author: CARPENETI, Justice.

text:
    MATANUSKA ELECTRIC ASSOCIATION, INC., Appellant, v. CHUGACH ELECTRIC ASSOCIATION, INC., Appellee.
    No. S-10080.
    Supreme Court of Alaska.
    Nov. 15, 2002.
    Stephen M. Ellis and Jeffrey P. Stark, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellant.
    James E. Torgerson, Heller, Ehrman, White & McAuliffe, Anchorage, and Donald W. Edwards, Chugach Electric Association, Anchorage, for Appellee.
    Before: FAJBE, Chief Justice, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Chugach Electric Association brought an action in the superior court seeking a declaratory judgment that the order of the Regulatory Commission of Alaska requiring Mata-nuska Electric Association to pay an adjusted fuel surcharge was enforceable. Matanuska counter-claimed that Chugach breached an agreement between the parties governing “rates, charges, or other tariff provisions” and sought declaratory relief. The superior court granted summary judgment in favor of Chugach. Matanuska appeals on the basis that the commission lacked jurisdiction to interpret the contract and that Matanuska’s breach of contract claim is not precluded by collateral estoppel. Because we conclude that the dispute in this case centered on a contractual provision dealing with ratemak-ing issues falling within the commission’s core jurisdiction and that Matanuska could have appealed the commission’s decision, we affirm the superior court’s grant of summary judgment in favor of Chugach.

II. FACTS AND PROCEEDINGS

A. Facts

Matanuska Electric Association, Inc. (MEA) and Chugach Electric Association, Inc. are electrical utility corporations organized under AS 10.25. Both are subject to the regulatory authority of the Regulatory Commission of Alaska under AS 42.05.141. MEA does not produce the electricity that it sells to customers, but instead purchases the power from Chugach. The terms of these purchases are governed by a purchase and sale agreement (PSA), which was entered into on January 30, 1989 by MEA, Chugach, and the Alaska Electric Generation and Transmission Cooperative, Inc. and approved by the commission. Under the PSA, MEA is obligated to pay a pro rata portion of the actual costs incurred by Chugach in generating and transmitting the electricity.

On February 4, 1999 Chugach sent MEA a letter stating that Chugach was being assessed additional taxes and interest on gas that it purchased from the Marathon Oil Company due to a settlement between Marathon Oil and the State of Alaska (Marathon settlement). Chugach informed MEA that it would be passing $644,750, MEA’s pro rata portion, on to MEA through the fuel surcharge rate adjustment process. MEA responded with a letter on February 11, 1999 stating that the recovery of these additional charges should be implemented through the procedures agreed to in the PSA, specifically in § 9(d).

On February 16, 1999 Chugach filed tariff advice letter number (TA) 194-8 with the commission that, among other things, asked that Chugach be allowed to recover the liabilities incurred from the Marathon settlement in the amount of $645,000 through a twelvemonth increase in the fuel surcharge rate, beginning January 1, 1999. MEA filed its objections to TA 194-8 with the commission on March 12, 1999. MEA argued that Chu-gach’s proposal was problematic for several reasons, including that fuel surcharges were an inappropriate means of recovering these types of costs and that the proposal violated § 9(d) of the PSA. On March 26, 1999 the commission concurred with a utility tariff analyst’s recommendation to approve TA 194-8 to the extent that Chugach be allowed to recover the Marathon settlement through fuel surcharges. In the recommendation, the analyst noted that “the additional Marathon taxes and royalties are uncommon, but not inappropriate, expenses pursuant to the Chu-gach/Marathon contract.”

Chugach filed its next quarterly tariff advice letter, TA 196-8, on May 17, 1999, incorporating the additional charges to recover its Marathon-settlement liabilities that the commission had approved in its March 26 order. MEA objected to the new tariff advice letter on June 8, 1999, again claiming that Chu-gach’s treatment of the Marathon settlement costs violated § 9(d) of the PSA. On June 25, 1999 a commission tariff analyst issued a recommendation addressing a number of issues raised by Chugach’s tariff filing; regarding MEA’s objection on the Marathon settlement issue, the analyst recommended that no action was necessary, since the commission had already ruled on the issue: “In the last surcharge filing, TA 194-8, MEA objected to Chugach’s inclusion of Marathon natural gas tax liabilities in the fuel surcharge balancing accounts. MEA again objects to the inclusion of these costs. Staff believes the Commission has adjudicated this matter and no further determination is necessary.” The commission approved its staffs recommendations by order dated June 28, 1999.

On August 16, 1999 Chugach filed another quarterly tariff advice letter, TA 202-8, again incorporating the previously authorized increase in the fuel surcharge rate to recoup its Marathon-settlement liabilities. MEA objected yet again on the basis that Chugach had failed to comply with § 9(d) of the PSA. As before, the commission’s staff recommended no action in response to MEA’s objection, noting in a memorandum dated September 28, 1999, that the commission had already decided the issue when it approved Chugach’s first quarterly tariff letter, TA 194-8, and that its decision was now final:

In TA 194-8, the Commission approved Chugaeh’s treatment of Marathon natural gas taxes and other liabilities. Although MEA filed objections to TA 194-8, it did not request to intervene in that proceeding. Furthermore, the Commission did not suspend TA 194-8. The reconsideration period for that decision has ended.

The commission approved the staff recommendation on October 1,1999.

B. Proceedings

On October 13, 1999 Chugach filed for declaratory and injunctive relief against MEA in the superior court. Chugach asked the superior court to rule that Chugach was entitled to a payment from MEA in the amount of MEA’s quarterly pro rata share of the Marathon settlement. Chugach also asked for a declaration that MEA was bound by the commission’s orders in regards to Chugach’s tariff advice letters, and a declaration that the dispute is not covered by the PSA. MEA answered the complaint and counterclaimed for declaratory relief for breach of contract. Chugach then moved for summary judgment, arguing that the PSA allowed the commission to establish rates and that statutory law established that MEA was bound by the orders of the commission to pay these rates. MEA filed a cross-motion for summary judgment asking the superior court to grant its counterclaim for declaratory relief for breach of contract.

On December 13, 2000 the superior court found that the PSA specifically ceded authority over ratemaking to the commission and that statutory law gives the commission plenary authority over ratemaking. Therefore, the superior court held, the commission had jurisdiction to hear MEA’s breach of contract claim. The superior court went on to hold that MEA took full advantage of its opportunity to participate in the proceedings and that the commission specifically decided the issue raised in the superior court. Also, the superior court found that MEA failed to appeal the commission’s decisions by the appropriate deadlines. The superior court issued its amended final judgment in Chugach’s favor on April 4, 2001.

MEA now appeals that decision.

III. STANDARD OF REVIEW

We review an appeal from summary judgment de novo. “A superior court’s grant of summary judgment must be affirmed if the evidence in the record fails to disclose a genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” “All reasonable factual inferences must be drawn in favor of the party opposing summary judgment.” On questions of law, we will “adopt the rule of law which is most persuasive in light of precedent, reason and policy.”

IV. DISCUSSION

The Superior Court Did Not Err in Finding that the Commission Has Jurisdiction To Decide the Contract Dispute Between MEA and Chugach.

MEA argues that the superior court erred in granting Chugach’s motion for summary judgment because the commission did not have jurisdiction to interpret the PSA. MEA’s argument rests on the premise that the commission is a regulatory body set up to establish utility rates, not to settle contract disputes. The dispute on appeal is whether the PSA imposes a duty on Chugach to convene a Joint Committee prior to passing fees from the Marathon settlement on to MEA. Chugach argues that the parties intended the commission to have jurisdiction over the PSA as evidenced by § 9(e) of the PSA.

