Roybal v. Bell

Murphy, 645 P.2d at 91.2 ROYBAL, Angelina Appellant argument per third has a The more (Plaintiff), computation

plexing content. The refined prepared adopted was tenant which quarter on a first the trial was based court BELL, Gregory D.D.S., F. quarter of year of the to first the third (Defendant). Appellee year calculation. Landlord contends that comparison period the base should have No. 88-292. quarter year either the last

been Supreme Wyoming. Court of so escalation is effective for change January January from 1st to 1st or 27, July 1989. only January. The latter contention deny use of the index which state basis, only computed quarterly on a while monthly publicat index federal has a Initially,

ion.3 intended lease was date, January

commence but occu

pancy delays remodeling required a later delayed signing

execution and until March possession April 1979 for a date of 1. finally expired

The lease March then

1989. parties agree

The the state index only published quarterly. With that established, component

factual we find no

error in accept the trial court decision to computation comparison based on a be- quarter

tween the first just before the

term quarter commenced with the that ex-

pired adjustment before new would be

made years two later. factual conclu-

sion determining trial court point

base computation was properly logic

founded in and the written contractu-

al terms. Storage Moving Johnson & Co. Inc.,

v. Victory, (Wyo.1989). 774 P.2d 636

Affirmed. Kelly, (Wyo.1964). Barbe, Goodman v. Agency, 390 P.2d es or waiver. E.C. Cates Inc. v. 1988). (Wyo. brief, questionable 2. In text as stated in the it laches, really argued whether landlord waiver shown difference between tenant’s exhibit estoppel directly, argued $1,987.28; $12,- any apparently but rather 7 and exhibit 6 totals period $10,751.44. two-year refund was limited "previous compared to a since 738.72 If the second adjustments used, accepted quarter rent overpayment totaled paid.” $18,000. authority No case was cited on lach- about McDaniel, Cheyenne, Jack

Rodger Colo., Kintzele, Denver, appellant. George Argeris of Larry B. Kehl and J. Williams, Argeris, Cheyenne, Guy, &White appellee. CARDINE, C.J., and Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice. specifi- malpractice case This is a dental involving question of informed cally granted sum- The district court consent. Bell, appellee Gregory F. mary judgment to pur- D.D.S., appellant Angelina Roybal appeal. sued this Although variously parties, stated presented is the issues the substance of questions or not factual simply whether appellant’s claim elements of exist on the preclude entry of summa- which material conclude that ry judgment. We record, disputes indicated in the are factual therefore we reverse. 1983, began exten- May appellant In even- course of dental treatment which sive originally tually involved the three dentists in this case: as defendants named Giovale, Do- Bell, and Dr. Rex Dr. Richard Appellant first saw Dr. Giovale lan. regarding bridge. a loose May 1983 performed a root 1983 Dr. Giovale June designated as appellant on a tooth canal swered, generally denying allegations. tooth # was located lower Thereafter, jaw. reported Thereafter, left filed defendants motions experiencing pain summary judgment supported associated affi- According appellant, attempts exhibits, memoranda, # davits, depo- July 15, Giovale next several months to appellant. over sition of On continuing problems alleviate dismissing district court entered an order tooth # 20 were unsuccessful. pursuant Dr. Dolan from the action ato stipulation appellant between and that de- concurrently performing Dr. Giovale was Appellant fendant. then submitted a mem- appellant’s upper various dental work on opposition orandum summary in judg- to teeth, right including bridge work and at accompanied by deposition, ment an least one further root One canal. containing expert opinion affidavit the of upper right developed teeth in the an ab- Tomasetti, Boyd Dr. and various documen- scess requiring surgical on the root an oral tary primarily consisting materials ap- of apicoectomy.1 Ap- known as an pellant’s dental records. Prior to the sum- pellant appellee was referred to for this mary judgment hearing, appellant and Dr. procedure. complet- apicoectomy This Giovale reached an out-of-court settlement. successfully in by appellee July ed 1984. summary judgment hearing Appellant experience prob- continued 1, 1988, August held on appellee as 20, early lems # with tooth and in 1985 Dr. only remaining the defendant. A tran- api- Giovale her to referred an script hearing of motion the has not been coectomy apicoectomy on that tooth. The provided appeal. the Appar- in record on performed April # was in tooth 20 1985. however, ently, reflected # briefs of apicoectomy appel- After the on tooth parties, counsel appellant experienced lant informed pain continued numb- hearing appel- district court at the (paresthesia) general ness area of dropping against lant was all Consequently, appel- tooth. after claims further lee except relating the claim alleged consultation a referral for a second opinion, appellant failure to an Dr. Giovale referred obtain informed consent in #20, apicoectomy Dr. connection Dolan for extraction of tooth with the on tooth January requesting # 20. performed receiving which was 1986. After Ac- fur- cording ther appellant, briefing question on the of extraction informed consent, remedy pain paresthe- tooth did district court entered its deci- asserts, Appellant support granting sia. sion letter and order record, judgment appellee. permanent appeal that she sustained This nerve fol- damage proce- lowed. as a result of the dental

