Eminent domain proceedings may be commenced in the superior court.
A cause of action against a health care provider does not arise for breach of an oral contract to provide a cure or achieve a specific medical result.
The legislature considers that there is a need in Alaska to codify the law with regard to medical liability in order to establish that the law in Alaska in this regard is the same as elsewhere.
A judgment in favor of a party for one delinquency does not preclude the same or another party from maintaining another action on the same undertaking or other security for another delinquency.
In a cause of action against a health care provider for malpractice, the complaint or any other pleadings may not contain an ad damnum clause or monetary amount claimed against the defendant health care provider, except as necessary for jurisdictional purposes.
Fines and forfeitures may be recovered by an action in the name of the state or the officer or person to whom they were given by law, or in the name of the state, officer, or person who is authorized to prosecute for them.
The members of the jury and witnesses are entitled to the same compensation as in civil actions in a district court, and the compensation and other incidental expenses shall be audited and allowed as in the case of other similar expenses.
Repealed or Renumbered
Article 09. ACTIONS BY CRIME VICTIMS
Before property can be taken, it shall appear that
(1) the use to which it is to be applied is a use authorized by law;
(2) the taking is necessary to the use;
(3) if already appropriated to a public use, the public use to which it is to be applied is a more necessary public use.
An interested party may appeal the master's award of damages and valuation of the property, in which case there shall be a trial by jury on the question of the amount of damages and the value of the property, unless the jury is waived by the consent of all parties to the appeal.
When an action is commenced for a penalty that by law is not to exceed a certain amount, the action may be commenced for that amount, and, if the judgment is given for the plaintiff, it may be for that amount or less, in the discretion of the court, in proportion to the offense.
The Bureau of Vital Statistics shall make provisions for the correction, substitution, or removal of the certificates where the body of the person is later found, where additional facts are brought to light, or where the person is later discovered to be alive.
Article 03. DEATH INQUESTS
A person may bring an action for change of name in the superior court. A change of name of a person may not be made unless the court finds sufficient reasons for the change and also finds it consistent with the public interest. A change of name upon marriage, dissolution, or divorce meets these requirements.
Article 02. DECLARATION OF DEATH
After hearing the testimony, the jury or two thirds of its number shall give its written verdict, signed and setting out
(1) the name of the deceased and when, where, and by what means the deceased died; and
(2) whether the deceased was killed or the death was occasioned by the act of another by criminal means.
After April 14, 1966, no agency of the state may take privately-owned property by the election or exercise of a reservation to the state acquired under the Act of June 30, 1932, ch. 320, Sec. 5, as added July 24, 1947, ch. 313, 61 Stat. 418, and taking of property after April 14, 1966 by the election or exercise of a reservation to the state under that federal Act is void.
Repealed or Renumbered
Repealed or Renumbered
In an action upon an official undertaking or other security, if judgment has already been recovered against the surety therein other than by confession equal in the aggregate to the penalty or a part of the penalty of the undertaking or other security and if the recovery be established on the trial, judgment may not be given against the surety for an amount exceeding the penalty or such portion of the penalty as is not already recovered against the surety.
If the title attempted to be acquired is found to be defective from any cause, the plaintiff may again institute proceedings to acquire the same as provided in AS 09.55.240 - 09.55.460.
The judicial officer or a prosecuting attorney may, when necessary to determine the material facts relating to the death, subpoena and examine witnesses for a proceeding under AS 09.55.062 - 09.55.069.
In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving the health care provider's negligence or wilful misconduct in accordance with the standard of proof specified in AS 09.55.540 . The jury shall be further instructed that injury alone does not raise a presumption of the health care provider's negligence or misconduct.
Recovery of a judgment for a penalty or forfeiture obtained by collusion between the plaintiff and defendant with intent to save the defendant wholly or partially from the consequence contemplated by law in cases where penalty or forfeiture is given wholly or partly to the person who prosecutes, does not bar the recovery of a penalty or forfeiture by another person in a separate action.
Article 06. MALPRACTICE ACTIONS
Repealed or Renumbered
Repealed or Renumbered
Article 04. EMINENT DOMAIN
If the jury by their unanimous verdict in writing find that sufficient evidence has been presented to them from which it fairly may be presumed that the missing person has met death, and if the judge or magistrate approves the finding, then, after a period of six months has elapsed, the person shall be presumed to be dead and the judge or magistrate shall enter an order to that effect. However, in cases where there is clear and convincing evidence of the presumed death the judge or magistrate may sooner enter the order.
AS 09.55.265 shall not be construed to divest the state of, or to require compensation by the state for, any right-of-way or other interest in real property which was taken by the state, before April 14, 1966, by the election or exercise of its right to take property through a reservation acquired under the Act of June 30, 1932, ch. 320, Sec. 5, as added July 24, 1947, ch. 313, 61 Stat. 418.
Payment may be made to the defendants entitled to payment, or the money may be deposited in court for the defendants and be distributed to those entitled to it. If the money is not so paid or deposited, the defendants may have execution as in civil cases. If the money cannot be obtained on execution, the court, upon a showing to that effect, shall set aside and annul the entire proceedings and restore possession of the property to the defendants if possession has been taken by the plaintiff.