We hold that, in entering into a private contract, MEA and Chugach were capable of bargaining over the method of dispute resolution that would be used in settling contract disputes. As evidenced by § 9(e)(3) of the PSA, the parties agreed to have issues of interpretation of the PSA determined by the commission. In cases involving other types of contracts, we have held that parties to a contract are bound by the terms of the contract and, particularly, by dispute resolution procedures of that contract.

Moreover, AS 45.05.141 gives the commission the power to “do all things necessary or proper to carry out the purposes and exercise the powers” it is granted in the law. As we have stated:

This provision presents two guiding principles for determining the extent of the [commissionj’s jurisdiction under specific provisions of the Act. On the one hand, it includes a principle of limitation, restricting the [commissionj’s power to the specific jurisdictional areas of its “stated purposes.” On the other hand, it includes a principle of expansion, mandating that the [commissionj’s power to act within its specific areas of jurisdiction “is to be liberally construed.”

Because § 9(d) of the PSA expressly deals with issues lying within the commission’s core area of jurisdiction — changes in rates, charges or other tariff provisions- — and because § 9(e)(3) evinces the parties’ intent to submit to the commission any rate-related disputes arising under the PSA, we conclude that interpretation of § 9(d) was within the jurisdiction of the commission. Accordingly, we affirm the decision of the superior court in granting Chugach’s motion for summary judgment.

Because we hold that the commission is the appropriate venue for disputes concerning § 9(d) of the PSA, we need not reach the issue whether MEA was collaterally estopped from bringing its breach of contract claim in the superior court. We hold that the commission had the power to interpret the PSA and that MEA should have appealed from the commission’s decision if it felt that this decision was in error.

Y. CONCLUSION

Because the PSA gave the commission the power to interpret the PSA and that interpretation of the PSA is within the scope of the commission’s power to set rates, we AFFIRM the decision of the superior court.

MATTHEWS and EASTAUGH, Justices, not participating.

      . Section 9(d) of the PSA states in relevant part:
      Before Chugach implements any change in rates, charges, or other tariff provisions applicable to power sold under this Agreement (other than interim tariff charges under Section 9(h) below), the Chugach staff will submit the proposed change, together with such explanatory material as the Chugach staff has prepared (including materials prepared for submission to the Commission) to a Joint Committee for review. The Joint Committee shall consist of three members, two appointed from the Chugach Board of Directors and one appointed from the AEG & T Board of Directors (which member shall also be a member of the MEA Board of Directors), such members to serve at the pleasure of their respective Boards. The Chugach staff shall supply directly to MEA and to AEG & T copies of all materials submitted to the Joint Committee.
      Section 9(h) states:

        Interim Ratemaking. Nothing in this Agreement shall preclude Chugach’s use of other or abbreviated procedures to develop interim rates for immediate effectiveness (subject to such regulatory constraints as may exist at the time). All such interim rates shall be subject to refunds if the rates finally adopted and approved for the period during which the interim rates were in effect are lower than the interim rates.

      . Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska 1998).

      . Johnson v. Olympic Liquidating Trust, 953 P.2d 494, 496 (Alaska 1998).

      . Id.

      . Ganz, 963 P.2d at 1017 (internal quotations omitted).

      . Section 9(e) states in relevant part:

        Commission Review. So long as the Commission continues to review rates and charges applicable hereunder:
      (1) Chugach shall submit its final decision on rates and charges to the Commission for approval, together with a complete copy of the ratemaking record (if any) compiled by Chu-gach pursuant to Section 9(d)(4) of this Agreement.
      (2) New rates and charges under this Agreement shall not become effective until reviewed and approved by the Commission, either on a final basis or an interim basis subject to refunds if the rates and charges finally approved are lower than those approved on an interim basis.
      (3) AEG & T and/or MEA shall be entitled to raise before the Commission any objection or argument to the effect that the rates and charges as submitted to the Commission violate the substantive ratemaking principles set forth in this Agreement or were adopted in violation of the ratemaking procedures set forth in this Agreement or violate any other provision of this Agreement.

      . See Diedrich v. City of Ketchikan, 805 P.2d 362, 367 (Alaska 1991) ("[W]hen an employee enters into a contract that contains grievance procedures, it is not a denial of the right to a jury trial to require the employee to follow those procedures.”); Sourdough Freight Lines, Inc. v. Local No. 959, Int'l Bhd. of Teamsters, 602 P.2d 430, 431-32 (Alaska 1979) ("[U]nder a collective bargaining agreement the court should defer to whatever means of dispute resolution the parties themselves have agreed to.”); Inman v. Clyde Hall Drilling Co., 369 P.2d 498, 500 (Alaska 1962) ("[W]e start with the basic tenet that competent parties are free to make contracts and that they should be bound by their agreements.”).

      . AS 42.05.141 states in relevant part:
      (a) The Regulatory Commission of Alaska may do all things necessary or proper to carry out the purposes and exercise the powers expressly granted or reasonably implied in this chapter, including

      (3) make or require just, fair, and reasonable rates, classifications, regulations, practices, services, and facilities for a public utility;

      9. Homer Elec. Ass’n v. City of Kenai, 816 P.2d 182, 186 (Alaska 1991) (internal citations omitted).


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    Vicki MARSINGILL and Paul Marsingill, wife and husband, Appellants, v. James O’MALLEY, M.D., Appellee.
    No. S-9859.
    Supreme Court of Alaska.
    Nov. 22, 2002.
    Rehearing Denied Dec. 11, 2002.

      Robert H. Wagstaff, Law Offices of Robert H. Wagstaff, Anchorage, for Appellant.
    Donna M. Meyers and Howard A. Lazar, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, JUSTICES.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

One night several months after having stomach surgery, Vicki Marsingill called her surgeon, Dr. James O’Malley, complaining of abdominal pain and nausea. Dr. O’Malley advised Marsingill to go to the emergency room and offered to meet her there, but Marsingill said she felt better and declined to go. Several hours later, Marsingill lost consciousness from an intestinal blockage and suffered permanent injuries. Marsingill sued Dr. O’Malley, claiming that he lacked the skill and knowledge to advise her properly and that the information he gave her over the telephone did not allow her to make an intelligent treatment decision. A jury rejected these claims. The main issues on appeal are whether the trial court erred in excluding evidence of Dr. O’Malley’s failure to pass tests for board certification as a surgeon and whether the jury instructions correctly described the standard for deciding whether Dr. O’Malley gave Marsingill adequate information. We find no abuse of discretion in the court’s rulings excluding evidence but hold that the jury should have been instructed to use the reasonable patient standard to decide if Dr. O’Malley gave Marsingill sufficient information about her condition and treatment choices.

II. FACTS AND PROCEEDINGS

In October 1994 Dr. O’Malley performed surgery to remove staples that another surgeon had previously placed in Vicki Marsin-gill’s stomach to facilitate weight loss. By January 1995 Marsingill had recovered from the surgery and was cleared to return to work.

While dining out with a friend on the evening of February 14, 1995, Marsingill “suffered a sudden onset of illness, was in pain, felt nauseous, and was unable to eat, so [went] home.” Her pain worsened over the next few hours, and she eventually asked her daughter to call Dr. O’Malley. Her daughter told Dr. O’Malley that Marsingill looked bad, that she was nauseous and in pain, that she was unable to burp or have a bowel movement, and that her stomach was “as hard as a rock.” Dr. O’Malley then spoke directly with Marsingill, who sounded anxious and upset. She informed him that she was having abdominal pain, felt bloated, and could not burp. Dr. O’Malley advised Marsingill that he could not evaluate her over the phone but that “if she felt bad enough to call him at night” she should go the emergency room. He repeated this advice several times but did not venture any opinion about the cause of Marsingill’s symptoms or tell her that her condition was potentially life-threatening or serious. He left it up to her whether to seek emergency room treatment.

