAL DICTIONARY (28th ed. 2006) (listing 

the generic form of Xopenex as a treatment for “chronic or severe asthma”). 
-7- 7663

submitted his expert report, he was “see[ing] patients regularly in the medical intensive 

care unit and outpatient setting” and “work[ing] closely with internal medicine 

physicians, hospitalists, intensivists, and [opioid treatment program] staff.” He 

explained, “I have extensive experience treating patients with life-threatening 

arrhythmias, in particular those associated with oral methadone. I also have particular 

experience caring for patients with acute heart failure and stress cardiomyopathy.” 

 At his deposition Dr. Krantz disclaimed any intent to testify about the 

standard of care required of Dr. Lee when deciding whether to admit Tristana to the 

hospital; he testified, “I’m not going to tell an ER doctor whether she should or 

shouldn’t have been admitted.” But he opined that Dr. Lee’s treatment of Tristana on 

her second hospital visit fell below the standard of care, though cautioning that using 

“the benefit of hindsight . . . [was] a little bit unfair to Dr. Lee.” In Dr. Cagle’s case, 

Dr. Krantz explained that the issues involved should be known to all physicians. He 

added: “[Y]ou probably wouldn’t even need a pulmonologist or a cardiologist to help 

you sort through the case.” 

 b. Defense challenges to the experts

 Banner Health moved to preclude the testimony of Holmquist, Dr. Olsen, 

and Dr. Schiesser on the issue of emergency physicians’ standard of care. It argued that 

none of these three proposed experts had “sufficient knowledge of emergency medicine 

as contemplated by [AS 09.20.1857] to be permitted to provide their opinions on the 

question.” Banner Health pointed out that Holmquist had “never worked as a physician 

of any type,” that Dr. Olsen’s testimony relied on “a number of articles and textbooks” 

that “may be unknown to the average emergency physician,” and that Dr. Schiesser 

7 The statute mandates the qualifications for “an expert witness on the issue 

of the appropriate standard of care” in a professional negligence case, including 

professional licensure, training and experience in the defendant’s discipline or a directly 

related area, and board certification.
-8- 7663

knew too much about methadone to testify fairly about the standard of care applicable 

to defendants who were not addiction specialists like himself. Dr. Cagle joined in 

Banner Health’s motion. 

 In her opposition, Doan cited AS 09.20.185(b), which states that the 

statute’s expert witness licensing requirements “do not apply if the state has not 

recognized a board that has certified the witness in the particular field or matter at 

issue.” She argued that because the State of Alaska has not recognized a medical board, 

the requirement of (a)(3) that requires board certification could not apply. 

 The superior court rejected Doan’s interpretation of the law and granted 

the motion to preclude the testimony of all three experts, finding that they were “not 

qualified to testify about the standard of care for emergency room physicians.” Though 

the court did not explicitly state that an expert must be board certified in the same 

specialty as the defendant, it did note Doan’s failure to “assert that the experts are 

board[ ]certified in the relevant practice area, emergency room practice and procedure,” 

and the defendants’ reliance on the experts’ lack of certification “in the area of 

emergency room practice.” 

 Doan moved for reconsideration, arguing that the court’s interpretation of 

AS 09.20.185 mistakenly “precluded experts from testifying as to the ‘matters at issue,’ 

only because they are not board certified in the same ‘field of practice.’ ” Citing Hymes

v. DeRamus, she argued that “an expert need not be board certified in the same ‘field’ 

of practice as the defendant doctor to testify as to the standard of care or breach thereof 

if the witness is trained and certified as to the ‘matter at issue.’ ”8 The court denied 

reconsideration. 

 Banner Health next moved for summary judgment on Doan’s claim 

against the hospital’s pharmacy department. It argued that because Holmquist’s board 

8

 222 P.3d 874 (Alaska 2010). 
-9- 7663

certification had lapsed in 2006, he was unqualified under AS 09.20.185(a)(3) to testify

about a pharmacist’s standard of care. Doan had not listed any other pharmacist experts, 

and therefore, Banner Health argued, the claim against the pharmacy department had to 

be dismissed as unsupportable. 

 The superior court granted the motion provisionally, giving Doan some 

time to see whether Holmquist would renew his board certification. When that did not 

occur, Banner Health renewed its motion. Doan filed an opposition, arguing again that 

the court’s prior orders erred in their interpretation of the expert witness requirements. 

But the court granted Banner Health’s motion in August 2017, precluding Holmquist’s 

testimony and dismissing Doan’s claim against the pharmacy department. Over a year 

later, Doan moved to substitute a new expert for Holmquist, but the court denied the 

motion. 