The money deposited in the court or a part of it may be withdrawn by a party in interest in the manner provided in AS 09.55.440 , and the court shall have the power to direct the payment of delinquent taxes and special assessments out of the amount determined to be just compensation and to make orders with respect to encumbrances, liens, rents, insurance, and other charges as are just and equitable.
When payments have been made and the bond given, if the plaintiff elects to give one as required by AS 09.55.350 , the court shall make a final order of condemnation, which shall describe the property condemned and the purposes of the condemnation. A copy of the order shall be recorded in the office of the recording district where the land is located, at which time the property described in the order vests in the plaintiff for the purposes specified in the order.
In all cases where land is required for public use, the state, the public entity, or persons having the authority to condemn, or its agents in charge of the use may enter upon the land and make examination, surveys, and maps and locate the boundaries; but it shall be located in the manner that will be most compatible with the greatest public good and the least private injury, and subject to the provisions of AS 09.55.300 . The entry shall constitute no cause of action in favor of the owners of the land except for injuries resulting from negligence, wantonness, or malice.
Repealed or Renumbered
Upon petition by the state medical examiner or a state prosecutor, a judicial officer shall conduct proceedings under AS 09.55.062 - 09.55.069 to determine the cause and manner of a person's death. The prosecutor shall present the evidence in the death inquest and assist the court in instructing the jury and conducting the inquest only when the inquest is based on a petition filed by the prosecutor or when the prosecutor requests to participate in the proceedings.
The members of the jury and witnesses in an inquest under AS 09.55.062 - 09.55.069 are entitled to the same compensation as in civil actions in a district court, and the compensation and other incidental expenses shall be audited and allowed as in the case of other similar expenses.
If a petition is presented by an interested person to a district judge or magistrate alleging that a designated person has disappeared and after diligent search cannot be found, and if it appears to the satisfaction of the judge or magistrate that the circumstances surrounding the disappearance afford reasonable grounds for the belief that the person has suffered death from accidental or other violent means, the judge or magistrate shall summon and impanel a jury of six qualified persons to inquire into the facts surrounding and the presumption to be raised from the disappearance. If no one submits a petition within 40 days, a judge or magistrate may submit the petition from personal knowledge of the case.
In an action to recover damages under AS 09.55.530 - 09.55.560, no advance payment made by the defendant health care provider or the professional liability insurer of the defendant to or on behalf of the plaintiff is admissible as evidence or may be construed as an admission of liability for injuries or damages suffered by the plaintiff; however, a final award in favor of the plaintiff shall be reduced to the extent of any advance payment. The advance payment shall inure to the exclusive benefit of the defendant or the insurer making the payment.
All causes of action by one person against another, whether arising on contract or otherwise, except those involving defamation of character, survive to the personal representatives of the former and against the personal representatives of the latter, but this shall not be construed so as to abate an action for a wrong where any party has died after the verdict or to defeat or prejudice the right of action given by AS 09.15.010. The personal representatives may maintain an action thereon against the party against whom the cause of action accrued, or, after the party's death, against the personal representatives of the party.
For the purpose of assessing compensation and damages, the right to them accrues at the date of issuance of the summons, and its actual value at that date is the measure of compensation of the property to be actually taken, and the basis of damages to property not actually taken but injuriously affected in the cases where the damages are allowed. If an order is made letting the plaintiff into possession, as provided in AS 09.55.380 , the compensation and damages awarded shall draw lawful interest from the date of the order. Improvements put upon the property after the date of the service of summons may not be included in the assessment of compensation or damages.
(a) When a death inquest is to be held under AS 09.55.062 - 09.55.069, the judicial officer shall promptly summon six persons qualified by law to serve as jurors to appear before the court.
(b) When six jurors attend as required under (a) of this section, they shall be sworn by the court to
(1) inquire into the identity of the deceased, and when, where, and by what means the person died;
(2) inquire into the circumstances attending the death; and
(3) give a true verdict according to the evidence.
The plaintiff shall, within 30 days after final judgment, pay the sum of money assessed. If the use is for railroad purposes, the plaintiff may, at the time of or before the payment, elect to build the fences and cattle guards. If the plaintiff so elects, the plaintiff shall execute to the defendant a bond, with one or more sureties to be approved by the court, in double the assessed cost of the same to build such fences and cattle guards within eight months from the time the railroad is built on the land taken. If the bond is given, the plaintiff need not pay the cost of the fences and cattle guards. In an action on the bond, the plaintiff may recover reasonable attorney fees.
(a) The official undertaking or other security of a public officer to the state, a borough, city, town, or other municipal or public corporation of like character therein is considered a security to the state or to the borough, city, town, or other municipal or public corporation, as the case may be, and also to all persons severally for the official delinquency against which it is intended to provide.
(b) When a public officer, by official misconduct or neglect of duty, forfeits the officer's official undertaking or other security or renders the sureties liable upon the undertaking or other security, a person injured by the misconduct or neglect or who is by law entitled to the benefit of the security may maintain an action thereon in the person's own name against the officer and the sureties to recover the amount to which the person may be entitled.
(a) In a malpractice action based on the negligence or wilful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence
(1) 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 field or specialty in which the defendant is practicing;
(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
(b) In malpractice actions there is no presumption of negligence on the part of the defendant.
