Short v. Kinkade

thе Commission is returned case complaint. to dismiss the formal

directions SHORT, Plaintiff-Appellant,

Mary KINKADE, D.D.S., Kin and D.J.

J.H. D.D.S., Defendants-Appellees.

kade,

No. 82CA0791. Appeals, Court of

Colorado III.

Div.

Dec. 1983.

Rehearing 1984. Denied Jan. July Denied 1984.

Certiorari

Hutchinson, Black, Hill, Buchanan & Cook, plain- Meyer, D. William tiff-appellant. Johnson, P.C.,

Pryor, Carney & Irving Johnson, Englewood, defendants-ap- G. pellees.

TURSI, Judge. action, malpractice plain-

In this dental Short, tiff, Mary appeals from the adverse rendered in ‍‌‌‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌​‌​‌‌​‌​‌‌‌​‌​​​​​‌​​​​‍the trial court and verdict $4,504.10 in costs the court’s award of 211 defendants, Kinkade, knowledge” normally possessed by D.J. or than J.H. D.D.S. and And, Kinkade, D.D.S. We membеrs of the Restate- reverse. § (Second) Torts 299A comment d ment of contends the trial court Plaintiff that states: rejecting proposed her instruction erred undertaking “An actor to render services required of the standard of care regarding may represent superior that he has skill this ease. under the facts оf the defendants knowledge, beyond to or that common contention is that the Her second his or trade. In that event he improperly to the de- court awarded costs obligation person incurs an the to expenses by defend- for incurred fendants representation, whom he makes such a prepаration for trial. experts ants’ have, exercise, and to the skill and patient a of defendants Plaintiff became knowledge represents which he himself defendants, one the in 1974. of a physician to have. Thus who holds Kinkade, performed an occlusal J.H. specialist himself out as a in certain plaintiff. is a Equilibration the libration on types required is have the of biting of the of the modification surfaces skill and common to other improve bite or occlusion. teeth specialists.” centric goal procedure the is to achieve Clein, 168, 100 Atkins v. 3 Wash.2d See relation, After or harmonious occlusion. Also, (1940). P.2d 1 Prosser statеs that sessions, treatment centric relation six professional represents having himself as a achieved. The defendants determined not average than the greater skills member necessary plaintiff to retain that it was the profession, applicable the standard experi- of a more the services dentist with Prosser, accordingly. care is modified W. equilibration. Subsequent ence in occlusal § (4th 1971). 32 ed. Atkins v. Torts See treatment received from the defend- to the McCoid, Clein, supra. See also Care ants, full mouth recon- plaintiff underwent Practitioners, 12 Required Medical $11,000, cost in at a excess of struction (1959). 549 Vand.L.Rev. against this action defendants. she initiated The defendants cite 15:5 Colo.J.I. trial, in- plaintiff timely At tendered (2d proposition ed. setting to be forth the standard struction ap specialist standard to be order for in a applied specialty to a dentist awith professional must hold himself plicable, the dentistry. rejeсted court field of The trial to a being specialist, opposed out as instead, and, in- proposed instruction greater skills or knowl representation jury to apply structed the standard argument unpersuasive edge. This is general required practitioner. of a jury is intend pattern instruction contends that reсord contains Plaintiff prevailing yield a model and will ed as instructing support evidence to sufficient Insur C.R.C.P. 51.1. Federal law. See on the standard of care of Co., Public ance Co. v. Service cialist in the area which the defendant P.2d 239 570 special expertise, that the trial claimed failing prejudicial court сommitted error Prosser nor the Restate Neither jury. agree. to so instruct We as a require specialty ment of care prerequisite specialty to a standard specifically find no cases Colorado We necessary All that is instruction. dealing the standard of care heightened standard establishmеnt practitioner holding himself out to a way testimony. care in a special knowledge and skill possessing Curran, Colo.App. 472 Smith v. dentistry. field of particular medicine this, (1970). In a case such as P.2d 769 However, authority ample. on this issue is testimony, § standard, by expert as adduced (Second) 299A Torts Restatement skill or with the level оf is to be consistent of care will standard states represented by practition “[ujnless professional, to a applied Thus, action is of the greater that he has or less er. represents gravaman misrepresentation, negligent proper rather to both with modification. but Colo.J.I. heightened (2d 1980) (Notes Usе). 15:5 ed. on breach care where defendants are Here, plaintiff expert testimony adduced practicing a form of which re- establishing standard of care quires special knowledge training. engaging for dentists treat- Here, Downs, plaintiff first learned of the exist- ment. Colo.App. See Short v. 36 109, (1975). equilibration enсe of treatment from the 537 P.2d plain- 754 Two of the they defendants. The defendants advised the tiffs witnesses stated that had plaintiff equilibration completed post-graduate that occlusal would courses and train- they capable ing prove equilibration beneficial and that were in treatment. One administering experts the treatment based on a these had attended an institute they equilibration specialized post-grad- course in which were at- Florida which offered preparing tending. training equilibration. Plaintiff was to move uate in occlusal Further, dentist, plaintiff to Boulder and asked the defendants was referred to a thеre were dentists the Boulder area who limited his perform procedure. this who could libration and occlusal reconstruction. And witness, finally, defendants stated that there were two den- defendants’ a mem- attending Equilibration tists in Boulder who were also ber of the Society American course, Studies, they Society thе but could not recommend and the for Occlusal they having either of them until had watched them offered “subspecialties perform procedure. prothodontics equilibration.” The record does fields of and not contain recommendations of the Although plaintiff’s proposed in regard defendants tо the Boulder den- accurately pre struction did not reflect the tists, but it does indicate that the defend- law, vailing sufficiently it informed the tri began performing equilibration treat- ants plaintiff’s position al trigger court of days ment on the two after the duty modify trial court’s the draft in above discussion. jury struction correctly instruct the during thе sixth Some time session of the on Stephens law. See v. procedure, spanned treatment which almost Koch, 531, (1977). 561 P.2d 333 months, plaintiff three became concerned The evidence warranted instruction on progress inquired with her of the de- required practi the standard of care fendants as to whether therе other were sub-specialty tioner with a train capable dentists occlusal ing treatment. The trial equilibration. The defendants stated that jury court’s failure to so instruct the consti procedure performed by many was not prejudicial tutes error. they dentists. The defendants stated ‍‌‌‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌​‌​‌‌​‌​‌‌‌​‌​​​​​‌​​​​‍that Contrary to the contentions of the de- Aspen could send fendants, plaintiff’s pleadings are suffi- Angeles, or Los but there would be no ciently specific give as to notice of the difference the treatment received. standard of care under which she seeks to 8(a). that a prove duty. We conclude of fact breach C.R.C.P. See Co., existed as to whether the defendants held Rickenbaugh Weick v. Cadillac 134 possessing special 283, (1956). themselves out skills Colo. 303 P.2d 685 equilibration. Ques in the area of occlusal reversing judgment Because we are tions are to be determined of fact defendant, entered on behalf of we do not Zinke, jury. Converse v. propriety address the of the costs assessed against plaintiff. dispute, judgment If there is a based on the trial court is re- evidence, as to whether the skills or versed and the cause is remanded for re- practitioner opin- standard should be a manner consistent with this given, judge should instruct the ion.

