Hall v. Mansueto

Filed 8/4/06 Hall v. Mansueto CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed in part and reversed in part.

This dental malpractice action proceeded to a court trial wherein the court found that defendant Robert F. Mansueto, D.D.S., was negligent when he placed 13 dental implants intended to support fixed or permanent bridgework and also that he fraudulently misrepresented the treatment he would be providing. The court awarded plaintiff Kathleen Hall damages consisting of (1) $31,810.02 in past dental/medical expenses; (2) $100,494 in future dental/medical expenses; (3) $100,000 in past pain and suffering; and (4) $150,000 in future pain and suffering. The future dental/medical expenses consisted of $27,694 to remove and replace the implants, $52,800 to restore the implants with crowns and bridges, and $20,000 in hospitalization costs. The court entered judgment against Dr. Mansueto and his professional corporation, Robert Mansueto, D.D.S., Inc., dba Coronado Dental Group.

On appeal, Dr. Mansueto does not contest the court's finding on liability. Rather, Dr. Mansueto asserts that (1) the court's award of future dental/medical expenses was (a) not supported by the evidence, and (b) based upon evidence the court excluded prior to trial; (2) the award of future hospitalization expenses was based upon speculation; and (3) there is no substantial evidence to support the award of future noneconomic damages. We conclude there is no substantial evidence to support the award of $20,000 for future hospitalization costs, and therefore reverse that portion of the judgment. We reject the remainder of Dr. Mansueto's contentions and the judgment affirmed is in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Because Dr. Mansueto's appeal for the most part challenges the sufficiency of the evidence to support the award of future damages to Hall, we recite the facts of this case in the light most favorable to the judgment. (Marriage of Mix (1975) 14 Cal.3d 604, 614.) Additionally, as Dr. Mansueto does not dispute the court's finding on liability and only contests the damages award, we limit our facts to those relevant to the damages issues.

A. Treatment by Dr. Mansueto

In July 2001 Hall noticed that a bridge on her lower arch was loose. Responding to a newspaper ad, Hall contacted Dr. Mansueto, a dentist in Coronado. After consulting with him about treatment options for the upper and lower arch, Hall returned in January 2002 to have Dr. Mansueto begin work on the lower arch. Dr. Mansueto extracted all of the remaining teeth on the lower arch and replaced them with seven implants. In June 2002 the lower arch implants were restored with three bridge sections.

In May 2003 Hall returned to Dr. Mansueto to have him complete work on the upper arch. He placed four implants on the upper right arch and two implants on the upper left arch, each supported by crowns. The implants on the upper right were placed in the position of teeth Nos. 3 and 4, with crowns splinted together, and Nos. 5 and 6, with two crowns splinted together.^[1] On the upper left arch, implants were placed in the area replacing teeth Nos. 13 and 14, with both crowns splinted together. In addition, Dr. Mansueto prepared the remaining seven permanent upper front teeth, teeth Nos. 7 through 13, for a six-unit bridge.

In September 2003 Kathleen Hall returned to Dr. Mansueto's office for the placement of the permanent bridge on the upper anterior, the bridge covering the prepared natural teeth. Later that month, Hall moved from San Diego to North Carolina.

B. Treatment in North Carolina

In November 2003 Hall consulted with North Carolina dentist, Richard Olsen, D.D.S., to evaluate complaints of pain and loose teeth in the upper front arch, near teeth Nos. 6 and 7. Dr. Olsen then referred her to a periodontist, Paul Tolmie, D.D.S. In December 2003 Dr. Tolmie removed the upper front bridge and extracted all supporting permanent teeth. Dr. Tolmie removed implant No. 6, which had become loose because of an underlying infection. The upper front teeth were replaced with a "flipper" or removable partial denture following this surgical procedure.

In March 2005 two of the three lower bridges came loose and Dr. Olsen removed all of the bridgework and replaced it with a full lower denture over the existing seven implants.

In May 2004, while on vacation in Florida, Hall noticed implant No. 5 was loose. When Hall returned to North Carolina, Dr. Tolmie removed implant No. 5 because it had failed.

C. Dr. Tolmie's Testimony on Necessity of Future Treatment

At trial, Hall presented the videotaped deposition testimony of Dr. Tolmie, taken in North Carolina in March 2005. He testified regarding his treatment rendered to Hall and her need for future care.

According to Dr. Tolmie, the implants that were in still in place in Hall's mouth at the time of trial were not usable for any restorative option, fixed or removable. He explained that they were not usable because of the position of the implants, the current fit of the abutments, which were not retrievable, the number of implants, and the fact that many of the implants did not have adequate bone support around them. Dr. Tolmie testified that if the implants could not be used, "then those implants would need to be removed and any bone damage related to the placement of the implants or bone damage related to subsequent infection around the implants or any bone loss related to removal of the implants would need to be gained back. So with bone grafting, build the bone back up and then place new implants and build the bridge work."

