Opinion
A148276
11-29-2018
NICK SELLAS, Plaintiff and Appellant, v. NOAH DEHLINGER, D.D.S., et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CV1403850)
Appellant Nick Sellas brought this case alleging that respondents Noah Dehlinger, D.D.S., and Noah Dehlinger, D.D.S., Inc. (collectively, Dehlinger) negligently provided him with dental services. The trial court granted summary judgment in favor of Dehlinger because he presented evidence that his services were not negligent, and Sellas presented no admissible evidence, including expert testimony, to rebut Dehlinger's evidence. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
In July 2012, Dehlinger evaluated Sellas for dental implants. At the time, Sellas had a full upper denture and partial lower dentures. Dehlinger concluded, as had other dental professionals, that Sellas was a candidate for dental implants. After Dehlinger advised Sellas of various treatment options and explained their risks and benefits, Sellas agreed to have dental implants placed. Sellas signed a document acknowledging that he was informed of the potential risks and limitations of proceeding with implants.
The next month, Dehlinger placed six upper and six lower implants in Sellas's jaw. Over the next two years, Sellas had problems with the implants and experienced pain in his jaw. The problems and pain were considerable. In early 2013, once the implants had integrated with the bone, Dehlinger took impressions for the dentures that were to be seated on the implants. These dentures were fabricated, and they were then seated in May 2013. The lower dentures were "crooked" from being "overcooked," and they were replaced a couple of weeks later. The new dentures needed adjustments, broke on at least two occasions, and needed repairs. In September 2013, Dehlinger agreed to replace the dentures again, at no cost to Sellas. These dentures were made to be "cantilevered" over the teeth at Sellas's request, and they were supported with a "titanium framework." In February 2014, while Dehlinger's dental assistant was working on Sellas's lower-right implants, Sellas experienced an electrical type of pain. The pain returned "every time [Sellas] put a little pressure on that side." Dehlinger was unable to diagnose the cause of the pain, and in June 2014 referred Sellas to other dental specialists. One dental specialist removed an implant in June 2014, and a different specialist removed another one the following month.
In his complaint, Sellas brought a single negligence cause of action against Dehlinger. He alleged that Dehlinger was negligent by "failing to . . . properly diagnose and treat [Sellas's] condition, failing to obtain proper informed consent for the procedures undertaken, failing to perform the procedures agreed upon within the minimum standard of care, failing to refer [Sellas] to appropriate specialists . . . , fail[ing] to render proper post-operative care, and abandoning [Sellas] by unilaterally ending the relationship before [Sellas] was in a stable condition to do so."
Dehlinger filed a motion for summary judgment, which was supported by a number of declarations, including expert declarations from Anthony Lizano, D.D.S., a dentist who is board certified in oral implantology and implant dentistry, and Warden Noble, D.D.S., a dentist who is board certified in prosthodontics. These experts attested that Dehlinger's services to Sellas met the applicable dental standard of care.
Proceeding without an attorney, Sellas opposed Dehlinger's motion, but he did not object to Dehlinger's evidence or present any expert testimony to rebut Drs. Lizano and Noble's declarations that Dehlinger's services satisfied the applicable standard of care. Furthermore, while Sellas attached voluminous written materials as exhibits to his opposition, he submitted no declaration or affidavit to authenticate them or to otherwise establish their admissibility. Dehlinger opposed the introduction of these materials on various grounds, including that they were not authenticated, were irrelevant, contained inadmissible hearsay, and included improper medical opinion by a lay witness.
Because Sellas did not object to the admissibility of Dehlinger's declarations in the trial court, the objections he raises to them on appeal are deemed forfeited. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 522-526 [to preserve evidentiary issues on appeal, litigant must object to specific evidence in writing before summary judgment hearing or orally at the hearing]; Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 ["The forfeiture rule generally applies in all civil and criminal proceedings"].)
