Llera v. Wisner

Citation557 P.2d 805,171 Mont. 254
Decision Date20 December 1976
Docket NumberNo. 13404,13404
PartiesAlan LLERA, Plaintiff and Appellant, v. Byron R. WISNER, D.D.S., et al., Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Lewis E. Brueggemann (argued), Billings, for appellant.

Anderson, Symmes, Forbes, Peete & Brown, Billings, Richard F. Cebull (argued), Billings, Weymouth Symmes (argued), Billings, Keefer & Roybal, Billings, J. Dwaine Roybal (argued), Billings, Neil Keefer, Billings, Crowley, Haughey, Hanson, Gallagher & Toole, Billings, Jack Ramirez (argued), Billings, for respondents.

JOHN C. HARRISON, Justice.

This is an appeal from summary judgment entered in favor of all defendants in a dental malpractice action in the district court, Yellowstone County.

Plaintiff Alan Llera brought action alleging malpractice resulting from an oral surgical procedure known as a partial glossectomy. Plaintiff alleges the malpractice occurred in the diagnosis of his problem and in the resultant operation. He alleges no informed consent was obtained nor were the risks and the alternatives to his tongue problem ever explained or discussed.

Plaintiff alleges Dr. Jon A. Jourdonnais, the referring dentist, gave Dr. Byron Wisnor no referral information at the time; that Dr. Hurly, the admitting doctor at St. Vincent's hospital found nothing wrong with his tongue but did find enlarged tonsils; that Dr. Hylton, the anesthesiologist and his agents were negligent in allowing the operation; that two nurses, D. Drake and M. Kemp, did not provide the proper care; and finally that St. Vincent's Hospital failed to exercise the proper degree of care for plaintiff.

Plaintiff, a 20 year old man, went to see Dr. Jourdonnais, a Great Falls orthodontist, for treatment to reduce the gaps between his teeth. Dr. Jourdonnais, after treating plaintiff through the use of orthodontic appliances suspected that the space problem might be caused by what is known in the profession as 'tongue thrust' which is an involuntary forward-thrusting movement of the tongue upon swallowing which forces the upper teeth apart. He discussed his conclusions with plaintiff and informed him of an operation that might help the problem. The doctor also informed plaintiff of a doctor in Billings, Montana who had special board certification as an oral surgeon, one Dr. Byron R. Wisner, who might perform the operation necessary to correct the tongue problem. Dr. Jourdonnais did not know Dr. Wisner personally, he had heard about him from another dentist. Plaintiff requested an appointment with Dr. Wisner in Billings.

Dr. Jourdonnais denied ever recommending an operation to plaintiff, but stated in his deposition that after discussing his diagnosis with plaintiff he merely made the appointment for him with Dr. Wisner. He sent Dr. Wisner his X-rays and a plastic mold of plaintiff's teeth but did not send his written diagnosis. Neither did he tell Dr. Wisner of his diagnosis as 'tongue thrust'.

Plaintiff's appointment with Dr. Wisner was February 23, 1973, in Billings. Dr. Wisner's diagnosis was 'congenital macroglassia' which in common terms is an oversized tongue. Dr. Wisner recommended surgery known as a partial glossectomy, which he performed on June 5, 1973 at St. Vincent's Hospital in Billings. This operation consisted of removal of a wedged shaped piece of the tongue to reduce its size. Prior to the surgery and upon entrance into the hospital, plaintiff was examined by Dr. John Hurly, as required by the rules of the hospital for any patient who was to undergo surgery.

During surgery Dr. Wisner was assisted by a nurse, M. Kemp, who was trained and employed by Dr. Wisner for oral surgery. The anesthesiologist and the anesthetist, Dr. Robert R. Hylton and J. McGarity, respectively, members of M.D. Anesthesia Services, assisted in the operation. One defendant, D. Drake was the circulating nurse and was an employee of St. Vincent's. Plaintiff remained in the hospital five days before returning home to Great Falls. Although a schedule was set up for plaintiff to see Dr. Wisner after leaving the hospital, he returned only once, on July 20, 1973. In his deposition, Dr. Wisner testified that on that call plaintiff had no complaints. He also testified he did tell plaintiff there was a chance of some loss of tongue mobility, speech impairment, loss of taste, and possibly it might not cure his tongue thrust when he was informed by plaintiff that Dr. Jourdonnais had discussed the operation with him and he wanted the operation. However, Dr. Wisner did say he told plaintiff that it was a difficult procedure that should be done in the hospital. Plaintiff said his reason for wanting the operation was because of the spacing and flaring of his teeth and the operation might help remove the pressure on those teeth. While denied by plaintiff and his mother, Dr. Wisner stated in his deposition that she was in favor of her son having the operation.

