Bronneke v. Rutherford
| Citation | 89 P.3d 40,120 Nev. 230 |
| Decision Date | 12 May 2004 |
| Docket Number | No. 40222.,40222. |
| Parties | David BRONNEKE, Appellant, v. Martin RUTHERFORD, D.C., Respondent. |
| Court | Nevada Supreme Court |
Law Offices of Terry A. Friedman, Ltd., and Terry A. Friedman, Reno, for Appellant.
Erickson Thorpe & Swainston, Ltd., and William G. Cobb, Reno, for Respondent.
Before BECKER, AGOSTI and GIBBONS, JJ.
Appellant David Bronneke appeals from the district court's order denying his motion for a new trial. Bronneke, a carpenter in his mid-forties at the time of trial, had undergone numerous chiropractic treatments over several years. However, on June 27, 2001, Bronneke suffered a stroke immediately after respondent Dr. Martin Rutherford, a chiropractor, had performed a chiropractic treatment upon Bronneke. Dr. Rutherford had performed a long axis traction technique in which Bronneke had lain faceup on a table; Dr. Rutherford had extended Bronneke's neck, and then, using a rolled-up gown, gave Bronneke's neck an extra tug to realign the spine. Immediately afterward, Bronneke became dizzy and nauseated. Bronneke vomited and began to suffer nystagmus, a condition in which the eyeballs oscillate involuntarily. Dr. Rutherford drove Bronneke to the hospital emergency room. By that evening, Bronneke still could not walk because of poor balance, and the hospital admitted him. The hospital discharged Bronneke the next day with a diagnosis of labyrinthitis, an inner ear infection causing dizziness. Several months later, a neurologist diagnosed Bronneke as having had a stroke rather than an inner ear infection.
Bronneke sued Dr. Rutherford for negligence, claiming among other things, that Dr. Rutherford failed to inform him of the risk of stroke before treating him. On the Friday before the trial, scheduled to begin the following Monday, the district court conducted a pretrial hearing to decide Bronneke's motion in limine and to decide an issue of law regarding Dr. Rutherford's liability for failure to obtain Bronneke's informed consent. Dr. Rutherford argued that the informed-consent standard that applies to physicians should be extended to chiropractors. That standard requires an expert to testify that failing to obtain a patient's informed consent before performing a procedure falls below the standard of care. Bronneke argued that the physician's standard should not be extended to the chiropractic field because chiropractic care is largely unregulated and the practice of informing patients of the risks of treatment varies from chiropractor to chiropractor. Bronneke conceded that he could not produce an expert who would testify that it fell below the chiropractic standard of care to fail to inform him of the risk of stroke prior to performing the procedure. The district court ruled that, because Bronneke could not produce an expert to testify to the standard of care regarding informed consent, the informed-consent claim failed as a matter of law.
The case proceeded to a jury trial solely on the issue of negligence. The jury returned a verdict in favor of Dr. Rutherford. After entry of judgment, Dr. Rutherford moved for attorney fees and costs under NRS 17.115(4) and NRCP 68(f). The district court granted Dr. Rutherford's motion and awarded him $21,000 in attorney fees and $13,400.91 in costs. Bronneke moved for a new trial, which was denied. Bronneke now appeals from the district court's final judgment and its orders denying Bronneke's motion for a new trial and awarding attorney fees and costs.
This appeal primarily concerns the district court's pretrial ruling on the legal viability of Bronneke's informed-consent claim. Because this is a question of law, we review the ruling de novo.1
Bronneke contends that Dr. Rutherford's argument at the pretrial hearing constituted an unnoticed motion for summary judgment. He asserts that he was entitled to notice of the motion and that his due process rights were violated because he had no notice and no time in which to prepare a defense.2 Bronneke argues that he was prejudiced by the motion because, in trying to respond to an unnoticed oral motion for summary judgment, both the parties and the district court overlooked the fact that he was prepared to prove that Dr. Rutherford failed to obtain any consent at all, obviating the need for expert testimony.