The declaration of taking must contain
(1) a statement of the authority under which the property or an interest in it is taken;
(2) a statement of the public use for which the property or an interest in it is taken;
(3) a description of the property sufficient for the identification of it;
(4) a statement of the estate or interest in the property;
(5) a map or plat showing the location of the property;
(6) a statement of the amount of money estimated by the plaintiff to be just compensation for the property or the interest in it;
(7) a statement that the property is taken by necessity for a project located in a manner that is most compatible with the greatest public good and the least private injury.
The following is a classification of the estates and rights in land subject to be taken for public use:
(1) a fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams and permanent flooding occasioned by them, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine, or when, in the judgment of the Department of Natural Resources, or the Department of Transportation and Public Facilities, a fee simple is necessary for any of the purposes for which the department, on behalf of the state, is authorized by law to acquire real property by condemnation;
(2) an easement when taken for any other use;
(3) the right of entry upon an occupation of land, and the right to take from the land earth, gravel, stones, trees, and timber as may be necessary for a public use.
(a) The court has power
(1) to regulate and determine the place and manner of making the connections and crossings or of enjoying the common uses mentioned in AS 09.55.260 (5), and of the occupying of canyons, passes, and defiles for railroad purposes, as permitted and regulated by law;
(2) to limit the amount of property sought to be condemned if, in its opinion, the quantity sought to be condemned is not necessary.
(b) If the court determines that the property is to be taken for a public use, and if all parties to the action do not object, the court shall appoint a master to determine the amount to be paid by the plaintiffs to each owner or other person interested in the property as compensation and damages by reason of the appropriation of the property. If all parties to the action object to the appointment of a master the court shall proceed with a jury trial, unless the jury is waived by all parties to the action.
(a) An appeal or a bond or undertaking given does not operate to prevent or delay the vesting of title to real property or the right to possession of it.
(b) The plaintiff may not be divested of a title or possession acquired except where the court finds that the property was not taken by necessity for a public use or purpose in a manner compatible with the greatest public good and the least private injury. In the event of that finding, the court shall enter the judgment necessary to (1) compensate the persons entitled to it for the period during which the property was in the possession of the plaintiff, (2) recover for the plaintiff any award paid to any person, and (3) order the plaintiff to restore the property to the condition in which it existed at the time of the filing of the declaration of taking unless such restoration is impossible, in which case the court shall award damages to the proper persons as compensation for any diminution in the value of the property caused by the plaintiff's wrongful possession.
Article 05. OFFICIAL BONDS, FINES, AND FORFEITURES
An agency of the state or municipality acquiring property in fee that results in a boundary change located within a municipality exercising the powers conferred by AS 29.35.180 or 29.35.260(c) shall conform to this section by obtaining preliminary approval of a replat showing clearly the location of the proposed public street or other acquisition of property. The platting authority may establish applicable review procedures and standards for a replat made for the purpose of a right-of-way acquisition or condemnation. Neither the adequacy of the municipal replat process or standards, if any, nor the failure of a municipality to follow its own replat process and standards shall deprive the state of the authority to exercise its power of eminent domain. Final approval of replat shall also be obtained. However, if a state agency clearly demonstrates an overriding state interest, a waiver of the municipal approval requirements in this section may be granted by the governor.
After the judge or magistrate has entered an order declaring that the person is presumed to be dead either under AS 09.55.020 - 09.55.060 or under the laws dealing with missing persons, the judge or magistrate shall make out and sign a certificate entitled 'Presumptive Death Certificate' in the form and manner and containing the information required by the Bureau of Vital Statistics. In addition to the information required by the Bureau of Vital Statistics, the certificate must contain the decedent's social security number, if ascertainable. The certificate shall be recorded by the judge or magistrate and then filed with the Bureau of Vital Statistics. Upon the entry of the order and the recording and filing of the 'Presumptive Death Certificate' as herein provided, the missing person is presumed to be dead, and the person's estate may be administered in accordance with the then existing provisions of law applicable to the administration of the estates of deceased persons.
The order given under AS 09.55.390 requiring the parties in possession to surrender possession to the plaintiff shall require that the plaintiff deposit with the clerk of the court an amount of money determined by the court fairly to represent the estimated compensation and the estimated damages to the defendant and for the speedy occupation, including reasonable relocation costs if required. In addition the court shall include in its order a further requirement that the plaintiff execute and file with the clerk of the court a bond, approved as to form and as to sufficiency of the sureties by the court, in an amount equal to the amount of money required to be deposited, conditioned upon payment to the defendant of additional damages and costs found to be due to the defendant in the action. Costs or attorney fees may not be assessed against the defendant in an action brought under AS 09.55.390 .
(a) Upon the filing of the declaration of taking and the deposit with the court of the amount of the estimated compensation stated in the declaration, title to the estate as specified in the declaration vests in the plaintiff, and that property is condemned and taken for the use of the plaintiff, and the right to just compensation for it vests in the persons entitled to it. The compensation shall be ascertained and awarded in the proceeding and established by judgment. The judgment must include interest at the rate of 10.5 percent a year on the amount finally awarded that exceeds the amount paid into court under the declaration of taking. The interest runs from the date title vests to the date of payment of the judgment.
