Alaska Medical Malpractice Laws

A medical malpractice lawsuit is a complex undertaking, especially when compared to other personal injury claims. That's true in every state, Alaska included. Why? There are lots of reasons, but most of them come down to special state laws meant to make medical malpractice cases hard to file, and even harder to win.

Legal issues and medical evidence can get very complicated very quickly in a malpractice suit. A medical malpractice plaintiff—the injured patient, or the patient's legal representative—often must comply with a dizzying array of procedural rules and proof requirements that aren't found in, say, a car accident or slip-and-fall case. Worse still, in most states, winning malpractice lawsuits are subject to strict compensation ("damages") limits.

Here are a few of the many key laws you should understand if you have an Alaska medical malpractice case.

Alaska's Medical Malpractice Statute of Limitations

A "statute of limitations" is a law that limits the time you have to file a lawsuit in court. Miss the filing deadline and, absent a rule that gives you more time, you've lost the right to collect damages for your injuries. Because the consequences can be so severe, you should understand how Alaska's medical malpractice statute of limitations works.

The General Rule: Two Years From the Date of the Malpractice

As a general rule, you have two years from the date your malpractice claim accrues to file your lawsuit in court. (Alaska Stat. § 9.10.070(a) (2024).) Your claim accrues, in most cases, on the date the malpractice happens. In the typical case, then, you have two years from the date of the malpractice to sue.

Alaska's Discovery Rule

What if you don't discover the malpractice right away? In that event, your claim might accrue later, on the date you discover—or could reasonably have been expected to discover—that you were harmed by medical malpractice. (See Pedersen v. Zielski, 822 P.2d 903, 906 (Alaska 1991).)

If you rely on this "discovery rule" for more time to file suit, expect a real fight. It's your job to prove that you didn't discover and couldn't have discovered the malpractice within the two-year time limit. The defendant (the health care provider you're suing) almost certainly will object to you getting additional time.

You don't want to fight this fight on your own. The court will hold a hearing to decide whether the discovery rule applies. You'll be expected to submit written arguments, supported by legal research, to prove you're right. Hire experienced legal counsel to represent you and make your arguments to the court.

The Statute of Repose

When the discovery rule is involved, things can get even more complicated. Alaska law puts a second deadline, called a "statute of repose," on the time you have to discover the malpractice. Under Alaska Stat. § 9.10.055(a)(2) (2024), a medical malpractice suit can't be filed more than ten years after the date of the underlying medical error.

What does this mean? It means that even if you didn't know and couldn't have known about the malpractice until more than ten years after the date it happened, you're still barred from filing a lawsuit once those ten years are up.

There are some exceptions to the statute of repose. It doesn't apply when:

• an injury is caused by intentional misconduct or gross negligence
• an injury is caused by fraud or misrepresentation, or
• the health care provider intentionally conceals facts that would put you on notice of a potential malpractice claim.

(Alaska Stat. § 9.10.055(b) (2024).)

Note that when a medical malpractice claim is based on a foreign object carelessly left in the patient's body, the statute of repose is "tolled" (temporarily paused) until the foreign object is discovered. (Alaska Stat. § 9.10.055(c) (2024).)

Finally, special time deadlines often apply when the injured patient is a very young child. An Alaska medical malpractice lawyer can fill you in on the details.

Proving Medical Malpractice in Alaska

What must you prove to win an Alaska medical malpractice case? Alaska Stat. § 9.55.540(a) (2024) answers that question.

Four Elements of an Alaska Malpractice Claim

It's up to you to prove each of these things.

