source: Caselaw Access Project

author: HILL, Chief Justice. LEHMAN, Justice,

license: Public Domain

text:
    2003 WY 91
    Leslie McMACKIN, Personal Representative of the Estate of Harriette R. Brown, Appellant (Plaintiff), v. JOHNSON - COUNTY - HEALTHCARE CENTER, a Wyoming Hospital District; Mark S. Schueler, M.D.; Lawrence E. Kirven, M.D. Medical Associates of Johnson County, P.C.; Jennifer Sather, R.N.; and Vicki Blakely, L.P.N., Appellees (Defendants).
    No. 01-214.
    Supreme Court of Wyoming.
    Aug. 1, 2003.
    Rehearing Granted in Part Sept. 4, 2003.
    Don W. Riske and James R. Salisbury of Riske & Arnold, P.C., Cheyenne, WY, Representing Appellant. Argument by Mr. Riske.
    Michael K. Davis of Yonkee & Toner, Sheridan, WY, for Johnson County Healthcare Center, Sather and Blakey; George E. Powers, Jr. of Sundahl, Powers, Kapp & Martin, Cheyenne, WY for Dr. Schueler; Jeffrey C. Brinkerhoff and Timothy M. Stub-son of Brown, Drew & Massey, LLP, Casper, WY, for Dr. Kirven and Medical Associates of Johnson County, Representing Appellees. Argument by Messrs. Davis, Brinkerhoff, and Powers.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   HILL, Chief Justice.

[¶ 1] Appellant, Leslie MeMackin (MeMackin), seeks review of the district court's order granting summary judgment to Appellees, Johnson County Healthcare Center (JCHC), Jennifer Sather, RN. (Nurse Sather), Vicki Blakely, L.P.N. (Nurse Blakely), Mark S. Schueler, M.D. (Dr. Schueler), Lawrence E. Kirven, M.D. (Dr. Kirven), and Medical Associates of Johnson County, P.C. (MAJC). McMackin is the daughter of, and personal representative for the estate of, Harriette R. Brown (Brown), and she prosecuted these wrongful death and medical malpractice actions against the Appellees after her mother's death. Brown died of a stroke, and it is McMackin's contention that the Appellees were negligent in their treatment of Brown. The district court held that there was no genuine issue of material fact with respect to the "causation" prong of the elements necessary to constitute a medical malpractice claim and, on that basis, granted summary judgment for the Appellees.

[¶ 2] We will reverse on the basis that McMackin's malpractice claims fall under the "loss of chance" doctrine and the facts alleged in her complaint and contained in her evidentiary submissions opposing the Appel-lees' summary judgment motions satisfy the causation element, at least for purposes of summary judgment, i.e., those facts structure a genuine issue of material fact. The matter will be remanded to the district court for further proceedings consistent with this opinion.

ISSUES

[¶ 3] McMackin articulates these issues:

I. Whether the district court erred in granting the defendants' motions for summary judgment.
1A. Whether appellees met the standards of establishing a prima facie case for summary judgment.
1B. Whether the district court erred in ruling that appellees had established a pri-ma facie case by demonstrating that appellant had failed to show that any treatment would have altered or made any difference in the outcome for Harriette Brown.

JCHC, Nurse Sather, and Nurse Blakely rephrase the issue to be:

Did the trial court err in granting the Appellees' motions for summary judgment when Appellant could not raise a genuine issue of material fact as to whether or not any medical intervention would more probably than not have prevented the death of her mother?

Dr. Schueler states the issue on appeal as:

Whether the District Court properly granted summary judgment in a wrongful death case when the plaintiff failed to respond to the Defendants['] Motions for Summary Judgment with evidence which demonstrated that a genuine issue of material fact remained on the issue of causation.

Dr. Kirven and MAJC state the issues as:

A. Whether summary judgment should be affirmed because Appellant failed to present admissible evidence that the failure to treat transient ischemic attacks caused the cerebral hemorrhage and death?
B. Whether summary judgment for Ap-pellee Kiryen was appropriate on the additional grounds that Dr. Kirven's limited involvement caused no damages as admitted by Appellant's expert?

FACTS

[¶ 4] In her amended complaint, McMae-kin averred that Brown was a resident at the Amie Holt Care Center in Buffalo from 1990 until her death on March 21, 1999. The Amie Holt Care Center is a part of JCHC. Nurse Sather and Nurse Blakely were employed at JCHC and provided care to Brown at various times pertinent to this matter.

[¶ 5] In July of 1998, Brown began exhibiting symptoms of transient ischemic attacks (TIA's, also referred to as ministrokes), during which she would be confused and unable to verbalize. These symptoms were noted many times on Brown's chart and they continued to occur at irregular intervals after July of 1998. It is alleged that the Appellees took no action to refer Brown for a neurological workup, test her for causes of the TIA's, further diagnose, or prescribe meaningful treatment for her condition.

[¶ 6] At some time prior to 9:00 p.m., on March 7, 1999, a JCHC employee discovered that Brown was having difficulty talking and was crying. This was reported to Nurse Sather, who examined Brown and noted in her chart that Brown's speech was slurred, that she was erying and suffering anxiety, had slight facial drooping on the left side, and her left eye was closed. McMackin contends that there should have been an immediate medical response to her mother's condition, but there was not. Nurse Sather examined Brown periodically between 11:00 p.m., on March 7, 1999, and 4:80 a.m. the following day, but took no action until 4:30 a.m., at which time she called Dr. Kirven who advised Nurse Sather to wait for Brown's treating physician, Dr. Schueler. At 8:00 am. on March 8, 1999, Nurse Blakely examined Brown and noted the symptoms which had persisted throughout the night. Nurse Blakely called Dr. Schueler and noted on Brown's chart that the doctor would be there in about 80 minutes. At about 9:00 a.m. on March 8, Dr. Schueler examined Brown and diagnosed a cerebrovascular accident (stroke) and arranged for her to be transferred to the hospital, - Brown did not recover from the stroke, and she died on March 21, 1999, as a consequence of it.

[¶ 7] All Appellees filed motions for summary judgment. The record is voluminous; however, the basis for the grant of summary judgment is narrowly focused. The district court's order granting the motions for summary judgment contains these conclusions:

1. In a medical malpractice case, a plaintiff is required to prove through competent evidence that it is more likely than not that the defendant's negligence caused the plaintiff's injury. Mize v. North Big Horn Hosp. Dist., 981 P.2d 229, 283 (Wyo.1997). Summary judgment is appropriate if the plaintiff cannot establish causation. Id.
2. The defendants have presented a pri-ma facie case for Summary Judgment irrespective of the Affidavit of Richard L. Hughes, M.D., by demonstrating plaintiff's failure to show that any treatment would have altered the outcome for Harriette Brown.
3. The Court also finds that the plaintiff has failed to present competent evidence that any treatment would more likely than not have prevented the hemorrhagic stroke or made a difference in Mrs. Brown's prognosis or outcome.
4. The plaintiff has failed to present competent evidence that the alleged negligence of any of the defendants was a cause of the death of Harriette Brown.
5. No genuine issue of material fact remains on the issue of causation, and all defendants are entitled to judgment as a matter of law.

We will utilize other facts in the context of our discussion of the issues.

STANDARD OF REVIEW

[¶ 8] When we review a summary judgment, we have before us the same materials as did the district court, and we follow the same standards which applied to the proceedings below. The propriety of granting a motion for summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. Reed v. Miles Land and Livestock Company, 2001 WY 16, 19, 18 P.8d 1161, 19 (Wyo.2001). A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. We, of course, examine the record from a vantage point most favorable to that party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Central Wyoming Medical Laboratory, LLC v. Medical Testing Lab, Inc., 2002 WY 47, T15, 48 P.3d 121, Y15 (Wyo.2002); Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 28, 115, 18 P.3d 645, 115 (Wyo.2001). If the evidence leads to conflicting interpretations or if reasonable minds might differ, summary judgment is improper. Wyoming Game and Fish Commission v. Mills Company, 701 P.2d 819, 821 (Wyo.1985).

[19] That standard of review is refined somewhat when applied to a negligence action and, in particular, a malpractice case:

Summary judgment is not favored in a negligence action and is, therefore, subject to more exacting scrutiny. Woodard v. Cook Ford Sales, Inc., 927 P.2d 1168, 1169(Wyo.1996). This is particularly true in malpractice suits. DeHerrera v. Memorial Hospital of Carbon County, 590 P.2d 1342, 1345 (Wyo.1979) (quoting Holl v. Taleott, 191 So.2d 40, 46 (Fla We have, however, affirmed summary judgment in negligence cases where the record failed to establish the existence of a genuine issue of material fact. See Krier v. Safeway Stores 46, Inc., 948 P.2d 405 (Wyo.1997) (failure to establish duty); Popejoy v. Steimle, 820 P .2d 545 (Wy0.1991) (failure of proof of underlying claim of a joint venture); MacKrell v. Bell H2S Safety, 795 P.2d 776 (Wyo.1990) (failure of proof of defendant's duty); DeWald v. State, 719 P.2d 648 (Wyo.1986) (cause element was pure speculation); and Fiedler v. Steger, 7183 P.2d T73 (Wyo.1986) (failure to establish cause in a medical malpractice action).

