Bindner v. Traub, Civ. 21-492 GBW/SCY

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesERIC J. BINDNER, Plaintiff, v. STEVEN J. TRAUB, DDS, doing business as STEVEN J. TRAUB ORAL & MAXILLOFACIAL SURGERY, Defendant.
Docket NumberCiv. 21-492 GBW/SCY
Decision Date27 July 2022

ERIC J. BINDNER, Plaintiff,


Civ. No. 21-492 GBW/SCY

United States District Court, D. New Mexico

July 27, 2022



THIS MATTER comes before the Court on Defendant's Motion for Summary Partial [sic] Judgment on Negligent Informed Consent Claim. See doc. 93. Having reviewed the Motion and its attendant briefing, see docs. 99, 101, 113, 119, and being fully advised in the premises, the Court GRANTS the Motion and DISMISSES Plaintiff's informed consent claim WITH PREJUDICE.


This case arises from dental procedures that Defendant performed on Plaintiff on May 30, 2018, and injuries that Plaintiff allegedly incurred from them. See doc. 1 at ¶¶ 514. Plaintiff asserts claims of negligence against Defendant for “fail[ing] to act as a reasonably well qualified dentist would act under similar circumstances” when treating


him and “fail[ing] to provide ... all [the] information that a reasonably prudent patient would have wanted to know before agreeing to . treatment.” See id. at ¶¶ 11-12.[1]

On May 6, 2022, Defendant filed the instant Motion for Partial Summary Judgment on Plaintiff's negligence claim for lack of informed consent. See doc. 93. As Plaintiff initially “d[id] not know to which portion, if any, of his Complaint” the Motion applied, see doc. 99 at 2, the Court explained the differences between negligence claims for improper treatment and those for lack of informed consent and directed Plaintiff to respond to the Motion if his Complaint contained a negligence claim under the latter theory, see doc. 106. Plaintiff clarified that he had pled an informed consent claim and asked the Court to defer consideration of the Motion under Federal Rule of Civil Procedure 56(d) until he had received the transcripts for his deposition. See doc. 111. The Court denied the Rule 56(d) request since Plaintiff could reproduce content from his deposition in an affidavit. See doc. 112 at 2-3. On June 22, 2022, Plaintiff responded to the merits of the instant Motion. See doc. 113. Briefing was complete on this Motion on June 29, 2022, see doc. 120, with the filing of Defendant's reply, see doc. 119.


Federal Rule of Civil Procedure 56(a) requires the Court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact


and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of showing “that there is an absence of evidence to support the nonmoving party's case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “Where, as here, the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden ... by ‘demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.'” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994 (10th Cir. 2019) (cleaned up) (quoting Celotex, 477 U.S. at 331). Once the movant meets its burden, the non-moving party is required to provide evidence for specific facts showing that “there are . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324. Summary judgment is appropriate only “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (cleaned up) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

When making this determination, the Court keeps several principles in mind. First, while the Court “must examine the factual record and reasonable inferences drawn therefrom in the light most favorable to the non-moving party,” id., that party's


“version of the facts must find support in the record,” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). Second, the Court's role is not to weigh the evidence, but to assess the threshold issue of whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal citation omitted). Finally, the Court cannot decide any issues of credibility. Liberty Lobby, 477 U.S. at 255.


Based on the record before it, the Court finds the facts below material and without a genuine dispute. The Court has not made findings regarding the content of the parties' communication before the procedure on May 24, 2018, or whether Defendant disclosed the “possible complications”[2] listed on the consent form as these matters are not essential to the Court's resolution of Defendant's Motion.

1. On May 30, 2018, Defendant performed dental extraction and implant procedures on Plaintiff, removing two wisdom teeth and inserting four dental implants. See doc. 1 at ¶ 5; doc. 17 at ¶ 5.
2. Defendant obtained Plaintiff's consent for the extraction and implant procedures before performing them. See doc. 93-1 at ¶¶ 10, 13; doc. 93-2.
3. Before consenting to the procedures, Plaintiff had the opportunity to ask Defendant questions. See doc. 93-1 at ¶ 11.

Plaintiff denies having the opportunity to ask Defendant questions but cites to no evidence to support his denial. See doc. 113 at 2. The sworn statements in Plaintiff's affidavit (the only evidence he produces to support his informed consent claim) do not discuss whether Plaintiff had the opportunity to question Defendant about these procedures or otherwise refute Defendant's sworn statement that he asked Plaintiff whether Plaintiff had any questions for him. See doc. 113-1. Plaintiff, therefore, has not borne his burden of producing evidence disputing this fact. See Fed.R.Civ.P. 56(c)(1) (requiring a party “asserting that a fact .. is genuinely disputed” to support the assertion by citing to materials in the record).

4. Before consenting to the procedures, Plaintiff did not ask Defendant about his experience as an oral surgeon, whether he had professional liability
insurance, or whether former patients had sued him for malpractice. See doc. 93-1 at ¶ 12.

Plaintiff denies that he did not ask Defendant about his experience, his liability insurance, and previous malpractice suits against him but cites to no evidence to support this denial or show that he questioned Defendant about these topics. See doc. 113 at 2. The sworn statements in Plaintiff's affidavit do not assert that he asked Defendant questions of this nature or otherwise refute Defendant's sworn statement that Plaintiff asked him no such questions. See doc. 113-1. Plaintiff, therefore, has not borne his burden of producing evidence disputing this fact. See Fed.R.Civ.P. 56(c)(1)

5. Before obtaining Plaintiff's consent for the procedures, Defendant did not provide Plaintiff with information about the tools that he would use to perform these procedures, his experience and training in these procedures, his lack of professional liability insurance, or his inability to obtain such insurance due to the number of prior medical malpractice claims against him. See doc. 113-1 at ¶¶ 2-3, 5.

Defendant's contention that these non-disclosures “require expert ... testimony,” see doc. 119 at 6, overstates the need for such testimony. Expert testimony is “ordinarily indispensable” to establish any duty that Defendant had to make the above disclosures; but lay testimony is sufficient to establish that he did not make them. See Gerety v. Demers, 589 P.2d 180, 195 (N.M. 1978).



An informed consent claim arises from a medical provider's breach of a duty to disclose information to a patient that causes the patient injury. See id. at 192. Jurisdictions disagree about the standard for that duty. Under the traditional, “professional” approach, a provider owes a patient a duty “to disclose only such risks that a reasonable practitioner of like training would have disclosed in the same or similar circumstances.” Willis v. Binder, 596 F.3d 1244, 1254 (10th Cir. 2010) (quoting Roybal v. Bell, 778 P.2d 108, 112 (Wyo. 1989)) (applying Wyoming law); see also Roberts v. Young, 119 N.W.2d 627, 630 (Mich. 1963). Under the contemporary, “materiality” approach, adopted by New Mexico, the duty owed by a provider to a patient is “to disclose the factors that might reasonably influence the patient in his decision.”[3] Gerety, 589 P.2d at 192; see also Canterbury v. Spence, 464 F.2d 772, 786-87 (D.C. Cir. 1972). As for causation, New Mexico (like most other jurisdictions) follows “an objective test based upon what a prudent person in plaintiff's position would have decided if suitably informed of the significant perils involved” under which causation exists “only if the non-disclosed facts would have altered a reasonably prudent person's decision to undergo treatment.” Gerety, 589 P.2d at 194.


Plaintiff directs the Court to several procedure-specific and provider-specific factors that Defendant either did not disclose when obtaining Plaintiff's consent for the dental procedures or whose disclosure is disputed. See doc. 113 at 3-4. No duty, though, exists to disclose two of these...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT