Koapke v. Herfendal

• Decision Date: 17 April 2003
• Docket Number: No. 20020177.,20020177.
• Citation: 660 N.W.2d 206,2003 ND 64
• Parties: Vee Ann KOAPKE, Plaintiff and Appellant, v. David A. HERFENDAL, DDS, Defendant and Appellee, and Gerard F. Koorbusch, DDS, MBA, Defendant.
• Court: North Dakota Supreme Court

660 N.W.2d 206

2003 ND 64

Vee Ann KOAPKE, Plaintiff and Appellant, v. David A. HERFENDAL, DDS, Defendant and Appellee, and Gerard F. Koorbusch, DDS, MBA, Defendant.

No. 20020177.

Supreme Court of North Dakota.

April 17, 2003.

William E. McKechnie, McKechnie Law Office, P.C., Grand Forks, for plaintiff and appellant.

Brenda L. Blazer, Vogel Law Firm, Bismarck, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Vee Ann Koapke is appealing from a Northwest Judicial District Court summary judgment dismissing her malpractice claim against a Minot dentist, David Herfendal, for providing her a negligent treatment plan and failing to obtain proper informed consent. We affirm.

I

[¶ 2] Koapke visited Dr. Herfendal on September 3, 1998, for a cleaning and a checkup because of pain in some of her teeth. Prior to her appointment with Dr. Herfendal, Koapke's last visit to a dentist was in April 1994 when, as best as she can remember, she was diagnosed with gingivitis. Upon Koapke's arrival at Dr. Herfendal's office, her teeth were stained and yellowed from coffee and cigarettes. Koapke testified she generally brushed her teeth once a day and flossed approximately once a month. [¶ 3] Dr. Herfendal testified at his deposition that when Koapke arrived, she was very distraught and emotional and there were tears rolling down her face. Koapke discussed with Dr. Herfendal the pain she was experiencing and the embarrassment she felt about the condition of her mouth. Dr. Herfendal examined Koapke's teeth and gums. He testified he diagnosed Koapke with carious lesions and gave her two treatment options: full extraction of every tooth, or partial extraction, saving only one to three teeth around which partial dentures could be hooked. Koapke testified in her deposition that Dr. Herfendal informed her that her teeth were going to fall out in five years regardless, and explained to her only one option, which was a full-mouth extraction and dentures. Koapke testified that Dr. Herfendal mentioned there were other options but told her the other options would be expensive, and he did not specifically explain any other option to her.

[¶ 4] Dr. Herfendal testified in his deposition that based on his examination and their discussions about both Koapke's financial situation and what she wanted out of her teeth, Dr. Herfendal recommended Koapke proceed with a full-mouth extraction and dentures. Koapke testified at her deposition that Dr. Herfendal did not discuss his diagnosis with her nor did he discuss any of the risks of his recommended treatment plan.

[¶ 5] Dr. Herfendal referred Koapke to an oral and maxillofacial surgeon, Dr. Gerald Koorbusch. Dr. Herfendal retained a $750 deposit from Koapke for half of the cost of the final dentures he would fit for her after her surgery. Dr. Herfendal and Dr. Koorbusch both testified at their depositions that they do not have, and never have had, an agency relationship or a partnership.

[¶ 6] Upon Dr. Herfendal's referral, Koapke saw Dr. Koorbusch on September 29, 1998, for an initial evaluation. At this initial visit, Dr. Koorbusch took her dental history and conducted a clinical examination of her teeth and gums. He testified at his deposition that he informed Koapke she had options other than a full-mouth extraction but warned her the other options would be more expensive.

[¶ 7] Dr. Koorbusch testified at his deposition that at Koapke's initial visit, she exhibited signs of pain and discomfort. He testified that his diagnosis after his clinical examination was Koapke "presented with both dental caries, tooth decay, and advanced periodontal disease throughout both dental arches, complete bony impactions of her upper right and lower left third molars and a soft tissue impacted lower right third molar, which was infected at the time of examination." Dr. Koorbusch testified at his deposition that he talked to Koapke about his diagnosis. He testified that his medical records reflect that after their discussion, Koapke was interested only in a full-mouth extraction rather than an alternative treatment. He recommended she have a full-mouth extraction under intravenous sedation or local anesthesia because of her advanced periodontal disease and painful infection.