Dr. Tolmie explained that removal and replacement of the implants would be necessary in the future before any fixed bridgework could be placed: "[I]f the patient is going to have what she set out to have, which was this fixed bridgework, I would not build on those implants in their current number, position, available bone, and the other . . . caveats." Thus, in order to have fixed bridge work, as she did before she was treated by Dr. Mansueto, the remaining implants would most likely have to be taken out.

D. Dr. Olsen's Testimony on Necessity of Future Treatment

At trial, Hall also presented the videotaped deposition testimony of Dr. Olsen, taken in San Diego on May 18, 2005. Dr. Olsen also opined that removal of the implants was the most probable outcome. To do so, Hall would "have to have bone grafting to replace the bone she's lost." Dr. Olsen explained, "She needs to have the remaining implants removed, bone grafting accomplished, healing take place, new implants placed and then rebuilt with [a] new crown and bridge."

On cross-examination, Dr. Olsen was asked whether he agreed the prognosis for the remaining implants was good. He replied, "I would not say that . . . . No. I don't think that [it] is." Dr. Olsen was also asked on cross-examination if he agreed it was a possibility the existing implants might be used in the future for restorative work. He would only agree that it was "possible."

Dr. Olsen was asked to agree that future treatment involving the removal and replacement of the remaining implants was "not reasonably likely to occur in the future." Dr. Olsen replied: "No. No, I won't agree with that." On cross-examination Dr. Olsen was asked, "Between the time that the patient first came to you in November of [2003] and [May 2005], has the prognosis of these implants . . . worsened?" Dr. Olsen replied, "In my mind, . . . they have."

In assessing Hall's condition, Dr. Olsen stated that she "didn't get what she thought she was getting. She currently has a lower denture, and she has a flipper and four remaining implants and crowns on the upper. She assumed that she was going to get fixed bridgework on the top and bottom, which hopefully would last a long time, and that clearly doesn't seem to be the case. [¶] She's had continued loss of bone, particularly in the areas where implants have failed."

E. Evidence That Future Expenses Were Caused by Dr. Mansueto

When asked whether to a reasonable degree of medical probability the problems with the implants were caused by Dr. Mansueto's negligent treatment, Dr. Olsen answered, "I believe that's true." Dr. Olsen stated that "if everything was done correctly the first time, most, if not all, of those implants could still be working and doing nicely." Dr. Olsen said Dr. Mansueto's negligence was the "overwhelming reason" the implants failed.

When asked whether the need for future bone grafting was caused by Dr. Mansueto's actions, Dr. Olsen replied, "[Y]es, because of the failing implants. As implants fail, they take bone with them. The infection in the bone, the pH of that infection takes a huge amount of bone with it." Dr. Olsen stated that while a minor portion of the costs could be attributed to Hall's contributory negligence, the significant portion was caused by Dr. Mansueto's negligence.

F. Cost of Future Medical Expenses

Dr. Olsen was asked whether he was familiar with the "reasonable costs of treatment related to the kinds of work that Ms. Hall has had done and will need in the future." He responded, "I am." When asked how he was familiar with the costs, he explained, "Because I have to quote those fees, and I talk to my colleagues -- I have to quote the fees to patients. We discuss them. You know, it's an ongoing topic of conversation."

It was Dr. Olsen's independent opinion that the implants would likely have to be removed and new implants put in, and he did not rely on any other doctors for that opinion. However, to arrive at the cost of the future treatment, he relied, in part, on a cost estimate prepared by oral surgeon Steven Gollehon, M.D./D.D.S., and in part, on his own familiarity with such fees. Dr. Olsen included the cost of Dr. Gollehon's oral surgery fees with his own fees for the future reconstructive work to arrive at an estimate for future medical/dental expense. The expenses totaled $80,494. Dr. Olsen opined that the costs set forth in Dr. Gollehon's estimate were reasonable, customary, and "lower than I expected them to be."

G. Cost of Future Hospitalization

Dr. Olsen stated that, as to replacement of the implants, because of the extensive bone grafting to be done, "oftentimes, those are done in the hospital." He further opined that "[i]t wouldn't surprise me, if they did do it in the hospital, that she could be in there for at least two or three days."

However, Dr. Olsen admitted that he could only speculate about the costs of future hospitalization:

"Q. Do you have any familiarity with the hospitalization costs?

"A. I can't accurately tell you. But if they're going to use the operating room, that would take some significant amount of time. It's hard for me to believe that it's not going to cost another $20,000 to get her out of the hospital if she's in there for three days.

"[Dr. Mansueto's counsel]. Move to strike. Calls for speculation.

"A. And it is speculation. I will tell you that." (Italics added.)