 In July 2019 Doan filed a motion in limine seeking an order allowing Dr. 

Krantz to testify about the applicable standards of care. Doan argued that an expert 

witness need only be “certified and trained as to the matter at issue” rather than have 

the same specialty board certification as the defendant doctors. She asserted that Dr. 

Krantz’s “training and work as an intensive care doctor . . . along with professional 

credentials . . . together with his board certification in internal medicine 

electrocardiology qualify him to testify as to the matters at issue in this case.” 

 Banner Health characterized Doan’s motion as simply rehashing her 

already rejected interpretation of the expert witness qualification statutes. Banner 

Health argued that the court had “plainly held (and reiterated several times) that in order 

for an expert to testify about the standard of care, the expert must be Board Certified in 

the area in which the defendant physician is practicing.” It asserted that “[u]nder the 

Court’s prior orders, Dr. Krantz is not qualified to testify to the standard of care for an 

Emergency Room physician because Dr. Krantz is Board Certified in cardiology only, 

not Emergency Room medicine (or any other field).” 
-10- 7663

 The superior court denied Doan’s motion in limine, explaining, 

“AS 09.55.540(a) provides that [Doan] must prove [malpractice] by qualified expert 

testimony in ‘the field in which the defendant doctor is practicing.’ Dr. Krantz is not 

so qualified and thus cannot be allowed to testify as to the standard of care in those 

specialties as those defendants.” In the court’s view, Doan was required to “offer expert 

testimony in the same special[t]y as board certified physician defendants and not other 

medical specialties.” The court concluded, “While Dr. Krantz may meet the general 

requirements of AS 09.20.185,” he “does not meet the specific requirements of 

AS 09.55.540 because Dr. Krantz is not board certified in the same field(s) as Dr. Cagle 

and/or Dr. Lee and therefore will not be allowed to give an opinion as to their actions.” 

 In January 2020 Dr. Cagle and Dr. Lee moved to bar Dr. Bronston’s 

testimony on the ground that he was no longer board certified in any specialty. The 

court granted the doctors’ motion. Doan then moved to replace Dr. Bronston, Dr. Olsen, 

and Dr. Krantz with experts she asserted were “qualified under the interpretation of 

AS 09.20.185 as previously established in this case.” She moved to replace Dr. 

Bronston with Dr. Richard Cummins, who was board certified in emergency medicine, 

and to replace Dr. Olsen and Dr. Krantz with Dr. Curtis Veal, who was board certified 

in critical care medicine. Dr. Cagle and Dr. Lee opposed Doan’s motion on the grounds 

that the deadline for expert disclosures had long since passed, that adding new experts 

would delay trial, and that Doan had been aware of her original experts’ lack of 

qualification for years. 

 The superior court denied Doan’s motion to substitute new experts, 

explaining, “Having board certified experts in the same specialty as the defendants has 

been a central issue in this case for several years and the court’s rulings have been 

consistent on that question.” The court “agree[d] with the [doctors’] assertion that 

[Doan] had an obligation to remain apprised of her experts’ eligibility to testify, and to 

promptly inform the [doctors] and the court if any of her experts became ineligible to 
-11- 7663

testify; [Doan] failed to do so in a timely fashion.” The court concluded that Doan’s 

motion was “untimely and the prejudice to [the doctors] severe if granted.” 

 2. Loss of chance proceedings

 In February 2015 Banner Health moved for summary judgment on Doan’s 

loss of chance claim on the ground that the “advancement of the loss of chance doctrine 

is an attempt to abrogate the[] duty to meet the traditional causation standards and the 

legislatively mandated burden of proof requirements set forth in AS 09.55.540.” Dr. 

Cagle and Dr. Lee joined in Banner Health’s motion. In opposition Doan argued that 

the Alaska Supreme Court would “likely . . . follow the majority of states, which have 

adopted the loss of chance doctrine.” 

 The superior court granted summary judgment on the claim, deciding that 

to recognize it would be “contrary [to] the comprehensive scheme for claim[s] made 

against health care providers in Alaska.” Ultimately, the court concluded, “the decision 

to add a cause of action for a loss of chance for recovery against a health care provider 

should be determined by the legislature.” 

