Short v. Kinkade

TURSI, Judge.

In this dental malpractice action, plaintiff, Mary Short, appeals from the adverse jury verdict rendered in the trial court and the court’s award of $4,504.10 in costs to defendants, J.H. Kinkade, D.D.S. and D.J. Kinkade, D.D.S. We reverse.

Plaintiff contends that the trial court erred in rejecting her proposed instruction regarding the standard of care required of the defendants under the facts of this ease. Her second contention is that the trial court improperly awarded costs to the defendants for expenses incurred by defendants’ experts in preparation for trial.

Plaintiff became a patient of defendants in 1974. In 1979, one of the defendants, J.H. Kinkade, performed an occlusal equilibration on the plaintiff. Equilibration is a modification of the biting surfaces of the teeth to improve bite or occlusion. The goal of the procedure is to achieve centric relation, or harmonious occlusion. After six treatment sessions, centric relation was not achieved. The defendants determined that it was necessary for plaintiff to retain the services of a dentist with more experience in occlusal equilibration. Subsequent to the treatment received from the defendants, plaintiff underwent full mouth reconstruction at a cost in excess of $11,000, and she initiated this action against defendants.

At trial, plaintiff timely tendered an instruction setting forth the standard to be applied to a dentist with a specialty in a field of dentistry. The trial court rejected the proposed instruction and, instead, instructed the jury to apply the standard required of a general dental practitioner. Plaintiff contends that the record contains sufficient evidence to support instructing the jury on the standard of care of a specialist in the area in which the defendant claimed special expertise, and that the trial court committed prejudicial error in failing to so instruct the jury. We agree.

We find no cases in Colorado specifically dealing with the standard of care applicable to a practitioner holding himself out as possessing special knowledge and skill in a particular field of medicine or dentistry. However, authority on this issue is ample. Restatement (Second) of Torts § 299A states that a general standard of care is to be applied to a professional, “[ujnless he represents that he has greater or less skill or knowledge” than normally possessed by members of the profession. And, Restatement (Second) of Torts § 299A comment d states:

“An actor undertaking to render services may represent that he has superior skill or knowledge, beyond that common to his profession or trade. In that event he incurs an obligation to the person to whom he makes such a representation, to have, and to exercise, the skill and knowledge which he represents himself to have. Thus a physician who holds himself out as a specialist in certain types of practice is required to have the skill and knowledge common to other specialists.”

See Atkins v. Clein, 3 Wash.2d 168, 100 P.2d 1 (1940). Also, Prosser states that if a professional represents himself as having greater skills than the average member of the profession, the applicable standard of care is modified accordingly. W. Prosser, Torts § 32 (4th ed. 1971). See Atkins v. Clein, supra. See also McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549 (1959).

The defendants cite Colo.J.I. 15:5 (2d ed. 1980) for the proposition that in order for the specialist standard to be applicable, the professional must hold himself out as being a specialist, as opposed to a representation of greater skills or knowledge. This argument is unpersuasive in that this pattern jury instruction is intended as a model and will yield to prevailing law. C.R.C.P. 51.1. See Federal Insurance Co. v. Public Service Co., 194 Colo. 107, 570 P.2d 239 (1977).

Neither Prosser nor the Restatement require a recognized specialty as a prerequisite to a specialty standard of care instruction. All that is necessary is the establishment of a heightened standard of care by way of expert testimony. See Smith v. Curran, 28 Colo.App. 358, 472 P.2d 769 (1970). In a case such as this, the standard, as adduced by expert testimony, will be consistent with the level of skill or expertise as represented by the practitioner. Thus, the gravaman of the action is not negligent misrepresentation, but rather is breach of the heightened standard of care applicable where the defendants are practicing a form of dentistry which requires special knowledge and training.

Here, plaintiff first learned of the existence of equilibration treatment from the defendants. The defendants advised the plaintiff that occlusal equilibration would prove beneficial and that they were capable of administering the treatment based on a course in equilibration which they were attending. Plaintiff was preparing to move to Boulder and asked the defendants if there were any dentists in the Boulder area who could perform this procedure. The defendants stated that there were two dentists in Boulder who were also attending the course, but they could not recommend either of them until they had watched them perform the procedure. The record does not contain the recommendations of the defendants in regard to the Boulder dentists, but it does indicate that the defendants began performing equilibration treatment on the plaintiff two days after the above discussion.

Some time during the sixth session of the treatment procedure, which spanned almost three months, plaintiff became concerned with her progress and inquired of the defendants as to whether there were other dentists capable of performing occlusal equilibration. The defendants stated that this procedure was not performed by many dentists. The defendants stated that they could send the plaintiff to dentists in Aspen or Los Angeles, but that there would be no difference in the treatment received.

We conclude that a question of fact existed as to whether the defendants held themselves out as possessing special skills in the area of occlusal equilibration. Questions of fact are to be determined by the jury. Converse v. Zinke, 635 P.2d 882 (1981).

If there is a dispute, based on the evidence, as to whether the special skills or the general practitioner standard should be given, the judge should instruct the jury as to both with proper modification. Colo.J.I. 15:5 (2d ed. 1980) (Notes on Use).

Here, plaintiff adduced expert testimony establishing a specialty standard of care for dentists engaging in equilibration treatment. See Short v. Downs, 36 Colo.App. 109, 537 P.2d 754 (1975). Two of the plaintiffs expert witnesses stated that they had completed post-graduate courses and training in equilibration treatment. One of these experts had attended an institute in Florida which offered specialized post-graduate training in occlusal equilibration. Further, plaintiff was referred to a dentist, in Boulder, who limited his practice to equilibration and occlusal reconstruction. And finally, defendants’ expert witness, a member of the American Equilibration Society and the Society for Occlusal Studies, was offered as having “subspecialties in the fields of prothodontics and equilibration.”

Although plaintiff’s proposed instruction did not accurately reflect the prevailing law, it sufficiently informed the trial court of plaintiff’s position to trigger the trial court’s duty to modify the draft instruction and to instruct the jury correctly on the applicable law. See Stephens v. Koch, 192 Colo. 531, 561 P.2d 333 (1977). The evidence warranted an instruction on the standard of care required of a practitioner with a sub-specialty or special training in equilibration treatment. The trial court’s failure to so instruct the jury constitutes prejudicial error.

Contrary to the contentions of the defendants, plaintiff’s pleadings are sufficiently specific as to give notice of the standard of care under which she seeks to prove a breach of duty. C.R.C.P. 8(a). See Weick v. Rickenbaugh Cadillac Co., 134 Colo. 283, 303 P.2d 685 (1956).

Because we are reversing the judgment entered on behalf of defendant, we do not address the propriety of the costs assessed against plaintiff.

The judgment of the trial court is reversed and the cause is remanded for retrial in a manner consistent with this opinion.

STERNBERG, J., concurs. BABCOCK, J., dissents.