Kitzig v. Nordquist

• Decision Date: 07 July 2000
• Docket Number: No. D030320.,D030320.
• Citation: 81 Cal.App.4th 1384,97 Cal.Rptr.2d 762
• Court: California Court of Appeals Court of Appeals
• Parties: Barbara KITZIG, Plaintiff and Appellant, v. William NORDQUIST et al., Defendants and Appellants.

97 Cal.Rptr.2d 762

81 Cal.App.4th 1384

Barbara KITZIG, Plaintiff and Appellant, v. William NORDQUIST et al., Defendants and Appellants.

No. D030320.

Court of Appeal, Fourth District, Division 1.

July 7, 2000.

Certified for Partial Publication.¹ Review Denied October 3, 2000.

McInnis, Fitzgerald, Rees & Sharkey and Gregory W. Pollack, San Diego; Lewis, D'Amato, Brisbois & Bisgaard and Marilyn R. Moriarty, San Diego, for Defendants and Appellants.

Higgs, Fletcher & Mack, John Monis, San Diego, Jon R. Williams; Law Offices of Antoinette Buzzell Cincotta, Antoinette Buzzell Cincotta, Can M. Shin; Law Offices of Robert E. Boyce and Laura G. Schaefer, San Diego, for Plaintiff and Appellant.

HALLER, Acting P.J.

Barbara Kitzig sued her former dentist, Dr. William Nordquist, for professional negligence, breach of contract and fraud, alleging he improperly placed dental implants, failed to provide a fixed crown and bridge, and misrepresented his qualifications and expertise. A jury awarded Kitzig damages on her negligence and breach of contract claims, but found she failed to prove damages arising from Dr. Nordquist's fraud. Each party appeals.

In the published portion of this opinion, we hold (1) substantial evidence supports the jury's finding that the limitations period did not begin to run when Kitzig consuited with a second dentist during her ongoing dentist-patient relationship with Dr. Nordquist; and (2) the court did not err in failing to require the jury to allocate fault to Kitzig's prior dentist under Proposition 51. (Civ.Code, § 1431.2.) We affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL SUMMARY

In January 1992, Kitzig first consulted Dr. Nordquist for an evaluation of work performed by her former dentist, Dr. Ernest Tarr, and then current dentist, Dr. Ronald Evasic. At the time, Kitzig had a dental malpractice lawsuit pending against Dr. Tarr based on his extracting all but three teeth in her upper jaw, and she was experiencing pain from a denture placed by Dr. Evasic. Kitzig was attracted to Dr. Nordquist by his advertisement in Senior World magazine, which represented that he had a 98 percent success rate with his dental implant patients. At Kitzig's first or second visit, Dr. Nordquist gave Kitzig a brochure representing he was an "implantologist" and a "diplomate" in several areas of dentistry. Kitzig was impressed by these credentials and left Dr. Evasic's care to see Dr. Nordquist for her dental treatment.

Although Kitzig desired "fixed" (not removable) teeth, Dr. Nordquist advised Kitzig she was not a good candidate for fixed teeth unless he augmented her bone with synthetic bone and performed sinus surgery. Kitzig agreed to his recommendation for detachable teeth. In February 1992, Dr. Nordquist performed the first of eight surgeries, extracting the remaining three teeth in Kitzig's upper jaw and augmenting the bone in the sockets. In May 1992, Dr. Nordquist performed a second surgery on Kitzig in order to place five implants. When he attempted to place the fifth implant, the implant slipped into Kitzig's sinus.

After this surgery, Kitzig again expressed a desire for fixed teeth. Dr. Nordquist assured her he could give her fixed teeth and formulated a second treatment plan requiring bilateral sinus lift surgery² and placement of eight dental implants and 12 units of crown and bridge.

In October 1992, Dr. Nordquist performed the sinus surgery and attached certain devices to the four previously placed implants. Dr. Nordquist failed to use live bone cells in this procedure, creating the potential for infections and other problems. About two-and-one-half weeks later, Kitzig began experiencing breathing problems, dizziness, and headaches. She sought treatment from a physician, who put her on steroid medication. She also asked Dr. Nordquist about her breathing problems; he told her they "didn't have anything to do with the implants." The evidence showed these breathing problems were caused by infections resulting from the surgery.

Kitzig continued under Dr. Nordquist's care into 1993, seeing him for cleaning and adjustments. In June 1993, Kitzig experienced pain and found pus in her mouth; Dr. Nordquist confirmed she had an infected implant, prescribed antibiotics and scheduled surgery. In July 1993, he attempted to salvage the infected implant by cutting it off at its base. This was not an appropriate treatment for an infected implant.

