MacLyman v. Firestone Dental

Filed 8/22/07 MacLyman v. Firestone Dental CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, William J. Birney, Judge. Affirmed.

Veatch Carlson, David M. Hillings, Dawn M. Oster and Dawn M. Matsuo for Defendant and Appellant.

Barbaro & Valentine, Frank P. Barbaro and Yolanda M. Medina for Plaintiff and Respondent.

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This is a dental malpractice case in which the jury rendered its verdict in favor of the plaintiff and allocated fault among two defendants and a nonparty. The trial court thereafter granted the plaintiffs motion for judgment notwithstanding the verdict and reallocated fault among just the defendants, one of whom appeals. We affirm the judgment notwithstanding the verdict.

FACTS

Elizabeth MacLyman received dental and orthodontic treatment from the Firestone Dental Group from September 1, 1994, to May 16, 2001. At the beginning, MacLyman had a 3-millimeter discrepancy between [her] upper and lower jaw (an overjet) -- a condition that could have been [corrected] nonsurgically as a standard conventional orthodontic case for braces that she would have worn for two to two and one-half years. As it turned out, she had to wear braces for seven years and suffer through three surgeries.

A.

MacLyman was treated by four orthodontists between August 1994 and May 1996 -- Robert Tuvsrud, D.D.S., William Williamson, D.D.S., Frank Nguyen, D.D.S., and Sharon Meng, D.D.S. -- none of whom stayed long with the Firestone Dental Group. MacLymans records for these years were often not signed or initialed, making it difficult to determine whether an orthodontic treatment was performed by an orthodontist, dentist, or dental assistant.

Theodore Benaderet, D.D.S., joined Firestone on a part-time basis in 1996 (he was hired by Rosemary Gonzalez, who was then running Firestone). Dr. Benaderet had at that time been an orthodontist for about 20 years and had his own practice. He treated patients at Firestone only on Wednesday, for which he was paid a daily wage by Firestone as an employee (subject to the usual payroll deductions). No one at Firestone met with Dr. Benaderet to discuss the groups operations or the charts of the patients he would be seeing.[1]

Dr. Benaderet first treated MacLyman in July 1996. Because MacLyman was wearing braces, Dr. Benaderet assumed she had been treated at Firestone for about a year or so but had no idea her treatment had started in 1994. He was not concerned about the lack of information because, as a trained orthodontist, [he] basically examined [her] and . . . pretty much kn[e]w which direction [he] need[ed] to go.

In July 1999, while MacLyman was still wearing braces and still being treated by Dr. Benaderet, Dr. Hannani (a general dentist and Firestone employee whose full name does not appear in the record) placed crowns on four of MacLymans teeth without any consultation with Dr. Benaderet. When Dr. Benaderet next saw MacLyman, he was a bit startled, shocked, and surprised to see that a dentist had dismantled a portion of MacLymans braces so he could put on the crowns.

B.

In November 1999, MacLyman (still in braces and still being treated by Dr. Benaderet at Firestone) consulted Gary Wyatt, D.D.S., an oral surgeon who was not affiliated with Firestone. In Dr. Wyatts words, MacLyman was a mess. Her teeth were going every which way. The roots were tipped . . . like a [picket] fence that was falling. Her overjet was worse, not better, and had become a large discrepancy between the upper and lower jaw [of] approximately 10 millimeters, not quite an inch. Dr. Wyatt concluded that this was caused by improper orthodontics and that surgery would be needed in order to correct the overall bite. At the same time, he concluded that [t]here was no possible way [he] could perform surgery at that time because MacLyman first needed a series of orthodontic procedures to prepare her for surgery. He told her that she definitely needed a lower jaw or mandibular procedure [and] that there was a possibility she would need a maxillary or an upper jaw procedure.

In January 2000, Dr. Wyatt talked to Dr. Benaderet about MacLyman and asked Dr. Benaderet to perform three orthodontic procedures to prepare MacLyman for surgery. In July 2000, at Hoag Presbyterian Hospital, Dr. Wyatt performed orthognathic surgery to correct MacLymans overjet bite.[2] As he later described it, Dr. Wyatt basically cut [MacLymans] upper jaw into three pieces, moved it forward slightly and widened it and placed fixation plates to stabilize it. He then made cuts in the lower bone and, using osteotomes or chisels, split or separate[d] the jaw and move[d] the jaw forward, back, [and] sideways into position, then wired the teeth together. In August, Dr. Wyatt removed the stabilizing splint and released MacLyman back to Firestone -- at which time the standard of care for an orthodontist (Dr. Benaderet) would have been to place a rigid arch wire to stabilize MacLymans mouth and teeth.