 3. NIED proceedings

In Doan’s second amended complaint she generally followed a formula of 

naming each claim and identifying the parties against whom it was alleged. For the 

NIED claim, however, instead of listing specific defendants in the claim’s title as she 

did for every other claim (for example, “Medical Malpractice as to [Fairbanks Memorial 

Hospital (FMH)], [Golden Heart Emergency Physicians (GHEP)], and Dr. Lee”), she 

titled the claim “Negligent Infliction of Emotional Distress by the Defendants.” In the 

two-sentence description of the claim that followed, she named only the hospital, 

asserting that her emotional distress was caused by “[t]he negligent acts of defendant 

FMH.”

In November 2019 the superior court held a status hearing to clarify which 

claims were asserted against which parties. The court began the hearing by noting, “I’m 

not going to . . . make any rulings. I’m going to give parties plenty of time to help me 
-12- 7663

understand stuff.” The court then expressed its view that the NIED claim was “only 

brought against the hospital. It’s not brought against the doctors.” Acknowledging that 

Dr. Cagle and Dr. Lee had nonetheless “been filing pleadings for a long time” related 

to the NIED claim, it observed that the doctors were not being “sued for causing any 

negligent infliction of emotional distress, it appears to the Court,” reiterating this 

viewpoint several more times during the hearing. Though Doan and three of her

attorneys were present, no one objected to the court’s description of the NIED claim. 

Toward the end of the hearing, the court asked for pretrial memoranda explaining the 

parties’ positions on various issues. 

 Doan filed her pretrial memorandum in December 2019, stating that she 

would move to file a third amended complaint that “w[ould] reflect the remaining 

claims and their renumbering with a brief explanation of which claims are dismissed.” 

She then listed her NIED claim as being against “FMH, Dr. Cagle, and Dr. Lee.” When 

she filed her proposed amended complaint, the NIED claim was accordingly entitled 

“Negligent Infliction of Emotional Distress by the Defendants FMH, Dr. Cagle, and Dr. 

Lee,” and it alleged that “[t]he negligent acts of defendants FMH, Dr. Cagle, and Dr. 

Lee on March 1, 2011[] caus[ed] the death of TRISTA[] [and] subjected NIXIE to 

extreme emotional distress.” 

 Dr. Cagle and Dr. Lee opposed Doan’s motion for leave to file the 

amended complaint in part because it added “new NIED claims against [them.]” Doan 

replied that they “knew that the [NIED] claim was brought against both Dr. Cagle and 

Dr. Lee” and therefore there was “no prejudice to amend the complaint to conform to 

the evidence.” 

 The court denied the motion to amend the complaint. It found that “at no 

time . . . did [Doan] sue [the doctors] for [NIED]. Until the newest proposed 

amendment, it was only the hospital itself who was sued for this claim.” The court 

“conclude[d] that the plain language of the [second amended] complaint does not raise 

the additional claims that the Plaintiff wished to bring through amendment.” 
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4. Grant of summary judgment in favor of the doctors and 

Banner Health

 At the same time that they moved to exclude Dr. Bronston as a testifying 

expert, Dr. Cagle and Dr. Lee moved for summary judgment on all remaining claims 

against them, contending that Doan was now completely without any of the expert 

testimony ordinarily required in a medical malpractice case.9 The superior court 

granted the motion. Describing Dr. Cagle’s and Dr. Lee’s board certifications and fields 

of practice, the court concluded that Doan had no witnesses who could “satisfy the 

statutory requirements for providing testimony concerning [the doctors’] 

malpractice . . . — all of [Doan’s] experts previously proffered for this purpose have 

been disqualified by this court on substantive or procedural grounds.” The court entered 

final judgment in favor of the doctors and Banner Health. 

 Doan appeals. 

STANDARD OF REVIEW

 “We review grants of summary judgment de novo and draw all factual 

inferences in favor of the nonmoving party.”10 We generally review for abuse of 

discretion a superior court’s decision to admit or exclude expert testimony.

11 But we 

review “evidentiary conclusions turning on questions of law” de novo.12

 “We apply the abuse of discretion standard when reviewing superior 

courts’ rulings on motions for extension of time.”13 We will find an abuse of discretion

9

 See Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015) (“In medical 

malpractice actions . . . the jury ordinarily may find a breach of professional duty only 

on the basis of expert testimony.” (quoting Trombley v. Starr–Wood Cardiac Grp., PC, 

3 P.3d 916, 919 (Alaska 2000))).

10 Titus v. Dep’t of Corr., 496 P.3d 412, 415 (Alaska 2021). 

11 Id.

12 Id.

13 Sykes v. Lawless, 474 P.3d 636, 646 (Alaska 2020) (quoting Erica G. v. 

Taylor Taxi, Inc., 357 P.3d 783, 786 (Alaska 2015)).
-14- 7663

“where we are ‘left with the definite and firm conviction on the whole record that the 

judge . . . made a mistake,’ ”14 or “when the decision on review is manifestly 

unreasonable.”15

 “We apply our independent judgment to questions of law. We will adopt 

‘the rule of law which is most persuasive in light of precedent, reason, and policy.’ ”16 