(b) Upon motion of a party in interest and notice to all parties, the court may order that the money deposited or a part of it be paid immediately to the person or persons entitled to it for or on account of the just compensation to be awarded in the proceedings. If the compensation finally awarded exceeds the amount of money deposited, the deposit shall be offset against the award. If the compensation finally awarded is less than the amount of money deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess.
(a) A health care provider is liable for failure to obtain the informed consent of a patient if the claimant establishes by a preponderance of the evidence that the provider has failed to inform the patient of the common risks and reasonable alternatives to the proposed treatment or procedure, and that but for that failure the claimant would not have consented to the proposed treatment or procedure.
(b) It is a defense to any action for medical malpractice based upon an alleged failure to obtain informed consent that
(1) the risk not disclosed is too commonly known or is too remote to require disclosure;
(2) the patient stated to the health care provider that the patient would undergo the treatment or procedure regardless of the risk involved or that the patient did not want to be informed of the matters to which the patient would be entitled to be informed;
(3) under the circumstances consent by or on behalf of the patient was not possible; or
(4) the health care provider after considering all of the attendant facts and circumstances used reasonable discretion as to the manner and extent that the alternatives or risks were disclosed to the patient because the health care provider reasonably believed that a full disclosure would have a substantially adverse effect on the patient's condition.
(a) Upon the filing of the declaration of taking and the deposit of the estimated compensation, the court may, upon motion, fix the time during which and the terms upon which the parties in possession are required to surrender possession to the petitioner. However, the right of entry shall not be granted the plaintiff until after the running of the time for the defendant to file an objection to the declaration of taking or until after the hearing on any objection to the declaration of taking if the objection is made in the time allowed by law. Where the party in possession withdraws any part of the award and remains in possession, the court may fix a reasonable rental for the premises to be paid by that party to the plaintiff during such possession.
(b) The court may direct the payment of delinquent taxes and special assessments out of the amount determined to be just compensation, and make orders with respect to encumbrances, liens, rents, insurance, and other charges as are just and equitable.
(c) The right to take possession and title in advance of final judgment where a declaration of taking is filed is in addition to any other rights to take possession provided in AS 09.55.240 - 09.55.460.
(a) A person who, as a minor under 16 years of age, was the victim of sexual abuse may maintain an action for recovery of damages against the perpetrator of the act or acts of sexual abuse based on the perpetrator's intentional conduct for an injury or condition suffered as a result of the sexual abuse.
(b) If the defendant committed more than one act of sexual abuse on the plaintiff, the plaintiff is not required to prove which specific act caused the injury.
(c) In this section, 'sexual abuse' means an act committed by the defendant against the plaintiff maintaining the cause of action if the defendant's conduct would have violated a provision of AS 11.41.410 - 11.41.440 or 11.41.450 - 11.41.458, former AS 11.15.120 , 11.15.134, or 11.15.160, or former AS 11.40.110 at the time it was committed.
The right to take possession under this section is in addition to any other right to take possession provided in AS 09.55.240 - 09.55.460. In proceedings for the acquisition of easements for the transmission and distribution of electric energy, communications, water, steam, and gas, the court may, upon motion and after a hearing, fix the time during which and the terms upon which the parties in possession are required to surrender possession to the plaintiff. If the court finds that urgent public necessity requires, it may grant the plaintiff possession at any time after the action has been commenced. Notice of the hearing shall be as provided in the Alaska Rules of Civil Procedure, except that, where service by publication is required, notice may be given at any time following the date of the last publication by registered mail addressed to the defendant and to parties in possession at their last known addresses as shown on the latest tax roll of the political subdivision in which the premises are located or as indicated by other evidence that shall be satisfactory to the court.
(a) The jury or master shall hear the allegations and evidence of persons interested and shall ascertain and assess the following:
(1) the value of the property sought to be condemned, and all improvements on it pertaining to the realty, and of each separate estate or interest in it; if it consists of different parcels, the value of each parcel and each estate or interest in each parcel shall be separately assessed;
(2) if the property sought to be condemned constitutes only a part of a larger parcel, the damages that will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvements in the manner proposed by the plaintiff;
(3) separately, how much the portion not sought to be condemned and each estate or interest in it will be benefited, if at all, by the construction of the improvements proposed by the plaintiff; and, if the benefit is equal to the damages assessed under (2) of this section, the owner of the parcel shall be allowed no damages except the value of the portion taken; but if the benefits are less than the damages so assessed, the former shall be deducted from the latter and the remainder shall be the only damages allowed in addition to the value;
(4) if the property sought to be condemned is for a railroad, the cost of good and sufficient fences along the line of the railroad, and the cost of cattle guards where fences may cross the line of the railroad.
(b) As far as practicable, compensation shall be assessed for each source of damages separately.