When Marsingill asked what would happen at the emergency room, Dr. O’Malley informed her that the doctors there would probably take x-rays and insert a nasogastric tube to relieve the pressure in her stomach. Dr. O’Malley knew that Marsingill had previously had nasogastric tubes inserted and, like most patients, strongly disliked them. Soon after hearing that she would likely need to have a nasogastric tube inserted if she went to the emergency room, Marsingill ended the call, telling Dr. O’Malley that she thought that she could burp and was feeling better.

After hanging up, Marsingill told her daughter that she was feeling better and would try to “tough it out for awhile.” But later that night Marsingill’s husband found her unconscious on the bathroom floor. Paramedics rushed her to the hospital, where an emergency operation later revealed that she had experienced an intestinal blockage. But by then the obstruction had caused Marsin-gill to go into shock; as a result, she suffered brain damage and partial paralysis.

Marsingill eventually filed suit against Dr. O’Malley, asserting four claims, only two of which currently remain relevant: (1) that the doctor lacked skill and knowledge in general surgery and, as a result, committed malpractice by giving Marsingill incompetent advice when she called about her symptoms and (2) that the doctor had breached his duty to give Marsingill enough information to enable her to make an informed choice about going to the emergency room for treatment.

To meet her burden of proving that Dr. O’Malley lacked knowledge and skills as a surgeon, Marsingill planned to introduce evidence that he had repeatedly failed tests for AMA board certification in general surgery. Marsingill maintained that this evidence was relevant to prove that Dr. O’Malley lacked the requisite degree of skill and knowledge and that it also would be admissible to impeach defense testimony and to establish the basis for her own experts’ opinions.

But in a pretrial motion, Dr. O’Malley asked the trial court to exclude all evidence regarding his medical education and training except evidence that he had “graduated from medical school, completed a medical degree, and was not Board Certified.” In support of his pretrial motion, Dr. O’Malley argued that evidence of his failed attempts at board certification was inadmissible character evidence and could not be properly used to show either a general lack of skill or an act of negligence on any particular occasion.

The trial judge granted Dr. O’Malley’s motion to exclude the evidence and instructed both parties not to introduce evidence of “the details pertaining to Dr. O’Malley’s medical education background.” On several occasions during trial Marsingill moved to introduce evidence regarding Dr. O’Malley’s lack of board certification, arguing that the doctor or his expert witnesses had opened the door to a broader inquiry into his background. The court denied each of these motions.

The expert testimony at trial focused on the symptoms of post-surgical bowel obstructions and the appropriate course of action for a physician to take in response to a patient’s call complaining of these symptoms. Six medical experts testified — three for Marsin-gill and three for Dr. O’Malley — about the appropriateness of Dr. O’Malley’s advice during the February 14 telephone call from Mar-singill. Their opinions were sharply divided.

Marsingill’s experts — Drs. Battle, Modlin, and Ravden — uniformly agreed that Dr. O’Malley’s actions fell below the accepted standard of care. They particularly criticized Dr. O’Malley’s failure to communicate to Marsingill the true seriousness of her situation, the extent of the risk she faced, and the importance of getting immediate help. Additionally, they questioned Dr. O’Malley’s professional judgment in needlessly telling Marsingill that she would likely be treated with a nasogastric tube if she decided to go to the emergency room. Because installing such tubes involves a painful procedure, they emphasized, a competent physician who wanted to encourage a patient to seek emergency room treatment would not have offered up the prospect of being treated with a nasogastric tube.

In contrast, however, Dr. O’Malley’s experts — Drs. Gardiner, Macho, and Moos-sa — uniformly disagreed with this assessment, insisting that on the whole Dr. O’Malley had provided “very good care.” Dr. Gardiner, for example, described a physician’s duty during a phone call as being very limited, concluding that Dr. O’Malley had done everything necessary to fulfil that duty. Dr. O’Malley’s experts also were adamant in expressing their view that the doctor had acted properly in simply advising Marsingill to go to the emergency-room, without engaging her in a speculative discussion of the possible causes of her symptoms. While acknowledging that Mar-singill’s prior abdominal surgeries placed her at heightened risk for an intestinal obstruction and that the symptoms she described on the telephone were consistent with such an obstruction, they emphasized that a physician cannot accurately diagnose a patient over the telephone and concluded that the doctor therefore had no “obligation to speculate.” Dr. O’Malley’s experts also took exception to the claim that it was improper for him to mention the likelihood of Marsingill’s being treated with a nasogas-tric tube at the emergency room. To the contrary, they claimed, Dr. O’Malley acted appropriately by giving Marsingill an honest and accurate answer to her question about what she could expect if she went to the emergency room.

In the course of their testimony, the expert witnesses also gave divergent opinions about the scope of a physician’s ethical duty to give patients sufficient information to make intelligent treatment decisions. Section 8.08 of the AMA Code of Medical Ethics addresses this duty of disclosure, providing: “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice.” Marsingill’s experts maintained that Dr. O’Malley had violated Section 8.08 by failing to give her enough information to make an intelligent choice about whether to seek emergency room treatment. As already mentioned, Dr. O’Malley’s experts took the opposite view, maintaining that the doctor had satisfied his duty simply by advising Marsingill that she should go to the emergency room for an examination..

Dr. O’Malley himself shifted positions: when initially questioned about his obligations under Section 8.08, he testified that the provision “applies to Mrs. Marsingill. It doesn’t really apply to me.” But he later reconsidered, acknowledging that Section 8.08- applied to his conduct — that he did “have [an] obligation to give [Marsingill] enough information so that she could make an intelligent choice as to whether she should go to the emergency room.”

At the conclusion of trial, Marsingill proposed jury instructions covering her alternative theories of liability — that Dr. O’Malley committed malpractice by lacking adequate skill and knowledge to enable him to respond appropriately to her telephone call and that he breached his duty to give her enough information to enable her to make an informed decision about going to the emergency room for examination and treatment.

With respect to the second of these theories — Dr. O’Malley’s alleged breach of Section 8.08’s duty to inform — Marsingill’s proposed instruction would have required the jury to decide the sufficiency of Dr. O’Mal-ley’s communications from the standpoint of a reasonable patient in Marsingill’s position. But the trial court rejected the proposed “reasonable patient” instruction, instead directing the jury to measure Dr. O’Malley’s compliance by relying exclusively on the expert testimony addressing his compliance with a general surgeon’s professional standard of care.

After the jury returned a verdict in favor of Dr. O’Malley, Marsingill filed this appeal.

III. DISCUSSION

A. Evidentiary Claims

Marsingill based her malpractice claim partly on the theory that Dr. O’Malley lacked the requisite skills and ability to recognize the likely cause of her symptoms and extent of the risk that she consequently faced; he thus negligently failed to communicate the urgency of her receiving immediate medical attention. On appeal, Marsingill asserts that the trial court prevented her from proving this theory when it excluded relevant evidence revealing that Dr. O’Malley had repeatedly failed examinations for board certification in surgery.

Rule 402 of the Alaska Rules of Evidence provides that, “[wjith certain exceptions, ⅞]11 relevant evidence is admissible.’ ” But among the recognized exceptions to this rule of general admissibility, the rules of evidence incorporate provisions allowing courts to exclude relevant evidence whose probative value is outweighed by its potential to prejudice or confuse the jury and evidence of character or conduct whose primary purpose is “to show that [a] person acted in conformity therewith” on a specific occasion.