The trial court issued a tentative ruling that proposed granting Dehlinger's motion, and a hearing was held on April 13, 2016. At the hearing, Sellas argued that he was not required to present expert rebuttal evidence because his claim against Dehlinger could be "understood very easily [by] a layman." He then proceeded to argue that he was not properly informed of Dehlinger's inexperience or the risk of the implants, and he generally described the course of treatment Dehlinger provided, and the problems, difficulties, and pain he experienced. Counsel for Dehlinger again objected to the evidence Sellas had submitted, and Sellas responded by saying, "They have all that information since last year. I presented it." Sellas did not further challenge Dehlinger's objections.
The trial court sustained its tentative ruling, and it entered a final written order two weeks later granting Dehlinger's motion for summary judgment. In doing so, it found that Sellas's "failure to present competent expert testimony in opposition [was] fatal to his cause of action." It also found that Sellas had presented no admissible evidence, because the documents he had submitted were unauthenticated or "unsworn factual statements and medical opinions," or materials not properly considered without a request for judicial notice.
No judgment appears in the appellate record. (Cf. Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6 [appeal can be taken from an order granting summary judgment only after the court enters a judgment].) But the register of actions states that the "CASE [IS] DISPOSED IN ENTIRETY," evidence of a clear intent to finally dispose of Sellas's complaint. (See ibid.) And on the court's own motion, we take judicial notice of the trial court's register of actions available on the superior court's website, which shows judgment was entered after Sellas filed his notice of appeal.
II.
DISCUSSION
A. The Standard of Review.
Summary judgment is appropriate only if "there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review de novo a decision granting summary judgment, " 'liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.' " (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.) But although our review is de novo, we are " 'not obligate[d] . . . to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues . . . by citation to the record and any supporting authority.' " (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
All statutory references are to the Code of Civil Procedure unless otherwise specified.
A defendant meets his or her burden of demonstrating a cause of action has no merit by showing that an element of the cause of action cannot be established or that there is a complete defense to that cause of action. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of a material fact exists to that cause of action or defense. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
B. Summary Judgment Was Properly Granted on Sellas's Claim that Dehlinger Provided Negligent Care.
The core of Sellas's cause of action is that Dehlinger provided negligent care regarding Sellas's implants. As we mentioned, Dehlinger submitted two expert declarations supporting his motion for summary judgment, but Sellas submitted no rebuttal expert declarations. As he argued below, Sellas argues on appeal that he was not required to submit rebuttal expert declarations because Dehlinger's alleged negligence was a "matter within knowledge of laymen." He also argues that he was not required to submit rebuttal evidence under the doctrine of res ipsa loquitur. We are not persuaded by either of these related arguments.
" ' "The standard of care against which the acts of a [medical professional] are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony." ' " (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) " ' "California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his [or her] motion with expert declarations that his [or her] conduct fell within the community standard of care, he [or she] is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence." ' " (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) These principles apply to claims against a dentist for professional negligence. (See Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412-414 (Willard) [plaintiff's failure to submit declaration of an expert in opposition to summary judgment motion was fatal to negligence cause of action for dental malpractice].)
Dehlinger's experts, Drs. Lizano and Noble, opined that Dehlinger's services to Sellas were consistent with the applicable dental standard of care. They both attested that Dehlinger properly evaluated Sellas as a candidate for implants, used an appropriate method to place the implants, and otherwise cared for Sellas in accordance with the applicable standard of care. In order to create a triable issue of material fact on whether Dehlinger's care was negligent, Sellas was required to submit competent rebuttal testimony. (Willard, supra, 121 Cal.App.3d at p. 412.) The trial court properly found that his failure to do so was "fatal to his cause of action" insofar as it alleged that Dehlinger provided negligent care.
Sellas's claim that Dehlinger provided negligent care fails because Sellas did not submit any rebuttal expert testimony. We therefore need not address Sellas's lengthy but secondary argument that the trial court improperly excluded from evidence the non-expert evidence he submitted.
