*1 prejudicial error. The court did jury instruct its instruction No. 4 presumption on the innocence doubt, proof guilt beyond need for a reasonable as required satisfy And, Bilotti, Cupp process. due charge court's to the effect that presumed witnesses are tell the truth was tempered explanation a further jury variety for a of reasons could disbelieve wit- short, disregard testimony. ness and his or her while the phrase fairly slow-to-believe comment viewed as a on the State's when the defendant elects not take the stand, avoided, and its use should be we hold instruction, remainder of that when read together given by court, others was sufficient eliminate the possibility of prejudicial error State v. case. See Haye, 72 Wn.2d convictions, and the resultant revocation of two
deferred sentences which defendant has also appealed herein, are affirmed.
Peakson, C.J., J., Petrie, concur. 19, 1979.] 4980-1. Division One. March
[No. LeBeuf, al, Claude J. et Appellants, v. John H. Atkins, al, et Respondents. *2 Bonjorni
Bonjorni, Harpold Fiori, A. and & Duncan Jerry appellants. Schumm, for Hayes
Davies, Pearson, Gadbow, & Anderson, Seinfeld, by Larry Levy, respondents. Johnson, E. for defendants J. Plaintiffs sued the LeBeuf Dore, granted damages malpractice. judge based The trial summary judgment oral defendant dismissal as to the appeal. surgeon and Atkins his wife. Plaintiffs Issue summary judgment granting court trial err in Did the for the defendant dentist? of dismissal Yes. Answer:
Facts complaint, From the answers to plaintiffs' affidavits interrogatories, defendants' basis following factual established for purposes appeal.
On May J. was driven Claude LeBeuf Dr. wife to the office of the defendant John H. Atkins, D.D.S., for impacted the removal wisdom suffering tooth. had LeBeuf been severe headaches prior day this date had a severe headache the he was extraction, to Dr. day prior taken Atkins' office. plaintiff had feeling described his headache as like his "head was exploding." Plaintiff himself did not know if he pressure had not diagnosed been having problems. such plaintiff's Atkins did check although competent he was to take blood pressure and him would have only taken minutes to the test. complete extraction, defendant, Prior request at the completed questionnaire, designated a written *3 herein as a The history. subsequently medical defendant injected plaintiff with xylocaine, a local anesthetic con- taining epinephrine, which a He vasoconstrictor. then performed the oral surgery.
After the operation plaintiff recovery was taken a wife, room and was covered with a blanket. Plaintiff's Jean LeBeuf, who with period remained plaintiff throughout down, lying time he was by testified affidavit that she then plaintiff suffering observed the from and chills fever and he were appeared eyes staring disoriented. "His blankly my eyes and when moved hand front his face, toward no him there was reaction at all." Plaintiff then was assisted to his car his wife and defendant, ill, vomiting where he became on two occasions. Plaintiff put was taken to bed. then home and worsened, following morning
The when his condition plaintiff was taken to the wherе he was admitted hospital, preliminary diagnosis hemorrhage on a of cerebral to work. totally stroke. He is disabled and unable presently to give failed During period, defendant post-surgical plaintiff. instructions or treat malprac- damages, alleging Plaintiff defendants sued in Dr. to determine that he was suffer- tice Atkins' failure high pressure at the from blood ing hypertension and/or drug which he injected xylocaine was time he also contends that on his Plaintiff brought claims stroke. known of the risks the defendant knew or should have from suffering into xylocaine involved in a injecting he failed blood and that hypertension high and/or in this proce- inform of the involved plaintiff risks defendant dentist Plaintiff further contends that dure. post-operative plaintiff. in his treatment negligent was Decision summary judgment dismissal. We reverse trial court in the before the The facts record undisputed as follows: were from history
1. in the medical taken nothing There was Atkins, pro- Dr. medical plaintiff, questionnaire via blood person high pressure, tect diag- which had not been cardiovascular disease and/or treated, or a doctor's care. nosed and under plaintiff's pressure, Atkins did not check duration, whether few minutes to determine of a procedure from hypertension suffered and/or pressure. doctor failed advise