Here, Marsingill correctly posits that Alaska’s medical malpractice statute allows a finding of liability when a physician’s lack of skill or knowledge proximately causes injury to a patient; but she incorrectly reasons that Dr. O’Malley’s failure to achieve board certification is relevant and admissible to prove that a specific defect in knowledge or skill caused him to injure Marsingill on the occasion at issue.

Since licensed physicians are allowed to practice surgery in Alaska without board certification, a physician’s inability to pass one or more board certification tests does not necessarily tend to prove that the physician lacks minimally necessary surgical skills or knowledge. Thus, even if Marsingill’s expert witnesses might have been willing to testify as to their personal opinion that a competent general surgeon should possess knowledge and skill necessary to receive board certification, the trial court correctly recognized that this testimony would be irrelevant under Alaska law. For by adopting as a matter of public policy a medical licensing standard that authorizes physicians to perform general surgery without obtaining board certification, Alaska law establishes a baseline standard that precludes expert witnesses from dictating a more rigorous certification requirement.

To prevail on her malpractice claim, then, Marsingill needed to make a more particularized showing that Dr. O’Malley lacked specific knowledge or skills that a competent surgeon would need regardless of board certification. Notably, the trial court gave Mar-singill broad latitude to ask questions and introduce evidence for the purpose of showing that Dr. O’Malley did not know the common signs and symptoms of a bowel obstruction and that this particular lack of knowledge fell below the accepted standard of professional competence. Her ability to introduce this evidence gave Marsingill ample opportunity to present her malpractice claim to the jury. Considering the totality of the circumstances, we hold that it was not an abuse of discretion to grant Dr. O’Malley’s pretrial motion to exclude evidence of his failed attempts to pass the test for board certification in general surgery.

After the trial court granted Dr. O’Mal-ley’s pretrial motion to exclude this evidence, Marsingill repeatedly sought its admission during the course of trial, maintaining that Dr. O’Malley and his experts opened the door to its use to impeach and contradict their testimony. The trial court consistently declined to admit the evidence. Marsingill now challenges the trial court’s rulings, renewing the arguments she raised below.

We begin by acknowledging that Marsingill’s arguments on these points present close issues. As already noted above, courts generally disfavor admission of evidence showing that a defendant failed board certification tests when that evidence is affirmatively offered to prove lack of professional knowledge or skill. But courts also recognize that considerably greater latitude exists to admit such evidence through cross-examination or in rebuttal when it counteracts affirmative defense evidence introduced to show a special degree of skill, knowledge or relevant expertise. Yet at the same time, appellate courts addressing issues of admissibility in this area have consistently emphasized the need for great deference to the trial court’s superior ability to determine whether particular evidence would have been more probative than prejudicial in a given case.

Here, Marsingill first claimed that Dr. O’Malley opened the door during a portion of his own testimony that occurred shortly after one of Marsingill’s expert witnesses who was from England — Dr. Mod-lin — had finished testifying. When asked if he was board certified by the American College of Surgeons, Dr. O’Malley answered: “No, I’m not.” He then added, “Neither is Dr. Modlin.” Marsingill argued that, in giving this unsolicited response, Dr. O’Malley unfairly attempted to portray himself as being equally qualified with Dr. Modlin, when in fact Dr. Modlin is board certified in the United Kingdom and thus is accepted by the American College of Surgeons as having the equivalent of board certification in the United States.

Although the trial court denied Marsin-gill’s request to refute Dr. O’Malley’s unsolicited response with examination concerning his failures to pass the board certification test, the court did expressly allow Marsingill to correct any misleading impression through further questioning about the nature of Dr. Modlin’s United Kingdom board certification and by confirming that Dr. O’Malley had no comparable qualifications.

Marsingill argues that Dr. O’Malley’s statement was a gratuitous and improper attempt to mislead the jury. Since this is one reasonably possible view of the statement, the trial court might have had discretion to allow inquiry into Dr. O’Malley’s board failures. But the trial court’s alternative approach to the issue effectively prevented Dr. O’Malley from creating any misleading impression; and at the same time it avoided taking recourse in a remedy that would have answered one impropriety with yet another. On balance, we cannot say that the trial court abused its discretion in finding that Dr. O’Malley did not open the door in this instance.

Marsingill also attempted to introduce the board certification evidence to impeach what she claimed were Dr. O’Malley’s attempts to portray himself as extensively qualified. Specifically, Dr. O’Malley testified on direct examination that he had operating privileges at all area hospitals and covered for virtually every surgeon in Anchorage; that he directed both the trauma center at Alaska Regional Hospital and the burn unit at Providence Hospital; that he received out-of-state referrals based on his expertise with burn patients; and that he had been contacted by the television program NOVA about filming a segment on treating frostbite patients. Marsingill argued that this testimony went “far beyond [Dr. O’Malley’s] basic licen-sure qualifications,” that it affirmatively raised the issue of Dr. O’Malley’s general expertise as a surgeon, and that it thereby entitled Marsingill to impeach these claims by questioning Dr. O’Malley about his repeated failures to become board certified.

Dr. O’Malley rejoined that his testimony simply gave “general background information” and would not be perceived as asserting any extraordinary level of skill; moreover, he emphasized, the special expertise that he described was in the area of treating frostbite, not in gastro-intestinal surgery. The trial court found this argument persuasive and declined to allow impeachment through evidence of Dr. O’Malley’s board failures.

It is a close question whether Dr. O’Mal-ley’s testimony exceeded the scope of the superior court’s pretrial order, which limited the scope of testimony that both parties could present covering Dr. O’Malley’s education and training. Thus, while inquiring into Dr. O’Malley’s board failures would have been permissible as impeachment, we again must conclude that the trial court did not abuse its broad discretion in excluding that evidence. Under Evidence Rule 403, the trial court bears primary responsibility for determining admissibility of evidence by balancing its probative value evidence against its potential to create undue prejudice and confusion. Since the areas of expertise that Dr. O’Malley mentioned on direct examination were not germane to the areas at issue in Marsingill’s claim, we cannot say as a matter of law that the probative value of Marsingill’s proposed impeaching evidence outweighed its potential for causing prejudice and confusion.

Finally, Marsingill sought to use the board certification evidence to impeach various statements by Dr. O’Malley’s experts regarding Dr. O’Malley’s general qualifications — particularly an opinion expressed by Dr. Gardiner that Dr. O’Malley is not deficient in knowledge or skills and an opinion by Dr. Moossa that Dr. O’Malley has the requisite level of surgical skill, as well as the judgment and knowledge to handle difficult problems. But as with the previous eviden-tiary decisions, the trial court’s broad discretion to assess the admissibility and likely prejudicial impact of evidence precludes us from saying that the court abused its discretion.

B. Jury Instructions Concerning the Standard for Deciding Breach of Duty To Disclose

Marsingill next claims that the trial court erred in rejecting her proposed jury instructions regarding Dr. O’Malley’s duty to give her adequate information during the February 14 phone call. As previously mentioned, Marsingill pursued two alternative theories of liability at trial that remain relevant on appeal. Under the first theory, she claimed that Dr. O’Malley lacked sufficient knowledge and skill to advise her properly as to her treatment choices and that these deficiencies caused him to commit malpractice by giving her deficient advice. Under the second theory, Marsingill claimed that a physician owes a duty to give patients enough information to make intelligent treatment choices. Marsingill claimed that Dr. O’Mal-ley breached this duty of disclosure by failing to adequately inform her about the potential seriousness of her symptoms and the risks of failing to seek immediate examination and emergency room treatment.