Garnett v. Coyle, 2001 WY 94, T6, 83 P.8d 114, 1 6 (Wyo.2001).

[¶ 10] "The relative infrequency of decisions involving summary judgment in malpractice cases may exemplify the wide gulf between the ease of articulating the theory of summary judgment, and the difficulty of deciding particular cases." 1 David W. Louisell and Harold Williams, Medical Malpractice, 112.06 at 12-85 (2002):

Although the malpractice case appropriate for summary judgment on such issues as negligence or causation may be relatively rare, there are occasions where this device is an ideal remedy for the defense attorney for segregating a particular defense, e.g., that of the statute of limitations, from the case as a whole, and permitting its determination more or less in isolation, apart from the psychology of the trial itself A motion for summary judgment appropriately timed, supported by carefully marshaled evidence, persuasively presented in a well documented fashion, can be a powerful weapon for defendant.

Id., at 12-85.

[T11] In order to defeat a motion for summary judgment in a medical malpractice action, the plaintiff must establish; (1) the accepted standard of medical care or practice, (2) that the health eare provider departed from that standard, (8) that the conduct was the legal cause of the injuries suffered, and, of course, (4) that the plaintiff was damaged by the conduct. Oakden v. Roland, 988 P.2d 1057, 1059 (Wyo.1999); Sayer v. Williams, 962 P.2d 165, 167-68 (Wyo.1998); Fiedler v. Steger, 713 P.2d T73, Tb (Wyo.1986). In this case, it is not disputed that summary judgment was inappropriate vis-a-vis the standard of care, the departure from that standard, or that McMackin suffered damage. The focus of this appeal is solely on the issue of causation.

DISCUSSION

[T12] As noted in the fact section of this opinion, the primary contention made by McMackin is that the Appellees did not respond in a manner consistent with the applicable standard of care in treating the TIA's that Brown experienced, ie., they did not refer her to a specialist (neurologist) for a work-up or otherwise attempt to employ available treatments. Further, it is claimed that these omissions were the cause of Brown's "loss of a chance" to avoid the onset of the stroke. Secondarily, MeMackin contends that once Brown presented with symptoms of a cerebral hemorrhage, Appellees failed to take any action to address that condition, and those omissions were the cause of Brown's "loss of a chance" to survive the stroke. The following material helps to provide a superficial explanation of Brown's condition and provides background for our discussion:

[¶ 13] Ischemia

The greater number of strokes are is-chemic in nature, (eg., due to a lack of blood rather than hemorrhage). While very serious, ischemic strokes are not asso-clated with the high mortality rates seen with hemorrhage. Perhaps as many as half of all ischemic strokes are preceded by one or more episodes known as "transient ischemic attacks" (TIA). These consist of a typical stroke syndrome (sudden onset of localized brain dysfunction) [and] subside in minutes or hours. While strokes occur without prior TIA's, and TIA's occur without strokes, there is a high correlation between the two, and TIA's are usually regarded as a stroke "early warning system."

The exact mechanisms of TIA's are not entirely understood. There may be many mechanisms, but a microembolism is often implicated. In the past, these episodes have been thought due to vascular spasm, and they are sometimes referred to as "little strokes." Most statistical studies have shown that about one-third of patients with TIA will have a permanent stroke, usually within a matter of months. Because of this, these attacks are usually regarded as a grave warning. Such patients often are given an intense medical investigation, to provide the most effective treatment available, hoping to prevent a subsequent stroke. As with hemorrhage, little can be done once an ischemic stroke oceurs. The stroke results in the death of some brain tissue, which heals with a sear. The sear, of course, is not functional brain tissue, and while such patients usually survive the attack, a residual neurological deficit is the rule. The recovery of function typical of strokes appears to result when uninvolved parts of the brain learn to perform the lost functions.

Ideally, then, treatment is most effective before the permanent stroke occurs. Rational treatment can be based only on an accurate diagnosis-henee the intensive investigation of patients with TIA. Consideration is usually given to: (1) predisposing factors, (2) status of the blood vessels themselves, (8) factors that may precipitate ischemia, and (4) disorders that may masquerade as ischemic events.

5A Lawyers' Medical Cyclopedia of Personal Injuries and Allied Specialties, § 34.27a(E) (Ischemia), at 265-66, Richard M. Patterson, Editor (44° ed.1997).

[T 14] Susan Cutchall, M.D., was retained by McMackin to be an expert witness. It was her opinion that the TIA's suffered by MceMackin should have been aggressively treated, that lack of treatment was a direct cause of the debilitating stroke, and that it was possible that more aggressive action immediately following the discovery that Brown had suffered a stroke could have ameliorated Brown's condition. Another expert employed by MeMackin agreed with Dr. Cute-hall's assessment. Dr. Cutchall specifically challenged the findings made by the Appel-lees' expert, Dr. Hughes, to the effect that Brown's condition could not have been diagnosed before her death, and that there was no treatment that could have prevented the hemorrhage or altered the outcome for Brown.

[115] MeMackin contends that the district court shifted the usual summary judgment burden to her-to come forward with expert testimony to establish causation-rather than placing it on Appellees to come forward with evidence establishing the lack of causation. See Metzger v. Kalke, 709 P.2d 414, 420-23 (Wyo.1985). We agree with McMackin that there are genuine issues of material fact and that Appellees were not entitled to judgment as a matter of law. Our reasoning, however, is founded in a doctrine known as "loss of chance." "Loss of chance" cases typically turn on causation:

Generally, to prevail on a claim that the physician's failure to evaluate and treat a patient caused the patient to lose the chance for survival, the plaintiff must show the following:
(1) The patient has in fact been deprived of the chanee for successful treatment; and
(2) The decreased chance for successful treatment more likely than not resulted from the physician's negligence.
Under this analysis, the causal connection between the defendant's omission and the decedent's stroke can be established if the defendant's omissions increased the risk of the harm suffered by the plaintiff.

1 Louisell & Williams, Medical Malpractice, supra, 1 8.07[2] at 8-94; I 9.04[4] at 9-22-27; Clementi v. Procacci, 762 A.2d 1086, 1091-92 (Pa.Super.2000); 1 Barry R. Furrow, Thomas L. Greaney, Sandra H. Johnson, Timothy Stoltzfus Jost, Robert L. Schwartz, Health Law § 6-Th. at 308-12 (2"" ed.2000).

[T16] In such cases, the "causation" element does not require that it be shown that the patient was certain to have recovered or improved with sound medical care, and it has often been said that the plaintiff may sustain the burden of establishing proximate causation with evidence that the patient could have been helped by proper treatment. John D. Hodson, Annotation, Medical Malpractice: "Loss of Chance" Causality, 54 A.L.R.A*" 10 at 18 (1987 and Supp.2002); Boryla v. Pash, 960 P.2d 123 (Colo.1998). J. Stephen Phillips, The "Lost Chance" Theory of Recovery, The Colorado Lawyer, Vol. 27, No. 11, at 85 (November 1998); Kevin Joseph Willging, Case Note, "Falcon v. Memorial Hospital: A Rational Approach to Loss-of-Chanee Tort Actions," 9 Journal of Contemporary Health Law and Policy 545 (1998); Alberts v. Schultz, 1999-NMSC-15, 4 10-38, 126 N.M. 807, 11 10-33, 975 P.2d 1279, 1 10-88 (1999).