3. Defendant with a use of anesthetic involved in the potential risks vasoconstrictor. condition wife her husband's
Plaintiff's related day day as well operation on the prior affidavit as follows: opеration her Atkins, com- he had to see Dr. day before went *4 head, in his feeling pressure extreme plained to me about head was it "felt like his making comment that under strain I know he had been severe that exploding." time, that this and felt during period and tension due of his business. was to the day Atkins, I him into On the he saw Dr. went with present I about office. was when he was asked his history, physical condition, I did medical and his but talk with Dr. Atkins' Dr. Atkins them nurse and and advised penicillin allergic was sulfa com- Claude and pounds. waiting surgery I in remained room while performed, was where and back room then was called into a lying couch, was with Claude on a covered a blan- suffering ket. and blankly, chills, He was at that from and time fever appeared quite eyes staring were disoriented. His my eyеs when I and moved hand front his face, and either his no him at all, toward there was reaction eyes appear his otherwise. He did not respond anything, except him I when asked how only response, felt, he was or how he in rather weak go necessary voice, for "he was that wanted home." It myself car, assist Atkins to Claude .to very suffering considerably he was weak and at this time. car, ill, Once in into Dr. became went back up. Atkins' office obtain a towel to him clean He again way ill became home. produced following testimony Plaintiffs on the issue professional of standard of care a dentist: Physicians warnings 1. The Desk Reference contains xylocaine containing epinephrine about the use patients suffering pressure, hypertension, high from or cardiovascular disease. produced Tuby,
2. Plaintiff from Dr. affidavit Robert long M.D., a medical doctor with list of medical accredi- Tuby making tations. Dr. stated his medical evalua- plaintiff's subject case, tion of causation he reviewed including following records, materials: (a) The medical records of Lakewood Hospital Hospital; General and Tacoma General (b) Ellingson depositions Atkins, The of Drs. LeBeuf; Crabill and Mr. and Mrs. (c) Moline, The affidavits of Dr. David D.D.S. and LeBeuf; Mrs. (d) Physicians respect Desk Reference with to the drug xylocaine manufactured Astra Pharmaceutical Products, Inc.
882 Tuby in
Dr. concluded his affidavit: probably opinion That it is that Claude LeBeuf was accompanied by high suffering from blood operаted pressure Atkins, Dr. was at the time he Xylocaine epinephrine injections with and that ensuing damage probably to Claude LeBeuf's caused likely system that it is than not central nervous this resulted and more hemorrhage. in a subarachnoid graduate Moline, D.D.S., Uni- Dr. O. of the David versity Washington who is licensed School and Dental Oregon practice dentistry Washington, British in and Columbia, He that he had via affidavit. related testified years dentistry Washington practiced in for 21 state of Olympia, years in with the last 17 currently professor Washington; at he is an associate that Dentistry, director of and Medical Center School of L.S.U. Charity Hospi- residency dentistry program general at He tal, Orleans, L.S.U. Medical Center. states New and practice Olympia, group formerly in at he was that Washington, in was with what were and familiar profession practice accepted in of the dental standards Washington. alleges reviewed the testi- that he western He Ellingson mony Crabill, Atkins, Mr. and and and Drs. LeBeuf, concluded Mrs. and pro- record of the he has reviewed Atkins's That, questionnaire asked Mr. LeBeuf was
cedure and the
out.
fill
history
pre-anesthetic
opinion
it
that the
is his
That,
adequate
he
Dr. Atkins
obtained
was
hyperten-
had
whether
omitted to determine
pressure
do
and the failure to
sion
among
accepted standard of care
not consistent
Washington
profession
in 1972.
in western
the dental
Tuby
Moline,
Mrs.
of Drs.
affidavits
plaintiff,
interrogatories of the
LeBeuf, and the answers to
certainly
aggregate
issue as
most
raise a factual
degree of care
"that
Atkins satisfied
the defendant
whether
practitioner
average
expected
which is
and skill
acting
belongs,
or similar
the same
to which he
the class
Dumouchel,
Pederson v.
72 Wn.2d
circumstances."
(1967);
Marx,
v.
