Roybal v. Bell

Decision Date27 July 1989
Docket NumberNo. 88-292,88-292
Citation778 P.2d 108
PartiesAngelina ROYBAL, Appellant (Plaintiff), v. Gregory F. BELL, D.D.S., Appellee (Defendant).
CourtWyoming Supreme Court

Rodger McDaniel, Cheyenne, and Jack Kintzele, Denver, Colo., for appellant.

Larry B. Kehl and George J. Argeris of Guy, Williams, White & Argeris, Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice.

This is a dental malpractice case specifically involving the question of informed consent. The district court granted summary judgment to appellee Gregory F. Bell, D.D.S., and appellant Angelina Roybal pursued this appeal.

Although variously stated by the parties, the substance of the issues presented is simply whether or not factual questions exist on the elements of appellant's claim which would preclude the entry of summary judgment. We conclude that material factual disputes are indicated in the record, and therefore we reverse.

In May 1983, appellant began an extensive course of dental treatment which eventually involved the three dentists originally named as defendants in this case: appellee Bell, Dr. Richard Giovale, and Dr. Rex Dolan. Appellant first saw Dr. Giovale in May 1983 regarding a loose bridge. In June 1983 Dr. Giovale performed a root canal for appellant on a tooth designated as tooth # 20, which was located in the lower left jaw. Thereafter, appellant reported experiencing pain associated with tooth # 20. According to appellant, attempts by Dr. Giovale over the next several months to alleviate the continuing problems with tooth # 20 were unsuccessful.

Dr. Giovale concurrently was performing various dental work on appellant's upper right teeth, including bridge work and at least one further root canal. One of the teeth in the upper right developed an abscess on the root requiring an oral surgical procedure known as an apicoectomy. 1 Appellant was referred to appellee for this procedure. This apicoectomy was completed successfully by appellee in July 1984.

Appellant continued to experience problems with tooth # 20, and in early 1985 Dr. Giovale referred her to appellee for an apicoectomy on that tooth. The apicoectomy on tooth # 20 was performed in April 1985. After the apicoectomy on tooth # 20, appellant experienced continued pain and numbness (paresthesia) in the general area of that tooth. Consequently, after further consultation and a referral for a second opinion, Dr. Giovale referred appellant to Dr. Dolan for extraction of tooth # 20, which was performed in January 1986. According to appellant, the extraction of the tooth did not remedy the pain and paresthesia. Appellant asserts, with support in the record, that she sustained permanent nerve damage as a result of the dental procedures associated with tooth # 20. 2

On August 11, 1987, appellant initiated an action against appellee, Dr. Giovale, and Dr. Dolan by filing a complaint in the district court. Appellant asserted causes of action premised on theories of negligent treatment, negligent failure to obtain an informed consent, res ipsa loquitur, and breach of warranty. 3 Each defendant answered, generally denying the allegations. Thereafter, the defendants filed motions for summary judgment supported by affidavits, exhibits, memoranda, and the deposition of appellant. On July 15, 1988, the district court entered an order dismissing Dr. Dolan from the action pursuant to a stipulation between appellant and that defendant. Appellant then submitted a memorandum in opposition to summary judgment accompanied by her deposition, an affidavit containing the expert opinion of Dr. Boyd Tomasetti, and various documentary materials primarily consisting of appellant's dental records. Prior to the summary judgment hearing, appellant and Dr. Giovale reached an out-of-court settlement.

The summary judgment hearing was held on August 1, 1988, with appellee as the only remaining defendant. A transcript of the motion hearing has not been provided in the record on appeal. Apparently, however, as reflected in the briefs of the parties, counsel for appellant informed the district court at the hearing that appellant was dropping all claims against appellee except the claim relating to the alleged failure to obtain an informed consent in connection with the apicoectomy on tooth # 20. After requesting and receiving further briefing on the question of informed consent, the district court entered its decision letter and order granting summary judgment to appellee. This appeal followed.