Where a physician is negligent in diagnosing a disease, and the resulting delay reduces the plaintiff's chances of survival (even though the chance of survival was below fifty percent before the missed diagnosis), a strong argument can be made that the physician should be responsible for the value of the chance that the plaintiff lost, so long as the initial act of the physician was itself negligent. First, the loss of an improved chanee of survival or improvement in condition, even if the original odds were less than fifty percent, is an opportunity lost due to negligence. Much treatment of diseases is aimed at extending life for brief periods and improving its quality rather than curing the underlying disease. Much of the American health care dollar is spent on such treatments, aimed at improving the odds. In the words of the Delaware Supreme Court, "lilt is unjust not to remedy such a loss." Second, immunizing whole areas of medical practice from liability by requiring proof by more than fifty percent that the negligence caused the injury fails to deter negligence conduct. As Judge Posner wrote in DePass v. U.S., "A tortfeasor should not get off seot free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim's life."
Courts have wrestled with the concept of loss of a chance or increased risk over the past twenty years, adopting one of several approaches to the problem. First, the traditionalists have refused to budge in considering loss chances below fifty percent. A minority of jurisdictions either expressly reject the loss of chance theory or have simply continued to adhere to the traditional strict causation standard. Their justifications include a fear that the jury is forced to speculate as to the causes of plaintiff's ultimate injury, with only disputed expert probabilities to guide them; that the jury will be misled and impressed by the probabilistic evidence; and that in many cases statistical evidence will be either unavailable or based on inadequate evidence.
A second approach is the "pure" lost chanee approach, also called the "increased risk" or "relaxed causation" approach by some courts. If a plaintiff can prove that the defendant's negligence decreased the plaintiff's chanee, no matter how slight, he can recover full damages from the trier of fact. Some courts have recognized the theory by classifying the destruction or reduction of a chance for recovery as an independent, compensable harm. These courts concentrate on the causal relationship between the negligent conduct and the statistical loss or reduction in the patient's chanees for recovery. They apply the traditional evidentiary standard to this new kind of compensable interest. Most courts have relaxed one of the two traditional legal standards for a prima facie case of causation. Some have employed a standard which allows a plaintiff to meet his burden by proving that the defendant's negligence eliminated a substantial possibility of recovery or survival. - Other courts have held that a plaintiff has met his burden by showing that the defendant's negligence increased the risk of harm or injury. Courts in these jurisdictions require that the jury find that the conduct was a "substantial factor" in causing the injury. Another judicial approach to these calculations is to treat the loss of a chance as a wrong separate from wrongful death, and allow the jury to set a dollar amount based on all the evidence, without mechanically applying a percentage to a total damage award.
The third approach is that of proportional "loss of chance," adopted by many courts that have considered the issue. The leading case is Herskovits v. Group Health Cooperative [664 P.2d 474 (Wash.1983)], where the court considered the consequences of a physician's missed diagnosis of lung cancer on the plaintiffs future. The court found that the plaintiff's chances of survival dropped from 39 percent to 25 percent, and that such a loss of a chanee to survive was the proximate cause of his death. In the court's words, "* * * [to decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence."

1 Furrow, Greaney, Johnson, Jost & Schwartz, Health Law, supra, at 309-11; also see John H. Derrick, Annotation, Medical Malpractice Liability for Failure of Physician to Inform Patient of Alternative Modes of Diagnosis or Treatment, 38 A.L.R.4" 900 (1985 and Supp.2001); Jack W. Shaw Jr., Annotation, Malpractice: Failure of Physician to Notify Patient of Unfavorable Diagnosis or Test, 49 A.L.R.3d 501 (1973 and Supp.2002); Jerald J. Director, Annotation, Malpractice: Physician's Failure to Advise Patient to Consult Specialist or One Qualified in a Method of Treatment Which Physician is Not Qualified to Give, 35 AL 349 (1971 and Supp.2002); CT. Drechsler, Annotation, Liability of Physician for Lack of Diligence in Attending Patient, 57 A.L.R.2d 879 (1958 and Later Case Service 1994, Supp.2002).

[¶ 17] We hold that the doctrine of "loss of chance" is cognizable in Wyoming and that there is a genuine issue of material fact with respect to causation in this case. McMac-kin's contention is that the Appellees' conduct was the legal cause of Brown's loss of a chanee for survival or for a better outcome. The allegations in her complaint, as well as the expert testimony she offered in resistance to the motion for summary judgment, preclude summary judgment in favor of Ap-pellees on the issue of causation.

[118] We would be remiss if we did not at least provide some minimal guidance with respect to the measure of damages in such a case. There is an abundance of pertinent authority, but no clear-cut rule that can govern in all such cases. Instructions to the jury with respect to damages must be tailored to each case based on its peculiar facts. See 2 David W. Louisell and Harold Williams, Medical Malpractice I 18.07 at 18-80-18-86 (2002); 1 Furrow, Greaney, Johnson, Jost & Schwartz, Health Law, supra, at 309-11; Martin J. MeMahon, Annotation, Medical Malpractice Measure and Elements of Damages in Actions Based on Loss of Chanee, 81 A.L.R.4* 485 (1990 and Supp. 2002); Martin J. McMahon, Annotation, Damages for Loss of Chance of Cure, 12 Am.Jur. POF8d 621 (1991 and Supp.2001); and Todd S. Aagaard, Case Note, Identifying and Valuing the Injury in Lost Chance Cases, 96 Mich. LR. 1335 (1998). This case presents one of the simplest and most straightforward set of cireumstances, i.e., the calamity suffered is death, and the full measure of damages would be those ordinarily allowed in a wrongful death action, reduced by the statistical or percentage loss of chance for survival. See McKellips v. Saint Francis Hospital, Inc., 741 P2d 467, 475-77 (Okl.1987). Of course, the final determination of an appropriate measure for damages must be based on the evidence presented at trial

CONCLUSION

[¶ 19] The summary judgment order is reversed and this matter is remanded to the district court for further proceedings consistent with this opinion.

LEHMAN, Justice,

dissenting.

[¶ 20] In reaching its decision, the district court found appellees had presented a prima facie case for summary judgment irrespective of the affidavit of appellees' medical expert, Dr. Richard Hughes, by demonstrating McMackin's failure to show that any treatment would have altered the death of Ms. Brown. The district court also ruled that McMackin had failed to present competent evidence that any treatment more likely than not would have prevented the massive hemorrhage in Ms. Brown's brain, which resulted in her death. Therefore, the district court determined that no genuine issue of material fact remained on the issue of causation and appellees were entitled to summary judgment.

[¶ 21] In a medical malpractice action the plaintiff is required to prove that failure to perform a required duty proximately caused the damages alleged by the plaintiff. Fiedler v. Steger, 713 P.2d 773, 775 (Wyo.1986) (citing Vassos v. Roussalis, 625 P.2d 768, 772 (Wyo.1981)). Proximate cause means that the accident or injury must be the natural and probable consequence of the act of negligence. Fiedler v. Steger, at TIS (citing McClellan v. Tottenhoff, 666 P.2d 408, 414 (Wyo.1983) and Harris v. Grizzle, 625 P.2d 747, 758 (Wyo.1981)). The establishment of the element of proximate cause is normally a question of fact for the jury unless the evidence is such that reasonable minds could not disagree wherein such issue becomes a matter of law. Stephenson v. Pacific Power & Light Co., 779 P.2d 1169, 1178 (Wyo.1989); Kopriva v. Union Pacific Railroad Co., 592 P.2d 711, 718 (Wyo.1979).

[¶ 22] Wyoming Rules of Civil Procedure 56(e) further requires that both supporting and opposing affidavits with respect to motions for summary judgment be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Moreover, after the movant makes a prima facie showing that there are no issues of material fact involved and that an inquiry into the facts is unnecessary to clarify the applicable law, the burden of proof shifts to the opposing party who must show a genuine issue of material fact or come forward with competent evidence of specific facts countering the facts presented by the movant. The burden is on the nonmoving party to show specific facts as opposed to general allegations. The material presented must be admissible at trial. Conclusory statements are inadmissible. Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo.1999) (citing Nowotny v. L & B Contract Industries, 938 P.2d 452, 455 (Wyo. 1997) and Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 13038, 1304 (Wyo.1985)).

When the party moving for summary judgment has established a prima facie case, the burden of production shifts to the opposing party who then is obliged to marshal admissible evidence, as opposed to general or conclusory allegations, establishing continuing viability of an issue of material fact. Such evidence must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation.

Campbell ex. rel Campbell v. Studer, Inc., 970 P.2d 389, 392 (Wyo.1998) (emphasis added) (quoting Estate of Coleman v. Casper Concrete Co., 989 P.2d 288, 286 (Wyo.1997)). See also Mize v. North Big Horn Hosp. Dist., 931 P.2d 229, 288 (Wyo.1997) Harris v. Grizzle, 625 P.2d at 751 and 758.

[¶ 23] In support of their motions for summary judgment, appellees tendered the pleadings of record; the deposition tran-seripts of Dr. Kirven, Dr. Schueler, Jennifer Sather, R.N., Dr. Cutehall, and Diana Ward Collins, R.N.; the initial report issued by Dr. Cutchall; and the affidavit of Dr. Hughes. Review of Dr. Kirven's deposition transeript evidences that he did not believe any treatment could have been given to Ms. Brown that would have been of assistance to her when he was contacted on March 8, 1999, at approximately 4:80 a.m. Dr. Kirven also indicated that, given Ms. Brown's medical history, administering treatment to her prior to that time on March 7 or 8, 1999, would have proven unsuccessful. Similarly, Dr. Schueler testified in his deposition that, given Ms. Brown's medical history and the fact that she had either experienced a stroke or a hemorrhage in her brain as of the morning of March 8, 1999, no treatment given to her earlier on March 7 or 8, 1999, would have mitigated her injury. These doctors also generally testified that the medical treatment they each rendered to Ms. Brown from July of 1998 until March 7, 1999, was appropriate given the specific situation and cireumstances experienced by Ms. Brown.