Meeks
431 P.2d
problems, even if the and ruled as a matter of law that inquired concerning plaintiff's defendant dentist had his- *6 tory prior high pressure hypertension, of blood and/or plaintiff prior knowledge history, proper had such no of a a questionnaire medical would not have this informa- elicited tion. The trial court summarizеd: history [A] conclusion a doctor that the wasn't ade- quate adequate but which a record shows that had
history changed picture, taken, been it wouldn't have history high the pressure. no would have been that he had blood granted. motion is judge completely However, Dr. the trial misconstrued testimony affidavit, Moline's in his and all inferences from it. Dr. Moline stated: pro- he Dr. of has reviewed Atkins's record That, questionnaire
cedure and the Mr. LeBeuf was to asked fill out. opinion pre-anesthetic history it is his that the That, adequate Dr. obtained Atkins in was not that he patient hyperten-
omitted to determine whether had high pressure sion or blood and the failure to do this was accepted among not consistent with the standard care of professiоn Washington the dental in western only From that Dr. it is clear Moline stated that the standard of care of a dentist the time of at questionnaire, proper the incident was a but went further and duty that Dr. a stated Atkins had definitive patient
to determine whether the had high pressure to blood and failure do this was not con- accepted among with sistent standard of care the dental profession Washington Presumably in 1972. western hyperten- high pressure plaintiff's
determine and/or sion, mandatory it the defendant dentist should was of a of a test pressure plaintiff, simple taken the blood have Dr. the standard duration. Moline stated few minutes' affirmatively find whether care is for a dentist if you don't dis- problems, had injecting risk in a you your at own proceed cover xylocаine epinephrine. containing of Dr. Moline's was affidavit interpretation The obvious determine whether Atkins failed to him with injected problems blood pressure according xylocaine epinephrine anyway, containing This Tuby, plaintiff's of Dr. stroke ensued. the affidavit of fact as whether certainly question most raises condition heart plaintiff's failure detect defendant's problems malpractice.
Informed Consent upon based the standard to the factual issues addition 1972, fac- there the additional during of dentist care risk was informed issue of whether tual This question. the anesthetic administering involved jury. for the question is a factual also Sess., 4.24.290, 1975, Ex. 1st Laws Enactment RCW in- no *7 p. impact ch. doctrine § specifically as doctrine is patient, of a such formed consent excluded from this statute. 246) (Substitute passed, Bill as House
RCW 4.24.290 provided: chapter added to Section There is
New Section. to as follows: 4.24 RCW a section read new on damages professional based any civil action the by which is licensed hospital a negligence against of such personnel or the Washington against of state hospital, the arts includ- healing a member of against or to, chap- under physician a licensed but not limited ing, under RCW, physician licensed osteopathic 18.71 ter RCW, chap- under chiropractor licensed chapter 18.57 18.32 RCW, chapter under a dentist licensed ter 18.25 RCW, RCW, or chapter under 18.22 podiatrist licensed 885 RCW, a nurse licensed under 18.88 the chapters 18.78 or plaintiff a defendants order to to prevail required prove shall be of or preponderance the evidence that the defendant skill, to of degree failed exercise care learning possessed by in the persons profes- other same proximate sion and that as a result of such failure the in no shall pro- but event the damages, suffered to an the apply visions this section action based on to obtain the a patient. consent failure informed (Italics ours.)
The doctrine of informed requires physician consent the to treatment, disclose to patient the the risks of the the available, risks alternate risk treatments the attendant each, well as as the risk all. attendant no treatment at
In Miller v. Kennedy, Wn. P.2d (1974), the court discussed the doctrine of informed consent pages at 282-86: scope of duty
The
the
to disclose information concern-
ing the
proposed,
treatment
other
treatments
and the
risks of each
course
action and of no treatment
all
at
measured
patient's
the
need to know. The
inquiry
to each item of information which the doctor knows or
should know about
patient's physical
condition is
"Would
as a human being consider
item
in choosing his or her
treatment?" Cobbs v.
course
Grant
Cal. 3d
502 P.2d
Cal.
Rptr.
[8
Canterbury
[Canterbury
v.
(1972)]
referring
case
(D.C.