213 cialist, STERNBERG, J., this issue must first be frаmed concurs. Then, pleadings. C.R.C.P. 8. to recov BABCOCK,J., dissents. by expert er the must show testi BABCOCK,Judge, dissenting. 1) mony: commonly recognized a field respectfully dissent. 2) exists; specialty by is a standard in that there holds general practitioner A who himself issue; pertaining to field the conduct at of, as, and undertakes the work out that defendant’s conduct did required to the care and will use cialist meet that standard. Bloskas v. Mur Davis, Simpson v. specialty. of that (Colo.1982); 907 ray, 646 P.2d Smith v. (1976); P.2d Kan. 549 950 Gaston 219 Curran, Colo.App. 472 769 28 P.2d Hunter, Ariz. P.2d 326 (1970). And, it is axiomatic that before the however, (1978). there no this case give upon trial court must an instruction that occlusal evidence case, pаrty’s theory of the there must be specialty. There can be no standard dental supports is which the to that which evidence admitted that of care attendant ‍‌‌‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌​‌​‌‌​‌​‌‌‌​‌​​​​​‌​​​​‍Therefore, Jussel, ory. Maloney can- 125 Colo. shown to exist. defendants care held to standard of above P.2d 862 not be practitioner general dentistry. of a

that Here, plaintiff’s complaint alleged duty specialist a The care of medical negligent in the that the defendants were (2d correctly by 15:5 ed. 1) defined Colo.J.I. following particulars: failing in to use 1980), here, which, provides: as “appropriate plaintiff’s treatment for occlu- 2) problem”; in fаiling sal to use “due care “A who holds himself out to be [dentist] work”; 3) in specialist particular field,

