Judgment rendered July 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,480-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
GARY NORDGREN Plaintiff-Appellant
versus
STATE OF LOUISIANA, THROUGH Defendants-Appellees THE BOARD OF SUPERVISORS OF THE LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE THROUGH LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-SHREVEPORT, AND TODD DARREN JAEBLON, D.O., AND JOSEPH MARC BONVILLAIN, M.D.
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 598061
Honorable Craig Owen Marcotte, Judge
PETER DENIS JOSEPH DERBES Counsel for Appellant
JEFFREY M. LANDRY Counsel for Appellees Attorney General
AMANDA D. BROTHERTON-TODD AMBER MANDINA BABIN Assistant Attorneys General
Before PITMAN, GARRETT, McCALLUM, JJ. McCALLUM, J.
Gary Nordgren alleges that an orthopedic surgeon at LSU Health
Sciences Center-Shreveport (“hospital”) harvested bone from his right knee
without his consent during surgery to repair a fracture in his upper right arm.
Two of the three physicians on a Medical Review Panel concluded that the
surgeon breached the standard of care for informed consent. However, the
panel physicians agreed that any damage that resulted from this autograft
procedure was not a factor of the breach itself but was a factor of the
infection, a known complication of any surgical procedure. Nordgren
subsequently filed this lawsuit against the surgeon, his surgical resident, and
the State of Louisiana through the LSU Board of Supervisors through the
hospital (collectively referred to as “LSU”). Compensation for pain and
suffering, disability, mental anguish, and emotional distress were among the
damages sought by Nordgren.
Nordgren filed a motion for partial summary judgment on the issue of
LSU’s liability for mental anguish damages. LSU then filed a motion for
summary judgment seeking dismissal of Nordgren’s action. The trial court
found there was “accurate informed consent” and granted LSU’s motion for
summary judgment. Nordgren now appeals the judgment dismissing his
lawsuit. Concluding that genuine issues of material fact remain regarding an
alleged misrepresentation, breach of the duty to disclose, and causation, we
reverse the judgment of dismissal and remand.
BACKGROUND
In November of 2012, Nordgren, who was an inmate at Avoyelles
Correctional Center, fractured his right humerus while performing triceps dips. Nordgren had sustained a gunshot wound in that area of his arm seven
years earlier.
A gravity cast was initially placed on the broken arm. However, when
the fracture did not completely heal, a different type of cast was substituted.
Nevertheless, the fracture remained unhealed.
On April 9, 2013, Nordgren was examined at the hospital by Dr. Todd
Jaeblon, an orthopedic surgeon. Dr. Jaeblon was assisted by Dr. Joseph
Bonvillain, an orthopedic surgery resident. Dr. Jaeblon described
Nordgren’s fracture as accompanied by pre-existing deformities and scar
tissue. He told Nordgren that they could continue with the nonsurgical
course of treatment or he could attempt to heal the fracture surgically.
Nordgren opted to proceed with surgery, which would include the possibility
of an autograft procedure. An autograft involves the harvesting of bone
from the patient’s own body while the patient is under general anesthesia.
An informed consent form signed by Nordgren on April 9 described
the treatment as “open versus closed reduction using internal versus external
fixation of right humerus fracture; possible use of bone autograft, allograft,
or other bone substitute.” The form stated that the treatment side was the
right. As was customary for him, Dr. Jaeblon did not review the consent
form before it was given to Nordgren. Dr. Bonvillain, the surgery resident,
went over the consent form with Nordgren.
By signing the consent form, Nordgren agreed that the doctors could
perform more procedures if he needed them. Nordgren also agreed that he
had asked all questions that he had about the treatment, the risks, and the
other choices, and that he chose to proceed with the treatment and
procedure. 2 The hospital’s informed consent policy stated that its purpose was to:
(i) familiarize the hospital’s staff with the requirements for obtaining
consent; (ii) assure compliance with state law and the requirements of
accrediting agencies; (iii) protect the patient’s right to give informed
consent; and (iv) ensure patients are adequately informed prior to giving
consent. The policy further stated that a specific consent should include the
“[s]pecific site, including left or right when appropriate[.]” Although the
consent form signed by Nordgren listed the arm surgery location, it did not
list any specific autograft site.
There is a dispute concerning what information about the potential
autograft site was conveyed by Dr. Jaeblon to Nordgren on April 9.
Nordgren contends that Dr. Jaeblon told him that bone would be harvested
from his hip. Dr. Jaeblon testified at his deposition that he does not use the
word “hip” and he could not recall telling Nordgren that his hip would or
could be used for the graft. Dr. Jaeblon also testified that he does not
indicate to his patients the location of the autograft in detail, but will tell
them that he will borrow bone from a part of the body where they are less
likely to need it. When Dr. Jaeblon was asked if he remembered what he
told Nordgren about possible donor sites, he said it was pretty much the
same thing that he tells his other patients, which is that he will harvest bone
from one of several sites. He added that he will give examples of sites if the
patient asks questions, but it is rare that a patient will ask exactly which bone
will be the donor site. Dr. Jaeblon remembered that Nordgren had very few
questions, but he could not recall what those questions were.
Nordgren was admitted to the hospital on April 29 for the surgery.
His right upper and lower extremities, along with his left hip, were prepped 3 prior to surgery. Dr. Jaeblon’s operative report states the arm surgery was
complex. Bone was harvested from Nordgren’s intramedullary right femur
after an incision was made at the mid patellar tendon. Nordgren asserts that
he first noticed his right knee had been operated on when he was brought to
the surgery recovery room. Nordgren was discharged from the hospital on
April 30.