Dr. Benaderet saw MacLyman at Firestone once in August, but he then stopped treating patients at Firestone -- and there were no other orthodontists there at that time, leaving MacLyman without orthodontic care for at least two months. In late October, Rosemary Gonzalez hired Ronald Greenspan, D.D.S., to treat Firestones orthodontic patients, and he first saw MacLyman on November 1, 2000. In May 2001, Dr. Greenspan -- concerned about the lack of continuity in MacLymans orthodontic treatment -- referred MacLyman to Eugene Elvin, D.D.S., an orthodontist who was not affiliated with Firestone.

When Dr. Elvin first saw MacLyman in June 2001 (seven years after she started treatment at Firestone), he was really kind of shocked to see how long [she] had been in treatment and the condition of her teeth . . . . [] There was a lot of periodontal problems. The teeth were not lined up . . . . [] There was a crossbite and spaces open. It was . . . a real mess. . . . [It] was such a mess that [he] almost didnt want to take the case. Dr. Elvin concluded that MacLymans problems were caused by the braces she had worn for seven years, and he felt that it was really important to get the braces off, get her periodontal condition cleaned up, get her healthy again, and then put her back in braces and proceed with the treatment. In short, she had to start over.

C.

In November 2001, MacLyman sued Firestone and Dr. Page for dental malpractice, alleging that they had provided negligent care from September 1994 through May 2001, and that all defendants were at all times acting as the agents, servants, employees, assistants, and consultants of each other and, as such, were acting within the course and scope of their employment. At some later point, Drs. Greenspan and Benaderet were added as defendants (and Dr. Page, having died, was dismissed). Answers were filed.[3]

The case was tried to a jury in May and June 2006. Dr. Wyatt and Dr. Elvin testified for MacLyman, as did Nicholas Davis, D.D.S. Dr. Greenspan testified for himself and also presented testimony by Michael McDonald, D.D.S., and Sanford Ratner, D.D.S. Dr. Benaderet testified for himself and presented testimony by James Loos, D.D.S.

The essence of MacLymans case was that her injuries -- an increase in her original overjet, the development of a cross-bite, bone loss around her teeth, periodontal problems, the collapse of her gum and lip tissue -- were caused by the decision to leave her in braces for the seven years she was treated at Firestone, with specific emphasis on the wrongs committed by Dr. Benaderet and Dr. Greenspan. In their defense, Drs. Benaderet and Greenspan contended Dr. Wyatts surgeries contributed significantly to MacLymans injuries, and Dr. Greenspan claimed he was the only dental professional who had done the right thing -- by getting MacLyman to leave Firestone -- and that nothing he did caused MacLymans injuries.

The final witness testified on May 31. On June 1, MacLyman filed a motion in which she asked the trial court to use a verdict form that omitted any reference to Dr. Wyatt so that he could not be considered as a joint tortfeasor for the purpose of apportioning damages. According to MacLymans motion, Dr. Wyatt could not be considered as a joint tortfeasor because he is an oral surgeon, and the only other oral surgeon to testify at trial (Dr. Ratner) had stated that he could not opine that Dr. Wyatts treatment fell below the standard of care. (See Wilson v. Ritto (2003) 105 Cal.App.4th 361 [for an unnamed doctor to be included on a verdict form as a joint tortfeasor, there must be evidence that he was negligent].) The trial court described the motion as persuasive but denied it on the ground that every defendant here pointed fingers at Dr. Wyatt. The trial court instructed the jury and the lawyers presented their arguments.

After deliberating for several days, the jury found that Firestone and Drs. Greenspan and Benaderet had been negligent; that Firestones and Dr. Benaderets negligence caused MacLymans injuries (but that Dr. Greenspans negligence was not a cause of her injuries); and that MacLyman had suffered damages in the total amount of $344,837.98 (including $266,000 for pain and suffering). The jury apportioned damages thus:

5 percent MacLyman

30 percent to Firestone

30 percent to Dr. Benaderet

35 percent to Dr. Wyatt

Judgment was entered on the jurys verdict. MacLyman then moved for judgment notwithstanding the verdict, renewing her argument that the jury should not have been permitted to consider Dr. Wyatts fault. Firestone, in turn, filed its own motion for judgment notwithstanding the verdict, contending the evidence did not support the jurys findings that it was negligent or that its negligence caused MacLymans injuries. The trial court denied Firestones motion but granted MacLymans and modified the judgment to allocate fault this way:

5 percent to MacLyman

50% of the remaining amount (that is, 47.5 percent) to Firestone

50% of the remaining amount (47.5 percent) to Dr. Benaderet

Firestone (but not Dr. Benaderet) appeals from the judgment notwithstanding the verdict.