a in a [den- knowledge failing “diagnose in treat other den- tistry] use his skill and and must periodon- a specialist problems including a in a manner consistent tal those of nature”; degree failing skill and with the and tic and in “warn by consequenсes ordinarily possessed oth- knowledge plaintiff inform specialists who have devoted er of treatment.” There was no their course study and attention the same field of allegation complaint in the that the defend- in expertise, specialists, a manner consistent ants held themselves out in the with the same specialty state recognized a of occlusal that at field of the time existed, or defendants’ con- libration added) (emphasis any recognized stan- [treatment].” duct to meet failed pre- The “specialty.” dard of of such care Butterweck, Artist v. theory further reflected that the trial order (1967); Hughes, 94 426 P.2d 559 Brоwn v. negli- plaintiff was that defendants’ (1934). The notes on Colo. gence diagnose out of their failure to arose provide: to this use instruction plaintiff in accordance with treat “This should used rather instruction general dentist- recognized standard of 15:1 than Instruction when defendant locality question. ry being specialist has held himself out a recognized commonly in an area presented The three wit- plaintiff there is a such his engaged prac- first If nesses. The applica- dispute as to which standard dentistry in tice of Colora- case, light ble in the evidence opined equilibra- that the do. This doctor given, instructions should be both given did nоt tion treatment being made appropriate modifications “the and reasonable meet with standards necessary to avoid confusion possessed care knowledge and added) jury.” (emphasis performing occlusal dentists he re- in this On cross-examination area.” negligence in a action If thе opinion the defendants’ iterated his the defendant’s conduct seeks measure prac- higher spe- to a conduct fell the “standard of beneath by the matter of generally in Col- 702 does not as a fact or law practicing tice Greeley.” and in establish the existence of dental and in Boulder orаdo extraordinary or the existence of an stan- expert witness ‍‌‌‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌​‌​‌‌​‌​‌‌‌​‌​​​​​‌​​​​‍was plaintiffs The second dard which the conduct of those who “specialist was a in re- periodontist who render such treatment must be measured. gumof disease.” gards to the treatment offering medical such, in the course of testified that As just cialist as a witness is that and no “general saw practice he his more; foundation, given proper there is majority of the by a vast performed work” nothing prevents recognized special- County. He and Weld dentists in Boulder testifying from as to the standard of ist to the standard of opinion as expressed no generаl practitioner. care of a perform- required of the defendants care short, pled equilibra- this case was and tried as dentistry of occlusal ing general ordinary malpractice case. There tion. that defendants were to was no contention was a plaintiffs third witness specialist duty be held to the of a dental who, response to coun- Boulder dentist her instructions af- until tendered regarding specialization, an- sel’s Obviously ter the close of the evidence. general dentist. For the “I am a swered: showing there was no of defendants’ devia- years spent eleven or twelve have last heightened from standard of care tion post-graduate study great deal of time evidence that occlu- because there was no dentistry.” equilibration and reconstructive recognized by the sal den- He testified that he offered profession of or tal as an area prac- normal dental part of his services by recognized stan- attended that, although there tice. He also testified dard of skill and com- thought regard- schools of were different mon to others the field. See Restate- recog- it was not ing equilibration, occlusal § (Second) 299A, comment ment Torts of by profession special- as a nized the dental (d). Therefore, plaintiff was not entitled to no stan- ty and that he knew of higher duty an instruction on a of care. However, field. dard to the Jussel, Maloney supra. v. that, opinion, testified in his the defend- agree may I that there be a ants’ treatment of the was not repre- the defendants “consistent with the standards of reason- fact as to whether skill, possessed they possessed special knowl- knowledge, and care sented that able equilibra- edge performing occlusal occlusal and skill representation may give tions in this area.” libration. Such theory rise to a claim for relief under a expert The defendаnt called one witness “negligent misrepresentation.” Bloskas v. practice “gener- engaged who was However, plaintiff Murray, supra. did not dentistry” practice al but who limited his to theory proceed upon elect to this but rather main- “restorative and occlusion upon theory ordinary negli- proceeded ly.” that the dental He testified gence. recognize dentistry and did not restorative specialties appeal, On contends that the treatment of occlusions not li- trial court abused its discretion award- practice in these areas was costs, specialties by ing, expert witness fees for time censed or licensable opinion, spent preparation In his the de- for trial. Plaintiff ar- gues expert “fell that an award of costs for fendants’ treatment of the may only upon witness fees be calculated within the actually spent by time for dentists in Colorado.” while testifying majority opinion at trial. Although expert was of- the defendants’ not elect address this issue. does having “subspecialties fered as in the fields 13-33-102(4), C.R.S.1973, prothodonties equilibration,” such Section states under that: “characterization” of a witness CRE of record called to courts

“Witnesses opinion founded on

testify only study or branch experience profes- or scientific science or make state the examinations and result

sional compen- shall receive additional

thereof court,

sation, by the to be fixed the time em- ‍‌‌‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​‌​‌​‌‌​‌​‌‌‌​‌​​​​​‌​​​​‍value of reference degree learning

ployed and added) (emphasis required.” § 13-33-102(4), C.R. allowed under

Costs

S.1973, by a rule of rea- are circumscribed totally the discretion of are within

son and trial court. Water Co. Leadville District, 164 Colo.

Parkville Water permit the statute

I would construe court, discretion, within its sound

the trial reasonable costs wit-

to award for, preparation for time incurred

nesses at, as attendance

as well of discretion I can discern no abuse

case. case. judgment of the trial affirm the would upon jury’s verdict and entered

court of costs.

its award Colorado,

The PEOPLE State

Plaintiff-Appellee, SANDOVAL,

Richard Frank

Defendant-Appellant.

No. 82CA0677. Appeals,

Colorado Court

Div. III. 22, 1983.

Dec. 19, 1984.

Rehearing Jan. Denied Aug. 1984.

Certiorari Denied

Case Details

Case Name: Short v. Kinkade

Court Name: Colorado Court of Appeals

Date Published: Dec 22, 1983

Citation: 1983 Colo. App. LEXIS 1184

Docket Number: 82CA0791

Court Abbreviation: Colo. Ct. App.