dures # associated with tooth 20.2 begin by reiterating We our standard for 11, 1987, reviewing August summary judgment.

On a initiated Summa- Giovale, ry judgment an against appellee, proper only action Dr. when there are genuine no by filing complaint Dolan the dis- issues material fact and the Appellant prevailing party trict judgment court. causes of is entitled to asserted premised action Doud v. First Interstate negligent matter of law. theories Gillette, Bank treatment, negligent to obtain (Wyo.1989); failure 769 P.2d 927 ipsa loquitur, consent, Plumbing Heating, res and Teton Inc. v. Trustees, warranty.3 breach of Each defendant an- Board County Laramie Schmidt, apicoectomy 1. An 1 is defined in J. in a result total loss sensation on Attorneys’ Dictionary face, at Medicine A-285 much of left or side of her to learn to (1986) apex as: “Excision of the of the root of a pain paresthesia. live with the tooth” or "excision of the root a tooth." allegations complaint 3.Certain According appellant’s deposition testimony, procedures performed refer to dental neurological she has been advised dental and than defendants other those associated with Denver, Colorado, specialists only that the which #20 and are not involved in the remaining treatment alternatives for her are presented appeal. issues severed, either to have the affected nerve

HI One, (1988).4 The essential elements in mal 763 P.2d 843 Number District School practice equally applicable action are in an grant of (Wyo.1988). We summa review plaintiff case. The light as the dis ry judgment in same (1) that the establish owed court, using the information and same trict plaintiff; (2) duty practition to the Doud, 769 following same standards. (3) duty; perform failed to that the 927; Conoco, Inc., er 758 P.2d Johnston v. (4) duty proximately inju caused breach (Wyo.1988). examine the 566 We P.2d plaintiff. Steger, ry to the Fiedler v. 713 vantage point most favor from the record (Wyo.1986); P.2d v. Rous 775 Fassos motion, opposing giv party able salis, (Vassos I), (Wyo.1981) all party the benefit of favorable ing that appeal (Wyo. remand 658 P.2d may drawn from inferences which after 1983) (Vassos II); Grizzle, Harris 927; Doud, 769 Albrecht v. record. P.2d Further, (Wyo.1981). we have Holding Financiering, En Zwaanshoek injury mere fact stated that the a bad B.V., (Wyo.1988). 762 P.2d We result, alone, standing proof negli not not summary judgment is often stated that a gence and will not overcome motion for negligence O favored in actions. 'Donnell summary judgment. Fowler, Siebert v. Casper, (Wyo. P.2d 1278 City 696 v. of 255, (Wyo.1981); Harris, 637 P.2d 257 625 1985); Hospital DeHerrera v. Memorial of 747. P.2d County, (Wyo.1979). 590 1342 P.2d Carbon DeHerrera, In we said: The determination of the standard "[SJummary judgment procedures should imposed duty upon of care or the defendant negli- applied special in caution be matter and is a of law is within particularly is true gence actions. This II, jury. P.2d province Vassos 658 here, where, malpractice in suits as physician-pa 1287. The existence of the at attending peculiarly facts are within relationship duty, establishes a and tient knowledge of the and the show- movants fixed re standard is as that which is is ing negligence generally dependent person light a quired of reasonable upon expert testimony as to standard all the circumstances. Kobos required of care and observed.” Everts, 534, P.2d 538 through Kobos v. 768 I, Talcott, P.2d (quoting (Wyo.1989); 191 625 768. Id. at 1345 Holl v. Vassos 423, 40, omitted)). Govin, upon (Fla.1966) (citations 374 at elaborated 46 P.2d we So.2d in duty required of disclosure not had occasion This Court has formed consent: law to address the realize that under certain circum- We Stadnik, 469 since the case of Stundon v. duty physician a a to reveal stances has (Wyo.1970), 16 turn relied P.2d which involved in a any serious risks are heavily upon prior case of v. Govin But, contemplated operation. phy- how a Hunter, (Wyo.1962). In discharge his sician chooses obli- law has evolved as a vari formed consent primarily a gations patient to a involves malpractice. ant medical Bloskas judgment. long question medical As 914, 42 Murray, P.2d A.L.R.4th 646 is his disclosure sufficient assure (Colo.1982). Pegalis 1 generally 527 See S. consent, if it appears an informed Wachsman, H. American Law of proceeded competent he medical Malpractice 2:1 and 2:15 Medical §§ men done in a similar situa- would have (1980). Originally as an conceived offshoot tion, physician’s actions should not be battery, informed is consent law question. called into theory a generally treated under now We further stated: negligence. Pegalis 1 S. and H. Wachs- man, supra 2:15; surgeon H. at 2 D. Louisell and Whether or not under § Williams, possibility duty Malpractice warn a Medical 1122.04 battery theory applicable procedure but the where a treatment or authorized 4. The remains completely unau- treatment or and H. uninformed. 2 D. Louisell consent was thorized, negligence principles apply Williams, whereas supra. situation the more often encountered where 112 Govin, proposed (citing 421); result specific