DISCUSSION[4]

I.

Firestone contends the trial court should not have granted the motion for judgment notwithstanding the verdict because there was substantial evidence to support the jurys finding that Dr. Wyatt was 35 percent at fault for MacLymans injuries. We disagree.

A.

Wilson v. Ritto, supra, 105 Cal.App.4th 361 is directly on point. In Wilson, a medical malpractice case against a podiatrist, the jury awarded about $260,000 to the plaintiff. The podiatrist appealed, contending the trial court erred when it denied her request to include a nonparty orthopedic surgeon as a joint tortfeasor on the verdict form. Division Two of the Fourth District rejected the argument, explaining that [a]pportionment among doctors . . . requires evidence of medical malpractice, not only as to named defendants, but also as to nonparty doctors. The burden of proof in apportioning noneconomic damages among joint tortfeasors should not be contingent upon whether a joint tortfeasor is a named defendant. . . .

Here, evidence merely showing that [the surgeons] treatment affected plaintiffs condition was not sufficient to add [him] as a joint tortfeasor. Defendant was required to establish [that the surgeon] was at fault, and fault is measured by the medical standard of care. [] Defendant argues she should not carry the burden of proving a nondefendant has committed medical malpractice in order to include the nonparty doctor on the special verdict form. We disagree. A defendant bears the burden of proving affirmative defenses and indemnity cross-claims. Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiffs injuries. Placing the burden on defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly onerous. . . . [] . . .

Applying the medical malpractice burden of proof, we conclude defendant failed to establish [that the surgeon] was a joint tortfeasor. Defendants expert . . . merely criticized [the surgeon] for not [doing a certain procedure]. There was no testimony that the failure to [do the procedure] was below the standard of care and it cannot be assumed as such. [The procedure] may have created [the same problems the plaintiff ultimately suffered]. [The expert] expressed his differing view as to how to treat plaintiff but did not state that [the surgeons] treatment was below the standard of care. [] There being insufficient evidence of fault on the part of [the surgeon], the trial court appropriately denied defendants motion to add [the surgeon] to the special verdict form as a joint tortfeasor. (Wilson v. Ritto, supra, 105 Cal.App.4th at pp. 369-370.)

B.

Firestone acknowledges the rule announced in Wilsonbut contends there was substantial evidence that Dr. Wyatt was negligent. We disagree.

Dr. Ratner (testifying for Dr. Greenspan) testified that Dr. Wyatts first surgery (July 2000) had locked MacLymans teeth into the position in which they were presented to Dr. Greenspan in November 2000. He explained that, by the time Dr. Greenspan saw MacLyman, neither Dr. Greenspan nor any other orthodontist in the world would have been able to change those teeth into a position that would be better or worse. Dr. Ratner complained that there were no good records for the period following Dr. Wyatts first surgery. He said a Panorex was taken which tells you if the segments were close to each other, but there was no cephalometric X-ray taken . . . . [] A cephalometric X-ray is a head shot, a lateral view of the head or front view of the head. And . . . it tells us where were the jaws placed . . . . And you dont know as a surgeon if you did exactly what you planned to do unless you take a cephalometric X-ray and put your presurgical prediction on top of that cephalometric X-ray, and say, yes, I did what I planned to do or, no, I didnt do what I planned to do. Unfortunately in this case there was no lateral or A.P. cephalometric X-ray taken immediately following surgery.

When Dr. Ratner was then asked whether that was a violation of the standard of care by Dr. Wyatt, he responded, Well, I would say that it is -- that any prudent surgeon should take this postoperative . . . X-ray. Otherwise, you have no baseline where you have gone to where you ended up after surgery. Dr. Ratner did not opine that the failure to take this X-ray caused any injury to MacLyman. Indeed, as Dr. Ratner testified on cross-examination, the sole point of his testimony was that, by the time Dr. Greenspan saw MacLyman, there was nothing he could have done that could have caused MacLymans injuries. When asked directly whether he could say with a reasonable degree of medical probability that Dr. Wyatt fell below the standard of care in the manner in which he did the [first] surgery, Dr. Ratner answered, Oh, no, I cant say that. When asked whether he had an opinion about whether Dr. Wyatt was negligent or not, Dr. Ratner answered, Absolutely not.