Spence,
772, 784, bluntly ignore observed: "Nor can we fact to bind obligation usage disclosure arrogate is to decision revelation to physi- Respеct patient's cian alone. determination for the self- right of
on particular therapy demands a stand- ard set law for physicians rather than one which physicians may Unlimited may impose upon themselves." physician discretion is irreconcilable right basic to make the ultimate informed regarding decision course treatment knowledgeably subjected. which he consents to be *8 prerogative patient Indeed, treatment. his the of to choose the may A the doctor not withhold from necessary knowledge right. the for the exercise of that Canterbury prerogative v. it, Without Spence, supra the is valueless. at proving physician The of that a failed burden plaintiff-patient of inform treatment or failed of of the available courses the consequential to warn of the hazards plaintiff. It of is on the is the each choice treatment plaintiff initially of the who the existence must establish consent of action based on the informed elements doctrine, the would have chosen a different course disclosed and i.e., of unknown the existence a material risk patient, it, the the failure to disclose if risk had been the resulting Canterbury Spence, injury. v. supra P.2d 909 Wis. den 298, 474 791; (1970)], [3 v. Ellsworth Wn. at Mason Trogun supra Fruchtman, 312; v. at bur- 2d 207 N.W.2d proving has of a when failure to disclose defense Canterbury Spence, v. on the doctor. been established is supra page Trogun supra Grant, 791; Cobbs at 245. at parties proof upon places burden of the the follows: proof the of is on Wе conclude the burden physician's failure to disclose to establish particular with contem- risk information connection knowledge patient's plated that of treatment, lack upon fol- him which risk the adverse effects . has . . Once treatment. lowed that prima showing of a failure of facie established physician patient, physician come must to inform the explanation the reasons forward with including patient, informing evidence not so customarily given. was not advice such (Footnotes omitted.) province which are Those elements profession of medi must be established inquiry. experts Thus, the existence in the cal field par present in the alternatives which were the risks and beyond physical the knowl would be conditiоn ticular layman edge be established and would have of the testimony. hand, those matters On the other medical which training province special of the are not within experience may tes be doctors established timony of any witness with knowledge particular *9 inquiry, such as or patient whether the knew of the risk average patient whether making There is would consider the risk Fruchtman, v. Trogun supra a decision. at 604. no prove need to what other doctors tell might patients their similar circumstances. The doctor has a duty to disclose the material risks as a matter of law. The testimony of experts necessary medical is not to establish duty to disclose requires. that which the law Once the existence of by a risk has been established еxpert medical testimony, there is no need to take the next step and also prove by expert testimony medical the doctor should told patient have about the risk. Once it has been by established existed, expert medical that a risk then the of existence the risk is the patient's business; and it is not profession the medical establish a criteria for the dissemination of information to the upon based what doctors feel the patient Canterbury Spence, (D.C. should be told. Cir. F.2d Ellsworth, Mason v. 1972); supra. See also Com ment, A New Standard Consent in Medical for Informed Malpractice Cases — The Witness, Role the Expert (1973). St. Louis Univ. L.J. 256 The patient right has a know and duty the doctor has the to inform the patient whether the doctor wants to or not. The fiduciary duty of the doctor requires disclosure. There is no room for paternalism or for . . . overprotectiveness.
(Footnotes ours.) omitted. Italics The decision of the Court Appeals Miller v. Kennedy, supra, was approved and adopted in per curiam opinion Court Supreme at 85 Wn.2d
The risk that plaintiff was exposed was established Tuby Moline, affidavits Drs. as required Miller v. Kennedy, supra. subject case the obviously unaware
the possible side effects of epinephrine and that a reason- able alternative —the use of an anesthetic without vasoconstrictor was available.
If Dr. Atkins did not inform plaintiff of the risks in injecting xylocaine involved into body his and this injec- tion caused his resultant disability, stroke total this is responsi- Dr. must be held malpractice, Atkins him. did not inform
ble. The said the defendant plaintiff jury. must be This is a issue and resolved factual him by injecting If Atkins had told the containing xylocaine, epinephrine, a local anesthetic wisdom, tooth, running he was preparatory pulling suffering or even death if he was the risk a stroke most pressure, or high blood hypertension unless he had assuredly proceeded would have undoubtedly questions. questions other These answers to would been: have I don't
1. Can I be sure that have pressure? deter- definitely you perform 2. Is test can there *10 my mine condition? physical drug you can use?
3. Is an alternative there really necessary pull my 4. to wisdom tooth? Is defi- so we can my 5. Will blood you please test pressure? I nitely whether have blood high determine of risks in informed Any ordinary person properly did not certainty knew a he subject case unless he no, do say pressure, or would high have wisdom pull my or not inject xylocaine not me with do event, and it to be informed any right tooth. he has no, say yes the doctor's. is his or decision Dr. Here, duration which a test of a few minutes' simple would administering, presumably capable Atkins was plaintiff have informed defendant Kennedy, supra, Miller plaintiff Clearly, pressure. under which "simple" test to be informed was entitled resultant have his stroke and might possibly prevented disability. on Dr. of negligence theories pleaded
Plaintiff alternative treatment, as follows: post-surgery Atkins' in the risks inherent plaintiff A. to inform Failing on the defendant surgical by the procedures performed May 19th of Failing plaintiff subsequent B. to treat and observe the surgery performed.
