Lebeuf v. Atkins

• Citation: 22 Wn.App. 877,594 P.2d 923
• Decision Date: 19 March 1979
• Docket Number: No. 4980-I,4980-I
• Parties: Claude J. LeBEUF and Jean LeBeuf, his wife, Appellants, v. John H. ATKINS and Jane Doe Atkins, his wife, Respondents, and Astra Pharmaceutical Products, Inc., a Foreign Corporation, Defendant.
• Court: Court of Appeals of Washington

Page 877

22 Wn.App. 877

594 P.2d 923

Claude J. LeBEUF and Jean LeBeuf, his wife, Appellants, v. John H. ATKINS and Jane Doe Atkins, his wife, Respondents and Astra Pharmaceutical Products, Inc., a Foreign Corporation, Defendant.

No. 4980-I.

Court of Appeals of Washington, Division 1.

March 19, 1979.

Reconsideration Denied June 26, 1979.

Bonjorni, Harpold & Fiori, Duncan A. Bonjorni, Jerry Schumm, Auburn, for appellants.

Davies, Pearson, Anderson, Seinfeld, Gadbow, Hayes & Johnson, Larry E. Levy, Tacoma, for respondents.

DORE, Judge.

Plaintiffs LeBeuf sued the defendants for damages based on malpractice. The trial judge granted a summary judgment of dismissal as to the defendant oral surgeon Atkins and his wife. Plaintiffs appeal.

ISSUE

Did the trial court err in granting a summary judgment of dismissal for the defendant dentist?

Answer: Yes.

FACTS

From the complaint, affidavits and plaintiffs' answers to defendants' interrogatories, the following factual basis was established for purposes of this appeal.

On May 19, 1972, plaintiff Claude J. LeBeuf was driven by his wife to the office of the defendant Dr. John H. Atkins, D.D.S. for the removal of an impacted wisdom tooth. LeBeuf had been suffering from severe headaches prior to this date and had a severe headache the day he was taken to Dr. Atkins's office. The day prior to the extraction, plaintiff had described his headache as feeling like his "head was exploding." Plaintiff himself did not know if he had high blood pressure or hypertension and he had not been diagnosed as having such problems.

Dr. Atkins did not check plaintiff's blood pressure although he was competent to take blood pressure and it would have taken him only minutes to complete the test. Prior to the extraction, at the request of the defendant, plaintiff completed a written questionnaire, designated herein as a medical history. The defendant subsequently injected the plaintiff with xylocaine, a local anesthetic containing epinephrine, which is a vasoconstrictor. He then performed the oral surgery.

After the operation plaintiff was taken to a recovery room and was covered with a blanket. Plaintiff's wife, Jean LeBeuf, who remained with plaintiff throughout the period of time he was lying down, testified by affidavit that she then observed the plaintiff suffering from fever and chills and he appeared disoriented. "His eyes were staring blankly and when I moved my hand in front of his eyes and toward his face, there was no reaction by him at all." Plaintiff was then assisted to his car by his wife and defendant, where he became ill, vomiting on two occasions. Plaintiff was then taken home and put to bed.

The following morning when his condition worsened, plaintiff was taken to the hospital, where he was admitted on a preliminary diagnosis of cerebral hemorrhage or stroke. He is presently totally disabled and unable to work. During this post-surgical period, defendant failed to give any instructions or treat plaintiff.

Plaintiff sued defendants for damages, alleging malpractice in Dr. Atkins's failure to determine that he was suffering from hypertension and/or high blood pressure at the time that he was injected with xylocaine which drug he claims brought on his stroke. Plaintiff also contends that the defendant knew or should have known of the risks involved in injecting xylocaine into a patient suffering from hypertension and/or high blood pressure and that he failed to inform the plaintiff of the risks involved in this procedure. Plaintiff further contends that the defendant dentist was negligent in his post-operative treatment of plaintiff.

DECISION

We reverse the summary judgment of dismissal.

The undisputed facts in the record before the trial court were as follows:

1. There was nothing in the medical history taken from plaintiff, via medical questionnaire by Dr. Atkins, to protect a person from high blood pressure, hypertension and/or cardiovascular disease which had not been diagnosed and treated, or was not under a doctor's care.

2. Dr. Atkins did not check plaintiff's blood pressure, a procedure of a few minutes duration, to determine whether plaintiff suffered from hypertension and/or high blood pressure.

3. Defendant doctor failed to advise plaintiff of the potential risks involved in the use of an anesthetic with a vasoconstrictor.

Plaintiff's wife related her husband's medical condition on the day prior to the operation as well as the day of the operation in her affidavit as follows:

The day before he went to see Dr. Atkins, he had complained to me about feeling extreme pressure in his head, making the comment that it "felt like his head was exploding." I know that he had been under severe strain and tension during this period of time, and felt that this was due to the pressure of his business.