The private property which may be taken under AS 09.55.240 - 09.55.460 includes
(1) all real property belonging to any person;
(2) land belonging to the state or to an organized or unorganized borough, city, town, village, or other municipal division, whether incorporated or unincorporated, not appropriated to a public use;
(3) property appropriated to public use, but the property shall not be taken unless for a more necessary purpose than that to which it has already been appropriated;
(4) franchises for a public utility, but those franchises shall not be taken unless for a more necessary public use;
(5) all rights-of-way for any of the purposes mentioned in AS 09.55.240, and the structures and improvements on the rights-of-way, and the land held and used in connection with them shall be subject to be connected with, crossed, or intersected by another right-of-way or improvements or structures on them; they shall also be subject to a limited use, in common with the owner, when necessary; but the uses, crossings, intersections, and connections shall be made in the manner most compatible with the greatest public benefit and least private injury;
(6) all classes of private property not enumerated may be taken for public use when the taking is authorized by law.
(a) Where a proceeding is instituted under AS 09.55.240 - 09.55.460 by the state, it may file a declaration of taking with the complaint or at any time after the filing of the complaint, but before judgment. Where a proceeding is instituted under AS 09.55.240 - 09.55.460 by a municipality in the exercise of eminent domain for street or highway, off-street automobile parking facilities, school, sewer, water, telephone, electric, other utility, and slum clearance purposes or use granted to cities of the first class, the governing body of the municipality may exercise the power through the filing of a declaration of taking with the complaint or at any time after the filing of the complaint, but before judgment. The declaration of taking procedure may not be used with relation to the property of rural electrification or telephone cooperatives or nonprofit associations receiving financial assistance from the federal government under the Rural Electrification Act; provided that no declaration of taking for off-street parking purposes may be used unless there has been public notice by publication in a newspaper of general circulation in the area for not less than once a week for four consecutive weeks followed by a full and complete public hearing held before the governing body of the first class city or municipality.
(b) [Repealed, Sec. 15 ch 59 SLA 1982].
(a) Damages shall be awarded in accordance with principles of the common law. The fact finder in a malpractice action shall render any award for damages by category of loss. The court may enter a judgment that future damages be paid in whole or in part by periodic payments rather than by a lump-sum payment; the judgment must include, if necessary, other provisions to assure that funds are available as periodic payments become due. Insurance from an authorized insurer as defined in AS 21.90.900 is sufficient assurance that funds will be available. Any part of the award that is paid on a periodic basis shall be adjusted annually according to changes in the consumer price index in the community where the claimant resides. In this subsection, 'future damages' includes damages for future medical treatment, care or custody, loss of future earnings, or loss of bodily function of the claimant.
(b) Except when the collateral source is a federal program that by law must seek subrogation and except death benefits paid under life insurance, a claimant may only recover damages from the defendant that exceed amounts received by the claimant as compensation for the injuries from collateral sources, whether private, group, or governmental, and whether contributory or noncontributory. Evidence of collateral sources, other than a federal program that must by law seek subrogation and the death benefit paid under life insurance, is admissible after the fact finder has rendered an award. The court may take into account the value of claimant's rights to coverage exhausted or depleted by payment of these collateral benefits by adding back a reasonable estimate of their probable value, or by earmarking and holding for possible periodic payment under (a) of this section that amount of the award that would otherwise have been deducted, to see if the impairment of claimant's rights actually takes place in the future.
Upon application of the plaintiff at any time after the jury's verdict has been returned or the master's report has been filed in the court, the court may make an order that, upon payment into court of the amount of damages assessed in the report or by the jury, the plaintiff, if already in possession of the property sought to be condemned, may continue in possession and, if not in possession, the court may authorize the plaintiff to take possession of the property and use and possess it until the final conclusion of the proceedings, and that all actions and proceedings against the plaintiff on that account be stayed until that time. However, where an appeal is taken by the defendant, the court may also require the plaintiff to give a bond or undertaking with sufficient sureties before continuing or taking possession. The bond or undertaking shall be approved by the court and shall be in the sum the court may direct, and conditioned to pay defendant any additional damages and costs given by the judgment over and above the amount assessed, and the damages which defendant sustains if the property is not taken for public uses. For the purposes of this section the amount assessed as damages in the report or by the jury is considered as just compensation for the property appropriated until reassessed or changed in further proceedings. However, the plaintiff, by payment into court of the amount assessed or by giving security as above provided, is not precluded from an appeal, but may appeal in the manner and with the effect as if no money had been deposited or security given. If the plaintiff deposits the amount of the assessment and continues in possession or takes possession of the property and there is no dispute as to the ownership of the property, the defendant may at any time demand and receive from the court the money deposited, and the demand or receipt does not bar or preclude the defendant from the right of appeal. However, if the amount of the assessment is reduced on appeal by either party, the defendant who has received the amount of the assessment deposited is liable to the plaintiff for the difference between the amount received by the defendant and the amount finally assessed with legal interest from the time the defendant received the money deposited, and it may be recovered by action.
(a) Except as provided under (f) of this section and AS 09.65.145 , when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission. The action shall be commenced within two years after the death, and the damages therein shall be the damages the court or jury may consider fair and just. The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. When the plaintiff prevails, the trial court shall determine the allowable costs and expenses of the action and may, in its discretion, require notice and hearing thereon. The amount recovered shall be distributed only after payment of all costs and expenses of suit and debts and expenses of administration.
(b) The damages recoverable under this section shall be limited to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another.