In October 1993, Dr. Nordquist performed another surgery to place four more implants. As far as Kitzig knew, the surgery went well. According to Dr. Nordquist, part of the bone graft did not take, but he was able to place implants into that area On March 7, 1994, Kitzig underwent another surgery to attach devices to her newest implants. One week later, Dr. Nordquist noted that the implants looked good and were healing. In April, however, Kitzig heard what she described as a "nail going into plaster" and returned to Dr. Nordquist. He discovered one of the implants had pushed up into her sinus and had become infected. Dr. Nordquist removed the implant from her sinus through an unhealed window in her bone and sutured the hole and the membrane closed.

On May 9, 1994, Kitzig returned to Dr. Nordquist after she experienced food escaping from her nose when she ate, and bubbles coming from her nose when she brushed her teeth. Dr. Nordquist found that Kitzig had an opening between her mouth and sinus. He told Kitzig she had a hole in her sinus and said it would probably close on its own. According to Kitzig, he was "not really" concerned about it and said it "was just something that happens."

Eleven days later, on May 20, 1994, while visiting her husband in Los Angeles, Kitzig went to see a prosthodontist, Dr. Nishimura, at the UCLA dental school because of her concern with the sinus opening. Dr. Nishimura examined her mouth, advised Kitzig that "everything looked okay," and that she should return to Dr. Nordquist to have the opening closed.

The next month, Dr. Nordquist performed surgery to close the opening in Kitzig's sinus. During this surgery, Dr. Nordquist placed a gold foil patch on the opening. Kitzig continued to believe "[e]verything [was] fine." She continued to see Dr. Nordquist regularly: in August to take an impression, in September to try a new temporary denture, three times in October to adjust the new denture, and in mid-November for another adjustment.

On November 21, 1994, Kitzig, believing Dr. Nordquist was out of town, saw her husband's dentist, Dr. Graham Simpson, to alleviate a sore spot on her denture. Dr. Simpson neither performed a complete examination of Kitzig's mouth nor examined her implants that day. They discussed the appearance of her dentures, and he assured her they looked okay.

On March 20, 1995, Kitzig kept an appointment with Dr. Nordquist, believing she was to be prepared for her permanent teeth. While removing a bar from her upper implants, Dr. Nordquist tapped another implant out of her mouth, a very unusual occurrence. Kitzig's husband, feeling "something wasn't right" and that Kitzig was losing too many implants and suffering from too many infections, called Dr. Simpson's office. They saw Dr. Simpson the next day. Dr. Simpson examined Kitzig's implants and found that the implants were failing. He recommended she return to Dr. Nordquist to have him reevaluate the work.

Although she "didn't feel really good about it," Kitzig returned to Dr. Nordquist to have him fix another hole in her sinus. She arrived for surgery in early April 1995 but was informed by Dr. Nordquist that the opening had closed on its own. He placed a bar connecting the remaining implants and took impressions for a denture. Kitzig's last appointment with Dr. Nordquist was on April 5,1995.

In August 1995, Kitzig began treatment with oral surgeon, Dr. Joel Berger. Kitzig was suffering from substantial pain in her jaw. Dr. Berger found that six of Kitzig's seven implants were failing and were infected. Dr. Berger told Kitzig it was necessary to "start from scratch." In January 1996, Kitzig underwent extensive surgery in which all of the implants were removed, her sinuses were cleaned of the artificial bone material, and live bone cells were used to augment her jaw bone.

Because of Dr. Nordquist's numerous surgeries and her existing infections, Kitzig had "scarred, leathery" tissues and had a very "rough postoperative course" with substantial pain. Kitzig was in so much pain that her doctors "didn't know how she really held up." For many weeks after, she could not "even come[ ] close to touching" her upper jaw; even sucking on a straw was painful. Dr. Berger performed several more surgeries on Kitzig during the next year. Because of Dr. Nordquist's negligence, Kitzig's only future option is to have implants; if the implants are not successful, Kitzig will never again have upper teeth.

In January 1996, Kitzig served Dr. Nordquist with her notice of intention to sue. (Code Civ. Proc, § 364.) Three months later, she filed her complaint. As amended, the complaint alleged causes of action for dental malpractice, breach of contract, and fraud.

At trial, Kitzig's expert witness testified Dr. Nordquist's treatment fell below the standard of care by failing to use real bone cells in the mix used to rebuild Kitzig's upper jaw; failing to obtain Kitzig's informed consent by not giving Kitzig the option of using real bone; placing implants in bone inadequate to support them; using a gold patch to repair the hole in her sinus; and failing to replace Kitzig's failed implants and artificial bone grafts. The expert testified that Dr. Nordquist inappropriately treated Kitzig's infection by cutting off a piece of the implant and acted improperly by inverting Kitzig in her chair and having her blow through her nose to remove a failed implant that had fallen into her sinus. Another expert testified that Dr. Nordquist violated the standard of care by...