COURT OF APPEALS DECISION DATED AND RELEASED September 12, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2440
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
VADIM KATZNELSON,
Plaintiff-Appellant,
v.
STUART HOFFMAN,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Milwaukee County:
LAURENCE C. GRAM, JR., Judge. Reversed
and cause remanded with directions.
Before Fine and
Schudson, JJ., and Michael T. Sullivan, Reserve Judge.
SULLIVAN,
J. Vadim Katznelson appeals from a judgment dismissing his action
against dentist Stuart Hoffman. The
trial court, sua sponte, granted the dismissal when, on the day of
trial, Katznelson stated that he had no expert witness to testify on the issue
of negligence. Katznelson argues that
the trial court erred in dismissing his action because none of his three causes
of action required expert testimony.
For the reasons discussed more fully below, we agree with Katznelson and
reverse and remand for further proceedings consistent with this opinion.
I. Background.
This suit arose out of
Katznelson's visit to Hoffman to have color differences on two of his teeth
removed. Katznelson alleged that
instead of bleaching his teeth, Hoffman ground his teeth down, resulting in
pain whenever his teeth came into contact with hot or cold substances. Katznelson's amended complaint set forth
three causes of action:
(1) negligent failure to obtain informed consent to treatment to
correct discoloration of two upper incisors; (2) negligent performance of
the treatment, resulting in removal of too much enamel from the incisors; and
(3) battery, by failing to conduct the treatment in accordance with
Katznelson's request.[1] Hoffman's answer joined issue and pleaded
affirmative defenses. One of his
defenses asserted that the complaint failed to state a claim upon which relief
could be granted.
A pretrial conference
was held on May 12, 1995. Katznelson
stated that he would not call an expert to establish his negligence case. Hoffman asserts that Katznelson withdrew his
negligence claim at the pretrial conference.
Katznelson denies it. The record
contains no transcript of the pretrial conference.[2]
On July 28, the trial
court entered a judgment that dismissed the action based on its conclusion that
Katznelson would not be able to prove any of the claims because he did not have
an expert witness. The trial court made
no finding that Katznelson withdrew his negligence claim. Hoffman argued that Katznelson also withdrew
his informed consent cause of action at the pretrial conference. The trial court did not address this in its
verbal order of dismissal.
II. Analysis.
Katznelson argues his
suit should not have been dismissed by the trial court. We note that Katznelson and Hoffman both
argued at the pretrial hearings that at issue was a motion to dismiss. Under these circumstances, we treat the
trial court's sua sponte dismissal as a determination that the amended
complaint failed to state a claim for which relief can be granted. See Olson v. Ratzel, 89
Wis.2d 227, 235, 278 N.W.2d 238, 242 (Ct. App. 1979) (a motion for summary
judgment submitted only on the pleadings was treated as a motion to dismiss for
failure to state a claim for relief). A
motion to dismiss presents an issue of law that we decide de novo. Northridge Co. v. W.R. Grace & Co.,
162 Wis.2d 918, 923-24, 471 N.W.2d 179, 180‑81 (1991). Facts set forth in the amended complaint are
taken as true and the complaint may be dismissed only if it appears certain
that no relief can be granted under any set of facts that the plaintiff might
prove to support the claim. Id. Further, this court construes the facts and
reasonable inferences favorably to the claim.
Id.
A. Withdrawal of
negligence claim.
Katznelson first argues
that, contrary to Hoffman's assertions, he did not withdraw his negligence
claim at the pretrial conference on May 12.
As noted above, the conference was not reported. The trial court made no finding of fact. We are not in a position to decide whether
Katznelson withdrew the claim; therefore, we remand the issue of whether the
negligence claim was withdrawn at the pretrial conference. On remand, we direct the trial court to hold
further hearings and make appropriate findings on whether Katznelson withdrew
his negligence claim.
In the event that the
trial court finds that Katznelson's amended complaint was not withdrawn, we
conclude that his amended complaint states grounds for relief in
negligence. Katznelson's negligence
suit alleged in part that Hoffman negligently treated Katznelson's teeth,
thereby causing injury and remedial dental expenses.
A doctor's professional
performance is held up to the litmus of whether it comports with the degree of
skill and care exercised by the average doctor in that class of practitioners
acting in the same or similar circumstances.
Christianson v. Downs, 90 Wis.2d 332, 338, 279 N.W.2d 918,
921 (1979). The same standard applies
to dentists. Albert v. Waelti,
133 Wis.2d 142, 145, 394 N.W.2d 752, 754 (Ct. App. 1986). To establish the standard of care required
of a professional, expert evidence frequently is required. Id. Case law, however, recognizes rare instances where the common
knowledge of laypersons affords a basis to establish the required degree of
care. Id. We conclude that this may be one of the
exceptional cases. Therefore, only
after Katznelson presents his case and the extent of his tooth loss and its
effect upon him can it be determined whether expert evidence is needed. Accordingly, the trial court erred when it
granted dismissal based on this issue.
B. Informed
consent.
Katznelson next argues
that the trial court erred in granting summary judgment dismissal of his lack
of informed consent claim. We agree
that the trial court erred in concluding that Katznelson's proof of lack of informed
consent required expert evidence.