“Because this court is in virtually the same position as the trial court in its ability to 

assess the adequacy of . . . plead

DISCUSSION

Doan challenges fo

clusion of her proffered expe

ings, we review . . . pleadings de novo.”17

ur of the superior court’s decisions on appeal: (1) the 

ex rts for lack of the qualifications necessary to testify 

about the standard of care; (2) the denial of her motion to replace those experts with 

others; (3) the dismissal of her loss of chance claim; and (4) the finding that the NIED 

claim was not pled against the doctors. We address each argument in turn.

A. The Orders Excluding Doan’s Proposed Experts Misinterpreted The 

Governing Statutes And Failed To Properly Analyze The Experts’ 

Qualifications. 

 Like every plaintiff in a medical malpractice claim, Doan was required to 

prove, among other things, “the standard of care applicable to the defendant . . . under 

AS 09.55.540(a).”18 This requires proof by a preponderance of the evidence of “the 

degree of knowledge or skill possessed or the degree of care ordinarily exercised under 

the circumstances, at the time of the act complained of, by health care providers in the 

14 Aldrich v. Aldrich, 286 P.3d 504, 507 (Alaska 2012) (alterations in 

original) (quoting Thomas v. Thomas, 581 P.2d 678, 679 (Alaska 1978)).

15 Sykes, 474 P.3d at 646 (quoting Erica G., 357 P.3d at 787).

16 State v. Doe A, 297 P.3d 885, 887 (Alaska 2013) (quoting Ford v. 

Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991)).

17 Gamble v. Northshore P’ship, 907 P.2d 477, 482 (Alaska 1995). 

18 Titus v. Dep’t of Corr., 496 P.3d 412, 416 (Alaska 2021). 
-15- 7663

field or specialty in which the defendant is practicing.”19 Another statute applicable 

generally to “action[s] based on professional negligence,” AS 09.20.185(a), bars 

anyone from testifying “as an expert witness on the issue of the appropriate standard of 

care” unless the person is: 

(1) a professional who is licensed in this state or in another 

state or country;

(2) trained and experienced in the same discipline or school 

of practice as the defendant or in an area directly related to a 

matter at issue; and

(3) certified by a board recognized by the state as having 

acknowledged expertise and training directly related to the 

particular field or matter at issue.

 In Titus v. Department of Corrections we reversed a superior court order 

resting on the same ground as in this case: that the proposed standard of care expert in 

a medical malpractice case must be board certified in the same specialty as the 

defendant in order to satisfy AS 09.20.185(a)(3).20 The defendants in Titus were 

emergency room physicians, and the proposed expert was not.21 But the expert served 

“as a consultant to emergency room physicians” and had extensive training in alcohol 

withdrawal, the relevant medical issue.22 We explained that the phrase “matter at issue” 

as used in AS 09.20.185 “refers to the underlying circumstances of the medical event 

or treatment giving rise to the medical malpractice action. Whether an expert’s training, 

expertise, or certification is ‘directly related’ therefore varies depending on the facts 

and circumstances of the alleged malpractice.”23 This means “that physicians with 

different qualifications than the defendant may, given the specific facts and 

19 AS 09.55.540(a)(2). 

20 496 P.3d at 417-20. 

21 Id. at 415. 

22 Id. 

23 Id. at 418. 
-16- 7663

circumstances of the case, nonetheless have knowledge about the standard of care in 

the defendant’s field.”24 In Titus we identified a number of factual considerations 

relevant to a court’s determination “whether a proposed expert’s expertise, training, and 

certification are directly related to a matter at issue.”25 We found “[t]his flexible 

interpretation of ‘matter at issue’ ” to be “consistent with the relevant legislative history 

of AS 09.20.185.”26 

 In its 2016 order precluding the testimony of Holmquist, Dr. Olsen, and 

Dr. Schiesser, the superior court found that the three proposed experts were “not

qualified to testify about the standard of care for emergency room physicians.” Though 

the court did not explicitly state in the order that an expert must be board certified in 

the same specialty as the defendant, the court alluded to the idea a number of times, and 

we assume that to have been the basis of its order. The court was more explicit when 

denying Doan’s 2019 motion to allow Dr. Krantz to testify about the standard of care: 

“[P]laintiff must offer expert testimony in the same special[t]y as board certified 

physician defendants and not other medical specialties.” And denying Doan’s motion 

to substitute experts in 2020, the court reiterated, “Having board certified experts in the 

same specialty as the defendants has been a central issue in this case for several years 

and the court’s rulings have been consistent on that question.” 

