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Newman v. Sonnenberg11/21/2003
the matter at issue falls within the common knowledge of jurors. Newman failed to introduce expert testimony in support of her abandonment claim, thus, the trial court properly granted Sonnenberg's motion for summary judgment.
William A. Thorne Jr., Judge
I CONCUR:
James Z. Davis, Judge
ORME, Judge (dissenting):
"Due to the technical and complex nature of a medical doctor's services, expert medical testimony must be presented at trial in order to establish the standard of care and proximate cause--except in unusual circumstances." Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah Ct. App. 1988). "For example, 'expert testimony is unnecessary to establish the standard of care owed the plaintiff where the propriety of the treatment received is within the common knowledge and experience of the layman.'" Id. (quoting Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980)).
There was nothing particularly "technical and complex" about Plaintiff's aborted visit to Dr. Sonnenberg. According to the evidence she presented--and "when 'reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party,'" Ault v. Holden, 2002 UT 33, , 44 P.3d 781 (quoting DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, , 34 P.3d 785) (emphasis added)--Plaintiff reported to Dr. Sonnenberg's office to have a root canal done, Dr. Sonnenberg agreed to do the procedure, he administered the anesthetic necessary for undertaking the procedure, and then, while she sat in the dental chair waiting for the anesthetic to become fully effective, he changed his mind about doing the procedure because he feared he would not be paid for his work. It is at least unprofessional to evaluate a patient's creditworthiness while she sits in a dental chair, anesthetized and waiting for a procedure to begin that she has been advised will be done for her. Whether sending her on her way because of cold feet about her ability to pay also constitutes compensable abandonment is something a properly instructed jury may well be able to decide for itself, without the guidance offered by experts.
I admittedly puzzle over the economic viability of Plaintiff's claim--after all, a successful root canal was performed by another dentist eight days after the aborted visit to Dr. Sonnenberg, and the damages proximately caused by one unnecessary shot of novocaine would appear to be rather minimal. Nonetheless, on the record before us, I believe that her claim should withstand the motion for summary judgment and that she was entitled to proceed to trial.
Gregory K. Orme, Judge
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