Willard v. Hagemeister

CourtCalifornia Court of Appeals
Writing for the CourtSTEPHENS
Citation175 Cal.Rptr. 365,121 Cal.App.3d 406
PartiesFaye L. WILLARD, Plaintiff and Appellant, v. Carl R. HAGEMEISTER, Dennis R. Hardin, Jeffrey D. Waterman, Stanley G. Eichstaedt, Stanley G. Eichstaedt, Inc., Defendants and Respondents. Civ. 60184, Civ. 59108.
Decision Date09 July 1981

Page 365

175 Cal.Rptr. 365
121 Cal.App.3d 406
Faye L. WILLARD, Plaintiff and Appellant,
Carl R. HAGEMEISTER, Dennis R. Hardin, Jeffrey D. Waterman, Stanley G. Eichstaedt, Stanley G. Eichstaedt, Inc., Defendants and Respondents.
Civ. 60184, Civ. 59108.
Court of Appeal, Second District, Division 5, California.
July 9, 1981.
Hearing Denied Sept. 2, 1981.

[121 Cal.App.3d 408]

Page 367

Faye L. Willard, in pro. per.

Omansky, Lyden & Lazarus and Alfred W. Omansky, Encino, for defendant and respondent Jeffrey D. Waterman.

Buck Molony, Nimmo & Ammirato, a Professional Corp., Long Beach, for defendants and respondents Carl R. Hagemeister, Dennis R. Hardin, Stanley G. Eichstaedt and Stanley G. Eichstaedt, Inc.

[121 Cal.App.3d 409] STEPHENS, Acting Presiding Justice.

In these consolidated appeals, plaintiff and appellant, Faye L. Willard, seeks reversal of summary judgments in a dental malpractice action entered in favor of defendants and respondents Carl R. Hagemeister, D.D.S., Dennis R. Hardin, D.D.S., Jeffrey D. Waterman, D.D.S., Stanley G. Eichstaedt, D.D.S., and Stanley G. Eichstaedt, Inc. 1 The issue before this court is whether a disputed question of fact exists as to either the alleged negligence of respondents in providing dental care for appellant, or the purported misrepresentations made to her regarding the dental procedures used in this treatment.

Appellant's first amended complaint contains five causes of action alleging fraud and negligence (malpractice) by respondents. 2 The first four causes of action address both intentional and negligent misrepresentations which respondents Hagemeister and Hardin supposedly made to appellant. Appellant also seeks to impose liability against respondents Eichstaedt and Eichstaedt, Inc. for this alleged fraud. The complaint offers an agency theory for this requested recovery, asserting that Hagemeister and Hardin were dentists employed by the Eichstaedt clinic, and the principal (Eichstaedt) is liable for the wrongful conduct of his agents (Hagemeister and Hardin). Finally, the fifth cause of action is a general averment of negligence against all the respondents with regard to their diagnosis and treatment of appellant.

The relevant facts in this action concern three appearances by appellant at the Eichstaedt dental clinic (Spring Dental Arts). Appellant Willard was examined initially by respondent Hagemeister on February 4, 1976. She complained of a "chipped sidewall" on a tooth which she wanted to salvage for mastication. Hagemeister indicated that a root canal and crowning were necessary to save the tooth from decay. According to Willard, Hagemeister further

Page 368

represented that respondent [121 Cal.App.3d 410] Hardin would immediately perform a root canal and "crown" the tooth, with the entire procedure to be completed within 30 minutes. Appellant alleges that her assent to this dental treatment was predicated on Hagemeister's representations that (1) the root canal and crown were essential to save the tooth, and (2) the complete process was a brief procedure.

Due to Dr. Hagemeister's physical condition, he was unable to personally perform the procedures. He referred appellant to respondent Hardin that same day. Doctor Hardin completed the root canal on February 4, 1976, but elected not to crown the tooth on that date. According to Hardin, he wanted to make certain that the root canal was successful before crowning the tooth. Willard alleges, however, that Hardin guaranteed the completion of the root canal and crowning within 30 minutes. Moreover, Hardin concedes that he reiterated Hagemeister's diagnosis that the entire procedure (root canal and crowning) was necessary to salvage the tooth. This same respondent also indicates that the crowning was not performed on that date because the tooth "might require extraction" if the root canal therapy proved unsuccessful.