to the plaintiff discharging In C. at a when time getting worse instead of better. any D. Failure obtain treatment institute and/or procedures upon learning plaintiff's corrective condi- tion. possible E. Failure to as to side advise xylocaine necessary procedures effects and corrective to minimize side effects. procedure doing surgical InI. which the defendant competent was not to do. LeBeuf, in affidavit, Mrs. she her relates that when following operation, arrived her husband was lying time couch, on a covered with a blanket. He was at that suffering appeared quite chills, fever eyes staring blankly, disoriented. His were and when my eyes face, moved there was no reaction hand front оf his and toward his him . . at all. although Mrs. LeBeuf also stated that her husband was deathly following operation, ill Dr. Atkins refused any render ately medical assistance but insisted he be immedi- alleged taken home. At home it is that defendant help suggest refused to offer hospital. alleges be taken Plaintiff further in his complaint Atkins' actions amounted to willful and evidencing plain- wanton misconduct total indifference to recovery post-surgical tiff's and that such evi- conduct rights denced reckless indifference the welfare plaintiff. affidavit, From Mrs. LeBeuf's there is a defi- *11 perform profes- nite Dr. inference that Atkins not did following operation sional skills the when was obvious plaintiff had a stroke and suffered needed medical help learning possessed by cаre, with the skill and other profession. result, members the dental As a it is claimed plaintiff severely damaged was more than he would proper post-surgical have been had had care. There testimony no direct from dentist on "standard of the post-operatively care" to be rendered on a wisdom tooth by party. pleadings However, extraction either the and Mrs. not plaintiff an inference did LeBeuf's affidavit raise and, therefore, a sum- proper post-operatively receive care not be mary may on this judgment dismissal issue trial to of this factual granted. dispose court failed way rule on it one or the other. issue summary we must purposes judgment, For the for for a motion against review materials submitted summary light party most favorable judgment made, so the motion is and when evidence is against whom considered, if conclu might men different reasonable reach Chiro King sions, Duffy motion be should denied. Clinic, practic 17 Wn. court summary, we conclude that trial erred summary dentist
granting judgment as the defendant following his wife for reasons: Negligence
General disputed There are facts on issue "whether in 1972 was standard of care" and skill a dentist required merely whether or inquiring fulfilled or whether any prior high pressure problems he had required the standard care an affirmative determination whether and/or known injection of anesthetic pressure problems before defi~, affidavit xylocaine Moline's epinephrine. summary On a motion nitely judgment, raises issue. to all nonmoving party is entitled inferences on conflicting evidence not vice versa. The evidenc^, jury. be "standard of care" should resolved Informed Consent xylocaine, con- injecting The medical risks involved by medical taining were established epinephrine, failed admittedly dentist the record. The defendant risks, enti- which inform the of such issues evidence raises factual tled know. This the trier only be resolved consent" which can "informed of the facts.
Post-Operative Negligence There is in the medical evidence various affidavits LeBeuf, Dr. Tuby Mrs. and Dr. Moline to raise an inference of defendant's in and negligence post-operative care treat- ment, which the trial and court does not even discuss which issue remains unresolved. This which is also factual issue cannot be determined the court as a matter of law.