 These orders, like the one at issue in Titus, rested on a misinterpretation 

of AS 09.20.185 and AS 09.55.540. The focus of the superior court’s inquiry should 

24 Id. 

25 Id. These “[c]onsiderations include: underlying medical conditions; the 

medical care or treatment provided (or not provided); the clinical setting; whether the 

medical condition or treatment is general knowledge to all or most physicians or a 

specialized procedure limited to a smaller set of physicians; the extent to which the 

medical care provided involved assessment and treatment of multiple issues 

simultaneously; and whether there otherwise is a foundation for the expert’s opinion 

about the standard of care for providers in the defendant’s field.” Id. 

26 Id.
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have been on whether Doan’s proposed experts were qualified by licensing, training, 

experience, and board certification to testify about the “underlying circumstances of the 

medical event or treatment giving rise to the medical malpractice action”;27 the board 

certification could be the same as that held by the defendant or it could be different, as 

long as the certification acknowledged an “expertise and training directly related to the 

particular field or matter at issue.”28 

 We reverse the superior court’s orders excluding the testimony of Dr. 

Olsen, Dr. Schiesser, and Dr. Krantz. Because the superior court’s grant of summary 

judgment rested on Doan’s lack of expert witnesses resulting from the orders we now 

reverse, we vacate the summary judgment against Doan. The superior court on remand 

should reconsider its exclusion of Dr. Olsen, Dr. Schiesser, and Dr. Krantz as Doan’s

experts in light of our explanation of the applicable statutory standards in Titus. The 

focus of the superior court’s inquiry should be whether these doctors have “training, 

expertise, [and] certification [that is] ‘directly related’ ” to the “matter at issue.”29

B. The Denial Of Doan’s Motion To Substitute A New Expert For Dr. 

Bronston Was Not An Abuse Of Discretion. 

 In February 2020 Doan moved to replace several of her proposed experts 

— Dr. Bronston, Dr. Olsen, and Dr. Krantz — with others she believed would satisfy 

the expert qualification requirements as the superior court had interpreted them. The 

court denied the motion, finding that Doan had not shown good cause to extend the 

September 2015 deadline for expert disclosures, as she had been aware of her experts’ 

27 Id.

28 Id. at 417 (quoting AS 09.20.185(a)(3)).

29 Id. at 418 (quoting AS 09.20.185(a)(3)). The inquiry necessarily 

addresses separately the claims against Dr. Cagle and the claims against Dr. Lee. The 

court need not reconsider the exclusion of Dr. Bronston, which was not appealed. The 

court also need not reconsider the exclusion of Holmquist because his board 

certification lapsed in 2006. Holmquist was therefore not qualified as an expert under 

AS 09.20.185 because he was not “certified by a board recognized by the state.”
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lack of the required qualifications for years before filing her motion.30 Doan argues 

this was an abuse of discretion; she contends that her failure to identify replacements 

earlier was the result of the superior court’s consistent misinterpretation of the expert 

witness statutes and her efforts to challenge these erroneous rulings. 

 We do not need to reach the question whether substitutes for Dr. Olsen 

and Dr. Krantz should have been allowed, as the superior court on remand will be 

reconsidering the exclusion of their testimony. As for the denial of the motion to 

substitute another expert for Dr. Bronston, we see no abuse of discretion. 

 Regardless of the superior court’s misinterpretation of the governing 

statutes, Dr. Bronston became unqualified under AS 09.20.185(a) once his only board 

certification expired in December 2015, over four years before Doan moved to replace 

him. The record is not clear as to when Doan received actual notice of this problem; 

however, the superior court observed that the defense brought Dr. Bronston’s lack of 

certification to Doan’s attention in July 2019, when Doan learned that the doctor was 

retiring and raised the issue of replacing him. Given that another seven months went 

by before Doan filed her motion, the court did not abuse its discretion by concluding 

that the motion was untimely and there was no good cause for the delay. 