[T24]) Dr. Cutchall, a family practitioner, through McMackin's supplemental designation of expert witnesses and her own deposition, stated that Ms. Brown died from complications of a hemorrhagic stroke preceded by untreated TIAs and attributed the death of Ms. Brown to the negligence of each of the appellees. Dr. Cutchall, in her deposition, however, goes on to merely theorize that an ischemic/embolic/thrombotie stroke may precede and be the cause of a hemorrhage and that she suspected that this was what occurred with Ms. Brown. In fact, she admitted that in the vast majority of cases, hemorrhagic strokes, like those suffered by Ms. Brown, are unrelated to embolic strokes, and no medical literature exists that establishes a connection between the two.

[¶ 25] Specifically, Dr. Cutchall stated her theory was that Ms. Brown had recurring TIAs that were not treated, resulting in an embolic stroke which may have caused the hemorrhagic stroke. However, she stated that one cannot distinguish between an em-bolic stroke and a hemorrhagic stroke with a clinical examination and the only way to distinguish between the two is with a CT sean. Dr. Cutchall further admitted that the CT sean performed upon Ms. Brown did not reveal an embolic stroke that she testified may have occurred but revealed only a hemorrhagic stroke caused by a massive hemorrhage. Finally, Dr. Cutchall admitted that absolutely no evidence existed in this case that would establish that Ms. Brown had previously suffered from an embolic stroke, a crucial part of her theorized expert opinion.

[¶ 26] Dr. Cutchall also confirmed that Ms. Brown could have simply had a spontaneous bleed. She further advised that she could not testify to a reasonable degree of medical probability that the massive hemorrhage had not been present since the onset of Ms. Brown's TIA symptoms. Dr. Cutchall also admitted that, while TIAs may be a predictor of an embolic stroke, TIAs are not a predictor of a hemorrhagic stroke, the condition that caused Ms. Brown's death. In addition, Dr. Cutchall affirmed that it is often common, even after a full neurological workup is performed on a patient experiencing TIAs, for the specific etiology of the TIAs to remain undetermined.

[T27] Based upon her assumption that Ms. Brown may have had an embolic stroke preceding the hemorrhagic stroke, Dr. Cute-hall proffered various treatments that could have been ordered for Ms. Brown before the massive hemorrhage. However, Dr. Cutchall and the other medical experts stated that no known treatment would have prevented the cerebral hemorrhage which took Ms. Brown's life. Further, there is primarily no treatment for a cerebral hemorrhage after it occurs other than comfort and care. Critically, Dr. Cutchall also stated that she did not personally review the CT sean taken of Ms. Brown but only reviewed the CT sean reports as a basis for her opinion. She further stated that she did not hold herself out as a neurologist and that a neurologist would have a much better opinion of the cause and possible treatment of Ms. Brown's massive cerebral hemorrhage due to a neurologist's more specific expertise in the area.

[¶ 28] In his affidavit submitted by appel-lees in support of their motions for summary judgment, Dr. Hughes, a neurologist, opined based upon a reasonable degree of medical probability that Ms. Brown's history was consistent with a condition known as amyloid angiopathy, which is a well documented condition related to aging that causes a crystal-like substance to form in the arteries of the brain. This condition is often preceded by multiple episodes clinically indistinguishable from TlAs. The artery eventually breaks in the periphery, causing a hemorrhage. Dr. Hughes also stated that Ms. Brown's medical history evidenced that she had previously suffered from white matter disease, which was consistent with a hemorrhage secondary to amyloid angiopathy. Moreover, amyloid angiopathy is normally diagnosed only after there has been a hemorrhage, and there is no treatment other than blood pressure monitoring, which was performed in this case.

[¶ 29] Alternatively, Dr. Hughes suggested that an artery in Ms. Brown's brain may have became blocked or occluded, and the resulting pressure caused it to rupture and hemorrhage. However, Dr. Hughes stated that this scenario was unlikely since Ms. Brown experienced a large cerebral bleed as demonstrated by the CT sean, hemorrhages caused by a prior embolism normally do not result in as much bleeding, and only 1 out of 200 hemorrhages is the result of a prior embolism. Therefore, Dr. Hughes concluded that the cerebral hemorrhage suffered by Ms. Brown was not preceded by or caused by an embolic stroke. Dr. Hughes also attested that a hemorrhage can result from hypertension; but this was unlikely in Ms. Brown's case since bleeding caused by hypertension is usually deep within the brain, and Ms. Brown's bleeding occurred on the periphery as shown by the CT sean. Therefore, Dr. Hughes concluded that the probable cause of the cerebral hemorrhage incurred by Ms. Brown was amyloid angiopathy. He also stated that there was no treatment that would have prevented or altered the cerebral hemorrhage suffered by Ms. Brown regardless of which of the three events he referred to had caused that hemorrhage.

[¶ 30] Further, Dr. Hughes stated that if medications were given to Ms. Brown to prevent stroke, it would have likely precipitated a bleed and Ms. Brown would have died even earlier. Finally, Dr. Hughes opined that, even if Ms. Brown had been treated by a neurologist who was aware of an impending stroke, the outcome would have been no different. (Id.)

[¶ 31] Accordingly, given my independent review of the record, I agree with the district court's determination that appellees presented adequate evidence, even outside consideration of the substantial affidavit submitted by Dr. Hughes, to make a prima facie showing that no genuine issue of material fact existed as to the issue of causation. Upon consideration of the affidavit of Dr. Hughes, the district court's conclusion is certainly even more supported. Therefore, I would hold that the district court did not err in its determination that appellees had presented adequate evidence to make a prima facie showing for the granting of summary judgment.

[¶ 32] As indicated above, after the mov-ant makes a prima facie showing that there are no issues of material fact involved and that an inquiry into the facts is unnecessary to clarify the applicable law, the burden of proof shifts to the opposing party who must show a genuine issue of material fact or come forward with competent evidence of specific facts countering the facts presented by the movant. However, review of the testimony of Dr. Cutchall noted in detail above evidences her opinion concerning causation is conjectural at best, and a more thorough review of her total testimony evidences that her opinion as to causation is merely speculative. Indeed, when asked the specific basis for her opinion concerning causation, Dr. Cutchall admitted that the foundation leading her to this conclusion was simply her own personal patient history. Dr. Cutehall could not give any scientifically based detailed analysis.

[¶ 33] Dr. Mitchell Felder's affidavit was also proffered in opposition to the summary judgment motions. Dr. Felder, a neurologist, stated through an opinion letter attached to his affidavit, that the cause of Ms. Brown's death was a massive hemorrhage which was preceded by untreated TIlAs. He offered several possible alternatives as to the cause of the fatal hemorrhage but did not conclude which of them was its probable cause. He also, like Dr. Cutchall, describes theoretical treatments that could have been given to Ms. Brown concerning the TIAs she was experiencing. However, Dr. Felder did not state that these treatments would have in any way prevented the massive hemorrhage that Ms. Brown experienced. Again, the statements of Dr. Felder are solely concluso-ry and, as such, fall short of establishing a material question of fact with respect to causation.

[¶ 34] The principles adopted by this court in Weber v. McCoy, 950 P.2d 548 (Wyo.1997) and Vassos v. Roussalis, 658 P.2d 1284 (Wyo.1983) make it clear that medical experts need not assert their opinions through utilization of specific terms to be valid. However, the expert opinion rendered must be based in fact and on an adequate foundation. Expert opinion cannot be based on mere inferences, conclusions, and assertions, as such opinion is mot sufficient to defeat summary judgment. Garnett v. Coyle, 2001 WY 94, 113-6, 33 P.3d 114, 113-6 (citing McClellan v. Britain, 826 P2d 245, 247 (Wyo.1992); Mayflower Restaurant Co. v. Griego, ""Al P.2d 1106, 1113 (Wyo.1987); Stundon v. Sterling, 736 P.2d 817, 318 (Wyo. 1987)); Blackmore v. Davis Oil Co., 671 P.2d 834, 336-87 (Wyo.1983) (quoting Gennings v. First Nat'l Bank at Thermopolis, 654 P.2d 154, 155 (Wyo.1982)).

