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Atamian v. Bahar3/30/2005
I. Facts and Contention of the Parties
Dr. Atamian ("the plaintiff") filed a complaint against Dr. Arezoo A. Bahar (" Dr. Bahar"), Collins Dental Association (" Collins Dental"), and P&R Dental Laboratory, Inc. ("P & R") alleging causes of action for assault and battery, misrepresentation and deceit, common law conspiracy, intentional infliction of emotional distress, and product liability in connection with dental treatment he received. All allegations arise out of dental treatment administered at Collins Dental by his treating dentist, Dr. Bahar. P&R was responsible for making the bridge used in the plaintiff's treatment.
The defendants have filed a summary judgment motion pursuant to Superior Court Civil Rule 56(b) alleging that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law as to each of the plaintiff's causes of action. The defendants also argue that, despite the fact that the plaintiff fails to include a negligence count in his complaint, all of the alleged actions are predicated on a negligence claim. Lastly, the defendants argue that this is a dental malpractice action and the plaintiff has not provided them with the name of an expert witness who will testify on the plaintiff's behalf.
The plaintiff responds by stating that the complaint does not include a count for negligence and that this is not a medical negligence action. He also argues that he has provided sufficient evidence for each count in the complaint to survive a summary judgment action. Finally, the plaintiff maintains that the Court ordered the defendant, Dr. Bahar, to be his expert witness. To the extent that the defendants are arguing that an expert is required, the plaintiff responds that Dr. Bahar will serve as that expert.
II. Standard of Review
Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
III. Discussion
Count I - Assault and Battery
A prima facie case for assault requires a showing that a defendant's conduct placed the plaintiff in apprehension of imminent harmful or offensive physical contact. The requisite elements for battery are the intentional and unpermitted contact upon the person of another that is harmful or offensive. To prevail on a battery claim, a plaintiff must not have consented to the battery. The Delaware Supreme Court has recognized that a patient may have a cause of action against a dentist for the tort of battery but that claim is limited to those circumstances in which the dentist performed a procedure to which the patient has not consented. A battery claim may also be viable if the procedure administered is of a substantially different nature and character than that to which the patient consented.
Preliminary, any claim for assault and battery against P & R can not survive summary judgment. The plaintiff has not submitted any evidence to establish that he had personal contact with any employee of P & R. Furthermore, P & R has submitted the affidavit of Anopet Phimmasone, the president of P & R, in which Mr. Phimmasone state
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