Sellas argues that he was not required to submit expert rebuttal testimony because the standards for the placement of, and care for, dental implants are commonly understood. We disagree. True enough, an exception to the general rule requiring expert evidence in malpractice cases applies when "the conduct required by [the medical professional in] the particular circumstances is within the common knowledge of the layman." (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) "This exception is, however, a limited one" (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543), and we agree with the trial court that it is inapplicable here. In Willard, the Court of Appeal concluded that "[t]he dental procedures utilized in the effort to salvage [a] tooth, remove decay from an adjacent tooth, and diagnose [a] periodontal problem are not within a layman's 'common knowledge.' " (Willard, supra, 121 Cal.App.3d at p. 413.) We have little trouble concluding that if these types of procedures are outside a layman's knowledge, even more so are the far more specialized procedures for evaluating a patient for dental implants, surgically placing implants, and providing follow-up care. "The complexity of the medical procedure is a factor in determining the necessity of expert testimony. The more complex or unusual the medical process, the more likely it is that expert testimony will be required to establish whether or not the injury was the result of negligence." (Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 801 (Curtis).) Sellas's attempt to bring Dehlinger's conduct into the layman's exception fails.
Sellas also argues that he was not required to present rebuttal expert testimony because of the judicial doctrine of res ipsa loquitur. This doctrine is " 'a presumption affecting the burden of producing evidence.' (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: ' "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." ' " (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826; see also Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.) " 'There is an element of drama and of the freakish and improbable in the typical res ipsa case.' " (Curtis, supra, 110 Cal.App.4th at p. 801.) Thus, as examples of circumstances in which the doctrine has been applied, " 'where the surgeon saws off the wrong leg, or there is an injury to a part of the body not within the operative field, it has been held that the jury may infer negligence without the aid of an expert.' " (Ibid.)
Here, Sellas maintains that he has suffered great and persistent pain, and we have no reason to disbelieve him or to minimize his distress. But he has produced no evidence showing that such pain is not a possible side effect when dental professionals place implants in accordance with the applicable standard of care. (Curtis, supra, 110 Cal.App.4th at pp. 802-803.) In fact, the record suggests it can be such a side effect. Again, Sellas himself acknowledged that he was informed of, and understood, the risks of implants when he agreed to have them placed, and Dehlinger's experts explicitly disavowed any negligence by Dehlinger. We cannot conclude on this record that the fact Sellas has suffered pain created a presumption under the doctrine of res ipsa loquitur that Dehlinger provided negligent services.
B. Summary Judgment Was Properly Granted in Favor of Dellinger on Sellas's Claim Alleging Lack of Informed Consent.
Sellas also contends that the trial court improperly granted summary judgment on his claim that Dehlinger negligently failed to disclose that that "he had no experience with 12-implant mouth restoration ever" and "had never used hybrid bars without pins" or "titanium frames." We are not persuaded.
A medical professional's duty to disclose is twofold. " 'First, [the professional] must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure. [Citation.]' [Citation.] 'Second, "[b]eyond the foregoing minimal disclosure, [the professional] must also reveal to his [or her] patient such additional information as a skilled practitioner of good standing would provide under similar circumstances." ' " (Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1134.) Here, Sellas concedes he was informed of the risks of the implants, and Dr. Noble attested that Dehlinger's disclosure was proper. He opined that "Sellas was informed of the acceptable alternative treatments for his condition, the benefits of such treatment and the reasonable risks of such treatment, and thus Dr. Dehlinger met his duty to allow . . . Sellas to make an informed decision when consenting to the treatment to be rendered."
In challenging this evidence, Sellas simply asserts that the results "speak for themselves," and that if Dehlinger had "disclosed to [him] that he had never done a twelve-implant, full-mouth restoration [he] would have had this treatment done someplace else." But we evaluate the disclosure under an objective, not a subjective, standard. (Cobbs v. Grant (1972) 8 Cal.3d 229, 245.) "The patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of [the testimony] the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient's bitterness and disillusionment. Thus an objective test is preferable: i.e., what would a prudent person in the patient's position have decided if adequately informed of all significant perils." (Ibid.)
