Henriksen v. Roth

• Decision Date: 31 December 2008
• Docket Number: 1060875.
• Citation: 12 So.3d 652
• Parties: Rebecca Jean HENRIKSEN v. Charles Glenn ROTH, D.M.D., P.C., and the estate of Charles Glenn Roth.
• Court: Alabama Supreme Court

12 So.3d 652

Rebecca Jean HENRIKSEN v. Charles Glenn ROTH, D.M.D., P.C., and the estate of Charles Glenn Roth.

1060875.

Supreme Court of Alabama.

December 31, 2008.

Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile, for appellant.

Jene W. Owens, Jr., John D. Richardson, and David A. Hamby, Jr., of Richardson, Spear, Spear, Hamby & Owens, P.C., Mobile, for appellees.

MURDOCK, Justice.

Rebecca Jean Henriksen, the plaintiff below, appeals from a judgment entered on a jury verdict in favor of the estate of Dr. Charles Glenn Roth and the professional corporation Charles Glenn Roth, D.M.D., P.C. ("the Roth defendants"), in an action asserting claims under the Alabama Medical Liability Act in relation to a dental procedure Dr. Roth performed on Henriksen. Henriksen contests rulings by the trial court on judicial estoppel and rulings in which the trial court accepted a jury charge requested by the Roth defendants and rejected a jury charge requested by Henriksen. We affirm.

I. Facts and Procedural History

Henriksen began seeing Dr. Roth¹ as her dentist in May 1992, and, except for 1996, maintained regular appointments with him every year until 2000. Henriksen testified that she had not been aware of any injuries sustained by Dr. Roth during that period and that she never noticed him laboring under any pain or impairment of his faculties when he attended to her. On August 23, 2000, Henriksen went to see Dr. Roth about a particular tooth that was giving her trouble. He recemented a temporary bridge he had originally installed in 1998 and advised Henriksen that a root canal would be necessary. On Thursday, August 24, 2000, Dr. Roth performed the root canal on Henriksen's tooth. Henriksen experienced discomfort in the area over the following weekend, and on Sunday, August 27, 2000, she telephoned Dr. Roth to inform him of the pain. He advised her to come into his office the following morning so he could evaluate the situation.

The next day, August 28, 2000, Henriksen came in for her scheduled appointment; she was accompanied by Mr. Henriksen. According to Henriksen, Dr. Roth told Mr. Henriksen that everything would be fine, so he left her at Dr. Roth's office. Henriksen testified that Dr. Roth told her that he would look at the area, and he placed her under nitrous-oxide sedation. Dr. Roth then performed either an apicoectomy or a boney trephination.

Henriksen's dental expert, Martha Wallace, testified that in her opinion the surgery Dr. Roth performed on Henriksen was an apicoectomy, which is the removal of the root tip of an abscessed tooth and the surrounding infected tissue. Dr. Roth's dental expert, Gerard Weinacker, testified that in his opinion Dr. Roth performed a boney trephination, which involves creating an opening by puncturing the soft tissue and the cortical bone overlaying the apex of the root tip of the tooth in order to allow drainage to prevent infection inside the jawbone. The important distinction between the two, for purposes of this case, is that a boney trephination is an emergency procedure because the oral infection is potentially fatal, while an apicoectomy is not considered an emergency surgery.

Henriksen testified that Dr. Roth did not tell either her or Mr. Henriksen that he was going to perform a surgical procedure, and she claimed he did not obtain consent from either of them to do so. She testified that the next thing she remembered after being placed in the dentist chair and being administered nitrous oxide was her husband coming back to the dental office late in the day to take her home.

Henriksen testified that several days later she began to experience severe pain, numbness, and tingling on the right side of her face, the side on which the surgery had been performed. Henriksen returned to Dr. Roth for a follow-up visit during which he related to her that the pain and numbness were temporary and that the area was "healing well." Henriksen claims, however, that the pain and numbness did not subside and that she sustained permanent nerve damage to the right side of her face. Her treating physician for the pain, Dr. Lee Irvin, testified by deposition that in his opinion there was "a reasonable degree of medical probability" that the surgery performed by Dr. Roth caused Henriksen's medical problem.²

Henriksen sued Dr. Roth and his professional corporation on August 23, 2002, alleging negligence and wantonness regarding the August 28, 2000, surgery. Dr. Roth subsequently became ill and died on June 5, 2004,³ of complications related to HIV/AIDS. Henriksen subsequently amended her complaint to substitute Dr. Roth's estate as a defendant and to add claims related to Dr. Roth's contraction of HIV/AIDS, claims the trial court later dismissed on summary judgment. Ultimately, Henriksen argued at trial that Dr. Roth had breached the standard of care applicable to practitioners of general dentistry under the Alabama Medical Liability Act in three ways: (1) he failed to refer her to a specialist for the surgery; (2) he failed to provide Henriksen with material information concerning the risks of the surgery, specifically the risk of possible nerve damage and thus failed to obtain informed consent for the surgery; and (3) he failed to disclose his medical situation to her.

