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Richter v. Rossmeisl3/19/2002
Karen Richter sued her oral surgeon, Dr. Roman Rossmeisl, for injuries she allegedly sustained during a root canal operation. The trial court granted Dr. Rossmeisl's motion for summary judgment, finding that the two affidavits submitted by Ms. Richter in response to the motion were inadequate to defeat summary judgment. Ms. Richter submitted a supplemental affidavit along with her unsuccessful motion for reconsideration.
On appeal, she contends expert affidavits are not necessary in this case. Alternatively, she argues that the expert's supplemental affidavit filed with the motion for reconsideration provides the necessary elements for a medical malpractice claim. We find that medical testimony was necessary under these circumstances to prove both the standard of care and causation. Additionally, we agree with the trial court that the affidavit of Ms. Richter's expert was insufficient to raise an issue of material fact to defeat summary judgment. However, we further find that the supplemental affidavit raises issues of material fact, and reverse and remand.
Facts
Because this is a review of a summary judgment, we consider the evidence in the light most favorable to Ms. Richter. Miller v. Jacoby, 145 Wn.2d 65, 71, 33 P.3d 68 (2001). On August 15, 1997, Ms. Richter arrived at the office of Dr. Rossmeisl for a scheduled root canal procedure. She was told that the office was understaffed that day due to vacation schedules. Ms. Richter's mouth was propped open with rubber blocks, she was given anesthetic, and she was placed in a reclining chair with her legs higher than her head. She retained this position for about three hours, during which time she was left alone for long periods before Dr. Rossmeisl performed the procedure. Throughout, she was unable to close her mouth or to otherwise rest her jaw.
After the procedure Ms. Richter experienced pain in her jaw and face and clicking and grinding in her jaw. She and her husband filed suit against Dr. Rossmeisl, his wife, and his dental assistants on August 9, 2000. In her complaint she named 26 causes of action. By order dated January 23, 2001, the trial court granted partial summary judgment to Dr. Rossmeisl, dismissing 20 of the claims. Ms. Richter requested a continuance so that she could obtain the affidavit of an expert on the surviving causes of action, including (1) negligence, (2) failure to warn, (3) professional malpractice, (4) failure to diagnose and take precautions, (5) failure of postoperative care, and (6) breach of the standard of care.
The hearing was continued to March 14, by which time Ms. Richter had filed an affidavit by Dr. Leonard Berl, D.D.S., along with her own affidavit. Finding Dr. Berl's affidavit inadequate to establish the standard of care in Washington, the trial court dismissed the remaining claims and signed the order of summary judgment on March 14, 2001.
Ms. Richter later filed a motion to reconsider based on CR 59 and CR 60(b), and attached a supplemental affidavit by Dr. Berl. The trial court denied the motion, finding that the supplemental affidavit contained information that could have been made available at the original summary judgment hearing. The court also found that reopening the case would not accomplish substantial justice. This appeal of the summary judgment and of the order denying the motion for reconsideration followed.
Discussion
In an action claiming injuries caused by negligent health care, the plaintiff must establish that the 'injury resulted from the failure of a health care provider to follow the accepted standard of care.' RCW 7.70.030(1). A dentist or dental surgeon qualifies as a health care provi
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