of a adverse 98-99 374 P.2d F. Ro Treatment, depends upon Consent to zovsky, treatment the circumstanc- ch. 1C at (1984). particular upon standard, expert Under es of the case tes general practice timony required followed the medical to establish awhat rea profession locality; practitioner sonable would disclose in cus- Stundon, same or profession to similar circumstances. tom of the medical warn 21; Govin, 424; 469 P.2d at at by expert P.2d established medical supra Williams, D. Louisell and H. testimony. at 17B.10; 1 Pegalis Wachsman, If S. and H. Stundon, quoted Id. 469 P.2d at at supra at 2:15.5 § In order to regarding overcome a motion for standards above judgment, plaintiff in a conjunction medical consent must be read malpractice case present must also evi pronouncements the more recent of this dence, usually expert form testi regarding malpractice in Court medical mony, indicating departure by a medi general. away We have moved from strict cal recognized from standard “locality” adherence rule recited practice proximate was a cause of her Kobos, through Govin. Kobos Harris, injury. plaintiff 625 P.2d 747. A 634; DeHerrera, 590 P.2d 1342. proximate establishes cause in an informed I, Thus, said in 625 P.2d at we Fossos 772: by proof consent case that proper disclo surgeon physician or must exercise [A] sure would have resulted in a decision skill, diligence knowledge, against proposed the proce or treatment apply methods, must the means and Williams, 2 supra dure. D. Louisell H. and reasonably which would be exercised and ¶ 22.14; Rozovsky, supra at at F. 1.13.4. § applied under similar circumstances approaches Two respect have evolved with profession good of his members stand- appropriate to the measuring test for the ing practice. in the and same line of causal connection in informed consent skill, knowledge, diligence, The means cases. The subjective test considers what not “ordinarily” methods are those plaintiff the would have the done if risks “generally” “customarily” or or exer- properly had been disclosed. This test has applied, cised or are that but those are been question criticized because the of cau “reasonably” or applied. Neg- exercised sation credibility turns the the hind ligence cannot be excused the sight person of the seeking recovery after grounds practice that others the same an undesirable result and also because this negligence. kind of Medicine is not an test probably preclude would recovery if proper exact science and practice the can- patient had died as a result of the gauged aby be fixed rule. treatment majority juris received. The (Citations omitted.) dictions, therefore, apply objective an test Wyoming majority adheres to the person which focuses on what a reasonable position, known “traditional” or plaintiffs in the position would have done “professional” view, respect with to the if the risks had adequately disclosed. required scope of This disclosure. stan test, objective Under patient’s hind provides physician required dard that the sight testimony is relevant but not control only to disclose such risks id.; 2 that reason ling. Rozovsky, F. D. Louisell and practitioner training able like ¶ would Williams, supra 22.14; H. Pegalis at 1 S. have disclosed in same or similar cir supra Wachsman, 2:15, H. at § cumstances. 2 D. Louisell and H. cases cited therein. think majority We ¶ Williams, supra, 22-28; i.e., 22.07 at approach, S. objective test, is the bet Pegalis Wachsman, supra, reasoned, H. 2:15 ter at herein adopt we § test exception requirement ously wanting An to the in reasonable medical skill and plaintiff accepted prudence may adjudged establish standard that it so even by expert testimony Stundon, only laymen.” care arises where quoted 469 P.2d at negligence Harris, "asserted consists conduct so obvi- at 752. measuring standing practicing community test cau- appropriate as the question respect elsewhere. With to the Wyo- consent cases in informed sation cause, proximate Dr. Devine stated: ming. “[I]t patient to that a be- unreasonable believe mind, foregoing principles we With the any ing fully informed have elected would in the record to deter- to the materials look procedure.” other fact ex- genuine if issues of material mine materials, ap- In to opposition the above entry of sum- preclude the ist pellant Boyd submitted the affidavit Dr. support of his motion mary judgment. Tomasetti, sur- a Colorado dentist and oral submitted judgment, appellee geon. Dr. he had Tomasetti stated that that he he stated his own affidavit which including reviewed the materials relevant required for of the standard was aware appellant’s affidavits dental practicing for dentists his he personally records and that exam- fully that he specialty, Dr. appellant. ined Tomasetti said he was apicoecto- risks with the associated applicable familiar standard #20, including the risk of my on tooth obtaining care an informed con- relative damage, this disclo- and further that nerve He apicoectomy. sent an then de- aof dia- accomplished use sure scribed relevant standard: gram, copy was attached his of which education, upon my train- That based affidavit. ing my opinion experience, it is upon Appellee relied the affidavit of also applicable of care to Dr. standard stated he Giovale Dr. Giovale which obtaining Gregory regarding F. Bell an of care fully familiar with standard Angelina Roybal informed consent from regard to the required dentists perform apicoectomy on no. necessary for informed consent disclosures a) patient 20 is follows: must be that, prior to re- in referral situations informed of the of the condition nature ferring appellant api- b) procedure; prior tooth