C. Alaska Law Does Not Recognize A Claim For Loss Of Chance.

Broadly defined, the loss of chance doctrine authorizes “a claim against a 

doctor who has engaged in medical malpractice that, although it does not result in a 

particular injury, decreases or eliminates the chance of surviving or recovering from the 

preexisting condition for which the doctor was consulted.”31 The classic loss of chance

hypothetical involves a physician’s treatment of a patient who already has a less than 

50 percent chance of survival. The physician is negligent and the patient dies. At trial, 

30 Alaska R. Civ. P. 16(b) provides that the pretrial scheduling order “shall 

not be modified except upon a showing of good cause and by leave of court.”

31 Loss Of Chance Doctrine, BLACK’S LAW DICTIONARY (11th ed. 2019).
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the patient’s representative can show both that the physician was negligent and that the 

physician’s negligence reduced the patient’s chance of survival. But the plaintiff cannot 

prove that the patient would have survived “but for” the physician’s negligence, as the 

chance of survival was no better than 50/50 at the start of their encounter.

32 The loss 

of chance doctrine compensates for this anomaly by permitting a plaintiff to recover 

some damages even though unable to prove that the defendant’s negligence was more 

likely than not the cause of the patient’s death.

 States are split on whether to recognize the loss of chance doctrine, and 

the states that have adopted it are split on the appropriate approach.

33 Courts that favor 

the doctrine generally follow either (1) the separate injury approach, which recognizes 

the lost chance of survival as a separate and separately compensable injury,34 or (2) the 

32 Est. of Frey v. Mastroianni, 463 P.3d 1197, 1208 (Hawaii 2020)

(observing that under traditional “ ‘all or nothing’ rule of tort recovery,” medical 

provider can negligently treat patient with less than 50 percent chance of survival and 

have no malpractice exposure, because “it is logically impossible for [a plaintiff] to 

show that the physician’s negligence was the but-for cause of her death” (quoting 

Matsuyama v. Birnbaum, 890 N.E.2d 819, 829 (Mass. 2008))). 

33 Id. at 1209-11. The Journal of Legal Economics listed 41 states as having 

decided whether to recognize loss of chance claims as of April 2015, with 24 adopting

the doctrine and 17 rejecting it. Lauren Guest et al., The “Loss of Chance” Rule as a 

Special Category of Damages in Medical Malpractice: A State-by-State Analysis, J.

LEGAL ECON., Apr. 2015 at 59. 

34 See Est. of Frey, 463 P.3d at 1210 (“States adopting [the separate injury 

approach] have essentially created a new tort which recognizes the loss of chance as a 

compensable injury distinct from other medical malpractice claims.”); Matsuyama, 890 

N.E.2d at 832 (“[T]he plaintiff must prove by a preponderance of the evidence that the 

physician’s negligence caused the plaintiff’s injury, where the injury consists of the 

diminished likelihood of achieving a more favorable medical outcome.”).
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substantial factor approach, which allows causation to be proven by something less than 

a probability.

35 

 We have not yet determined whether the loss of chance doctrine is 

compatible with Alaska law.36 But the Alaska Legislature has addressed most aspects 

of medical malpractice actions by statute.37 Alaska Statute 09.55.540(a)(4) addresses 

both the burden of proof and causation: “In a malpractice action based on the

negligence or wil[l]ful misconduct of a health care provider, the plaintiff has the burden 

of proving by a preponderance of the evidence” that “as a proximate result of [the] lack 

of knowledge or skill or the failure to exercise [the required] degree of care, the plaintiff 

suffered injuries that would not otherwise have been incurred.” Available damages 

include “both economic and noneconomic damages,”38 but noneconomic damages are 

“limited to compensation for pain, suffering, inconvenience, physical impairment, 

disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary 

damage, but may not include hedonic damages.”39

 The superior court determined that “Alaska law does not permit a claim 

for negligent treatment that reduced Tristana Doan’s opportunity of avoiding death.” 

The court found support in two Alaska federal district court decisions, both of which 

35 See Cohan v. Med. Imaging Consultants, P.C., 900 N.W.2d 732, 740 

(Neb. 2017) (explaining that the substantial factor approach, also referred to as the 

“relaxed causation approach,” “simply loosens the traditional standard of evidentiary 

sufficiency, permitting the causation issue to be resolved by the fact finder even though 

there is no evidence of a reasonable probability that the defendant’s negligence caused 

the patient’s death or other ultimate harm”).

36 The issue was before us in Parson v. Marathon Oil Co., 960 P.2d 615, 620 

(Alaska 1998), but we decided the case on other grounds and did not reach it. 

37 AS 09.55.530-.560.

38 AS 09.55.549(b). 

39 AS 09.55.549(c). “ ‘[H]edonic damages’ means damages that attempt to 

compensate for the pleasure of being alive.” AS 09.55.549(h)(3).
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concluded that we were unlikely to recognize a loss of chance claim. In Crosby v. 

