Dicke v. Graves, 54407

• Decision Date: 18 August 1983
• Docket Number: No. 54407,54407
• Citation: 9 Kan.App.2d 1,668 P.2d 189
• Parties: Dr. Vernon H. DICKE, P.A., Appellant, v. Billie J. GRAVES and Paul B. Graves, Appellees.
• Court: Kansas Court of Appeals

Page 189

668 P.2d 189

9 Kan.App.2d 1

Dr. Vernon H. DICKE, P.A., Appellant, v. Billie J. GRAVES and Paul B. Graves, Appellees.

No. 54407.

Court of Appeals of Kansas.

Aug. 18, 1983.

Review Denied Oct. 4, 1983.

Syllabus by the Court

1. Principles of a medical malpractice claim for abandonment are discussed and applied.

2. In a case where the defendant asserted a medical malpractice claim for abandonment, it is held the evidence was insufficient to support a jury verdict and judgment against the plaintiff dentist on defendant's counterclaim.

M. Ralph Baehr, of Nieto, Baehr & Hollander, Wichita, for appellees.

Ronald D. DeMoss and Walter C. Williamson, of Williamson & Stalcup, Chartered, Wichita, for appellant.

Before REES, P.J., and SPENCER and SWINEHART, JJ.

REES, Judge:

Plaintiff appeals from an adverse jury verdict and judgment entered against him on defendant's counterclaim for medical malpractice. Defendant claimed abandonment.

In 1974, Mrs. Graves became a patient of Dr. Dicke, a practicing dentist. Dr. Dicke rendered continuing services to Mrs. Graves until early 1979 when events giving rise to her counterclaim occurred.

Mrs. Graves had a difficult dental history. Her problems were extensive and continuing. Even prior to her engagement of Dr. Dicke's services, she had had a complete restoration of her teeth, that is, restoration or replacement of all her teeth. Unusual factors complicated her problems and care. Among these were jaw thrust, a temporal mandibular joint abnormality, and peculiar physical sensitivity to the electrolytic interaction of some materials ordinarily used in dental repair and construction of dental appliances.

Mrs. Graves visited Dr. Dicke on January 18, 1979. She reported, and the doctor observed, porcelain fractures in her upper anterior fixed bridgework. Specifically, two or more pieces of porcelain had broken off the bridgework. X-rays were taken both then and again on January 23 to see if the damage to the bridgework was other than that visually observed. Dr. Dicke found nothing additional in his reading of the x-rays.

He next saw Mrs. Graves on February 3. She complained of a "toothache." During this visit, manual manipulation of Mrs. Graves' bridgework revealed movement and from this the doctor concluded there were stress fractures in the metal core of the bridgework. He testified that from and after February 3, it was his opinion that in view of the patient's multiple dental problems, a complete restoration of her teeth was necessary. He also testified he so informed her on February 3.

On March 15 and March 20, upper and lower impressions of Mrs. Graves' mouth were taken at Dr. Dicke's office. The purpose, according to the doctor, was to gain information for his determination of a recommended complete restoration treatment program.

Mrs. Graves continued to be in discomfort and able to ingest a soft foods diet only. Her husband personally delivered a letter to Dr. Dicke on March 27. She and her husband made telephone calls to the doctor's office on two or three later dates. The purpose of these communications was to seek relief from Mrs. Graves' discomfort and commencement of a complete restoration program. Dr. Dicke did not respond. He testified he had no personal knowledge of the telephone calls and he had not decided upon a restoration treatment program plan. Such a program requires numerous treatment procedures and steps over an extended period.

In late April, approximately one month following the delivery of her husband's letter and without notifying Dr. Dicke, Mrs. Graves contacted another dentist, a Dr. Zongker. Dr. Zongker first saw Mrs. Graves on May 1; the movement in the bridgework was observed; a diagnosis of metal fractures in the bridgework was made. Dr. Zongker next saw her sometime in July when he instituted a comprehensive treatment program that was completed in December.

Mrs. Graves relies on other trial evidence to buttress her claim. She and her husband testified that her dental work "broke up" in late December, 1978, or early January, 1979, and that, from then until the engagement of Dr. Zongker's services late the following April, a total of eleven to fifteen calls to Dr. Dicke's office seeking appointments for examination and care had resulted in only the five mentioned office visits. Mrs. Graves and her husband patently were disenchanted with perceived failure on the doctor's part to attend to Mrs. Graves' complaints with the promptness and frequency they desired.

The record on appeal reflects no complaint made nor opinion ventured that any diagnoses made by Dr. Dicke were erroneous or that any services rendered were deficient. We find the sole dispositive issue on appeal to be whether the trial evidence was sufficient to establish abandonment.

Tortious medical malpractice includes abandonment. What is it? The applicable principles appear in Capps v. Valk, 189 Kan. 287, 290, 369 P.2d 238 (1962), where it is said:

"It is the settled rule that one who engages a physician ... to treat his case impliedly engages him to attend throughout the illness or until his services are dispensed with. In other words, once initiated, the relationship of physician and patient continues until it is ended by the consent of the parties, revoked by the dismissal of the physician, or until his services are no longer needed. A physician has a right to withdraw from a case, but if he discontinues his services before the need for them is at an end, he is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his own choice. If a physician abandons a case without giving his patient such notice and opportunity to procure the services of another physician, his conduct may subject him to the consequences and liability...