no. coectomy # on tooth he discussed with must, prior proce- involved, specific including risks dure, explain the more injury paresthe- possibility the of nerve complications of the common risks and Dr. attached to his affidavit a sia. Giovale procedure, complications which risks his charts notations copy of office with i) infec- include: recurrent and chronic indicating appellant pos- he apprised had areas, surrounding tion of the tooth and paresthesia on this injury sible nerve ii) possible damage, par[e]sthesia nerve occasion. of the hyperesthesia to the area the Appellee additionally submitted affi- face, iii) loss of potential tooth the Devine, Joseph Cheyenne, Dr. a davit of treatment, the the from tooth failure Dr. stated he Wyoming, dentist. Devine adjacent iv) damage to teeth possible appellant’s records had reviewed dental treatment; root canal requiring additional record, other relevant materials the must, c) prior to the practitioner including pleadings, the the affidavits of op- patient the procedure, explain to the Giovale, appellee and Dr. and an outline of patient in lieu of to the tions available deposition. said he appellant’s Dr. Devine would be extrac- apicoectomy the applicable the tooth; d) practitioner familiar with standard tion the care, although, with the affidavits of or a note his charts must make written Giovale, Devine appellee Dr. Dr. did re- records that all of the above were applicable patient by practition- delineate standard not what viewed with required disclosure under circum- records or charts must er and further the Thus, stating prior stances. without what reflect that review was must, e) required, procedure; Dr. Devine stat- and The standard care that, signed treating appellant, appellee prior procedure, exer- obtain a ed perform ordinarily pos- consent from degree cised that care * * good procedure *. sessed and exercised dentists that, opined properly Tomasetti further Dr. disclosed the risks and alterna appellee’s basis a review records and tives in conformance with the standard. charts, Goleburn, appellee comply did with the Hurtt 134 (Del.Supr v. A.2d requisite obtaining .1974). supporting standard care an Because these affidavits appellant from important respect, fol- fail in this appellee, as lowing particulars: movant, failure to with review did not meet his initial burden of prior appellant of the tooth proving genuine the condition nonexistence of issue procedure; appel- failure to review with material fact. procedure prior to the the more com- lant appellee Since properly failed to complications mon risks and associated support his judgment, motion for procedure; failure to review appellant rely upon was entitled to her available; options appellant the failure to allegation adequate that she did not receive appellant possible inform of the loss of the give information enable her to an in tooth; signed and failure to obtain con- consent, obligation formed and she had no Finally, procedure. sent to the Dr. Toma- present any support factual for her alle it setti stated that was reasonable to be- gation. Campbell County Petersen Me fully patient in appel- lieve that a informed Hospital District, morial position would lant’s have elected alter- (Wyo.1988); Metzger, 414; Hurtt, 709 P.2d procedure. native allegation A.2d 134. Her unrefuted upon Appellant additionally relied sufficient to upon state claim which relief deposition testimony opposing own granted, can pleadings and the summary judgment. deposition ap- In her parties question structure of fact as to pellant appellee nor stated that neither appellee’s alleged negligent failure ob any specific Giovale made disclosures as to tain Petersen, informed consent. 760 P.2d possible complications risks associat- 992; Metzger, 709 P.2d 414. ed apicoectomy with an on the occasion of appellee’s argument We also note # apicoectomy they 20 nor did previously fact had under- prior do when apicoectomy so she had the gone apicoectomy a successful indicates upper right Appellant on the side. further her informed proce- consent to the second that, if stated the office records of agree dure. We cannot proposi- with this disclosure, and Dr. Giovale indicate tion. are unable We to conceive how in- that, Appellant records are false. said formed surgery consent to second can be possible complica- she been warned prior from inferred a successful problems, tions and she would have refused performed consent, without if the apicoectomy on tooth #20 and would such was the case. opted initially for extraction. Summary judgment improvidently was Although we have described the granted appellee to and cannot be sus- by appellant opposi materials submitted in tained. and Reversed remanded for fur- tion judgment, motion proceedings. ther we need sufficiency not consider of such materials because we conclude that URBIGKIT, J., filed dissenting appellee failed meet initial to his burden of opinion. demonstrating genuine the absence of a URBIGKIT, Justice, dissenting. Metzger issue material fact. See Kalke, 709 414 (Wyo.1985). The affi multi-dentist/multi-complaint This is a Giovale, appellee, davits and Dr. lawsuit which fairly quickly was reformed Devine charge against are defective in that each fails to into one Ap- one dentist. prevailing pellant state the care by standard of claims appellee now that failed to adequacy which measure the of the con adequately advise her that she have could obtained, any. sent if pulled The standard care had her tooth of his lieu efforts to specificity try be stated with sufficient to to save the tooth. The effort to save enable court to determine if process tooth was a match to the same