United States, the court found that the loss of chance theory “would contravene the clear 

and unambiguous language of AS 09.55.540.”40 A second federal judge followed suit 

in Helms v. United States, explaining, “[T]his Court is unaware of any Alaska authority 

that would allow the Court to alter the statutorily-mandated burden of proof or the 

causation requirement set forth in AS 09.55.540.”41 

 We agree with the superior court’s decision in this case. First, allowing 

recovery for a loss of chance under the “substantial factor” approach is inconsistent 

with the express language of Alaska’s statutes intended to govern the basic aspects of 

medical malpractice actions and recovery. Under AS 09.55.540, a plaintiff must prove 

by a preponderance of the evidence that “as a proximate result of [the] lack of 

knowledge or skill or the failure to exercise [the required] degree of care, the plaintiff 

suffered injuries that would not otherwise have been incurred.”42 This statutory 

formula encompasses both prongs of legal causation as we have explained it in the past: 

both proximate or “legal policy” cause (which focuses on “whether the conduct has 

been so significant and important a cause that the defendant should be legally 

responsible”) and actual or “but for” cause (meaning that “the event would not have 

occurred but for [the defendant’s] conduct”).43 Doan argues that a lost chance of 

survival can be fairly considered an “injury” under AS 09.55.549. But assuming that 

the word “injury” encompasses the loss of a less than 50 percent chance of survival, the 

40 Crosby v. United States, 48 F. Supp. 2d 924, 931 (D. Alaska 1999). 

41 Helms v. United States, No. 3:11-CV-00186-SLG, 2014 WL 2561995 at 

*5 (D. Alaska June 6, 2014). 

42 AS 09.55.540(a)(4) (emphasis added).

43 Vincent by Staton v. Fairbanks Mem’l Hosp., 862 P.2d 847, 851 (Alaska 

1993) (quoting W. PAGE KEETON AND WILLIAM LLOYD PROSSER, PROSSER AND 

KEETON ON TORTS §§ 41, 42 (5th ed. 1984)).
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explicit language of AS 09.55.540 still requires us to reject a claim that would rest on a 

relaxation of but-for causation.

 We are also not persuaded that recognizing lost chance as a separate injury 

is consistent with the relevant statues and legislative intent. In drafting AS 09.55.540, 

“the legislature was primarily concerned with avoiding increases in malpractice 

insurance rates.”44 In more recent amendments the legislature narrowed recovery rather 

than expanding it, not only imposing damages caps but also prohibiting recovery of 

“hedonic damages,” damages intended “to compensate for the pleasure of being 

alive.”45 The policy choices the legislature has brought to bear when defining the 

burden of proof, causation, and recoverable damages in medical malpractice actions are 

44 Priest v. Lindig, 583 P.2d 173, 175 (Alaska 1978). A committee report 

explained: “This bill attempts to codify the law with respect to the burden of proof in 

medical and dental malpractice actions and counter the 1964 case of Patrick v. Sedwick, 

Alaska, 391 P.2d 453, the effect of which is said to be an intolerable rule of law resulting 

in astronomically high malpractice insurance rates. Basically the bill requires that, in 

these actions, negligence be proved and not presumed.” Id. at 175 n.7. 

45 See Statement of Brian Hove, Staff, Senator Seekins at 9:18-21, 24, 

Hearing on S.B. 67 Before the Senate Judiciary Standing Comm., 24th Leg., 1st Sess. 

(Mar. 8, 2005) (explaining that bill that would become AS 09.55.549 sought to alleviate 

the “crisis in Alaska’s healthcare industry” by limiting recoverable noneconomic 

damages in medical malpractice actions to $250,000). We recognize the lack of 

elucidating legislative history regarding the decision to prohibit recovery of hedonic 

damages, “damages that attempt to compensate for the pleasure of being alive,” while 

at the same time, in the same sentence, allowing recovery of damages for “loss of 

enjoyment of life.” AS 09.55.549(c), (h)(3). The two damage categories are generally 

viewed as synonymous. See, e.g., Montalvo v. Lapez, 884 P.2d 345, 347 n.2 (Hawaii

1994) (“Hedonic damages are damages ‘for the loss of enjoyment of life, or for the 

value of life itself.’ ” (quoting BLACK’S LAW DICTIONARY (6th ed. 1990))); Stachulski 

v. Apple New England, LLC, 191 A.3d 1231, 1242 (N.H. 2018) (recognizing availability 

of “hedonic damages, or loss of enjoyment of life damages,” in cases involving 

permanent injury); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 

2003) (“ ‘Hedonic’ damages are another type of non-economic damages and 

compensate for loss of enjoyment of life.”). 
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just as relevant when deciding whether the loss of chance doctrine should apply.46 We 

leave “the choice between competing notions of public policy . . . to be made by elected 

representatives of the people.”47 The superior court did not err when it dismissed 

Doan’s loss of chance claims.