[¶ 8] Koapke testified at her deposition she told Dr. Koorbusch that getting her teeth extracted and getting dentures was her preferred procedure and treatment plan. Koapke admits Dr. Koorbusch did an examination; however, she argues he was relying on Dr. Herfendal's recommended treatment plan. She further testified at her deposition that the significant amount of discussion with Dr. Koorbusch was spent only on the informed consent regarding the surgical procedure. The surgery was performed on November 5, 1998. Koapke returned to Dr. Koorbusch's office for two follow-up visits with a different oral surgeon. On November 19, 1998, Koapke returned to Dr. Herfendal's office. Dr. Herfendal took the impression of Koapke's mouth to fit her dentures. Koapke testified at her deposition that Dr. Herfendal informed her that he would be unable to fit dentures for her bottom gums because of problems with her bone and that she should return to Dr. Koorbusch for implants. Koapke returned to Dr. Herfendal's office on November 24, 1998. Koapke testified at her deposition that during this visit she informed Dr. Herfendal she did not want to go to Dr. Koorbusch for implants, she asked for another referral, and she asked for her $750 deposit back. Dr. Herfendal referred her to another dentist and refunded her deposit. Koapke subsequently visited another oral surgeon for a second surgery to smooth out more of her bone and visited another dentist for dentures.

[¶ 9] On May 17, 2000, Koapke sued both Dr. Herfendal and Dr. Koorbusch. On September 4, 2001, Koapke dismissed Dr. Koorbusch on the merits, with prejudice, and without cost to either party. On February 28, 2002, Dr. Herfendal moved for summary judgment. Koapke presented expert testimony from retired professor Dr. Myer Leonard, who taught oral and maxillofacial surgery at the University of Minnesota and was head of oral and maxillofacial at Hennepin County Medical Center in Minneapolis for 25 years. Dr. Leonard testified at deposition that Dr. Herfendal's treatment of Koapke fell below the standard of care for a dentist. He testified that Dr. Herfendal should not have given Koapke a treatment plan, referred her to an oral surgeon, or accepted her $750 deposit, considering her emotionally distraught state of mind. He testified that in his opinion, Dr. Herfendal should have asked Koapke to come back a few days later when she was more calm and then should have recommended she see a periodontist. He testified it was his opinion that Dr. Herfendal did not obtain Koapke's informed consent for the treatment plan of a full-mouth extraction and dentures. On May 20, 2002, the district court granted summary judgment in favor of Dr. Herfendal.

[¶ 10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 11] We review this appeal under our standard for summary judgment, a procedure allowing for prompt resolution of a controversy on the merits without a trial if the evidence demonstrates no dispute as to either a genuine issue of material fact or the inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545; Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. "Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result." Knight v. North Dakota State Industrial School, 540 N.W.2d 387, 388 (N.D.1995). Whether a district court properly has granted summary judgment is a question of law, which we review de novo on the entire record. Fetch, at ¶ 8. The party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. That party, however, must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record demonstrating a genuine issue for trial. N.D.R.Civ.P. 56(e). We explained in Earnest v. Garcia:

Judges, whether trial or appellate, are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant's position. Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶ 25, 559 N.W.2d 204. In Umpleby By and Through Umpleby v. State, 347 N.W.2d 156, 160 (N.D.1984), this Court explained:

A party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, and, if appropriate, drawing the court's attention to evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising a material factual issue, or from which the court may draw an inference creating a material factual issue.

In summary judgment proceedings the trial court has no legal obligation or judicial duty to search the record for evidence opposing the motion for summary judgment. This principle is equally applicable, if not more so, to appellate proceedings because the appellate court, except for jurisdictional matters and the taking of judicial notice, generally considers only those issues raised in the trial court.

[Citations omitted]. The party opposing the summary judgment motion "must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are

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