Marsingill proposed separate jury instructions covering these theories. Her proposed instruction on her claim for failure to inform would have directed the jury that the question whether Dr. O’Malley breached his duty to give her sufficient information must be measured from the standpoint of the “reasonable patient.” The trial court rejected this instruction and instead used a single instruction for both the medical malpractice theory and duty-to-inform theory. Although this instruction advised the jury of the separate factual basis underlying each of Marsin-gill’s theories, it effectively treated both as medical malpractice claims, requiring the jury to determine whether Dr. O’Malley had given Marsingill sufficient evidence to meet his duty to inform by relying exclusively on expert testimony concerning whether the doctor’s advice breached the professional standard of care. Marsingill challenges the trial court’s ruling, asserting that the “reasonable patient” standard should have governed the jury’s determination of whether Dr. O’Malley breached his duty to give her enough information to make an intelligent treatment choice. We agree.

Marsingill’s alternate theory of liability did not question the competency of any medical care or treatment administered by Dr. O’Malley and so did not depend on whether he breached the professional standard of care that governs a general surgeon; rather it questioned the adequacy of the information that he disclosed concerning Marsingill’s treatment options, asserting that the doctor owed her a duty of disclosure and that he breached this duty. Our decisions have previously distinguished between the standard that governs a physician’s duty to render adequate care and the standard that governs a physician’s duty to disclose or inform. We first noted the distinction in Pedersen v. Zielski:

The physician-patient relationship is one of trust. Because the patient lacks the physician’s expertise, the patient must rely on the physician for virtually all information about the patient’s treatment and health, A physician therefore undertakes, not only to treat a patient physically, but also to respond jfully to a patient’s inquiry about his treatment, i.e., to tell the patient everything that a reasonable person would want ⅜0 kn0w about the treatment.

Elaborating further on this distinction in Korman v. Mallin, we noted that Alaska’s informed consent statute requires physicians to disclose the common risks and reasonable alternatives to a proposed treatment or procedure but fails to specify what standard governs the scope of the disclosure requirement. After observing that the law traditionally measured a physician’s duty to disclose “by the professional standard in the field,” Korman rejected that approach in favor of “the modern trend” of case law, which “measure[s] the physician’s duty of disclosure by what a reasonable patient would need to know in order to make an informed and intelligent decision.”

Korman went on to hold that expert testimony does not play a determinative role in the context of the reasonable patient rule: “Under this modern view, expert testimony concerning the professional standard of disclosure is not a necessary element of the plaintiffs case because the scope of disclosure is measured from the standpoint of the patient.” Emphasizing that “a physician must disclose those risks which are ‘material’ to a reasonable patient’s decision concerning treatment,” Korman borrowed from the Louisiana Supreme Court’s decision in Hondroulis v. Schuhmacher to explain that, although expert testimony remains relevant in narrowing the field of risks that are potentially material, materiality itself must ultimately be judged by asking what a reasonable patient would want to know:

The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of its occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position would attach significance to the specific risk. This determination does not require expert testimony.

In the present case, Marsingill insists that Korman’s reasonable patient rule — not the professional standard of care in the field— governed the scope of Dr. O’Malley’s duty to give her enough information to enable her to make an intelligent treatment decision. Dr. O’Malley responds that neither Korman nor Alaska’s informed consent law should extend to this case because the duty of disclosure they describe “simply does not apply unless the physician recommends or proposes a specific treatment or procedure.” According to Dr. O’Malley, in the present case, “[t]he factual predicate for the ... duty to disclose, i.e., a recommended treatment or procedure is totally absent.” Hence, Dr. O’Malley contends, “Marsingill’s theory that Dr. O’Malley failed to adequately appreciate and communicate the seriousness of her condition was properly included in the ordinary medical negligence instruction.”

But on the particular facts of this case, Dr. O’Malley’s position is unpersuasive. We assume for present purposes that Dr. O’Malley is correct in asserting that Korman and Alaska’s implied consent statute both extend only to situations involving recommendations for specific medical procedures and treatment. Yet when Marsingill called Dr. O’Mal-ley on the night of February 14, she was seeking a recommendation for treatment of her abdominal pain and distress. Uncontra-dicted evidence establishes that Dr. O’Malley advised her to go to the emergency room for treatment that would likely entail having a nasogastric tube inserted into her stomach. And despite Dr. O’Malley’s argument to the contrary, the record supports the conclusion that this advice amounted to a recommendation for treatment.

Furthermore, there was evidence that Dr. O’Malley acquiesced in Marsingill’s decision not to go to the emergency room. In the context of a pre-existing patient/physician relationship involving post-operative care, a physician’s recommendation to do nothing in the face of threatening symptoms is the equivalent of a treatment recommendation and should be accompanied by a duty of disclosure. A physician’s acquiescence in a patient’s decision not to seek treatment in the same circumstances should likewise be regarded as equivalent to a treatment recommendation subject to the same duty.

As we have previously mentioned, Section 8.08 of the AMA Code of Medical Ethics gives rise to a duty of disclosure in such situations, requiring that patients be given “enough information to enable an intelligent choice.” All six expert witnesses at trial agreed that this duty to inform applied in Marsingill’s case. Indeed, even Dr. O’Malley conceded that the duty attached, expressly acknowledging that he had an “obligation to give [Marsingill] enough information so that she could make an intelligent choice as to whether she should go to the emergency room.” Hence, no one disagreed that a duty of reasonable disclosure existed — that Dr. O’Malley did in fact have a duty to give Marsingill enough information to make an intelligent choice about immediately going to the emergency room for treatment; the only significant disagreement centered on issues concerning the scope and breach of the duty to inform.

Yet these are precisely the issues that Korman describes as lying outside the realm of professional expertise and as falling within the fact-finding powers that the reasonable patient rule assigns to lay jurors. In denying the request for an instruction on the reasonable patient standard, then, the superi- or court deprived Marsingill of her right to have the jury decide the issue directly, from the standpoint of a reasonable patient. The court instead required the jury to filter its decision through the experts’ views of what patients should be told. Because the instructions hinged the determination of breach entirely on the testimony of competing experts rather than on the common sense and experience of the jury, we must conclude that giving those instructions amounted to reversible error.

IV. CONCLUSION

The judgment is VACATED, and this case is REMANDED for a new trial on Marsingill’s claim for breach of the duty to provide enough information to allow her to make an intelligent treatment choice. On remand, the jury must be instructed to decide the claim from the standpoint of a reasonable patient.

EASTAUGH, Justice, not participating.

      . Inserting a nasogastric tube involves placing a tube through the patient’s nose, down the back of the throat into the esophagus, and into the stomach.

      . AS 09.55.540(a) defines the elements of a medical malpractice claim in Alaska:
      (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.

      . We review decisions excluding evidence for abuse of discretion. Anchorage Nissan, Inc. v. State, 941 P.2d 1229, 1238 n. 17 (Alaska 1997); Agostinho v. Fairbanks Clinic P’ship, 821 P.2d 714, 716 n. 2 (Alaska 1991). An abuse of discretion occurs only “when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.” Peter Pan Seafoods v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982).

      . Cummings v. Sea Lion Corp., 924 P.2d 1011, 1017 (Alaska 1996) (quoting Alaska R. Evid. 402). Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

      . Alaska R. Evid. 403.

      . Alaska R. Evid. 404(b); accord Alaska R. Evid. 404(a).

      . Trombley v. Starr Wood Cardiac Group PC, 3 P.3d 916, 918, 920 (Alaska 2000).