H5 successfully on not realize performed 1985 did that before second the dentist had one,of earli- apicoectomy performed her nine months was that she could another teeth extraction, have chosen since er. otherwise clearly continually tooth had caus- stranger to dental no Appellant was ing problems period her during the entire devel- when this course of events treatment commencing treatment with Dr. Gio- started dental treat- oped. Appellant first May Appel- vale’s interview in 1983. first Giovale, John D.D.S. Dr. Richard ment with hope lant elected to like that the benefit bridge which May repair she received from the procedure on tooth early part 1960’s installed in was two, number a similar result could be ob- multi-bridge From initial installation.1 twenty permit tained on tooth number and through interview, continued treatments retention instead of extraction. repair twenty more than sessions continuing I replace bridges cure the dissent without conclusion that a writ- During preferable, by ignor- ten is nor complaints pain. this course consent ing knowledge dentistry treatment, May from current that has which extended 1, 1986, joined litigation the real world of in- through April appellant was now doctors, Bell, accountants, Gregory volving lawyers and referred to Dr. F. twice D.D.S., apicoectomy; first which mandates detailed records and all-in- M.S.D. for the Essentially, do designated July clusive forms. I not dis- for tooth number two 31,1984 tooth, desig- agree analy- then a second with the concise and accurate twenty, April provided nated number sis the law informed consent tooth, Following pain majority. continued twenty, initially which had been number I do Conversely specifically, not find during interview in considered the first question controversy viable this referred painful, appellant 1983 as disclaiming not in- case who, D.D.S., Dolan, January Dr. Rex pro- formed and did consent the second 1986, pulled the tooth. cedure. She what knew leaving Wyoming, appellant After re- would when she went the other den- done, against office what as she turned to the state to file suit all tist’s would be dentists, voluntarily I litigation remains to- both and submitted. three went to ad- day probabilities as her criticism of the intermediate decline to unburden provided by she did not versely dental treatment Dr. Bell from assess chances exactly, specifically completely sufficient under- contended failure to be furnished nothing, consent to stand her three choices: do information for informed procedure, offending pull tooth. decide whether undertake second conception apicoectomy. reality, my concern that we what the case re- It Angelina ally appellant, Roy- is that now substitute formula and formalism means bal, actuality. concept that she It is in the claims failure to understand postured is now July 1984 of extraction consent where case choice conceptualization continuing for retention. that the well-established instead of efforts actuality three present occurs that there are That contention consistent see, I original change you which she what see what pleading worlds: what communication, raising actually a failure is. against made Dr. Giovale Likewise I functions: what warranty objective claim. It belies a scintilla of there are three thought I Gosar, you question, you, 719 intended to tell evidence Cordova v. what person patient that in meant and what the disassociated (Wyo.1986), P.2d 625 Appellant deposition A. No. that the rea- testified of treatment with son for her commencement records and com- Dr. Giovale’s initial interview bridge. a Dr. Giovale was loose absolutely prehensive to reveal a status detail you having pain you any pain Q. contrary, pervasively Were when first is since went to him? starting