We reverse remand trial accordance with this opinion. C.J. (concurring) concur which result
Callow, —I remands the cause to the trial court for trial on the merits. The evidence must be in the light viewed most favorable nonmoving party. The presented evidence raises a question material as to whether the standard of care of the profession requires dental to ascertain if a patient dentist high xylocaine has blood pressure administering before containing This epinephrine. question should not be affidavits, depositions exhibits, resolved upon but presentation live and the consideration such other evidence as on may properly come before a court during trial. it, J. (dissenting) expressed one court has Andersen, —As
" hardship particular case is no reason for melt- [t]he Lightning the law." Southern Star Co. down Rod ing Duvall, 64 Ga. dissent majority opinion grounds: three
1. The facts which is upon opinion based are necessarily the facts case all. at establish, patient did not do, required by statute defendant failed dentist required exercise the standard of care of members of the profession. dental patient
3. Where the had that he was assured the dentist health, nor the good patient where neither den- (as tist was high aware that had), not vio- it was that he the dentist did later theorized by failing to inform late the informed consent doctrine administering there element risk pressure. persons the local anesthetic to Ground *13 in den- summary of a the judgment Since this is a review court, rule enunciated following tist's favor the trial the Supreme applicable: Court is by the State summary of appellate judgment review a entered Procedure pursuant RCW Vol. Pleading, of Practice and Rule matters only court can review those this consid- presented the trial for its that have been court summary The mat- entry of the judgment. eration before of may by be certified to this court either ters considered methods, First, may they two a combination them. the by certified incorporated be a statement they may facts second, court; particu- trial be identified court signed by the trial larity summary judgment in the by transcript certified furnished to court then be it wоuld of court. The is obvious: clerk reason review, consider, pre- matters not appellate unfair to sented to the trial have must court its We consideration. no less— more and precise us the record —no before consider, may court. The court trial considered course, may judicially. which it notice those matters 815-16, Ranson, Co. v. American Universal Ins. Wn.2d 59 (1962). State this court and the P.2d 867 Both 70 3 rule have dismissed Court followed that Supreme have the trial here, party seeking to reverse cases wfyere, appel provide failed to appeal court's decision has by the trial precise court with the record considered late court.1 us what matters in the before us informs
Nothing record summary judg- granting the trial court considеred decision, majority bases its "facts" on which the ment. The of statements quotes, consist other than affidavits Kuhn, (1972); v. Tacoma 630, 631, Clark 1Harris P.2d 497 164 Wn.2d Housing Authority, P.2d Wn. depositions par- briefs counsel. The numerous part ties and witnesses are not the record before us. Missing, too, exhibits, records, are the such as the dentist's patient's hospital critically impor- records and even the questionnaire completed by patient just tant medical prior question. reason, to the events here in For this appeal very or, least, should be dismissed at the the case should be remanded to court the trial with directions to certify presented the entire record which the trial court to this court for review.2
Ground 2 Going past procedural ground merits, to the how- majоrity ever, done, as the has based on what can facts be ascertained from such us, record as we do have before would still reach the same end result and would affirm the trial court's dismissal of the case. prior pulling where,
Here we'have a tooth, situation gave injection the dentist a standard of a com- purpose deadening mon local anesthetic for the the nerve *14 xylocaine in the tooth. The local anesthetic used was epinephrine, drug a with lowa incidence of side effects. The only patient dentist did this after the had filled out a med- questionnaire indicating good ical in that he was health and patient personally after the had also told him that he was good patient family regular in health. Nеither the nor his physician patient high pressure knew that the previous history pressure.3 and there was no of Wentworth, Heilman v. 2RAP 9.10. 18 Wn. Cf. (1977). attending physician, Crabill, M.D., quoted 3Plaintiffs P. Robert is in one of having depo
the briefs in filed the trial court as been asked and answered at his sition as follows: you stroke, you You stated that had not Q determined what caused the said it may hypertension, you you patients have been also said that have had who any hypertension point, have had stroke without at all. At this would [a] you speculating be toas what caused the stroke? A I would. I don't know what caused it. interrogato- patient response in to written As the admitted previously ries, one kind or he had had local anesthesia of ill no from it. another for dental work and sufferеd effects argument court, In the briefs and before this the patient's heavily the 1974 of counsel relied on decision the Carey, Supreme Helling in Wn.2d State Court As *15 Marx, 1, v. 1975, 1st Sess., 35, 252; Meeks 4.24.290, p. Ex. ch. § 4RCW Laws Jensen, 81, App. 571, (1976); Gates v. 577, App. 20 Wn. 84- P.2d 1158 Wn. 550 15 (1978). P.2d 374 579 RCW 4.24.290 It (part). was thus the plaintiff patient's obligation to establish the standard of professional practice at the time of injury and a violation of that standard through testimony of professional equals of the defend- ant dentist.5 in According case, the briefs several dentists testified deposition that at the time of the tooth extraction in question, it customary was not for oral sur- geons to patient's take a blood pressure before injecting xylocaine with Therefore, epinephrine. for a dentist to not patient's take a in pressure that situation breached no standard of care of the I profession. dental find no con- trary professional in the record we have. however,