      . See Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30, 34 (1999) ("[B]oard certification is not required by law to practice surgery in Arkansas. Accordingly, the legal standard of care set out in [the Arkansas malpractice statute] is in no way affected by board certification.”).

      . See, e.g., Campbell v. Vinjamuri, 19 F.3d 1274, 1277 & n. 2 (8th Cir.1994); Gipson v. Younes, 724 So.2d 530, 532 (Ala.Civ.App.1998) ("[W]hen a physician sued for malpractice testifies as an expert, the fact that he had failed a board certification examination is relevant to his credibility as an expert.”); McCray v. Shams, M.D., 224 Ill.App.3d 999, 167 Ill.Dec. 184, 587 N.E.2d 66, 70 (1992) (stating that failure to pass boards was material issue in examination of expert witness "because it bore on whether she was qualified to meet the standards of the specialty”).

      . See Gipson, 724 So.2d at 533 ("We have reviewed a number of decisions from other jurisdictions in which the courts have been required to determine whether a physician who testifies as an expert witness may be cross-examined about his failure to pass a board certification exam. The decisions are virtually unanimous in upholding the trial court's determination-regardless of whether the determination resulted in admission or in exclusion of the evidence.”).

      . See, e.g., Campbell, 19 F.3d at 1277; Hinson v. Clairemont Cmty. Hosp., 218 Cal.App.3d 1110, 267 Cal.Rptr. 503, 510-12 (Cal.App.1990).

      . The sufficiency of proposed jury instructions is a legal question to which we apply our independent judgment. Fairbanks N. Star Borough v. Kandik Constr. Inc., 795 P.2d 793, 797 (Alaska 1990), vacated in part on other grounds, 823 P.2d 632 (Alaska 1991); Chenega Corp. v. Exxon Corp., 991 P.2d 769, 775 (Alaska 1999) (“A legally erroneous instruction warrants reversal only when it prejudices a party — that is, when ‘substantial rights of the parties were affected or the error had substantial influence.' ”) (internal citations omitted).

      . 822 P.2d 903, 909 (Alaska 1991).

      . 858 P.2d 1145 (Alaska 1993).

      . See AS 09.55.556(a).

      . Korman, 858 P.2d at 1148.

      . Id. at 1148-49.

      . Id. at 1149.

      . Id.

      . 553 So.2d 398 (La.1989).

      . Korman, 858 P.2d at 1149 (quoting Hondroulis, 553 So.2d at 412).

      . Marsingill also cites California cases in support of her position, primarily Truman v. Thomas, 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d 902 (1980), and Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972).

      . Dr. O’Malley discusses cases from California and New Jersey in support of this proposition. See, e.g., Arato v. Avedon, 5 Cal.4th 1172, 23 Cal.Rptr.2d 131, 858 P.2d 598, 605 (1993); Scalere v. Stenson, 211 Cal.App.3d 1446, 260 Cal. Rptr. 152 (1989); Farina v. Kraus, 333 N.J.Super. 165, 754 A.2d 1215, 1223-24 (1999); Eagel v. Newman, 325 N.J.Super. 467, 739 A.2d 986, 989-90 (1999).

      .Dr. O’Malley asserts that one of Marsingill’s experts, Dr. Ravden, "admitted” that “simply going to the hospital is neither a treatment or procedure.” Yet this argument neglects to mention that Dr. Ravden expressly identified naso-gastric intubation as a procedure "used in the treatment of a bowel obstruction.”

      . The consensus of testimony agreeing that this duty of disclosure arose in the present setting makes it unnecessary for us to determine whether Alaska's informed consent statute would have independently encompassed the duty had Section 8.08 not applied.

      . Dr. O'Malley cursorily argues that if any error occurred on this point it was harmless because the factual similarity between Marsingill's medical malpractice and failure-to-inform theories of liability rendered any difference between the two theories immaterial. But this argument is unpersuasive, for, as Korman expressly recognizes, the differences in the standards that govern the jury's determination of breach make these theories significantly different. Although Dr. O'Mal-ley further contends that Marsingill "conceded that she could argue her theory within the confines of the general medical malpractice instruction,” this argument misstates the concession: While acknowledging that the malpractice instruction actually given allowed her to argue her factual theory, Marsingill specifically objected that the instruction would deprive her of the right to have her theory decided under the correct legal standard.

      . Because our decision on the standard for determining a breach of the duty to disclose requires a remand for retrial, we need not resolve Marsingill’s remaining claims of error. To provide appropriate guidance on remand, however, we think it necessary to comment on two aspects of the remaining claims.
      First, Marsingill argues that reversible error occurred when Dr. O'Malley’s trial counsel argued in his closing argument to the juiy that "plaintiff is asking you to basically take everything he's worked for his whole life, to ruin his reputation as a physician. That’s unbelievable.” Although we need not decide if this comment amounted to reversible error, we believe that it could readily have been understood as an improper suggestion that a judgment awarding damages against Dr. O’Malley would not be covered by his insurance.
      Second, Marsingill argues that the superior court erred in denying her motion for a new trial, which was based on the jury’s alleged confusion regarding an aspect of the jury instructions. Because this issue emerged from a post-trial interview with jurors conducted by a paralegal who worked for Marsingill's trial counsel and was supported by the paralegal's affidavit, we take this opportunity to remind counsel that Evidence Rule 606(b) flatly prohibits parties from questioning jurors as to any matter influencing their deliberations except "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.” Alaska R. Evid. 606(b) (emphasis added). The rule likewise categorically bars the receipt of "evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying.”


author: Justice COATS Justice MARTINEZ

text:
    In re the PEOPLE of the State of Colorado, Plaintiff, v. Felicio OSTUNI, Defendant.
    No. 02SA157.
    Supreme Court of Colorado, En Banc.
    Nov. 25, 2002.

      Ken Salazar, Attorney General, Joseph P. Sanchez, Assistant Attorney General, Litigation Section, Denver, Colorado, Attorney for Plaintiff.
    Felicio Ostuni, Sterling, Colorado, Pro Se Defendant.
   Justice COATS

delivered the Opinion of the Court.

Felicio Ostuni petitioned this court pursuant to C.A.R. 21 for relief in the nature of mandamus, directed to the Colorado Department of Corrections. More particularly, he seeks an order compelling the department to calculate his combined sentences by granting him 420 days of presentence confinement credit against his new sentences rather than against a previous sentence being served as the result of parole revocation. We issued a rule to show cause why the department should not be considered in violation of the district court’s sentencing order and why it should not be ordered to comply. Because we hold that the department is not in violation of the court’s order concerning the prisoner’s presentence confinement credit, we discharge the rule.

I.

Following his 1994 conviction for assault in the second degree, Felicio Ostuni was sentenced to the custody of the Colorado Department of Corrections for ten years. In early 1998, he was granted parole until his statutory discharge date of October 29, 2002. While on parole, Ostuni committed forgery and aggravated motor vehicle theft. He pleaded guilty to these charges, and the Denver District Court sentenced him to the custody of the department of corrections for six years on each count, plus a period of mandatory parole. The district court calculated that the defendant should be awarded 420 days credit for time served before sentencing and noted that amount on the mittimus remanding him to the custody of the department. The mittimus also indicated that both sentences were to run concurrently with each other and with Ostuni’s parole violation. Following sentencing, the parole board revoked Ostuni’s parole, ordering the revocation to be considered effective as of his hold date of May 11, 2000, and further ordered him returned to the custody of the department of corrections to serve the remainder of his earlier sentence.