• Provider-patient relationship. You can't have a medical malpractice claim unless there existed, at the time of the malpractice, a legally-recognized relationship between you and the health care provider. Typically, proving this relationship isn't a problem.
• Standard of care. Your health care provider must practice at or above the level of care that a reasonably careful provider in the community, having the same education and training as your provider, would practice in the same or similar circumstances. This "standard of care," as it's known, is meant to answer the question: What should my provider have done under the circumstances that gave rise to this case?
• Breach of the standard of care. The essence of a medical malpractice case is substandard care—meaning care that falls short of the standard of care. The standard of care is concerned with what your provider should have done. Here, the questions is: What did my provider actually do (or fail to do) that was substandard?
• Malpractice caused your injury. Finally, your malpractice claim isn't a claim unless, because of the provider's substandard care, you suffered injuries "that would not otherwise have been incurred." There actually are two elements here—injury and causation. While proving them usually isn't difficult, causation sometimes can be tricky.

The Role of Expert Witnesses

Proving the standard of care and how your provider failed to meet it can be a challenge. You'll need expert witnesses, meaning doctors who are qualified to testify based on their education, training, and experience, to prove these (and other) elements of your case. The health care provider will have experts who will try to rebut your experts' opinions.

Don't worry—your Alaska medical malpractice attorney knows what to do.

Medical Malpractice Expert Advisory Panel Review

When the parties in an Alaska medical malpractice case don't agree to voluntary arbitration, the trial court "shall appoint" a three-member "expert advisory panel" to review the case shortly after it's filed in court. (Alaska Stat. § 9.55.536(a) (2024).) Within 30 days after the panel is appointed, the members must submit a written report to the court and the parties. (Alaska Stat. § 9.55.536(c) (2024).)

The report must answer several specific questions, including whether:

• the provider made a correct diagnosis and if not, how it was incorrect
• the treatment (or lack of treatment) provided was appropriate and if not, how it was inappropriate
• the patient was injured
• if the patient was injured, what caused the injury, and
• the injury was caused by substandard care.

If the case later goes to trial, this report can be admitted into evidence and be considered the same as any other expert witness testimony. (Alaska Stat. § 9.55.536(e) (2024).) Members of the panel can be called to testify as experts in court.

Alaska's Cap on Medical Malpractice Damages

Even if you win your case, Alaska law limits, or "caps," the medical malpractice damages you're allowed to collect. We begin with a quick overview of damages, then we'll turn to the specifics of Alaska law.

Damages in a Medical Malpractice Case

If you win your case, you'll collect what the law calls "compensatory damages." The name pretty much says it all. These damages are meant to compensate you for your malpractice-related injuries and losses. There are two kinds of compensatory damages.

• Economic damages. Sometimes also called "special damages," economic damages reimburse you for amounts that come out of your pocket (or that an insurance company pays for you). Common examples include lost wages, medical bills, the costs of medical equipment, and amounts you pay for replacement household services like cleaning or lawn care.
• Noneconomic damages. Also known as "general damages," noneconomic damages compensate you for losses that don't come directly out of your pocket. Emotional distress, disability and disfigurement, loss of enjoyment of life, and pain and suffering are typical examples.

Alaska's Noneconomic Damages Cap

Alaska Stat. § 9.55.549(d) (2024) caps noneconomic damages in a medical malpractice case at $250,000. This cap applies regardless of the number of providers who were at fault. If the malpractice results in death or a "severe permanent physical impairment" that's more than 70% disabling, the cap bumps up to $400,000. (Alaska Stat. § 9.55.549(e) (2024).)

Importantly, the cap doesn't apply to economic damages. You're allowed to collect the full amount of your economic losses, both past and future. In addition, the cap doesn't apply to injuries caused by intentional or reckless misconduct. (Alaska Stat. § 9.55.549(f) (2024).)

Get Help With Your Alaska Medical Malpractice Case

There are a few personal injury cases you might be able to handle on your own, without legal help. A medical malpractice case—no matter how simple or "open and shut" you think it might be—isn't one of them. Difficult factual and legal issues are likely to appear, issues you simply aren't prepared to handle.

You can bet that the insurance company lawyer will be familiar with those issues. Unless you have an experienced medical malpractice lawyer on your side, you'll be at a significant disadvantage both in and out of court. You get just one chance to put your best case forward. Don't take needless chances.

When you're ready to move forward with your Alaska medical malpractice claim, here's how to find an Alaska medical malpractice attorney who's right for you.