H. Future Noneconomic Damages

Hall testified that as a result of Dr. Mansueto's negligence, her entire social life and eating habits have changed. Her physical appearance has changed. Her face appears shrunken and she no longer looks like herself. She described the substantial pain and suffering she went through with the initial implants process, which she will likely endure again when she undergoes the replacement of implants and bone grafting.

I. Court's Ruling

In June 2005 the court found in favor of Hall. The court first found that Dr. Mansueto's services fell below the standard of care and his actions were a substantial factor in causing harm to Hall. The court also found Dr. Mansueto liable for fraud.

As to Hall's damages, the court stated that, "As far as the remaining implants and crowns and bridgework, both Dr. Olsen and Dr. Tolmie have testified that they would not use these implants. They are becoming mobile, they are infected. Their status is so questionable that neither dentist would consider using them. Also, there is continuing bone loss." The court found Dr. Mansueto liable for (1) past economic loss in the amount of $31,810.02; (2) future economic loss, including medical expenses, in the amount of $100,494; (3) past noneconomic loss in the amount of $100,000; and future noneconomic loss in the amount of $150,000. Thus, the court found Hall's total losses to be $382,304.02. However, the court also found Hall to be 15 percent at fault, reducing her total award to $324,958.41.

This timely appeal followed.

DISCUSSION

I.

STANDARD OF REVIEW

"When the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) In applying the substantial evidence standard of review, "'the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

"It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) Alternatively stated, we do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. (Id. at p. 629.) Rather, "we defer to the trier of fact on issues of credibility. [Citation.]" (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)

II.

APPLICABLE LAW

"Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future." (Civ. Code, § 3283.) It is well-settled that "[p]rospective detriment must be so proven that from the proof the [trier of fact] can reasonably conclude that the claimed detriment is reasonably certain to occur. [Citation.]" (Khan v. Southern Pac. Co. (1955) 132 Cal.App.2d 410, 416 (Khan).) "[I]t is generally a question for the [trier of fact] to determine from the evidence whether or not the claimed prospective detriment is reasonably certain to occur." (Ibid.) It is "not required" for a doctor to "testify that he [is] reasonably certain that the plaintiff would be disabled in the future. All that is required to establish future disability is that from all the evidence, including the expert testimony, if there be any, it satisfactorily appears that such disability will occur with reasonable certainty. [Citations.]" (Paolini v. City & County of San Francisco (1946) 72 Cal.App.2d 579, 591.)

The fact that the amount of future damages may be difficult to measure or subject to various possible contingencies does not bar recovery. (Noble v. Tweedy (1949) 90 Cal.App.2d 738, 745.)

III.

EXCLUDED EVIDENCE

Dr. Mansueto asserts that the award of future economic damages was based upon the opinion of Dr. Gollehon, whose opinions the court had ruled pretrial could not be used for any purpose. This contention is unavailing.

A. Background

Prior to trial, Dr. Mansueto brought a motion in limine to exclude the written treatment plan prepared by the oral surgeon, Dr. Gollehon, which was relied upon by Dr. Olsen in calculating future treatment costs. The court granted the motion, stating, "Dr. Gollehon's opinions are inadmissible. And no expert can rely on Dr. Gollehon's opinions." However, after hearing further argument from counsel for Hall indicating that Dr. Olsen would be testifying as to a treatment plan and that in part he was relying on his consultation with Dr. Gollehon, the court clarified its ruling, stating, "[Y]ou can rely on hearsay in forming opinions but not [] reveal the content of the hearsay opinion."

B. Analysis

Evidence Code section 801, subdivision (b) provides:

"If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] . . . [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Italics added.)

Thus, "[a]lthough it is appropriate for a physician to base his or her opinion in part upon the opinion of another physician [citations], it generally is not appropriate for the testifying expert to recount the details of the other physician's report or expression of opinion." (People v. Catlin (2001) 26 Cal.4th 81, 137; see also Cal. Law Revision Com. com., 29B Pt. 3 West's Ann. Evid. Code (1995 ed.) foll. § 801, p. 19 ["A physician may . . . rely on reports and opinions of other physicians"]).)

As detailed, ante, in giving his estimate of future medical/dental costs, Dr. Olsen relied in part on a cost estimate provided to him by Dr. Gollehon, which he incorporated into his total cost estimate. That was entirely proper under Evidence Code section 801, subdivision (b).

Moreover, Dr. Mansueto's assertion that the court prohibited Hall from relying on any information from Dr. Gollehon lacks merit. Hall only cites to the court's original ruling and ignores the court's later ruling allowing Dr. Olsen to rely on that excluded hearsay in rendering his expert opinion.

IV.