(c) In fixing the amount of damages to be awarded under this section, the court or jury shall consider all the facts and circumstances and from them fix the award at a sum which will fairly compensate for the injury resulting from the death. In determining the amount of the award, the court or jury shall consider but is not limited to the following:
(1) deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries, without regard to age thereof, that would have resulted from the continued life of the deceased and without regard to probable accumulations or what the deceased may have saved during the lifetime of the deceased;
(2) loss of contributions for support;
(3) loss of assistance or services irrespective of age or relationship of decedent to the beneficiary or beneficiaries;
(4) loss of consortium;
(5) loss of prospective training and education;
(6) medical and funeral expenses.
(d) The death of a beneficiary or beneficiaries before judgment does not affect the amount of damages recoverable under this section.
(e) The right of action granted by this section is not abated by the death of a person named or to be named the defendant.
(f) A person whose act or omission constitutes the felonious killing of another person may not recover damages for the death of that person either directly or as a personal representative of that person's estate. In this subsection, a 'felonious killing' means a crime defined by AS 11.41.100 - 11.41.140.
Article 08. REMOVAL OF DISABILITIES OF A MINOR
(1) 'health care provider' means an acupuncturist licensed under AS 08.06; an audiologist or speech-language pathologist licensed under AS 08.11; a chiropractor licensed under AS 08.20; a dental hygienist licensed under AS 08.32; a dentist licensed under AS 08.36; a nurse licensed under AS 08.68; a dispensing optician licensed under AS 08.71; a naturopath licensed under AS 08.45; an optometrist licensed under AS 08.72; a pharmacist licensed under AS 08.80; a physical therapist or occupational therapist licensed under AS 08.84; a physician or physician assistant licensed under AS 08.64; a podiatrist; a psychologist and a psychological associate licensed under AS 08.86; a hospital as defined in AS 18.20.130 , including a governmentally owned or operated hospital; an employee of a health care provider acting within the course and scope of employment; an ambulatory surgical facility and other organizations whose primary purpose is the delivery of health care, including a health maintenance organization, individual practice association, integrated delivery system, preferred provider organization or arrangement, and a physical hospital organization;
(2) 'board' means an arbitration board established under AS 09.55.535;
(3) 'panel' means an expert advisory panel established under AS 09.55.536;
(4) 'professional negligence' means a negligent act or omission by a health care provider in rendering professional services;
(5) 'professional services' means service provided by a health care provider that is within the scope of services for which the health care provider is licensed and that is not prohibited under the health care provider's license or by a facility in which the health care provider practices.
Article 07. SURVIVAL AND WRONGFUL DEATH ACTIONS.
(a) A minor who is a resident of this state and is at least 16 years of age, who is living separate and apart from the parents or guardian of the minor, capable of sustained self-support and of managing one's own financial affairs, or the legal custodian of such a minor, may petition the superior court to have the disabilities of minority removed for limited or general purposes.
(b) A minor or the legal custodian of a minor may institute a petition under this section in the name of the minor.
(c) The petition for removal of disabilities of minority must state
(1) the name, age, and residence address of the minor;
(2) the name and address of each living parent;
(3) the name and address of the guardian of the person and the guardian of the estate, if any;
(4) the reasons why removal would be in the best interest of the minor; and
(5) the purposes for which removal is sought.
(d) The person who institutes a petition under this section must obtain the consent of each living parent or guardian having control of the person or property of the minor. If the person who is to consent to the petition is unavailable or the whereabouts of that person are unknown, or if a parent or guardian unreasonably withholds consent, the court, acting in the best interest of the minor, may waive this requirement of consent as to that parent or guardian.
(e) The court may appoint an attorney or a guardian ad litem to represent the interests of the minor at the hearing. Appointment of an attorney or guardian ad litem shall be made in accordance with AS 25.24.310.
(f) If the petition under this section is filed by a minor, the court may remove the disabilities of minority as requested in the petition if the court finds on the record after a hearing that the minor is a resident of the state, at least 16 years of age, living separate and apart from the parent or guardian of the minor, and capable of sustained self-support and managing the minor's own financial affairs. If the petition under this section is filed by the legal custodian of a minor, the court may remove the disabilities of minority as requested in the petition only if the minor consents on the record to the removal of disabilities and the court, in addition to making the other findings required under this subsection for a petition filed by a minor, makes a finding on the record that there is interpersonal conflict involving the legal custodian and the minor that the custodian and the minor have been unable to resolve satisfactorily through other means; the finding must include a description of the efforts that were made by the legal custodian to resolve the interpersonal conflict before the custodian filed the petition under this section. If the court determines that removal of disabilities is in the best interests of the minor, the court may waive the requirement for the minor's consent that is otherwise imposed under this subsection. In making its decision under this subsection, the court may consider whether a noncustodial parent of the minor is able and willing to petition for custody of the minor.
(g) Except for specific constitutional and statutory age requirements for voting and use of alcoholic beverages, a minor whose disabilities are removed for general purposes has the power and capacity of an adult, including but not limited to the right to self-control, the right to be domiciled where one desires, the right to receive and control one's earnings, to sue or to be sued, and the capacity to contract.