D. It Was Error To Determine That Doan’s Second Amended Complaint 

Pled An NIED Claim Against Only The Hospital.

 Finally, Doan contends that the superior court erred when it decided that 

her NIED claim, entitled “Negligent Infliction of Emotional Distress by the 

Defendants,” was asserted only against the hospital.48 The count’s two descriptive 

sentences mention only that it was “[t]he negligent acts of [the hospital]” that “subjected 

[Doan] to extreme emotional distress and were the proximate causes of emotional 

damages to [Doan].” The doctors argue that the claim therefore failed to give them the 

required notice that the claim was levied against them. 

 “Alaska has a fairly lenient ‘notice pleading” standard.”49 Civil Rule 8(a)

requires that any “pleading which sets forth a claim for relief . . . shall contain (1) a 

short and plain statement of the claim showing that the pleader is entitled to relief, and 

46 The federal court in Crosby v. United States listed “the primary 

arguments” for and against recognition of a loss of chance claim, and they are largely 

policy arguments. 48 F. Supp. 2d 924, 928-29 (D. Alaska 1999) (citing Daniel J. 

Anderson, “Loss of Chance” in Utah?, 9 UTAH B.J. 8, 11 n. 6 (1996)). The court listed 

eight arguments in favor of the claim (such as without it, “[h]ealth care providers may 

be less inclined to perform a full spectrum of diagnostic tests in hopeless or less than 

optimistic cases”) and fourteen arguments against it (such as “[m]ore cases would be 

filed” and “it is impractical to require the medical profession to act” as if medicine is 

“an exact science”). Id.

47 Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 

527 P.2d 447, 452 (Alaska 1974). 

48 This conclusion was the basis on which the court denied Doan’s motion 

to amend her complaint for the third time; the court found that she was attempting to 

raise new claims, particularly the NIED claim against the doctors. 

49 Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 181 (Alaska 2009). 
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(2) a demand for judgment for the relief the pleader seeks”; however, “[n]o technical 

forms of pleading or motions are required.”50 “[T]he rule is satisfied by a brief 

statement that give[s] the defendant fair notice of the claim and the grounds upon which 

it rests.”51

 The notice pleading standard was met in this case. Doan labeled her claim 

as being brought against “the Defendants,” a term that encompassed the doctors. 

Although the further two-sentence description of the claim mentioned only “[t]he 

negligent acts of [the hospital],” it also “reallege[d] and incorporate[d] by reference” 

preceding paragraphs, which included multiple claims of medical malpractice against 

both Dr. Cagle and Dr. Lee. Most importantly, as Doan points out, “[n]otice pleading

obviously worked in this instance.” The doctors defended against the claim from the 

very start. Dr. Cagle first moved to dismiss the NIED claim on substantive grounds, a 

motion joined by Dr. Lee. And when the NIED claim was before this court on a petition 

for review, Dr. Cagle and Dr. Lee filed a brief as respondents.52 Because the doctors 

clearly had notice that Doan meant to include them as defendants in the NIED claim, it 

was error to hold that the claim was directed solely against the hospital. 

CONCLUSION

 The final judgments in favor of the defendants are VACATED. The 

orders excluding the testimony of Dr. Olsen, Dr. Schiesser, and Dr. Krantz are 

REVERSED. The denial of the motion to substitute another expert witness for Dr. 

Bronston and the grant of summary judgment on Doan’s loss of chance claims are 

AFFIRMED. The holding that Doan’s NIED claim was pled only against the hospital 

50 Alaska R. Civ. P. 8(e)(1). 

51 Bigley, 208 P.3d at 181 (quoting Valdez Fisheries Dev. Ass’n v. Alyeska 

Pipeline Serv. Co., 45 P.3d 657, 673 (Alaska 2002) (Bryner, J., dissenting) (internal 

quotation marks omitted)).

52 Brief of Appellees and Cross-Appellants, Doan v. Banner Health, Inc.

(Doan I), 442 P.3d 706 (Alaska 2019). 
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is REVERSED, and the case is REMANDED for further proceedings consistent with 

this opinion.