Informed consent postulates such disclosure to the patient as will
enable the patient to exercise the right to consent to or refuse
treatment. See Wis J I—Civil 1023.2. In Johnson v. Kokemoor, 199
Wis.2d 615, 630, 545 N.W.2d 495, 501 (1996), our supreme court said: “The concept of informed consent is based on
the tenet that in order to make a rational and informed decision about
undertaking a particular treatment or undergoing a particular surgical
procedure, a patient has the right to know about significant potential risks
involved in the proposed treatment or surgery.” The dentist must also advise the patient of alternative
procedures approved by the dental profession.
See § 448.30, Stats. To ensure that the patient can give an
informed consent, the professional's duty is to provide such information as may
be necessary under the circumstances then existing to assess the significant
potential risks confronting the patient.
Johnson, 199 Wis.2d at 631, 545 N.W.2d at 501.
To prove a cause of
action for lack of informed consent, a plaintiff must establish: (1) the
dentist's failure to disclose the risk information concerning the treatment;
and (2) the patient's lack of knowledge of the risk and the onset of
post-treatment ill effects. See Trogun
v. Fruchtman, 58 Wis.2d 569, 604, 207 N.W.2d 297, 315 (1973). Expert evidence is not required to establish
the materiality of the risk to a patient's decision to undergo treatment. See id. Once the patient makes a prima facie showing
of failure to inform, the dentist must go forward and give a reason for failure
to inform. See Wis J I—Civil 1023.2. Accordingly, we conclude that the trial
court erred in dismissing this claim because Katznelson did not have an expert
witness set to testify.
C. Battery claim.
Further, Katznelson
argues that the trial court's dismissal of his battery claim was in error. Our review of the amended complaint leads us
to conclude that it sufficiently alleges that Hoffman's treatment was
administered without Katznelson's consent, and hence, constituted a
battery. In Throne v. Wandell,
176 Wis. 97, 101, 186 N.W. 146, 147 (1922), the dentist extracted six teeth
without the patient's consent. The
supreme court characterized the extractions as a “technical assault.” In Suskey v. Davidoff, 2
Wis.2d 503, 505, 87 N.W.2d 306, 308 (1958), a surgeon's removal of a gall
bladder without consent or justification by way of emergency or necessity was
deemed an assault. The elements of a
civil battery are intentional bodily harm to the plaintiff without the
plaintiff's consent. See Wis J I—Civil 2005. The amended complaint alleges that Hoffman
performed a course of treatment upon the plaintiff without his consent. It alleged a valid cause of action and
hence, survives the dismissal motion.[3]
III. Summary.
We conclude that,
bare-bones as the amended complaint may be, it sets forth causes of action for
negligence, failure to obtain informed consent, and battery. Therefore, we must reverse the judgment that
dismissed Katznelson's claim.
Nonetheless, we must also remand the matter to the trial court to
determine whether Katznelson withdrew his negligence claim.
By the Court.—Judgment
reversed and cause remanded with directions.
Not recommended for
publication in the official reports.
No. 95-2440 (CD)
SCHUDSON, J. (concurring
in part; dissenting in part).
Although I agree with the majority's conclusions in all other respects,
I would affirm the trial court's dismissal of the battery claim under Martin
by Scoptur v. Richards, 192 Wis.2d 156, 170-173, 531 N.W.2d 70, 76-77
(1995).
In Martin,
the supreme court identified the “inherent difficulty ... in applying the tort
of battery to informed consent” and explained:
Accordingly, the basis for liability in
informed consent cases changed to a negligence theory of liability: a physician's failure to obtain a patient's
informed consent is a breach of a professionally-defined duty to treat a
patient with due care.
Id. at 171,
531 N.W.2d at 77. Katznelson offers no
reply to Hoffman's argument that, under Martin, the trial court
correctly dismissed the battery claim.
I agree with Hoffman and the trial court. Therefore, on this issue I respectfully dissent.
[1] The amended complaint alleges negligence and informed consent as a single cause of action. They are discrete causes of action based on common law negligence concepts. Johnson v. Kokemoor, 199 Wis.2d 615, 629 n.16, 545 N.W.2d 495, 501 n.16 (1996). Further, § 448.30, Stats., prescribing a physician's duty to inform, is a codification of common law. Johnson, 199 Wis.2d at 629-30, 545 N.W.2d at 501.
[2] On the day of trial, May 24, 1995, the pleadings consisted of an amended complaint and an answer. No motions pended before the trial court except Katznelson's motion to require Hoffman to deliver certain documents marked as exhibits at the defendant's deposition, and for leave to file an amended complaint. The deposition was not filed in the trial court. Katznelson filed a reply to interrogatories, although the interrogatories were not filed.
[3] Our supreme court has noted that informed consent claims were traditionally based on the tort of battery; however, recently “the basis for liability informed consent cases changed to a negligence theory of liability.” Martin by Scoptur v. Richards, 192 Wis.2d 156, 170‑73, 531 N.W.2d 70, 76‑77 (1995). Nonetheless, we need not address this distinction at the summary judgment stage of this case. Throne v. Wandell, 176 Wis. 97, 186 N.W. 146 (1922), and Suskey v. Davidoff, 2 Wis.2d 503, 87 N.W.2d 306 (1958), are still good law in Wisconsin. Accordingly, Katznelson has stated a valid claim for battery—that is, that the treatment was admiministered without Katznelson's consent, not that he wasn't given sufficient information to choose one form of treatment over another, which would be a lack-of-informed-consent claim.