Before the trial, Henriksen filed a motion invoking the doctrine of judicial estoppel, arguing that the Roth defendants should be estopped from contending that Dr. Roth was not disabled when he performed the surgery. The motion was based on injuries sustained by Dr. Roth before Henriksen's surgery and litigation Dr. Roth had engaged in against his insurance company regarding those injuries. Specifically, in February and March 1995, Dr. Roth was involved in two accidents that resulted in injuries to his neck. At that time, Dr. Roth had been working full-time as a dentist for 10 years, but the injuries forced him to start working part-time (30-40 hours per week). Dr. Roth received pain-management treatment from March 1995 to August 1998 for the injuries, but his condition worsened.

On September 21, 1998, Dr. Roth applied for disability benefits under his employment-insurance policy with Provident Life Insurance Company ("Provident"). In the letter applying for the benefits, Dr. Roth explained his injuries and the fact that he was working only part-time and that he believed his condition met the "policy definition of total and/or residual disability."⁴ On an accompanying form, Dr Roth described the limitations on his practice caused by his injuries:

"Because of the pain resulting from my injury, I am unable to sit in the positions required to perform dental procedures for any extended period of time. Bending and craning of the head and neck to visualize the operative field causes pain, the positions which the arms must be held in to perform these procedures exacerbates the numbness/neurological deficit in my hand, and the chronic pain has destroyed my ability to handle other aspects of the practice, including practice-building, oversight and management of the personnel. Even my ability to handle simple things like diagnosis and treatment planning are compromised by my narrowed ability to concentrate."

In support of Dr. Roth's disability claim, one of his treating physicians, Dr. John McAndrew III, filed a statement in which he stated that he had advised Dr. Roth "not to practice general dentistry any longer."⁵

Provident denied Dr. Roth's disability claim in February 1999, contending that Dr. Roth's disability was the result of a pre-existing condition. Subsequently, Dr. Roth sued Provident for allegedly improperly denying his disability claim. In the complaint, Dr. Roth alleged that he filed the disability claim because, as of September 1998, he "was no longer able to perform the substantial and material duties of his occupation." In his deposition for that case, however, Dr. Roth testified that he continued to perform all of his dental duties after the accidents as he had done before the accidents, albeit on a part-time basis, with the exception that he no longer performed total-mouth reconstructions because of the length of those procedures. Dr. Roth and Provident entered into a confidential settlement in December 2004 that ended the litigation, but the settlement agreement stated that the settlement did not constitute an admission of liability by Provident. The trial court denied Henriksen's motion invoking the doctrine of judicial estoppel.

At the close of the evidence, the parties submitted various requested jury charges. One of Henriksen's requested jury charges concerned Dr. Roth's failure to obtain consent for the surgery. Henriksen's requested jury charge provided:

"Plaintiff, Rebecca Henriksen, alleges that Glenn Roth, DMD, performed a surgical procedure on Plaintiff to which she did not consent. A medical procedure performed without the consent of a patient constitutes an assault and battery or a trespass to the person. If you find that Rebecca Henriksen did not consent to the August 28, 2000 procedure performed by Glenn Roth, DMD, then Glenn Roth, DMD, is liable for all damages proximately caused by the performance of the procedure or procedures to which Rebecca Henriksen did not consent."

The trial court rejected Henriksen's requested jury charge on the ground that the requested charge was "virtually subsumed" by the lack-of-consent charge the trial court did read to the jury. The lack-of-consent charge the trial court gave to the jury provided:

"A doctor may not treat a patient without the consent or permission of the patient. When the patient is unable to give permission, a doctor must obtain permission from someone authorized to give it for the patient."

In addition, Henriksen objected to a jury charge requested by the Roth defendants concerning emergency medical treatment. The requested jury charge on emergency medical treatment provided:

"When an emergency requires immediate...