Shortly before trial, Bronneke filed a document styled as a "Motion for Orders in Limine or Instructions." The motion in limine portion corresponded to Bronneke's attempt to exclude from evidence his nineteen years of chiropractic treatment. The district court ruled that Bronneke's nineteen-year history of chiropractic treatment was admissible. The instructions portion corresponded to Bronneke's attempt to persuade the district court to treat chiropractors differently from medical doctors in Nevada by adopting what is known as the patient-oriented standard of informed consent in cases of a chiropractor's alleged negligence. The patient-oriented standard is based upon the information a reasonable patient would want to know before choosing to undergo a medical procedure. This standard requires a factual finding at trial.3 The standard governing informed-consent cases regarding medical doctors in Nevada is different. It is the professional medical standard,4i.e., the physician must decide whether the information is material and should be disclosed to the patient.
First, we decide whether Dr. Rutherford's argument in opposition to Bronneke's motion for instructions should have been considered a motion for summary judgment by the district court. A motion for summary judgment must be served at least ten days before the hearing scheduled on the motion.5 We have previously reversed an order granting a summary judgment motion where the party was prejudiced because he received notice of the motion with fewer than ten days before the scheduled hearing.6 Dr. Rutherford did not notice a summary judgment motion at all.
We conclude that Dr. Rutherford's response to Bronneke's motion in limine cannot be characterized as a summary judgment motion. First, Bronneke, by motion, brought the issue to the district court's attention. Second, Dr. Rutherford's argument did not focus on the absence of a genuine issue of material fact but rather on the legal question of what standard governs the chiropractic profession. Dr. Rutherford indicated that it was too late to bring a motion for summary judgment and that he would likely move, at the close of Bronneke's case, to dismiss the claim for failure to prove a sufficient case under NRCP 41(b). Third, the district court ruled directly on Bronneke's motion for clarification as to the relevant standard by determining that Nevada's common-law standard for physicians rather than the patient-oriented standard, which has never been applied in Nevada, should govern. Fourth, Bronneke conceded that, if the physician's common-law standard applied, he was unable to establish a prima facie case of negligence as to the informed-consent claim because he could not obtain a chiropractic expert who would testify that Dr. Rutherford did not conform to the customary disclosure practices. In light of Bronneke's admission, the district court properly excluded this issue from the jury's consideration.
Even if we were to conclude that the motion was a de facto summary judgment motion, Bronneke's argument that he was prejudiced by lack of notice of the de facto motion lacks merit. Bronneke argues that, had he been given the opportunity to oppose a summary judgment motion, he would have claimed that, by performing the neck manipulation without first obtaining Bronneke's consent, Dr. Rutherford committed a battery.
Consent to treatment may be express or implied.7 By seeking chiropractic treatment, Bronneke's consent to the particular technique may be implied because "[a]s a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient."8 Therefore, we conclude that notice to Bronneke of a summary judgment motion would not have improved Bronneke's chances of persuading the district court to permit an eleventh-hour amendment to the complaint to add a battery claim. Furthermore, we perceive no prejudice by the lack of notice, as Bronneke himself, by motion, brought the issue to the district court for its determination. He knew that if the district court adopted the common-law physician's professional standard, he was unable to present the required expert testimony.
Bronneke next contends that the district court improperly extended the physician's professional standard to the chiropractic field. He argues that, when this court adopted the physician's professional standard as part of Nevada's common law, we were influenced by NRS 41A.100(1) (1979), which required a plaintiff to prove medical negligence by expert medical testimony.9 He contends that a similar statute governing chiropractors does not exist, and therefore, the reasoning behind the rule governing physicians does not apply to chiropractors.
Bronneke further argues that applying the professional standard for informed consent to chiropractors would effectively immunize them from liability because no standard exists in Nevada's chiropractic communities for disclosing medical risks to patients, and therefore, a plaintiff would never be able to obtain expert chiropractic testimony that a chiropractor had violated the medical-professional controlled-disclosure standard. He also argues that allowing the chiropractor to decide what risks to disclose is antithetical to the patient's right to self-determination.10 Bronneke contends that the professional standard imposes a heavy burden on a plaintiff to prove negligence, especially in light of the "conspiracy of silence" among fellow practitioners, which, he asserts, is more pronounced in chiropractic cases given the lack of standards and the potential for retaliatory...
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