(a) The right of eminent domain may be exercised for the following public uses:
(1) all public uses authorized by the government of the United States;
(2) public buildings and grounds for the use of the state and all other public uses authorized by the legislature of the state;
(3) public buildings and grounds for the use of an organized or unorganized borough, city, town, village, school district, or other municipal division, whether incorporated or unincorporated; canals, aqueducts, flumes, ditches, or pipes conducting water, heat, or gas for the use of the inhabitants of an organized or unorganized borough, city, town, or other municipal division, whether incorporated or unincorporated; raising the banks of streams, removing obstructions from them and widening, deepening, or straightening their channels; roads, streets, and alleys, and all other public uses for the benefit of an organized or unorganized borough, city, town, or other municipal division whether incorporated or unincorporated, or its inhabitants, which may be authorized by the legislature;
(4) wharves, docks, piers, chutes, booms, ferries, bridges of all kinds, private roads, plant and turnpike roads, railroads, canals, ditches, flumes, aqueducts, and pipes for public transportation, supplying mines and farming neighborhoods with water, and draining and reclaiming land, and for floating logs and lumber on streams not navigable, and sites for reservoirs necessary for collecting and storing water;
(5) roads, tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines; also an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit, or conduct of tailings or refuse matter from their several mines, and sites for reservoirs necessary for collecting and storing water;
(6) private roads leading from highways to residences, mines, or farms;
(7) telephone lines;
(8) telegraph lines;
(9) sewerage of an organized or unorganized borough, city, town, village, or other municipal division, whether incorporated or unincorporated, or a subdivision of it, or of a settlement consisting of not less than 10 families, or of public buildings belonging to the state or to a college or university;
(10) tramway lines;
(11) electric power lines;
(12) for the location of pipelines for gathering, transmitting, transporting, storing, or delivering natural or artificial gas or oil or any liquid or gaseous hydrocarbons, including, but not limited to, pumping stations, terminals, storage tanks, or reservoirs, and related installations.
(b) The use of water for mining, power, and municipal purposes and the use of pole and power lines for telephone and telegraph wires, for aerial trams, and for the transmission of electric light and electric power, by whomever utilized, are each declared to be beneficial to the public and to be a public use within the provisions of AS 09.55.240 - 09.55.460. Rights-of-way across private property when they are necessary for the operation of the mine or other project in connection with which it is intended to be used may be condemned in the manner as for any other condemnation. The right-of-way may extend only to a right-of-way along, upon, and across the surface of the land to be condemned and to a strip of the land of sufficient width to permit the construction on the land of a ditch, flume, pipeline, canal, or other means of conveying water as is adequate for the purposes intended, for the setting of poles or the construction of towers upon which to string wires for telephone and telegraph lines and lines for the transmission of electric light or power for the operation of aerial trams, and to permit maintaining the lines and keeping them in repair.
(c) [Repealed, Sec. 15 ch 59 SLA 1982].
(a) In an action for damages due to personal injury or death based upon the provision of professional services by a health care provider, including a person providing services on behalf of a governmental entity, when the parties have not agreed to arbitration of the claim under AS 09.55.535 , the court shall appoint within 20 days after filing of answer to a summons and complaint a three-person expert advisory panel unless the court decides that an expert advisory opinion is not necessary for a decision in the case. When the action is filed, the court shall, by order, determine the professions or specialties to be represented on the expert advisory panel, giving the parties the opportunity to object or make suggestions.
(b) The expert advisory panel may compel the attendance of witnesses, interview the parties, physically examine the injured person if alive, consult with the specialists or learned works they consider appropriate, and compel the production of and examine all relevant hospital, medical, or other records or materials relating to the health care in issue. The panel may meet in camera, but shall maintain a record of any testimony or oral statements of witnesses, and shall keep copies of all written statements it receives.
(c) Not more than 30 days after selection of the panel, the panel shall make a written report to the parties and to the court, answering the following questions and other questions submitted to the panel by the court in sufficient detail to explain the case and the reasons for the panel's answers:
(1) Why did the claimant seek medical care?
(2) Was a correct diagnosis made? If not, what was incorrect about the diagnosis?
(3) Was the treatment or lack of treatment appropriate? If not, what was inappropriate about the treatment or lack of treatment?
(4) Was the claimant injured during the course of evaluation or treatment or by failure to diagnose or treat?
(5) If the answer to question 4 is 'yes,' what is the nature and extent of the medical injury?
(6) What specifically caused the medical injury?
(7) Was the medical injury caused by unskillful care? Explain.
(8) If a medical injury had not occurred, what would have been the likely outcome of the medical case?
(d) In any case in which the answer to one or more of the questions submitted to the panel depends upon the resolution of factual questions that are not the proper subject of expert opinion, the report must so state and may answer questions based upon hypothetical facts that are fully set out in the opinion. The report must include copies of all written statements, opinions, or records relied upon by the panel and either a transcription or other record of any oral statements or opinions; must specify any medical or scientific authority relied upon by the panel; and must include the results of any physical or mental examination performed on the plaintiff. Each member shall sign the report and the signature constitutes the member's adoption of all statements and opinions contained in it; however, a member may, instead of signing the report, submit a concurring or dissenting report that complies with the requirements of this subsection. A member may not attest to any portion of the report as to which the member is not qualified to give expert testimony.
(e) The report of the panel with any dissenting or concurring opinion is admissible in evidence to the same extent as though its contents were orally testified to by the person or persons preparing it. The court shall delete any portion that would not be admissible because of lack of foundation for opinion testimony, or otherwise. Either party may submit testimony to support or refute the report. The jury shall be instructed in general terms that the report shall be considered and evaluated in the same manner as any other expert testimony. Any member of the panel may be called by any party and may be cross-examined as to the contents of the report or of that member's dissenting or concurring opinion.
(f) Discovery may not be undertaken in a case until the report of the expert advisory panel is received or 60 days after selection of the panel, whichever occurs first. However, the court may relax this prohibition upon a showing of good cause by any party. If the panel has not completed its report within the 30-day period prescribed in (c) of this section, the court may, upon application, grant the panel an additional 30 days.
(g) Members of a panel are entitled to travel expenses and per diem in accordance with state law pertaining to members of boards and commissions for all time spent in preparing its report. If a panel member is called upon as a witness at trial or upon deposition, the member is entitled to payment of an expert witness fee, which may not exceed $150 per day. All expenses incurred by the panel shall be paid by the court. However, in any case in which the court determines that a party has made a patently frivolous claim or a patently frivolous denial of liability, it shall order that all costs of the expert advisory panel be borne by the party making that claim or denial.
(h) Parties to the case and their counsel may not initiate communication out of court with members of the panel on the subject matter of its inquiry and report or cause or solicit others to do so, except through ordinary discovery proceedings.
(i) This section applies regardless of whether a party in the action or the health care provider whose professional services are the subject of the action is a governmental entity or in the public or private sector.
(a) A patient and any health care provider may execute an agreement to submit to arbitration any dispute, controversy, or issue arising out of care or treatment by the health care provider during the period that the agreement is in force or that has already arisen between the parties. Execution of an agreement under this subsection by a patient may not be made a prerequisite to receipt of care or treatment by the health care provider.
(b) An agreement to arbitrate executed before care or treatment is provided must clearly provide in bold print on the face of the agreement that execution of the agreement by the patient is not a prerequisite to receiving care or treatment. If this subsection is not complied with by the health care provider, the agreement to arbitrate is void. The form to be used shall be approved in advance by the attorney general of the state to assure it fairly informs both parties to the agreement and properly protects their interests.
(c) The agreement must provide that the person receiving health care may revoke the agreement within 30 days after execution by notifying the health care provider in writing. The period for revocation shall be tolled during any period that the person receiving health care is physically unable to execute a revocation. The health care provider may not revoke the agreement after its execution.
(d) An arbitration agreement entered into by the parents or legal guardian of a minor person receiving health care is binding upon the minor person.
(e) An agreement to arbitrate between a patient and a hospital must be reexecuted each time a person is admitted to a hospital. The agreement may be extended by written agreement of all parties to apply to care after hospitalization. A person receiving outpatient care from a hospital or clinic or a member of a health maintenance organization may execute an agreement with the hospital that provides for continuation of the agreement for a continuing program of treatment or during continued membership.
(f) Upon the filing of a malpractice claim that is subject to an agreement to arbitrate, the claim shall be submitted to an arbitration board. The arbitration board shall consist of three arbitrators: one arbitrator designated by the claimant or claimants, one arbitrator designated by the health care provider or providers against whom the claim is made, and a third arbitrator designated by mutual agreement who shall serve as chairperson of the board. If the parties cannot agree on the third person, the court will provide a choice of three or more persons who might serve as chairperson of the arbitration board, which shall be from a list of qualified arbitrators furnished by the attorney general. Claimant or claimants together and health care provider or providers together may each strike one or more names so that after each side has done so at least one name remains, providing a basis for the final selection by the court.
(g) The attorney general shall prepare a list of persons consisting of lawyers or other persons qualified to serve as chairperson of an arbitration board. They shall be selected on basis of their technical expertise, judicial temperament, and capability of impartially acting on malpractice claims. The attorney general shall submit a list of at least three names whenever requested to do so by the court along with detailed biographical information on each person listed.
(h) Each member of the arbitration board shall receive reasonable compensation to be paid by the court based on the extent and duration of services rendered. The court shall pay the costs of expert witnesses called by the board and the costs of expert witnesses called by the parties to the arbitration up to a maximum of three witnesses for each side and $150 per day for each expert witness.
(i) The arbitration board may appoint an expert advisory panel, with the powers of the expert advisory panel under AS 09.55.536 , to advise the board on the medical facts of the case.
(j) The court shall specify the shortest practical deadline for completion of the work of the arbitration board, taking into account all the circumstances and the nature of the case.
(k) The provisions of AS 09.43.010 - 09.43.180 (Uniform Arbitration Act) or AS 09.43.300 - 09.43.595 (Revised Uniform Arbitration Act) apply as provided in AS 09.43.010 and 09.43.300 to arbitrations under this section if they do not conflict with the provisions of this section; arbitrations under this section shall be conducted in accordance with procedures established by any rules of court that may be adopted and according to provisions of AS 09.55.540 - 09.55.548, 09.55.554 - 09.55.560, and AS 09.65.090 .