SUBSTANTIAL EVIDENCE FOR AWARD OF FUTURE ECONOMIC DAMAGES

Dr. Mansueto challenges the sufficiency of the evidence to support the amount the court awarded to replace the implants and place new crowns and bridges. Specifically, Dr. Mansueto asserts that (1) there is no evidence that his negligence caused these damages; and (2) there is no evidence that it was reasonably likely it would be necessary to replace the implants. These contentions are unavailing.

As detailed above, Dr. Olsen opined that Dr. Mansueto's negligence caused the failure of Hall's implants and the need to replace them. Dr. Mansueto ignores the substantial testimony on causation, discussed, ante, and instead focuses on one question concerning what treatment Hall needed to "restore her mouth to the condition which she believed she was getting with Dr. Mansueto . . . ." Dr. Mansueto describes this as merely "Hall's subjective belief about 'what she was getting.'" This contention is unavailing. The question was merely framed in a manner that asked what would it take to restore Hall to a condition she would have been in had Dr. Mansueto's treatment not been negligent. That question was properly framed to support the award of future damages.

Further, as detailed above, Drs. Olsen and Tolmie testified that it was reasonably certain that removal and replacement of remaining implants will be necessary to cure Dr. Mansueto's negligent work. Again, Dr. Mansueto ignores this substantial evidence supporting the award of future dental/medical treatment. Instead, he focuses on the fact that Dr. Olsen was not absolutely certain new implants were needed. In this regard, Dr. Olsen admitted on cross-examination in his deposition that it was "possible" that they would not need to be replaced.

However, because Dr. Olsen was talking about what was likely to happen in the future, it does not matter that he did not testify conclusively that the implants would have to be removed. It only need be reasonably certain the costs would be incurred, which Dr. Olsen confirmed. Ostertag v. Bethlehem etc. Corp. (1944) 65 Cal.App.2d 795 (Ostertag) is instructive.

In Ostertag, the plaintiff's expert testified, based on his examination of plaintiff, "'[I]t is reasonable to assume he is going to have trouble . . . in the future. Just how much, I don't know. Just what the course of that trouble will be, I don't know.'" (Ostertag, supra, 65 Cal.App.2d at pp. 805-806.) The court found this testimony "sufficient to support a finding of future damages with reasonable certainty." (Id. at p. 806.)

Similarly, the plaintiff's expert in Guerra v. Balestrieri (1954) 127 Cal.App.2d 511 based his opinion on future damages on the fact plaintiff was still experiencing pain two years after the accident and his experience that "'[f]requently in this type of neck injury a patient will continue to have symptoms indefinitely' and '[i]t may last forever; . . . it may get worse; he may improve somewhat.'" (Id. at pp. 518-519.) The court held, "From such testimony the jury could reasonably conclude that plaintiff was reasonably certain to experience some pain and disability for the rest of his life." (Id. at p. 519.)

Thus, the fact that there was some uncertainty as to whether the existing implants could be used in the future did not preclude the court in the instant case from finding that it was reasonably certain that they would not be.

V.

FUTURE HOSPITALIZATION COSTS ARE SPECULATIVE

Dr. Mansueto objects to the court's award of future hospitalization costs on the grounds that it is speculative. This contention is well-taken.

Although experts are given substantial leeway in assessing future medical costs, they still must testify that such costs are "reasonably likely to occur." (Khan, supra, 132 Cal.App.2d at p. 416.) However, as discussed above, when testifying as to whether Hall would have to be treated in a hospital to have the implants replaced, Dr. Olsen admitted (1) he was not familiar with the amount it would cost, and (2) his testimony as to the cost of such hospitalization was "speculation." Because Dr. Olsen admitted that he did not know with reasonable certainty the cost of any future hospitalization, the court erred in awarding $20,000 for future hospitalization, and that portion of the judgment must be reversed.

VI.

SUBSTANTIAL EVIDENCE SUPPORTS AWARD OF NONECONOMIC DAMAGES

Dr. Mansueto asserts that because the award of future noneconomic damages is based upon the need for future surgery to remove and replace her implants, and there is no substantial evidence that such procedures are reasonably likely to occur, that award must also be reversed. However, because we are affirming the court's award of future economic damages because it is reasonably certain that Hall will have to have the implants removed and replaced, with the acknowledged pain, discomfort and inconvenience to Hall, we affirm the award of noneconomic damages.

DISPOSITION

The award of $20,000 for the cost of future hospitalization is reversed. In all other respects the judgment is affirmed. The parties shall bear their own costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Real Estate Attorney.

^[1] The teeth are numbered 1 through 16 on the upper arch. Tooth No. 1 is the upper right third molar or wisdom tooth. Tooth No. 16 is the upper left third molar or wisdom tooth. The teeth on the lower arch are numbered 17 through 32. Tooth No. 17 is the lower left third molar. Tooth No. 32 is the lower right third molar.