On the record before us, we cannot conclude that a prudent patient in Sellas's position would have declined the services if he or she were given the information that Sellas contends was wrongfully withheld. No evidence was presented that a 12-implant, full-mouth restoration presented meaningfully different risks than other full-mouth restorations. And no evidence was presented that using "hybrid bars without pins" or "titanium frames" presented any meaningful risks whatsoever. We recognize that expert testimony is often not required for a plaintiff to establish a claim based on a lack of informed consent. (See Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 409-416 [absence of declaration by qualified witness was not fatal to claim alleging lack of informed consent].) But it is required in situations, like this one, when the withheld information involves a subject matter that cannot be understood by lay witnesses. "[W]hether a particular risk exists . . . may be a matter beyond the knowledge of lay witnesses, and therefore appropriate for determination based on the testimony of experts." (Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 756; see also Jambazian v. Borden (1994) 25 Cal.App.4th 836, 849-850.) Without expert testimony explaining why Dehlinger's alleged lack of experience with 12-implant, full-mouth restorations (as opposed to other full-mouth restorations) or with using "hybrid bars without pins" and with "titanium frames" would matter to an objectively reasonable patient, and without any expert testimony rebutting Dr. Noble's opinion that Dehlinger met his disclosure duties, there is simply no basis for us to conclude that a genuine issue of material fact exists about the alleged wrongfulness of the nondisclosure.
Dr. Noble specifically attested that "[t]he use of a titanium framework is an acceptable modality to support full upper and lower implant-supported or retained dentures and was within the standard of care."
In arguing that Dehlinger failed to properly disclose that he had never placed 12 implants in a patient before, Sellas cites to unauthenticated portions of Dehlinger's deposition testimony, which were deemed inadmissible by the trial court. Even if we were to conclude that the trial court's evidentiary ruling about this portion of Dehlinger's deposition testimony was incorrect, which we do not, we would not change our conclusion. In this part of his deposition testimony, Dehlinger testified that, although he had never placed 12 implants in a patient before, he had performed approximately 72 full-mouth restorations, and many more if the period of his residency was included. According to him, he did "full mouth restorations all the time," including restorations for patients who needed 9, 10, or maybe 11 implants. He testified that "the procedures for that are similar whether you're doing 12 implants or 9 implants." Sellas provided no evidence suggesting otherwise, and his assertion on appeal that Dehlinger "had never done this type of dental procedure before" is belied by the very evidence he argues should have been admitted.
C. Summary Judgment Was Properly Granted in Favor of Dellinger on Sellas's Claim that Dehlinger Wrongfully Abandoned Him.
Sellas asserts that Dehlinger negligently abandoned him as a patient, but he provides no reasoned argument or legal authority to support the assertion. We therefore consider the argument to have been forfeited. (See Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521 [appellate courts treat point as forfeited when appellant fails to support it with reasoned argument and citations to authority].)
Even if we were to consider the argument on its merits, we would reject it on the record before us. The controlling law is straight forward: "A [medical professional] cannot just walk away from a patient after accepting the patient for treatment. . . . In the absence of the patient's consent, the [professional] must notify the patient he [or she] is withdrawing and allow ample opportunity to secure the presence of another [professional]." (See Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1138; James v. Board of Dental Examiners (1985) 172 Cal.App.3d 1096, 1112-1113.)
The undisputed evidence here is that Sellas was referred to other specialists before Dehlinger ended their relationship. As Sellas acknowledges, Dehlinger referred him to Dr. Anthony Pogel, a specialist at the University of California at San Francisco, and Dr. Alexander Kashef, another specialist. Each of these specialists removed one of Sellas's implants, even though they believed doing so was contraindicated, because Sellas insisted on it. Thus, Dehlinger not only provided an opportunity for Sellas to obtain the services of other professionals, Sellas availed himself of that opportunity. Furthermore, Dr. Noble specifically stated that "Dehlinger acted appropriately following his inability to diagnose or relieve . . . Sellas'[s] pain complaints by discontinuing his efforts to create new full upper and lower dentures while . . . Sellas remained in pain, referring . . . Sellas to appropriate dental and medical professionals who could use their expertise to diagnose and attempt to treat . . . Sellas'[s] condition." We cannot conclude on this record that there exists a genuine issue of material fact regarding Sellas's allegation that he we wrongfully abandoned by Dehlinger.
III.
DISPOSITION
The judgment is affirmed. Dehlinger is awarded costs.
/s/_________
Humes, P.J. We concur: /s/_________
Banke, J. /s/_________
Kelly, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------