[¶ 35] Certainly, while both experts proffered by McMackin testified that Ms. Brown died of a cerebral hemorrhage in her brain that was preceded by untreated TIAs, neither could sufficiently draw any further specific conclusion regarding the cause of her death and that appellees' actions contributed to her death. Simply put, in this case an essential element, the causal connection between the alleged breach of a duty owed and the injury sustained, is missing.

[¶ 36] Furthermore, when reviewing expert testimony, a trial court is required to act as a "gatekeeper" to determine the reliability of the proffered expert testimony by applying the flexible criteria set forth in our opinion in Bunting v. Jamieson, 984 P.2d 467, 471-73 (Wyo.1999) (formally adopting in Wyoming the four non-exclusive tests to the facts at hand enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 118 S.Ct. 2786, 2796-97, 125 L,Ed.2d 469 (1998)). A trial court must be given broad latitude in determining whether expert testimony is based upon reliable scientific methodology so as to make the conclusions offered by an expert admissible. Thus, our scope in reviewing such issues is very narrow-reversing the trial court's decision only if we conclude that it abused its discretion in excluding expert testimony. Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1206-07 (10 Cir.2002).

[¶ 37] As indicated above, the district court was presented with voluminous materials to assist it in its ruling on the motions for summary judgment and ultimately applied the Daubert principles before rendering its decision. Upon review of the district court's analysis, I cannot conclude that the district court clearly abused its discretion in rendering its decision. To the contrary, the district court, based on the specific materials provided to it, reasonably determined that the evidence presented was insufficient to scientifically establish that a cause-effect connection existed in this case. Therefore, I concur with the conclusion reached by the district court that McMackin failed to present competent and admissible evidence that any treatment more likely than not would have prevented the massive hemorrhage in Ms. Brown's brain, which resulted in her death.

[¶ 38] The majority bases its reasoning on the "loss of chance" doctrine. Nevertheless, the application of that doctrine does not obviate the mandate that a plaintiff must show by competent and admissible evidence the causal connection between the defendant's omission and the damage allegedly suffered. I agree that expert testimony must be based on reliable methodology, but need not be so persuasive as to meet the proponent's ultimate burden of proof, and that if the admissibility bar is raised too high, the court usurps the jury's duty to evaluate the expert's credibility and weigh the evidence. See Bunting, 984 P.2d at 473 and Heller v. Shaw Industries, Inc., 167 F.8d 146, 156 (39 Cir1999). However, this did not occur in this instance because MceMackin failed to present any expert opinion based on reliable scientific foundation.

[¶ 39] I would, therefore, affirm the ruling of the district court granting summary judgment in favor of appellees.

      . Ms. Sather's deposition transcript simply evidences her recollection of what had occurred during the evening of March 7, 1999, and the morning of March 8, 1999, concerning the nursing care Ms. Brown received. Specific issues concerning causation were not addressed through this deposition.
      In similar fashion, the deposition transcript of Ms. Ward-Collins, the nursing expert designated by McMackin, deals almost exclusively with the subject of standard of care as it relates to nursing, and no issues regarding causation were addressed through this deposition. However, it is interesting to note that Ms. Ward-Collins testified that Vicki Blakely, LP.N. met the standard of care for nurses regarding the nursing care she rendered to Ms. Brown on the morning of March 8, 1999.

      . - "Embolic" is defined as "[rlelating to an embo-lus or to an embolism." "Embolism" is defined as an "[olbstruction or occlusion of a vessel by an embolus." "Embolus" is defined as "[a] plug, composed of a detached thrombus or vegetation, mass of bacteria or other foreign body, occluding a vessel." - "Thrombotic" is defined as "[rlelating to, caused by, or characterized by thrombosis," while "thrombosus" is defined as "[flormation or presence of a thrombus; clotting within a blood 'vessel which may cause infarction of tissues supplied by the vessel." "Thrombus" is defined as [al clot in the cardiovascular systems formed during life from constituents of blood; it may be occlusive or attached to the vessel or heart wall without obstructing the lumen." See Steadman's Medical Dictionary, 25th Edition Illustrated (1990).
      For ease of reference an ischemic/embolic/thrombotic stroke will be simply referred to as an embolic stroke.

      . "Hemorrhagic is defined as "[rlelating to or marked by hemorrhage." "Hemorrhage" is defined as "[hJemorrhea; bleeding; an escape of blood through the ruptured or unruptured vessel walls" or "[to bleed." See Steadman's Medical Dictionary, 25th Edition Hlustrated (1990).

      . - It is recognized that the district court expressly did not rely upon the affidavit of Dr. Hughes in making its determination that appellees had established a prima facie case for the granting of summary judgment. However, it is well established that this court may affirm a district court's grant of summary judgment under any proper legal theory on the record presented. Vernon T. Delgado Family Ltd. Partnership v. Shaw, 9 P.3d 982, 983 (Wyo.2000) (quoting Hulse v. First Interstate Bank of Commerce-Gillette, 994 P.2d 957, 958-59 (Wyo.2000)).


author: CARPENETI, Justice.

text:
    Stacie L. SMITH, Appellant, v. Ronald D. WEEKLEY, Appellee.
    No. S-10600.
    Supreme Court of Alaska.
    July 18, 2003.

      Gayle J. Brown, Anchorage, for Appellant.
    David S. Houston, Houston & Houston, P.C., Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

In this action for child custody, the superi- or court awarded interim custody to the father and later adopted the interim custody arrangement as the final one. The mother contests this decision, maintaining that the court applied an incorrect standard in reaching its final custody determination and considered one statutory best interests factor to the exclusion of all others. Because we agree that the superior court failed to apply the correct standard to its child custody determination and that it erroneously applied the statutory best interests factors, we remand for a new custody determination.

II. FACTS AND PROCEEDINGS

A. Facts

The parents in this child custody action, Ronald Weekley and Stacie Siver (formerly Smith), were never married but had one child together, Dalton. For at least two years before this action was initiated, Dalton alternated between each parent's home on a weekly basis. At the time of trial, Dalton was six years old and was in the middle of his first year of kindergarten, and both of his parents had married other partners. Ronald Weekley and his wife, Dalton's stepmother, had an almost two-year-old daughter who lived with them, and they were expecting a second child. Stacie Siver had an cight-year-old daughter who lived primarily with her father and visited with Stacie and her husband on certain weekends of each month. For most of Dalton's life, both of his parents had resided in Anchorage.

The Sivers moved to Wasilla at some point in 2001. Siver planned to enroll Dalton in a private school there, while Weekley anticipated that Dalton would attend public school in Anchorage. Prior to the move, the parties had not reached an agreement regarding Dalton's future placement. The parties were also in disagreement regarding Dalton's medical needs. In August of 2001 Siver took Dalton to the Alaska Native Medical Center to begin treatment for his "toe walking." According to his doctor at that time, Dalton was unable to walk with his feet flat and his condition was unlikely to remedy itself. The doctor recommended serial casting, which "consists of a walking cast in which the angle of the ankle is changed slowly over time to stretch the tight ankle muscles." The following month, Weekley took Dalton to another doctor for an explanation of the casting. The second doctor expressed the opinion that the two castings which had already been done had sufficiently stretched the appropriate muscle and that no further casting was needed at that time. During the course of the proceedings, Siver emphasized the importance of her overseeing Dalton's care, while Weekley maintained that Siver had overstated Dalton's medical needs and that, whatever they were, he was equally able to meet them.

B. Proceedings

On August 14, 2001, without informing Siver of his plans, Weekley filed a complaint for permanent custody and a motion for interim custody. In the accompanying affidavit, Weekley emphasized Siver's decision to move to Wasilla and the disagreement between Siver and Weekley as to where Dalton should be enrolled in school as bases on which the court should place Dalton with him. Siver did not receive service of these documents until August 24, when her attorney contacted Weekley's attorney and arranged to accept service of the complaint and motion on Siver's behalf.

On August 29, not yet having received a reply from Siver, Superior Court Judge Peter A. Michalski granted Weekley's motion for interim eustody, ordering visitation for Siver every other weekend and requiring her to begin paying child support. The interim custody order was sent to Siver and Weekley by U.S. mail on August 30. That same day, prior to receiving the court's order, Siver filed an opposition to Weekley's request for interim custody and cross-petitioned for placement with her. Citing Dalton's medical needs and her status as a stay-at-home mom, Siver maintained that the court should grant her interim custody and provide Weekley with visitation three weekends per month. She also requested that the court hold an evidentiary hearing on the matter.

On September 4, 2001, after receiving the court's August 29 order granting Weekley interim custody, Siver filed a motion to set the order aside on the ground that Siver had not been timely served with the complaint or motion for interim custody. As Siver explained, she had "had custody of the minor child and her opposition to the motion which was timely filed was never considered by the court." In her motion asking the court to set aside its interim order, Siver maintained: "The order was improvidently entered prior to defendant's ten day time to respond to the underlying motion. Defendant and her counsel were not served with the Complaint or other documents until August 24, 2001, in the afternoon. The opposition was filed on August 80, 2001, well within the 10 day response period."