On the day he saw Dr. Atkins, I went with him into the office. I was not present when he was asked about his medical history, and his physical condition, but I did talk with Dr. Atkins' nurse and Dr. Atkins and advised them that Claude was allergic to penicillin and sulfa compounds. I remained in the waiting room while the surgery was performed, and then was called into a back room where Claude was lying on a couch, covered with a blanket. He was at that time suffering from fever and chills, and appeared quite disoriented. His eyes were staring blankly, and when I moved my hand in front of his eyes and toward his face, there was no reaction by him at all, either in his eyes or otherwise. He did not appear to respond to anything, except that when I asked him how he was or how he felt, his only response, in a rather weak voice, was that "he wanted to go home." It was necessary for myself and Dr. Atkins to assist Claude to the car, as he was very weak and suffering considerably at this time. Once in the car, he became ill, and I went back into Dr. Atkins' office to obtain a towel to clean him up. He became ill again on the way home.

Plaintiffs produced the following testimony on the issue of standard of professional care of a dentist:

1. The Physicians Desk Reference contains warnings about the use of xylocaine containing epinephrine with patients suffering from hypertension, high blood pressure, or cardiovascular disease.

2. Plaintiff produced an affidavit from Dr. Robert Tuby, M.D., a medical doctor with a long list of medical accreditations. Dr. Tuby stated that in making his medical evaluation of causation in the subject case, he reviewed plaintiff's medical records, including the following materials:

(a) The medical records of plaintiff from Lakewood General Hospital and Tacoma General Hospital;

(b) The depositions of Drs. Atkins, Ellingson and Crabill and Mr. and Mrs. LeBeuf;

(c) The affidavits of Dr. David Moline, D.D.S. and Mrs. LeBeuf;

(d) The Physicians Desk Reference with respect to the drug xylocaine manufactured by Astra Pharmaceutical Products, Inc.

Dr. Tuby concluded in his affidavit:

That it is his opinion that Claude LeBeuf was probably suffering from hypertension accompanied by high blood pressure at the time he was operated on by Dr. Atkins, and that the injections of Xylocaine with epinephrine probably caused the ensuing damage to Claude LeBeuf's central nervous system and it is more likely than not that this resulted in a subarachnoid hemorrhage.

3. Dr. David O. Moline, D.D.S., a graduate of the University of Washington Dental School and who is licensed to practice dentistry in Washington, Oregon and British Columbia, testified via affidavit. He related that he had practiced dentistry in the State of Washington for 21 years from 1953 to 1974, with the last 17 years in Olympia, Washington; that currently he is an associate professor at L.S.U. Medical Center School of Dentistry, and director of the general dentistry residency program at Charity Hospital, New Orleans, and L.S.U. Medical Center. He states that he formerly was in a group practice at Olympia, Washington and in 1972 was familiar with what were the accepted standards of practice of the dental profession in western Washington. He alleges that he reviewed the testimony of Drs. Atkins, Ellingson and Crabill, and Mr. and Mrs. LeBeuf, and concluded

THAT, he has reviewed Dr. Atkins's record of the procedure and the questionnaire Mr. LeBeuf was asked to fill out.

THAT, it is his opinion that the pre-anesthetic history obtained by Dr. Atkins was not adequate in that he omitted to determine whether the patient had hypertension or high blood pressure and the failure to do this was not consistent with the accepted standard of care among the dental profession in western Washington in 1972.

The affidavits of Drs. Tuby and Moline, and Mrs. LeBeuf, and the answers to interrogatories of the plaintiff, in the aggregate most certainly raise a factual issue as to whether the defendant Atkins satisfied "that degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances." Pederson v. Dumouchel, 72 Wash.2d 73, 79, 431 P.2d 973, 978 (1967); Meeks v. Marx, 15 Wash.App. 571, 550 P.2d 1158 (1976); Swanson v. Brigham, 18 Wash.App. 647, 651, 571 P.2d 217 (1977).

From the report of proceedings it is clear that the trial court considered only the affidavits of Drs. Tuby and Moline and that portion of plaintiff's deposition in which he states he was unaware that he had any blood pressure problems, and ruled as a matter of law that even if the defendant dentist had inquired concerning plaintiff's history of prior high blood pressure and/or hypertension, as plaintiff had no prior knowledge of such a history, a proper medical questionnaire would not have elicited this information. The trial court summarized:

(A) conclusion by a doctor that the history wasn't adequate but a record which shows that had an adequate history been taken, it wouldn't have changed the picture, the history would have been that he had no high blood...