see se- that shown the motivation A. No. quence of dental treatment. Q. None at all? perceives been said or by appellant’s expert to have written with- material submitted overlay witness, out the of association its attribu- minimally even informative meaning. implied tion for making the choice appellant whether treating should continue the tooth or aban- lawyer practition- involved and the Each hope don pulled. and have it It is healing comprehen- arts er in the should oral nature discussions between jour- current Illinois sively consider the law health-care that and Cohen, article, nal Twerski Informed only provide can a basis realistic deci- Making and Law Torts: Decision sion and Causation, pro not forma forms mean that Myth The Justiciable (1988). nothing to Undoubtedly, party either in the real U.Ill.L.Rev. 607 world springs present hope fact that eternal cannot be with choice illness decisions imme- ignored functioning psychological con- diately presented. as a litigative tent of informed consent. In the informed consent article earlier may corollary appear that if suc- thereafter referenced, the authors remind us that achieved, may cess is not consent have not presentation predominates matter of over adequate been an undesired result because is what said: willingly not been chosen. would have Everyone “half-empty” knows that long As as courts and scholars insist “half-full” have different connotations. damages measuring circumstances, Similarly, many de- personal focusing on the resultant scriptions proce- risks of a medical injuries, they escape cannot the causation dure in terms of the chances of success recognizing the dilemma. essential or the may chances differ- failure have nonjusticiability injury personal of this ent connotations lead to different cases, model for informed do choice we decisions. suggest genre litigation that this For example, following consider Instead, suggest we a obliterated. problems presented groups to two restructuring radical subjects by Professors Kahneman focusing choice doctrine. Rather than Tversky. problem, In the seventy first personal injury damages flowing from that, subjects for,” were told hypothetical addition to “but which seeks own, they they whatever plaintiff what determine presented provided subjects have decided had the defendant $1000. information, suggest (a) we that courts then were asked to choose between a identify should $1000, value decision chance of an 50% additional rights of plaintiff which the (b) defen- chance of an 100% additional $500. destroyed by withholding dant adequate problem, In the second sixty-eight sub- information. that, jects were told in addition what- own, they they presented ever have been Id. at 608-09. $2000; they then were asked to I conclude that record reveals an (a) choose between chance of los- 50% pull pull alternative or not choice ing $1000, (b) chance of 100% los- nothing suggest tooth and ing $500. inadequate information to make A travesty choice. The moments’s reflection will what we do reveal that legal many processes problems the two is to create fictions.2 are identical. In both Here, sign- problems, patient, by subjects fiction that a were asked to ing form, provided (a) gamble choose usable information between in which they reasoned decision. I do not ending find had an even up chance of form, $2000, which was (b) included mass with either a sure $1000 Corbitt, 2. Defined permit dissent Andersen contrived the law to a court 48, 53, (Wyo.1989) (quoting matter, Black's Law dispose though of a it need not be Dictionary (5th 1979)) 804 ed. as: improperly; e.g. grant created Action of lost "Assumption by of fact made court as basis by possession.” as basis for title adverse deciding legal question. A situation