Siver's opposition to Weekley's motion and request to have the order set aside were followed on September 5 by a reply in which Weekley argued that the interim order should remain in place and requested that the court issue a writ of assistance to facilitate the transfer of custody from Siver to him. In his reply, Weekley contended that Siver had subjected Dalton to medical treatment which may have been unnecessary, that she had unilaterally cut off all contact between Weekley and Dalton, that she had falsely alleged domestic violence against Weekley to avoid transferring custody of Dalton, and that when these steps failed to prevent Weekley from obtaining interim custody, she fled with the child. Additionally, Weekley contended that Siver had a history of involvement with alcohol and violent behavior. That same day, the court issued a Writ of Assistance to Weekley and denied Siver's motion to set aside the interim custody order. The court set a hearing date of September 18 to further address the issue of interim custody.

Siver then filed a motion requesting expedited reconsideration of the court's decision to leave the interim custody order in place until the hearing. Siver argued that Week-ley had minimized Dalton's medical condition in his affidavit and attached copies of Dalton's medical records to demonstrate that Dalton "is casted on both legs and needs constant medical care and treatment from the Alaska Native Medical Center." She contended that because she had been his primary care provider with respect to these treatments and was not employed outside the home, it would be contrary to Dalton's best interests to leave him in his father's care. Siver also stated that she did not believe that her opposition had been fully considered by the court and expressed concern about her son's medical needs not being taken seriously and about his being enrolled in public school in Anchorage. On September 12 the court denied Siver's motion to reconsider his September 5 order, explaining that the motion "does not state a basis to modify the order of September 5, 2001" and that "[njothing in the material submitted exeludes the probability that the father's home can provide adequate follow through on the child's care."

An evidentiary hearing was held on September 18. The court heard approximately two hours of testimony, primarily from Weekley and Siver, regarding the allegations made by each in their respective affidavits. After making some findings regarding Dalton's situation, the court reaffirmed its earlier decision to grant Weekley interim legal and physical custody with weekend and holiday visitation for Siver. According to the court, "there is more stability leaving Dalton in the school that he's in, primarily in the household that he's in."

Upon motion of the parties, the superior court appointed John Hanscom as custody investigator. Hanscom spoke with both parents and with Dalton, reporting that Dalton "did not believe his father and stepmother were being truthful in their statements about bis mother," that he had witnessed his stepmother "strike his father with a 'pool stick " and that he wanted to live primarily with his mother and was angry his father would not let him stay with her. According to Hans-com, Dalton was "sad he cannot be with his mother." Hanscom visited both homes and found each of them to be within community standards. He recounted both parents' histories of involvement with the legal system, which included several domestic violence complaints, most of which had been dismissed. Finally, Hanscom went through each of the eight statutory best interests factors outlined in AS 25.24.150(c) and concluded that he believed it would be in Dalton's best interest for him to be placed primarily with his mother and to have weekend and holiday visitation with his father.

Trial took place on February 19, 2002. At the close of the hearing, the court explained that it disagreed with Custody Investigator Hanscom's recommendations, stating that it "reached this decision, which is contrary to the recommendation of the custody investigator, partly because [it], in evaluating his ideas about what the facts mean, [came] to . different conclusions." - After discussing these discrepancies, the court concluded that it did not find them, "on a total balance, to be a justification to change the current situation, which [it found] to be relatively stable, though imperfect." The court ultimately held that Weekley should retain primary legal and physical custody and Siver should be permitted visitation three weekends per month and every other week during the summer.

Siver appeals.

III - STANDARD OF REVIEW

"Whether the superior court applied the correct standard of review is a question of law we review de novo, determining the rule of law in light of precedent, reason, and policy."

While the trial court retains broad discretion in making decisions regarding child custody, its custody determination will be set aside where there has been an abuse of discretion or where the findings of fact are clearly erroneous. "Abuse of discretion is established if the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others." A factual finding will be deemed clearly erroneous only if it leaves us " 'with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding.! " In reaching a final child custody determination, "a trial court is required to make findings on the various statutory factors which are sufficient to make the basis of its decision susceptible to review."

IV. DISCUSSION

The Final Custody Determination

Siver raises several issues in her attack on the superior court's final custody determination. Two are dispositive, and in several respects meld into each other. She argues first that the superior court improperly treated her motion for custody as an action for modification of an existing order, pointing to the court's statement that she had not shown a sufficient "justification to change the current situation." Second, she argues that when the court made its final decision, it failed to properly consider the statutory best interests factors. We consider each argument in turn.

1. The decision to grant sole legal custody and primary physical custody to Weekley

As noted, Siver first argues that the court erred by treating Weekley's motion for custody as an action for modification of an existing custody order rather than as an initial custody determination. She maintains that by stating in its final decision that Siver had not demonstrated a sufficient "justification to change the eurrent situation," that is, the one created by its interim custody order, the court treated the proceeding as one for modification. - Siver argues:

Since she received no hearing on the motion that deprived her of custody originally, (or even notice of the existence of such a motion prior to its being improperly granted by the lower court), it would seem clear that the lower court was not interested in consideration of "evidence" but only in maintaining the "status quo" during the pendency of the lower court proceedings. This appeal is based on the extension of that judicial attitude throughout the proceedings and its application to the lower court's final ruling in this case.

In response, Weekley contends that the court's language "did nothing more than state the obvious fact that awarding custody to Mr. Weekley meant that the current situation would remain as is," and that appellant's argument, premised on a single phrase of dicta, failed to show that the court based its ruling on the changed cireumstances doctrine. Weekley concludes that the court's "findings and conclusions do not suggest in any way that he limited his consideration of the evidence to changed circumstances."

We agree with Siver that the proceedings were flawed from the outset, and that by leaving the situation in place without evaluating which placement would be in Dalton's best interests, the trial court applied an inappropriate standard in reaching its ultimate decision. It is undisputed that the court ruled on Weekley's motion for interim custody without having received a reply from Siver and prior to the time having run for her to reply. -It is also clear that the court denied Siver's motion to set aside the interim order pending a hearing. While it did grant Siver's request to hold an evidentiary hearing, it does not appear to have conducted a thorough best interests analysis at the close of that hearing, but instead seems to have relied almost exclusively on the "stability" cere-ated by its earlier decision to justify leaving Dalton in the primary custody of his father.

At the close of the evidentiary hearing held on September 18, the court made the following findings:

This is a real hard case because of a couple of things. One is, there is some testimony that there is no physical violence. I don't think I fully accept that notion. There is an anger on the mother's side, on the other hand, which-is [I] suppose in part justified by any kind of behavior by dad-that is equally harmful, however. I rarely see witnesses any more angry than mom has presented herself to be, and that is an awfully hard thing to hide from a child, and really feeds into how the child feels about the world and life and fair play and all these things. So there are a lot of things where both of you need to work on how you relate to the world, to each other, and to Dalton. In the best interests of the child, you look at a lot of factors and counsel have talked about a lot of them. Stability, ability to try to promote [a] relationship with the other parent, the capacity to care for them, the existence of domestic violence. A lot of these things that are to be considered and summed up. And in summary, there are things going for each of you and against each of you on these things. At this point, however, I think that there is more stability leaving Dalton in the school that he's in, primarily in the household that he's in, so that will be the court's order.

(Emphasis added.) Along the same lines, at the close of the custody hearing, the court considered various arguments offered by Siver and concluded that it did not "find them on a total balance to be a justification to change the current situation which [it found] to be relatively stable though imperfect." It is difficult to escape the impression that the superior court approached the final custody order, as it had the initial custody hearing, with the sense that Siver bore the burden of showing changed circumstances in order to justify changing Dalton's placement. If the court did so, it erred in two respects: First, Siver did not bear any burden of showing changed circumstances at either hearing. Second, the original placement of Dalton with his father had resulted from an ex parte order that had been issued with no notice to Siver nor any opportunity for her to be heard before it issued. That placement did not create a hurdle for Siver to overcome.

The stability developed during the period between the grant of interim custody and the court's final custody decision may be a relevant factor in the court's analysis, but it cannot be the primary basis for the court's decision. In Velasques v. Velasquez, we held that while the superior court may take into account as a factor the period of time between the entry of an initial and a final custody award, there is no requirement that the court do so, nor may the court accord a presumptive preference to the parent who had interim custody. To do so "would deprive the noncustodial parent of the benefit of a decision based on a fully developed record." To do so under the cireumstances of this case would be even more problematic, since the court's August 29 interim custody order was entered before Siver had a chance to reply to Weekley's allegations and its September 18 interim custody order left its initial order in place without a substantive discussion of other relevant factors.

