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Newman v. Sonnenberg11/21/2003
(For Official Publication)
Charlene S. Newman appeals the trial court's grant of summary judgment in favor of Brent C. Sonnenberg, D.D.S. We affirm.
BACKGROUND
Newman's regular dentist referred Newman to Sonnenberg, an endodontist, for a root canal. Upon arriving at Sonnenberg's office, Newman signed an "Informed Consent" form. Sonnenberg took several x-rays, conducted a "pulp test" on several teeth, examined an existing temporary crown, and administered a local anesthetic. Sonnenberg determined that Newman was in need of a root canal and directed his office administrator to review the costs and available payment options with Newman. Once Sonnenberg learned that Newman was unable to pay for the procedure outright and that she did not qualify for a payment plan, Sonnenberg refused to perform the root canal.
Upon leaving Sonnenberg's office, Newman contacted another endodontist who also had been recommended to her by her regular dentist. One week later, this second endodontist successfully performed a root canal on Newman's tooth and replaced the temporary crown with a permanent crown.
Newman filed a medical malpractice case against Sonnenberg under the Utah Health Care Malpractice Act, claiming abandonment. Sonnenberg subsequently filed a motion for summary judgment, claiming, among other things, that Newman's "abandonment claim failed because . . . Sonnenberg withdrew prior to commencing treatment." Newman countered that treatment began either when Sonnenberg began the examination or, certainly, when Sonnenberg administered the local anesthetic. After hearing arguments, the trial court granted Sonnenberg's motion for summary judgment. The court stated that Newman needs to establish by expert testimony that [Sonnenberg] began treatment. To allow a jury to speculate on the issue of the practice of endodontics does not comport with the Utah Health Care Malpractice Act. The facts of this case do not fit within the exception to the general rule that a plaintiff must establish by expert testimony that the treating professional engaged in malpractice. The standard of care involved here involves the question of whether treatment had begun and whether he properly withheld treatment. . . . The nature of "treatment" in this field is not one that lay persons understand. When diagnosis ends and when treatment begins is a subject that requires expert testimony to establish there is a dispute.
Newman appeals.
ISSUE AND STANDARD OF REVIEW
Newman challenges the trial court's determination that expert testimony is needed to prove abandonment. "When determining the propriety of a trial court's grant of summary judgment, 'we review the trial court's legal conclusions for correctness, affording those legal conclusions no deference.'" Nyman v. Anchor Dev., L.L.C., 2003 UT 27, , 73 P.3d 357 (quoting Ault v. Holden, 2002 UT 33, , 44 P.3d 781).
ANALYSIS
Newman argues that expert testimony is not needed on the issue of abandonment because "the determination as to when the medical practitioner incurs a duty to the patient is not dependent upon expert testimony." (Emphasis omitted.) Newman claims that " he main issue is not whether some medically defined procedure has begun, but whether the doctor-patient relationship exists" and that "the duty to treat [and not to abandon] arises upon the existence of the relationship of physician and patient alone."
"In the majority of medical malpractice cases the plaintiff must introduce expert testimony to establish standard of care." Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980). "Expert testimony is required because the natur
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