117 authors, aspects in of expressed by ty, the consideration preferences Yet the $1500. reasoning, subjects functionality including were far from in the of groups two of the problem, first of illogical identical. In the 84% of processing information —under subjects $1500 the sure selected of base rate information —as- utilization $1000); original ($500 in addition sessing multiple availability risks or —man- gamble. In the second chose 16% invoking framing ef- presentation ner of however, chose the problem, only 31% anchoring primacy, accentu- fects— $500); ($2000 minus sure $1500 69% idiosyncratic prior effect of ated gamble. chose the information, conclude: Tversky Kahneman Professors legal system’s Unquestionably, the insis- explanation for the dis- theorize that determining hypothetical tence re- groups of parity the two sub- between hypothetical decision-making sults of a normally perceive “people jects that uncertainty process incorporates so much losses, or rather than gains outcomes as credibility is minimal. Accord- its or welfare.” final of wealth states ingly, decision cau- determinations about then, the risks Quite obviously, whether in choice can sation the informed arena are framed as a medical of only by blinding made ourselves to be significant gains or losses could have process. in complexities inherent impact patient’s choice. great, The uncertainties are so framing phenome- example An of the small, margin any judg- error so decision-making con- non in the medical ment, way, either cannot be made with provided study by in a Professors text is any confidence. Sox, McNeil, Pauker, Tversky. The Cohen, supra, 1988 U.I11.L. Twerski and imagine subjects asked researchers Rev. at 641. lung to choose they cancer and treatment surgery and radiation between application All in of this returns presented to on the information based totality that the real case to the factual outcomes were framed them. Identical it worked on question involved was since subjects: they for different differently if two, see try tooth shall we similar range possible subjects the of told some twenty? success occur with tooth will Cf probability in terms outcomes Comment, Consent —In- Torts —Informed living points (e.g., at chance various 68% Pru- is Determined Consent formed living year), while for more than one Rather Than Reasonable dent Patient range possible they told others Largey v. Roth- Physician Standard. probability outcomes terms (1988), man, 540 A.2d 504 110 N.J. (e.g., dying chance of dying 32% (1989). Rutgers L.J. year). of one end summary judgment decision of framing of the results various dispositively to trial court should be related mortality sig- had a terms survival appellant’s to contin- decision this case and average, impact. On sub- nificant producing pain save the .try ue to therapy to preferred radiation sur- jects insurance). (on provided The af- employer time the informa- gery of the when 42% expert encouraging appellant’s fidavit of proba- presented terms of tion was me that greater documentation convinces bility only time dying, but 25% function de- formalism without effective in terms presented when information law, required but may cision be probability living. nothing provides for medicine. Cohen, supra, 1988 U.Ill.L. Twerski and & (quoting Kahneman Tver- Rev. at 634-35 in this case to ana- concept We return Prospect Theory: Analysis An De sky, form, which would lyze whether a Risk, 47 Econometrica cision Under perhaps com- helpful as evidence but omitted). (1979)) (footnotes medicine, municatively meaningless I am required law. satisfied analysis of functions of the After an Hunter, reasoning that our thinking process capaci- tests Govin Stadnik, (Wyo.1962) and Stundon v. developed general- (Wyo.1970), Roussalis, ly in Vassos v. P.2d 768

(Wyo.1981) By Through and Kobos Everts, (Wyo.1989), P.2d 534

Kobos v. justification

are fulfilled in

judgment granted. My reverse concern is easily

formalistic reliance on which we can

provide inadequate foundation

patient thoughtful decision make

constituting Having consent.” “informed by-pass commencing

heart chemo-

therapy may expert require assistance to assess the risk-benefit ratio quantum choices that life

provides. However, go go or no cannot, believe, I

tooth extraction fit under

that umbrella of informational need.

I would affirm. Foster,

Robert E. FOSTER and Laura (Plaintiffs),

Appellants WICKLUND, Repre-

Loraine as Personal Mayme

sentative of the Estate I. (Defen-

Lestum, Deceased, Appellee

dant).

No. 88-279.

Supreme of Wyoming. Court

July Willis,

Kaye Laramie, appellants. Smith, John B. Scott of Stanfield and Scott, Laramie, appellee. CARDINE, C.J., Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice. A development real estate plan contro- versy intermixing residential and commer-

Case Details

Case Name: Roybal v. Bell

Court Name: Wyoming Supreme Court

Date Published: Jul 27, 1989

Citation: 778 P.2d 108

Docket Number: 88-292

Court Abbreviation: Wyo.