Relying on section 16-11-306, 6 C.R.S. (2001), and the parole board’s revocation order, the department credited 420 days of presentenee confinement against the sentence Ostuni was returned to serve following his parole revocation. Ostuni complained to the Denver District Court, asserting that his presentence confinement should have been credited against his new sentences for forgery and motor vehicle theft. The court treated Ostuni’s letter as a motion for pre-sentence confinement credit, and because Os-tuni’s appeal of his conviction and sentences were pending in the court of appeals, it denied the motion for lack of jurisdiction. Os-tuni then filed a petition for writ of habeas corpus in the judicial district where he was incarcerated. That court similarly denied his petition for lack of subject matter jurisdiction and found that even if it were to enter a favorable ruling concerning the presentence confinement credit, habeas relief would not be appropriate at that time because the defendant would still not be eligible for immediate release.

The defendant now seeks relief from this court pursuant to C.A.R. 21.

II.

Relief pursuant to C.A.R. 21 is extraordinary in nature and is a matter wholly within the discretion of the supreme court. C.A.R. 21(a)(1); In re: People v. Lee, 18 P.3d 192, 195 (Colo.2001); People v. District Court, 869 P.2d 1281, 1285 (Colo.1994). Under some circumstances, it may be used to compel performance by public officials of a plain legal duty devolving upon them by virtue of their office. State v. Board of County Comm’rs of Mesa County, 897 P.2d 788, 791 (Colo.1995). Particularly, we have found C.A.R. 21 an appropriate vehicle to compel compliance by the department of corrections with final court sentencing orders, where prisoners lack any other adequate remedy. See Bullard v. Department of Corrections, 949 P.2d 999 (Colo.1997) (ordering department pursuant to C.A.R. 21 to comply with district court’s unappealed order finding completion of sentence without service of mandatory parole term); see also People v. Grangruth, 990 P.2d 697 (Colo.1999) (ordering department pursuant to C.A.R. 21 to comply with sentencing order directing it to apply presentence confinement credit to particular sentence, where sentencing order was not appealed and temporal realities of case made other remedies unavailable); Fields v. Suthers, 984 P.2d 1167 (Colo.1999) (ordering department pursuant to C.A.R. 21 to comply with mittimus requiring presentence confinement credit for life sentence); Meredith v. Zavaras, 954 P.2d 597 (Colo.1998) (ordering department pursuant to C.A.R. 21 to comply with sentencing order directing it to apply presentence confinement credit to particular sentence because other sentence was discharged, where sentencing order was not appealed and temporal realities of case made other remedies unavailable).

Our prior holdings have made clear beyond all question that prison officials have an obligation to enforce court orders mandating the deduction of a period of presentence confinement from a particular criminal sentence unless those officials have been relieved of their obligation by further judicial action. Grangruth, 990 P.2d at 701; Meredith, 954 P.2d at 602-03. Unlike those cases, however, in which the question of applying the credits was litigated in the district courts and expressly resolved against the department, the instant case involves the construction of the sentencing order itself. While there can be no question that the department must comply with an extant sentencing order of the trial court, the question remains whether a period of presentence confinement noted on the mittimus of a defendant who is ordered by the parole board to continue serving a previous sentence during the same time period should be understood as an order to deduct that period from his new sentence, or simply as a designation of the length of time for which the defendant is entitled to credit for confinement prior to his sentencing.

The General Assembly has now made clear that a person who is confined prior to the imposition of sentence for an offense is entitled to credit for the entire period of his confinement. § 18-1.3-405, 6 C.R.S. (2002) (formerly § 16 — 11—306); see also Schubert v. People, 698 P.2d 788, 792-93 (Colo.1985). It has also imposed a duty on the trial court to make an explicit finding of the amount of presentence confinement credit to which the offender is entitled and to include that finding in the offender’s mittimus along with his sentence. Rather than permitting the court to adjust an offender’s sentence downward to account for presentence confinement, the legislature has reserved to the department the duty to deduct this period of confinement from the sentence. § 18-1.3^105; see Beecroft v. People, 874 P.2d 1041, 1045 n. 12 (Colo.1994) (“When a defendant is sentenced to the DOC, the court does not have discretion to grant or deny confinement credit; the sentencing court must simply note if the defendant is entitled to confinement credit and if he is, note the amount of the credit.”); see also Meredith, 954 P.2d at 605-06 (Kourlis, J., concurring) (“[T]he sole judicial function in connection with presentence confinement credit against a DOC sentence is to include on the mittimus the number of PCC days to which the defendant is entitled.... The DOC then has the statutory duty to credit the defendant with those PCC days.”) (citation omitted); People v. Dempsey, 624 P.2d 374, 375 (Colo.App.1981) (“[T]he only judicial function [under section 18-1.3^⅛05] is to make a finding of fact concerning the number of days spent by a defendant in presentence confinement.”).

This reservation to the department is immediately followed in the statute’s text by specific instructions for allocating any pre-sentence confinement credit required by this section when the offender was serving a sentence or was on parole for a previous offense at the time he committed the new offense. In that event, the statute requires the credit to be granted against any sentence that the offender continued to serve for his previous offense and not against the sentence for his new offense. See People v. Johnson, 797 P.2d 1296, 1298 n. 4 (Colo.1990) (noting the addition of this provision in 1988 to prohibit duplicative crediting where offender was serving a sentence on parole at time of subsequent crime). While the responsibility for allocating presentence confinement credit among new and previous offenses is not expressly assigned to the department, as is its duty from the previous sentence to deduct presentence confinement credit generally, this is the clear inference to be drawn from both the nature and location of the specific limitation.

Section 18-1.3-405 requires credit only for offenses that are sufficiently the cause of presentence confinement, Schubert, 698 P.2d at 793, and this determination is clearly a matter for the sentencing court. Even before the 1988 inclusion of a special statutory parole provision, however, this court held that once a defendant’s parole had been revoked and resumption of the service of his previous sentence had begun, his confinement could no longer be considered causally related to the charge or conduct for which he would receive a new sentence. Torand v. People, 698 P.2d 797, 800-01 (Colo.1985). Unlike presentence confinement for a particular offense, whether and when a defendant’s parole for a previous offense will be revoked and service of his previous sentence will resume is a matter determined by executive branch officers. While courts must decide (when the matter is properly before them) whether the department has correctly interpreted and applied controlling statutes and sentencing orders, the initial allocation of responsibilities in section 18-1.3-405 merely reflects the practical difficulty of avoiding-duplicative credit for actions taken independently by executive and judicial branch officers.

In light of this statutory allocation of responsibilities, an annotation indicating credit for time served, on a mittimus that expressly requires service of the defendant’s new sentences concurrently with his parole violation, cannot reasonably be understood as anything more than a factual finding of the period of time the defendant spent in confinement prior to sentencing. It in no way suggests a judicial determination that this period of time should be deducted from the defendant’s new sentences rather than from the remainder of his previous sentence, much less any awareness of the difference such a determination would make to the defendant’s overall circumstances. While it is clearly the duty of the department to enforce judicial orders unless or until it has been relieved of that responsibility by further judicial action, an annotation of “credit for time served” on such a mittimus must be construed as an order for a specific amount of credit to which the defendant is entitled by statute, but not a specific method for applying that credit to the defendant’s entire sentence or for calculating the defendant’s ultimate parole eligibility or mandatory release dates. Whether or not the department has correctly interpreted the statutory scheme prescribing the computation of multiple sentences and the accreditation of presentence confinement under the circumstances of Ostuni’s case, its computation of his sentence is not in violation of a clear duty to obey the court’s sentencing order.

III.