Contrary to Firestones claim on appeal, Dr. Ratners testimony does not include any evidence supporting the jurys finding that Dr. Wyatt was negligent. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 [except in rare situations such as an X-ray revealing a scalpel left in the patients body following surgery, expert evidence is conclusive and cannot be disregarded]; Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 51 [the concept of substantial evidence is not synonymous with any evidence].)[5]

II.

Firestone contends there is insufficient evidence to support the jurys finding that it was negligent. More specifically, it claims that because it is a corporate entity, not a health care practitioner, there is no physician-patient relationship to give rise to malpractice. It also contends the doctors who worked at its clinic were independent contractors, not employees. These claims lack merit.

A.

There is nothing in the record to suggest that Firestone has a legal existence independent of Dr. Pages practice -- and Firestone does not point to any evidence showing whether it is a corporation or partnership or dba. To the contrary, the evidence shows that Dr. Page started the practice using the name Firestone Dental Group, then abandoned it when he became ill. All we know is that, whatever its legal character, it did carry insurance (we know this because the parties stipulated on the record at the beginning of trial that the actions of Firestone [would] be covered by the policy of insurance provided to Dr. Page. . . .). In any event, there is evidence that Firestone ran a dental and orthodontic clinic at which it regularly treated patients.

B.

Substantial evidence supports the jurys implied finding that the dentists and orthodontists who worked at Firestone were employees, not independent contractors. (Metzger v. Barnes (1977) 74 Cal.App.3d 6, 9-10.) Dr. Benaderet assumed he was an employee. He was paid a daily wage, payroll taxes were deducted from his checks, and he received a W-2 form at the end of each year. Rosemary Gonzales testified that Dr. Hannani was a Firestone employee, that she hired Firestones employees, and that none of the dentists or orthodontists signed any sort of independent contractor agreement. Under any view of the evidence, Firestone owed a duty of care to its patients and is liable for its employees negligence.

We summarily reject Firestones contention that there is insufficient evidence that its negligence caused MacLymans injuries. Several experts agreed that MacLymans problems were caused by the length of time the braces were left on her teeth and the ever-changing identity of the treating orthodontists. In addition, Dr. Benaderets expert, Dr. Loos, testified that it was almost illegal for Dr. Hannani to place crowns on MacLymans teeth while she was wearing braces, and that any dentist who did so without consulting the orthodontist was acting below the standard of care. No more was required.

DISPOSITION

The judgment notwithstanding the verdict is affirmed. MacLyman is awarded her costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

______________________________________________________________________________

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] The Firestone Dental Group was originally owned by Theodore Page, D.D.S., who died in 2002. Before his death, Dr. Page was very involved with the group, its dentists, and its business operations. When he left due to illness, the group was run by Rosemary Gonzalez, a dental assistant.

[2] Orthognathic surgery refers to the surgical repositioning of the maxilla, mandible, and the dentoalveolar segments to achieve facial and occlusal balance. One or more segments of the jaw[s] can be simultaneously repositioned to treat various types of malocclusions and jaw deformities. (http://www.craniofacialcenter.com/book/Orthog/Orthog_1.htm [as of Aug. 22, 2007].)

[3] Meanwhile, MacLymans dental problems continued. By the time she filed suit, she had developed a cross bite (a noticeable three- to four-millimeter discrepancy between her nasal septem and the midline of her mouth). In December 2002, Dr. Wyatt performed a second surgery. When that procedure failed, he operated again in November 2003.

[4] On appeal from a judgment notwithstanding the verdict, we examine the evidence in the light most favorable to the jurys verdict -- that is, against the party who obtained the judgment notwithstanding the verdict -- and consider whether the jurys verdict was supported by substantial evidence. If it was, we will reverse the judgment notwithstanding the verdict; if not, we affirm. (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 769; Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580.)

[5] Dr. MacDonalds testimony adds nothing, and does no more than confirm Dr. Ratners view that by the time MacLyman saw Dr. Greenspan, the damage (whatever its cause) was done. He did not testify that Dr. Wyatt performed below the standard of care. For the same reason, we reject Firestones suggestion that Dr. Wyatts own testimony establishes his negligence. At most, he admitted that he could have done better, perhaps by delaying the second surgery -- but fairly read, Dr. Wyatts testimony establishes his opinion that he did as well as any oral surgeon could have done under the circumstances.