The majority, reads one the affidavits before (that Moline) us of Dr. stating the defendant den- tist "had a duty definitive to determine whether the patient had hypertension or high blood pressure and his failure to do this was not consistent with the accepted standard of among care profession the dental in Washington western in 1972." The majority opinion bases that determination the portion of that affidavit which reads as follows: he has reviewed Dr. Atkins's record of the pro- That,
cedure and questionnaire Mr. LeBeuf was asked to fill out. opinion is his the pre-anesthetic history That,
obtаined Dr. Atkins was not adequate in that he omitted to determine whether the patient hyperten- sion and the failure to do this was not consistent with the accepted standard of among care the dental profession western Washington (Italics mine.) I do not read that affidavit as saying what the majority holds it says. As explained Frace v. Long Dist., Beach City High School 58 Cal. App. 2d (1943), (which 137 P.2d phrase "in that" have italicized quotation) "because, above means for the 5Shoberg Kelly, 673, 677, App. (1969); 1 Wn. Swanson v. Brigham, Wn. P.2d
896 says read, . ."6 reason that. what the dentist's affidavit So history expla inadequate, that and the further is the was why. following gives nation "in that" the reason the term history opinion inadequate. dismissing In the was in his against dentist, the court its oral this lawsuit the trial decision said: up delays give here,
what plaintiff we end after some opportunity, doctor further is a conclusion a history adequate which that wasn't but a record history adequate shows been taken that history changed picture, would wouldn't have have high pressure. that had no blood been agree. I connection between dentist's causal patient's present physical prob negligence claimed required shown; lems, shown, was not statute to be properly patient's malpractice therefore, was claim 7 dismissed. majority appears holding is me to be here What the diagnose high duty a an affirmative that dentist has pressure patient, unknown to which condition is deadening patient's patient, tooth. the nerve before judicial do would not Nо decision has ever held Furthermore, is a so. physicians. not medical condition dentists are patient's negligent post-surgical care, As to the claim testimony in conflict. What is in the briefs is also noted my again however, no view, is there is determinative any expert conduct kind that dentist's regard of the dental standard care breached something profession. be inferred which can That majority opinion lay testimony subject, on the as the Richardson, Local Workers v. Ala. So. 2d 6See also Textile 245 15 (1943). Mowery, Versteeg 4.24.290; P.2d Wn.2d 7RCW
§97 my opinion properly claim, too, seems to do.8 dismissed the trial court.9
Ground patient make out under the Neither did the a case (or consent) informed consent uninformed doctrine. duty concerning A his or her dentist's advise perils of treatment and treatments available alternative presupposes that the knew or should have known dentist infirmity patient's physical about the which makes the perilous.10If treatment the rule is to be otherwise then a *17 give every virtually patient dentist or doctor will have administering unlimited number "ifs" before ever patient. patient Here the that he was in assured dentist good patient health and neither the nor the dentist was patient pressure, aware that the as is now theorized doctor. one The dentist was thus unaware of any administering material risk to the the local any duty therefore, anesthetic; the dentist did not have inform.11 principle any
It is a universal of law that in case involv- ing professional malpractice, a сlaim of an unfortunate negligence.12 result in and is not of itself evidence That any is as true this case as in other. 8Shoberg Kelly, 677, v. App. 673, (1969); Swanson 1 Wn. 463 P.2d 280
Brigham, 647, 651, (1977). App. 18 Wn. 571 217 P.2d
9RCW 4.24.290.
Kennedy,
272, 282,
affd,
10Miller v.
(1974),
App.
11 Wn.
To The law put perspective then this case into see applica- law applicable this case is no different than the If any ble to other case. a dentist had testified malpractice presented, the circumstances failure under violated the patient's dentist to take existent, the patient then then practice standards dental jury malpractice requiring would have made out a case if determination. The same would also be true there of dental testimony such standard post-surgical if den- Similarly, dentist. practice was violated any tist had or other evidence presented any to advise of material risk to dentist failed known, under the then a submissible cause legally that was None of these was consent doctrine would exist. informed present any presented in this Nor was evidence case. legal other out a under the numerous make case mentioned, appeal argued but not theories therefore not before us.13 view, the trial court dismissed the case my when dentist, accordance properly acted
against dissent law of this state. therefore with the established majority opinion. from the June
Reconsideration denied
*18
Supreme
July
Court
Appealed to
19, 1979.]
March
One.
5832-1. Division
[No.
Respondent,
Washington,
v. Thelbert
Stаte
Appellant.
Ervin,
Lee
Post-Intelligencer,
v.