Because the petitioner has failed to demonstrate that the department is acting in violation of an order of the district court to give him credit for time served, the rule is discharged.

Justice MARTINEZ dissents, and Justice HOBBS and Justice BENDER join in the dissent.

Justice MARTINEZ

dissenting:

The Majority’s interpretation of the trial court’s mittimus detailing Ostuni’s presen-tence confinement credit is contrary to the clear language of the mittimus. Common sense requires that we review the language of the mittimus before resorting to any construction. Because the mittimus clearly allocated presentence confinement credit to Os-tuni’s two new offenses, I conclude that the DOC violated the trial court’s order. Accordingly, I respectfully dissent.

I. The Mittimus Awards Credits to the New Offenses

While Ostuni was serving a period of discretionary parole on a conviction for assault in the second degree, he committed and was later convicted of forgery and aggravated motor vehicle theft. Upon these convictions, the trial court sentenced him to two concurrent six-year terms of imprisonment, to be served concurrently with his parole violation on the assault conviction.

Between arrest and sentencing, Ostuni spent 420 days in confinement. On the mitti-mus, the trial court specifically granted credit for time served of 420 days on the forgery count and separately granted credit for time served of 420 days on the aggravated motor vehicle theft count. After the Colorado Department of Corrections (DOC) refused to comply with the trial court’s order awarding 420 days of presentence confinement credit, Ostuni asked the trial court for an order to compel. In an order determining that it no longer had jurisdiction, the trial court reiterated that it had awarded “420 days pre-sentence confinement credit for each count ” (emphasis added).

The court clearly had the opportunity to note on the mittimus that any credit for time served was to be awarded only on the parole violation, but it did not. Similarly, the court did not state that it was merely finding that Ostuni had been confined for 420 days before sentencing; rather, it granted credit on the new counts. The mittimus and the court’s later order indisputably show that the pre-sentence confinement credit was granted to the new sentences and not the old conviction.

II. The Majority’s Interpretation Ignores the Mittimus

I believe that the Majority ignores the clear direction in the trial court’s order and misconstrues the mittimus. The Majority’s interpretation relies solely on its finding of implicit authority delegated to the DOC, within section 18-1.3^405, 6 C.R.S. (2002), to determine to which sentence a trial court’s finding of presentence confinement credit applies. Maj. Op. at .534. Its reasoning implies, that however clear the mittimus, it could not have meant what it plainly stated.

I leave for another case the discussion on the presence or absence of authority implicitly delegated to the DOC to allocate presen-tence confinement credit between new and old offenses. Instead, this dissent rests on the belief that the Majority is simply recasting the same argument that we have previously considered and rejected in People v. Grangruth, 990 P.2d 697 (Colo.1999); Meredith v. Zavaras, 954 P.2d 597 (Colo.1998); and Bullard v. Department of Corrections, 949 P.2d 999 (Colo.1997). These cases have in common the issue of whether the DOC can disregard a trial court’s order that it believes is contrary to legislation. In our prior cases, we made it clear that the DOC must enforce sentencing orders directing it to apply time credits absent further judicial action. Maj. Op. at 533-534.

In Bullard, the defendant sought a writ of mandamus against the DOC for its failure to discharge him from custody contrary to the trial court’s order. 949 P.2d at 1000-01. The sentencing court found that Bullard had served his two-year stipulated sentence and should be discharged from DOC custody. Id. at 1000. Despite the order of the trial court, the DOC refused to discharge Bullard, arguing that the order was void. Id. We did not reach the propriety of the district court’s application of law to Bullard’s case. Id. at 1002. Instead, we found that since the trial court’s order was final, the DOC must comply with it absent further judicial action. Id.

In Meredith, the DOC failed to comply with the trial court’s order to apply presen-tence confinement credit to defendant’s new offenses. 954 P.2d 597. The DOC argued that the precursor to section 18-1.3-405, section 16-11-306, precluded the trial court from applying the presentence confinement credit to the new sentence. Id. at 599-600. After many attempts to compel the DOC to comply with the trial court’s order, the defendant sought a writ of mandamus against the DOC. Id. at 601. Consistent with our holding in Bullard, we found that the DOC could not elect to ignore the trial court’s order when it had not been relieved of that obligation by further judicial action. Id. at 602.

Finally, in Grangruth, we repeated our admonition to the DOC. 990 P.2d 697. In Grangruth, the DOC proceeded to transfer the presentence confinement credit to the previous sentence upon which the defendant had violated parole, consistent with the precursor to section 18-1.3^105, section 16 — 11— 306, and contrary to the trial court’s mitti-mus order. Id. at 698. Defendant requested an order from the trial court to compel the DOC to apply the presentence confinement credit consistent with the mittimus. Id. The trial court ordered that the presentence confinement credit apply to the latter, newer conviction, but the DOC made no effort to comply. Id. at 698-99. When Grangruth requested a writ of mandamus, the DOC argued that the trial court’s grant of credit was contrary to the plain meaning of section 18-1.3-405. Id. at 700. We refused to address that issue because the DOC had not relieved its obligation to comply with the trial court’s order. Id. at 701.

We have made it abundantly clear that the DOC may not disregard a final order with impunity. Once again, the DOC has refused to acknowledge the clear mandate of the trial court. To circumvent Bullard and its progeny, the Majority reasons that since the trial court did not have authority to allocate pre-sentence confinement credit, any findings of fact within the mittimus must necessarily be consistent with the absence of that authority. The Majority ignores the trial court’s clear language in the mittimus. The Majority finds that, notwithstanding the clarity of the mittimus, the interpretation of the mittimus must be first guided by looking outside the mittimus, thus nullifying the final sentencing order of the trial court. While I cannot dispute that the trial court’s grant of presen-tence confinement credit is contrary to section 18-1.3-405, the proper course to resolve any possible discrepancy is not through a faulty interpretation of the trial court’s order. Therefore, I respectfully dissent.

I am authorized to say that Justice HOBBS and Justice BENDER join in this dissent.

      . Ostuni was apparently paroled pursuant to provisions for offenses committed before the July 1, 1993 effective date of the mandatory parole provisions of § 18-1-105(l)(a)(V), 6 C.R.S. (2001) (now § 18-1.3-40 l(l)(a)(V), 6 C.R.S. (2002)).

      . The court's sentencing order appeared on the mittimus in chart or matrix format, with "6.00 YEARS” appearing in a column to the right of tire category "DEPARTMENT OF CORRECTIONS” and “420.00 DAYS” appearing in a column to the right of the category "CREDIT FOR TIME SERVED,” with respect to each count.

      .Effective October 1, 2002, section 16-11-306 was renumbered § 18-1.3-405, 6 C.R.S. (2002), as part of a broader reorganization of sentencing provisions. The section remains substantively the same.

      . Although the sentencing order at issue in Fields was the mittimus itself, as in this case, the action of the department for which we granted relief in the nature of mandamus was its refusal to grant presentence confinement credit at all rather than its method of computing the effect of those credits on the defendant’s overall sentence.

      . Section 18-1.3-405 provides:
      A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presen-tence confinement to which the offender is entitled and shall include such finding in the mittimus. Such period of confinement shall be deducted from the sentence by the department of corrections. If a defendant is serving a sentence or is on parole for a previous offense when he or she commits a new offense and he or she continues to serve the sentence for the previous offense while charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense.

      . However, we have previously noted the importance of deferring to the department’s interpretation of its responsibility to administer the various time-reducing credits defined by the General Assembly, as long as its interpretation is reasonable and contravenes no legislative or constitutional rights or policies. See Price v. Mills, 728 P.2d 715, 719 (Colo.1986).