We begin by reiterating our standard for reviewing a summary judgment. Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989); Teton Plumbing and Heating, Inc. v. Board of Trustees, Laramie County School District Number One, 763 P.2d 843 (Wyo.1988). We review a grant of summary judgment in the same light as the district court, using the same information and following the same standards. Doud, 769 P.2d 927; Johnston v. Conoco, Inc., 758 P.2d 566 (Wyo.1988). We examine the record from the vantage point most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which may be drawn from the record. Doud, 769 P.2d 927; Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174 (Wyo.1988). We have often stated that summary judgment is not favored in negligence actions. O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985); DeHerrera v. Memorial Hospital of Carbon County, 590 P.2d 1342 (Wyo.1979). In DeHerrera, we said:

"[S]ummary judgment procedures should be applied with special caution in negligence actions. This is particularly true in malpractice suits where, as here, the attending facts are peculiarly within the knowledge of the movants and the showing of negligence is generally dependent upon expert testimony as to the standard of care required and observed."

Id. at 1345 (quoting Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966) (citations omitted)).

This Court has not had occasion to address the law of informed consent since the case of Stundon v. Stadnik, 469 P.2d 16 (Wyo.1970), which in turn relied heavily upon the prior case of Govin v. Hunter, 374 P.2d 421 (Wyo.1962). Informed consent law has evolved as a variant of medical malpractice. Bloskas v. Murray, 646 P.2d 907, 914, 42 A.L.R.4th 527 (Colo.1982). See generally 1 S. Pegalis and H. Wachsman, American Law of Medical Malpractice §§ 2:1 and 2:15 (1980). Originally conceived as an offshoot of the law of battery, informed consent is now generally treated under a theory of negligence. 1 S. Pegalis and H. Wachsman, supra at § 2:15; 2 D. Louisell and H. Williams, Medical Malpractice p 22.04 (1988). 4 The essential elements in a malpractice action are equally applicable in an informed consent case. The plaintiff must establish (1) that the practitioner owed a duty to the plaintiff; (2) that the practitioner failed to perform the duty; (3) that the breach of duty proximately caused (4) injury to the plaintiff. Fiedler v. Steger, 713 P.2d 773, 775 (Wyo.1986); Vassos v. Roussalis, 625 P.2d 768 (Wyo.1981) (Vassos I ), appeal after remand 658 P.2d 1284 (Wyo.1983) (Vassos II ); Harris v. Grizzle, 625 P.2d 747 (Wyo.1981). Further, we have stated that the mere fact of injury or a bad result, standing alone, is not proof of negligence and will not overcome a motion for summary judgment. Siebert v. Fowler, 637 P.2d 255, 257 (Wyo.1981); Harris, 625 P.2d 747.

The determination of the standard of care or duty imposed upon the defendant is a matter of law and is not within the province of the jury. Vassos II, 658 P.2d at 1287. The existence of the physician-patient relationship establishes a duty, and the standard is fixed as that which is required of a reasonable person in the light of all the circumstances. Kobos by and through Kobos v. Everts, 768 P.2d 534, 538 (Wyo.1989); Vassos I, 625 P.2d 768. In Govin, 374 P.2d at 423, we elaborated upon the duty of disclosure required for informed consent:

We realize that under certain circumstances a physician has a duty to reveal any serious risks which are involved in a contemplated operation. But, how a physician chooses to discharge his obligations to a patient involves primarily a question of medical judgment. As long as his disclosure is sufficient to assure an informed consent, and if it appears that he proceeded as competent medical men would have done in a similar situation, the physician's actions should not be called into question.

We further stated:

Whether or not a surgeon is under a duty to warn a patient of the possibility of a specific adverse result of a proposed treatment depends upon the circumstances of the particular case and upon the general practice followed by the medical profession in the locality; and the custom of the medical profession to warn must be established by expert medical testimony.

Id. at 424, quoted in Stundon, 469 P.2d at 21.

The above standards regarding informed consent must be read in conjunction with the more recent pronouncements of this Court regarding medical malpractice in general. We have moved away from strict adherence to the "locality" rule recited in Govin. Kobos by and through Kobos, 768 P.2d 534; DeHerrera, 590 P.2d 1342. Thus, we said in Vassos I, 625 P.2d at 772:

[A] physician or surgeon must exercise the skill, diligence and knowledge, and must apply the means and methods, which would reasonably be exercised and applied under similar circumstances by members of his profession in good standing and in the same line of practice.

The skill, diligence, knowledge, means and methods are not those "ordinarily" or "generally" or "customarily" exercised or applied, but are those that are "reasonably" exercised or applied. Negligence cannot be excused on the grounds that others practice the same kind of...

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