In reaching its decision at the close of the September 18 hearing regarding interim custody, the superior court mentioned some of the considerations relevant to a best interests determination. However, its conclusion indicates that it was primarily interested in maintaining stability in Dalton's life, and that Dalton should therefore remain with his father, While we agree that stability is important, especially in the life of a young child, it cannot be the paramount consideration under circumstances such as these. Prior to the filing of Weekley's motion for interim and permanent custody, Dalton had evenly split his time between his mother and father. The hearing took place within three weeks of the date the motion was filed. By ordering that Dalton remain in his father's custody because of the stability it affords, the court necessarily affirmed its initial order, which itself was erroneously entered before Siver had been given an opportunity to reply. Given this procedural deficiency, we can neither sanction the entry of the interim custody order nor allow it, de facto, to stand as an order requiring Siver to show changed cireum-stances in order to attack.

The final custody order does not clearly set out what standard the court applied in its decision. The only glimpse provided into the court's thought process was the reference to the absence of a "justification to change the current situation." Because this statement reflects the use of what is essentially a presumptive preference for Weekley based on the court's interim custody decision, we vacate the court's final order.

2. The statutory best interests factors

Siver makes two main arguments with respect to this issue. First, she maintains that the court essentially ignored all factors but one, "the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent," thereby failing to properly consider the statutory best interests factors. Next, she claims that it was an abuse of discretion not to place specific emphasis on the seventh factor-evidence of domestic violence, child abuse, or child neglect.

Decisions regarding the award of child custody are governed by AS 25.20.060, which provides in relevant part:

(a) If there is a dispute over child eustody, either parent may petition the superior court for resolution of the matter under AS 25.20.060-25.20.180. The court shall award custody on the basis of the best interests of the child. In determining the best interests of the child, the court shall consider all relevant factors including those - factors - enumerated in - AS 25,24.150(c).

Alaska Statute 25.24.150(c) sets out the factors a court should consider in determining the best interests of the child. These factors are:

(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.

Whether involved in an initial or final child custody determination, a parent desiring custody must demonstrate that placement of the child with him or her would be in the child's best interests. In undertaking this "best interests analysis," the trial court need not "specifically address the statutory factors detailed in AS 25.24.150(c), and make explicit 'ultimate' findings that the best interests of the children require the custodial disposition reached," but its findings "must either give us a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved.

The court is encouraged to consider these eight statutory factors, as well as "other factors that the court considers pertinent" in deciding what placement is in a child's best interests. Siver maintains that the trial court considered one of these factors to the exclusion of all others-'"the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent." In doing so, she argues, the court essentially ignored factors such as the child's needs, each parent's ability to meet those needs, and the love and affection existing between the child and each parent. Siver also argues that the court failed to consider the seventh factor, which discusses the impact of evidence of domestic violence or child abuse. She claims that the record contained "ample evidence of Ronald Weekley's temper, his physical and verbal abuse toward both Ms. Siver and the child and his prior history of domestic violence directed against Ms. Siver." Making specific findings only on her ability to foster an open relationship with Weekley, Siver maintains that "the trial court appears to have used Ms. Siver|'s] decision to move to the Mat-Su Valley, some forty miles from Anchorage, her temporary denial of visitation based on concerns over her child's health care, and her apparent inability to 'hide her feelings' on the witness stand" as the basis for its decision. According to Siver, this amounts to the placement of disproportionate weight on one factor while ignoring other relevant factors, and therefore constitutes an abuse of discretion.

Weekley responds by cataloguing each factor and the evidence before the court which supported it. He contends that "the trial court considered this evidence in making its findings of fact and conclusions of law under the statutory best interest factors." Regarding Siver's claim that the court afforded AS 25.24.150(c)(6) too much weight, Weekley maintains that the "significant consideration" given to this factor by the court was justified by the court's express finding that Siver's "expressions did not give the court any confidence that she would contribute to making it easy for the father to have a continuing relationship with the child." Finally, Week-ley justifies the court's failure to address the issue of domestic violence or child abuse by noting that "the custody investigator reported that there was no evidence of domestic violence in either parent's home."

The court made only limited findings. First, regarding Dalton's expression of preference to live with his mother, the court found that this was based not on a genuine desire to live with his mother or, as Hanscom posited, an expression of his love and affection for his mother, but as a way of helping his mother because she was hurt by these proceedings. Next, regarding Dalton's expression of "meanness in dad's home" and his experiences with other "hurtful" and "inappropriate conduct," the court found that these things were "harmful and ... shouldn't occur." Finally, on the issues raised by Siver regarding Weekley's unwillingness to foster a relationship between her and her son, the court found that Weekley's exclusion of Siver from a school conference, his refusal to allow Dalton to go to a Halloween event with his mother, and his sereening of Siver's calls were all reasonable. The court made no additional findings, nor did it make any mention of AS 25.24.150(c) or specifically in what way Dalton's best interests would be better met by placement with his father.

In Borchgrevink v. Borchgrevink, we held that in making a final child custody determination, a trial court need not "specifically address the statutory factors detailed in AS 25.24.150(c), and make explicit 'ultimate' findings that the best interests of the children require the custodial disposition reached," so long as its findings "either give us a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved." We went on to explain that it was not error for the trial court to fail to expressly address factors not disputed by the parties and those which did not favor the parent to whom custody was denied. However, in Borchgrevink, unlike in the present case, there was no significant dispute involving most of the statutory factors and the court made extensive findings regarding all relevant factors and stated the legal conclusions underlying its decision.

Aside from AS 25.24.150(c)(6), it is not clear which factors the court found important to this inquiry or why. As in Park v. Park, in which we held that the superior court had erred in considering only one factor to the exclusion of all others, while the superior court's findings "clearly indicate one statutory factor that the court considered important to its analysis, they provide no meaningful insight into what the court thought of other factors that undisputedly had relevance under the evidence actually presented at trial- or whether the court even considered other relevant factors."

There is no indication of the court's views on Dalton's medical, emotional, educational, or social needs, on which parent can better meet those needs, on Dalton's relationships with his stepparents or siblings, on his father's admitted temper, or on which parent provides the more appropriate home environment, despite each of these issues having been raised by the parties at trial. While the court need not make findings on every possible issue, it should at least make findings on those which were relevant and which ultimately influenced its decision. Because it is not clear to us which factors the superior court considered important or what other considerations were involved in reaching its decision, we remand for the superior court to make specific findings on all relevant factors as required by AS 25.24.150(c). Upon remand, the parties should be allowed to present updated evidence to the court.

v. CONCLUSION

Because it was error to accord a presumptive preference to Weekley based on the interim custody decision and because the court relied on one statutory best interests factor to the exclusion of all others, we REMAND for a new determination, based on all of the currently available evidence, of which placement will be in Dalton's best interests.

      . Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).

      . Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).

      . Id.

      . Id.

      . Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997) (quoting Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991)).

      . Id.

      . Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001) (explaining that existing child custody or visitation award may be modified under certain circumstances; where no such award has yet been entered, no basis exists for modification).

      . 38 P.3d 1143 (Alaska 2002).

      . Id. at 1148-49.

      . Id. at 1149. See also McDanold v. McDanold, 718 P.2d 467, 470 n. 4 (Alaska 1986) (stating that custodial parent may not be given presumptive preference in final custody disposition so as to prevent "pretrial custody maneuverings"); Carle v. Carle, 503 P.2d 1050, 1053 n. 6 (Alaska 1972) (observing that while there might be some preference for leaving child in care of parent who most recently had custody, this court would not establish such presumption "lest it lead to pre-hearing maneuvering for possession of the child"), overruled on other grounds by statute as noted in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981).

      . Velasquez, 38 P.3d at 1146.

      . Borchgrevink v. Borchgrevink, 941 P.2d 132, 139-40 (Alaska 1997).

      . AS 25.24.150(c).

      . AS. 25.24.150(c)(6).

      . This finding is related to AS 25.24.150(c)(3), "'the child's preference if the child is of sufficient age and capacity to form a preference."

      . These latter three findings are most closely related to AS 25.24.150(c)(6), "the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent."

      . 941 P.2d 132 (Alaska 1997).

      . Id. at 139-40.

      . Id. at 138.

      . - Id. at 135-37.

      . 986 P.2d 205 (Alaska 1999).

      . Id. at 208.