During the one return visit to Dr. Wisner, no infection was noted in the tongue. On examination plaintiff also showed no taste nor sensory deficiency; the tongue had normal mobility and plaintiff could lick his lips.

The hospital records and depositions indicate that plaintiff lost from 1100 to 1500 cc of blood and that two blood transfusions were required. Plaintiff alleges that expert testimony would indicate that 200 to 300 cc is a normal loss in this type of operation and the loss of such a large amount is an evidentiary fact tending to prove the ultimate fact the operation was not performed properly.

Following the operation plaintiff returned to Great Falls and continued to have Dr. Jourdonnais do orthodontic work for him for some six months until plaintiff moved to Bozeman. Plaintiff stated in his deposition that when he went to see Dr. Wisner some six weeks after the operation his tongue was inflamed and that Dr. Wisner gave him some pills for the inflammation. Dr. Jourdonnais stated he had difficulty with plaintiff before and after the operation with plaintiff not keeping appointment dates, which interfered with his giving plaintiff constant care.

Some six months after the operation in Billings, plaintiff had his tonsils and adenoids removed in Great Falls by Dr. W. J. Roberts. In his deposition, Dr. Roberts stated that at the time of his removing the tonsils they were enlarged and infected and in his opinion this infection was chronic. However, he stated when he first examined plaintiff in October 1973, he found no acute infection. He further stated that while he doubted the tonsils would have interfered with the movement of plaintiff's tongue, the recurring inflammation could cause the tongue to be sore.

Five issues are presented all directed to the granting of summary judgment to defendants. These issues can be summarized thus-Was summary judgment proper:

1) If there were genuine issues of fact as to any one or more of defendants?

2) Where plaintiff moved for a continuance to locate additional expert testimony?

3) Where there was expert testimony already before the court, or its equivalent?

4) As to any one or more, or all of defendants, as a matter of law as pertaining to any one or more of the three causes of action?

5) When defendants failed to comply with the notice requirements of Rule 56(c), M.R.Civ.P.?

We note here that plaintiff's complaint against the defendants sets forth three causes of action, the first for lack of informed consent, the second for failure to use due care, (both sounding in tort); and the third against only defendant Wisner for breach of express warranty to obtain a specific result. Extensive discovery procedures followed the filing of the complaint, including seven depositions, several sets of interrogatories, numerous exhibits, and including articles from dental publications that considered the treatment of an 'open bite' and 'tongue thrust' condition.

We have carefully reviewed the posture of the cause at the time all defendants filed motions for summary judgment and at the time such motions were heard. We affirm such summary judgments as to six defendants without further discussion other than to note we find the record concerning these six totally fails to disclose genuine issues of material fact on any theory of pleading advanced by plaintiff. These six defendants are: Robert R. Hylton, M.D.; J. McGarity, C.R.N.A.; M.D. Anesthesia Services; M. Kemp, R.N.; D. Drake, R.N.; and Saint Vincent's Hospital. See: Montana Deaconess Hospital v. Gratton, Mont., 545 P.2d 670, 33 St.Rep. 128; Collins v. Itoh, 160 Mont. 461, 503 P.2d 36; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228; Davis v. Trobough, 139 Mont. 322, 363 P.2d 727.

The summary judgment granted Dr. Jourdonnais and Dr. Wisner, will be discussed individually.

As to Dr. Jourdonnais, the summary judgment resulted after no facts were developed that revealed any deviation from the established standards of treatment by orthodontists and after if was shown that no harm came to plaintiff resulting from the treatment by Dr. Jourdonnais. It is of import to note that the court did not grant this defendant's motion for summary judgment until after plaintiff's attorney told the court he could not produce any additional expert witness testimony against Jourdonnais other than that before the court.

The record is bare of any testimony of another orthodontist, dentist, medical doctor, or other expert that the professional service rendered plaintiff by this defendant was in any manner improper or negligent. In truth, plaintiff has no complaint as to the orthodontic work, but directs his complaints as to Jourdonnais' diagnosis and his failure to warn plaintiff of the seriousness of the operation called a 'partial glossectomy'.

Before the district court was the deposition of Dr. Morgan Allison, Ohio State University, an internationally recognized oral surgeon. His testimony shows clearly that there was no error in diagnosis by Dr....

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