As with Dr. Hagemeister, appellant alleges that but for Dr. Hardin's representations as to the need for the aforementioned procedure, and the brief period required for the entire process, she would not have consented to the dental work commenced on February 4, 1976. The tooth allegedly "broke" at the gum line during the root canal operation, necessitating the insertion of a post for the proper placement of a crown. Willard contends that Hardin assured the post insertion and crowning at her next appearance in his office, with an intervening period for medication and healing. He purportedly represented that the tooth would be suitable for mastication after appellant's next appointment.

This subsequent meeting between appellant and respondent Hardin occurred on March 1, 1976. Hardin not only refused to insert the post and crown the tooth which had undergone root canal therapy, but he also drilled an adjacent tooth. Willard consented to the procedure performed on the "second" tooth only after Hardin indicated his first discovery of decay. Respondent also informed Willard that "the success of the root canal therapy was suspect," as that tooth was still "mobile."

Appellant alleges that Hardin described "an emergency gum condition" for the first time at the March 1 meeting. She further contends [121 Cal.App.3d 411] that respondent represented this periodontal problem to preclude any immediate work on the "second" tooth which he had just drilled. Moreover, the "advanced" gum disease was supposedly so grave that the prompt extraction of the "root canal" tooth was also in order. Before Hardin would perform any further work on either tooth, he indicated that appellant must first have a periodontal consultation with respondent Waterman.

Doctor Hardin disagrees with appellant's characterization of his statements. He suggests that he neither described appellant's periodontal problem as "advanced or severe," nor did he intimate that gum therapy was required to salvage the "second" tooth, drilled during the March 1 meeting. Hardin asserts that the consultation with respondent Waterman was merely recommended to ascertain the extent of appellant's periodontal condition.

Willard met with Dr. Waterman on March 2, 1976. Waterman identified some of appellant's teeth as "extremely poor" and suggested their extraction. With regard to these teeth and the existing periodontal problem, respondent Waterman explained at least two alternative plans for treating the condition. Willard rejected the proposals, including one dental scheme which involved extractions and bridgework. Waterman insists that the treatment plan offered to appellant was "a viable, rational approach" to a dental condition aggravated by a periodontal problem which had "progressed over the years." Respondent relates that no periodontal treatment was rendered at the March 2 consultation. Before Willard rejected his proposals,

Page 369

Waterman advised her that "a definite and unequivocal cure" for her condition could not be implemented at that time.

While respondents Hagemeister and Hardin agreed on the need for a root canal and crown in an attempt to salvage appellant's tooth, there are apparent conflicts with regard to the nature and extent of their representations concerning this dental treatment. Before the purported misrepresentations are addressed, however, the general allegation of negligence against all of the respondents must be resolved.

First, the procedural requirements which are dispositive to this appeal appear in Code of Civil Procedure, section 437c. 3 This statutory guideline[121 Cal.App.3d 412] reflects the particular importance of the declarations supporting respondents' motions for summary judgment. "Moreover, the validity of a summary judgment is to be determined solely by the sufficiency of the affidavits which were before the court when the motion was heard, and this court will consider only the facts before the trial court at the time it ruled on the motion (citations)." (Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966, 123 Cal.Rptr. 309.)

Willard alleges that respondents Hagemeister, Hardin, and Waterman each committed malpractice in the diagnosis and treatment of her dental condition. She asserts that respondent Eichstaedt was negligent due to his employment of these three dentists. However, plaintiff's failure to submit the declaration of an expert in opposition to either motion for summary judgment is fatal to this appeal from the negligence count.

The preemptive weight of expert testimony in a malpractice action was described in Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999, 92 Cal.Rptr. 583: "Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony. (Citations.)" The Supreme Court reiterated this well-established rule in Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389, holding: "The question remains one of fact, to be decided on the basis of expert testimony: 'The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman.' (Sinz v. Owens (1949) 33 Cal.2d 749, 753 (205 P.2d 3) (citations).)"

[121 Cal.App.3d 413] The dental procedures utilized in the effort to salvage appellant's tooth, remove decay from an adjacent tooth, and diagnose her periodontal problem are not within a layman's "common knowledge." Respondents recognized this aspect of the case, as well as the absence of any legal distinction between dental and medical malpractice actions (Roberts v. Parker (1932) 121 Cal.App. 264, 267-268,...

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