      . Siver also challenges some of the court's factual findings as clearly erroneous. Because we remand for consideration of all currently available evidence, in which new factual findings will have to be made, we do not consider Siver's challenges to factual findings made in the course of the first trial.


author: MATTHEWS, Justice.

text:
    CRAWFORD & COMPANY and National Union Fire Ins. Co. of Pittsburgh, Appellant, v. Penny T.R. BAKER-WITHROW, Appellee.
    No. S-10540.
    Supreme Court of Alaska.
    July 18, 2003.
    Zane D. Wilson, Cook, Schuhmann & Gro-seclose, Inc., Fairbanks, for Appellant.
    James M. Hackett, Law Office of James M. Hackett, Fairbanks, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

In 1990 Penny Baker-Withrow suffered an on-the-job injury that left her with post-traumatic stress disorder. Nine years later she began receiving Eye Movement Desensitization and Reprocessing therapy. Her former employer refused her claim for payment on the grounds that her medical provider failed to submit a timely treatment plan. We conclude that her employer is responsible for all treatments rendered after a treatment plan was submitted, plus any treatments rendered not more than fourteen days before submission of the treatment plan.

L.

While working for Crawford & Company, Penny Baker-Withrow was injured when an irate client hit her in the face with a coffee cup. From 1992 until 2000, Baker-Withrow was under the care of Dr. Robert Schultz for post-traumatic stress disorder (PTSD).

In June 1999 Dr. Schultz referred Baker-Withrow to Tima Priess for psychotherapy and Eye Movement Desensitization and Reprocessing (EMDR) therapy. Baker-With-row saw Priess for an initial evaluation on August 8, 1999, and began treatment on September 21, 1999. She received six weekly EMDR treatments between September and early December 1999.

In February 2000 Crawford & Co. declined to pay for these treatments; it claimed that a timely treatment plan had not been submitted as required by AS 28.30.095(c) and that the treatments violated the Alaska Workers' Compensation Board's frequency standards. The dispute was brought before the board.

The board found that Priess failed to timely submit a treatment plan. However, the board noted that "the record suggests that as soon as Priess learned the process and associated requirements, she complied." In the interest of justice the board found that Priess's failure to timely provide a written treatment plan should be excused, citing the authority of 8 Alaska Administrative Code (AAC) 45.195. The board found that EMDR "is becoming an accepted form of treatment and it can be effective" and "the employee is making progress that had not been achieved with the former treatments."

The board then awarded payment of past EMDR treatments "plus an additional 20 treatments at a frequency to be approved by [Baker-Withrow's physician]." The superior court affirmed this award. Crawford & Co. appeals, arguing that the board cannot approve treatments in excess of the frequency standards when the medical provider fails to submit a timely treatment plan.

IL.

The statutory section concerning treatment plans is AS 28.30.095(c). The first sentence of subsection .095(c) requires a health care provider who furnishes continuing or multiple treatments of a similar nature to give notice of such treatment to the employer and the board within fourteen days following treatment. If notice is not given, the employee's claim for the treatments is not valid and enforceable against the employer. But, according to the second sentence, the board may excuse the failure to furnish notice in the interest of justice. The third sentence of subsection .095(e) introduces the concept of a treatment plan. In addition to the notice of treatment called for by the first sentence, the third sentence requires that the health care provider furnish a written treatment plan if the "course of treatment will require more frequent outpatient visits than the standard treatment frequency for the nature and degree of the injury and the type of treatments." According to the fourth sentence, the treatment plan must be furnished "within 14 days after treatment begins" to the employee and the employer. The fifth sentence describes the contents of a treatment plan. The sixth sentence describes the consequences of not furnishing a treatment plan. In such case, neither the employer nor the employee may be required to pay for treatments that exceed the frequency standard. The seventh, and last, sentence of subsection (c) provides that the board shall adopt regulations establishing standards for frequency of treatment.

Based on the structure of the statute it seems apparent that while notice of treatment within fourteen days following treatment is waivable in the interest of justice, because the second sentence of the subsection so provides, failure to furnish a treatment plan within the same period is not waivable because there is no similar grant of authority to waive the furnishing of a treatment plan. We so concluded in Grove v. Alaska Construction & Erectors.

In excusing Priess's failure to timely furnish a written treatment plan the board relied on 8 AAC 45.195, which states that "(al procedural requirement in this chapter may be waived or modified by order of the board if manifest injustice to a party would result from a strict application of the regulation." But this regulation only authorizes the board to waive the requirements of other regulations, not statutory requirements. As furnishing the plan within fourteen days is a statutory requirement, the board had no authority to waive it.

What remains is a question concerning the consequences of furnishing a treatment plan more than fourteen days after treatment begins. Does the fact that a plan is submitted late mean that all past and future treatments in excess of frequency standards are barred or are only past treatments-those occurring more than fourteen days before the plan is furnished-barred? We believe that only past treatments should be barred, for the following reasons.

First, construing the statute to bar only treatments given before a plan is furnished is consistent with the evident purposes of the statute. One purpose is to protect both employers and employees from possibly unseru-pulous medical providers who provide needlessly frequent therapy sessions. Relatedly, another purpose of requiring that a plan be furnished appears to be to give employers an opportunity to object to overly frequent therapy sessions before a large bill accumulates. These objectives are fully met by construing the bar on overly frequent treatments to apply only to pre-plan treatments and they are not undercut by permitting payment for treatments rendered after a plan is furnished.

Further, it would be unduly harsh to ban all post-plan treatments in excess of standards no matter how much the treatments are needed merely because a treatment plan is provided late. In addition, the statutory term "course of treatment has no fixed meaning that could support a bar on all future treatments. If treatments were to stop for a time and then begin again, whether recommencement marked the continuation of an old course of treatment or the beginning of a new one would be debatable and difficult to resolve. Instead of adopting a construction that invites controversies of this nature and leads to harsh results not justified by the purposes of the statute, we conclude that late submission of a treatment plan should bar only past overly frequent treatments.

In the present case the board found that Priess failed to timely submit a treatment plan, but the board implied that when Priess learned of the need for a treatment plan she furnished one. But the board did not specify the date on which a treatment plan, or its equivalent in terms of information, was furnished. On remand, this date should be determined and those therapeutic sessions in excess of the frequency standards that took place more than fourteen days before this date should be excluded. Sessions after this date were properly ruled to be the responsibility of the employer.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings.

      . Through December 28, 2000, when the Alaska Workers' Compensation Board issued its decision in this case, Baker-Withrow had at least ten more EMDR treatments. She may have had more; the record is unclear on this point.

      . AS 23.30.095(c) provides:
      A claim for medical or surgical treatment, or treatment requiring continuing and multiple treatments of a similar nature is not valid and enforceable against the employer unless, within 14 days following treatment, the physician or health care provider giving the treatment or the employee receiving it furnishes to the employer and the board notice of the injury and treatment, preferably on a form prescribed by the board. The board shall, however, excuse the failure to furnish notice within 14 days when it finds it to be in the interest of justice to do so, and it may, upon application by a party in interest, make an award for the reasonable value of the medical or surgical treatment so obtained by the employee. When a claim is made for a course of treatment requiring continuing and multiple treatments of a similar nature, in addition to the notice, the physician or health care provider shall furnish a written treatment plan if the course of treatment will require more frequent outpatient visits than the standard treatment frequency for the nature and degree of the injury and the type of treatments. The treatment plan shall be furnished to the employee and the employer within 14 days after treatment begins. The treatment plan must include objectives, modalities, frequency of treatments, and reasons for the frequency of treatments. If the treatment plan is not furnished as required under this subsection, neither the employer nor the employee may be required to pay for treatments that exceed the frequency standard. The board shall adopt regulations establishing standards for frequency of treatment.

      . The board has frequency standards. Although the third sentence of AS 23.30.095(c) implies that frequency standards will differ according to the nature and degree of the injury and the type of treatment, the board's frequency regulations apply to all injuries requiring continuing and multiple treatments no matter what the nature of the injury or the type of treatment. The standards provide that treatments "may not exceed more than three treatments per week for the first month, two treatments per week for the second and third months, one treatment per week for the fourth and fifth months, and one treatment per month for the sixth through twelfth months." 8 AAC 45.082(f). The regulation does not specify whether the enumerated months are months following the injury or months following the commencement of treatment. If the "first month" refers to the first month after the particular treatment begins it may be that few, if any, of Baker-Withrow's treatments furnished before Crawford & Co.'s February 2000 objection actually exceed the frequency standards. But the parties do not discuss this ambiguity and we make no ruling concerning it.

      . 948 P.2d 454, 457 (Alaska 1997) ("The Board cannot allow more frequent treatment without the submission of a treatment plan. ...").

      . "A procedural requirement in this chapter may be waived or modified...." 8 AAC 45.195; see also Cole v. Ketchikan Pulp Co., 850 P.2d 642, 646-47 (Alaska 1993).

      . See Chiropractors for Justice v. State, 895 P.2d 962, 966 (Alaska 1995).

      . See AS 23.30.095.