Nordgren testified in his deposition that he reported severe pain in his
right knee to Dr. Jaeblon following surgery. He also testified that when he
asked Dr. Jaeblon why he operated on his right knee, the surgeon
sidestepped his question and he never received a response.
On May 14, 2013, Nordgren complained to doctors of right knee pain
since the surgery. He was given a prescription for antibiotics, which he first
took on May 16. Nordgren was admitted to the hospital on May 17 because
of right knee pain and swelling. The diagnosis was prepatellar infected
bursitis. Nordgren remained in the hospital for about nine days receiving
treatment for the infection.
Nordgren filed a request for a Medical Review Panel (“MRP”) on
April 25, 2014. The MRP decided 2-1 that the evidence supported the
conclusion that Dr. Jaeblon and Dr. Bonvillain failed to meet the applicable
standard of care. In the MRP’s written reasons for conclusion, Dr. Ellis
Cooper and Dr. Marion Milstead explained they found a breach of the
standard of care because the hospital’s policy required informing Nordgren
of the specific site of the procedure. Dr. Dan Oas disagreed that there had
been a breach.
Dr. Oas explained in the MRP’s reasons for conclusion that he has
performed similar surgeries when multiple donor areas for an autograft 4 could have been needed, and that just as Dr. Jaeblon had done, he discussed
the potential multiple harvest sites in detail. Dr. Oas opined that a consent
form which listed autograft harvest when multiple harvest sites were
considered did not breach the standard of care as long as the sites were
discussed with the patient in detail. Dr. Oas thought Dr. Jaeblon testified
that he explained the multiple potential harvest sites to Nordgren.
Regarding causation, the MRP agreed that any damage that resulted
from the breach was not a factor of the breach itself but was a factor of the
infection, which is a known complication of any surgical procedure. The
MRP also agreed that there was no impairment or disability resulting from
the breach itself. Finally, the MRP recognized there was an issue of
material fact regarding the dispute over whether or not Dr. Jaeblon told
Nordgren that the graft would come from his hip.
In January of 2017, Nordgren filed this lawsuit asserting a lack of
informed consent. Nordgren contended that Dr. Jaeblon told him that if a
bone graft was needed, it would be taken from his hip, and on the basis of
that information, he consented to the surgery. Nordgren further contended
that his knee was never mentioned as a possible harvest site, and the consent
form violated hospital policy because it did not list the potential harvest
sites. Nordgren maintained that he did not give informed consent to his knee
being the site of the autograft; therefore, he did not knowingly accept the
risk of a knee infection. Nordgren alleged that he has experienced extreme
pain and loss of function in his right knee because of the infection.
Summary judgment
Nordgren filed a motion for partial summary judgment regarding his
entitlement to “dignitary” or mental anguish damages that were allegedly 5 sustained at the moment that Dr. Jaeblon invaded his knee. In support of his
motion, Norgren submitted: (i) the MRP opinion and written reasons for
conclusion; (ii) excerpts from his own deposition as well as from the
depositions of Dr. Jaeblon and Dr. Bonvillain; (iii) the consent form and the
hospital’s informed consent policy; (iv) excerpts from his medical records;
and (v) Dr. Jaeblon’s supplemental answer to an interrogatory.
LSU argued in opposition to the motion that Nordgren’s consent is
presumed to be valid and effective under La. R.S. 40:1157.1(A) in the
absence of proof that his consent was induced by misrepresentation of
material facts. LSU maintained there is no requirement under law that a
specific harvest location be mentioned on the form, and the hospital’s
informed consent policy cannot expand the statutory requirements for
informed consent. LSU contended that Nordgren could not establish that the
alleged breach of duty was a cause-in-fact of his damages, or that a
reasonable patient in his position would have refrained from consenting to
the knee being used as the harvest location.
Submitted by LSU in opposition to Nordgren’s motion for partial
summary judgment were: (i) excerpts from the depositions of Nordgren and
Dr. Jaeblon; (ii) excerpts from Nordgren’s hospital records; (iii) the consent
form and the hospital’s informed consent policy; (iv) the MRP opinion and
written reasons for conclusion; and (v) the results of a knee x-ray done on
July 22, 2013.
LSU subsequently filed its own motion for summary judgment on
March 20, 2019. LSU argued that summary judgment was proper because
Nordgren had not rebutted the presumption that his written consent was
6 valid and effective, and he could not meet his burden of proving a lack of
informed consent or causation.
In support of the motion, LSU principally submitted the same
documents that it had submitted in opposition to Nordgren’s earlier motion.
New documents submitted by LSU included Dr. Oas’s affidavit, an
additional page from Nordgren’s deposition, and an additional medical
record from Nordgren’s hospitalization for the knee infection.
Opposing LSU’s motion, Nordgren contended there is a disputed issue
of material fact concerning the misrepresentation about the hip, there was no
indication of a medical exigency requiring Dr. Jaeblon to take bone from the
knee instead of the hip, and he agreed to the surgery because he thought his
hip would be the donor site. Nordgren further contended that because the
specific donor location is part of the nature of the procedure, the consent
form failed to set forth the nature of the procedure as required by law.
Nordgren also attacked Dr. Oas’s affidavit as being premised on Dr. Jaeblon
telling Nordgren in detail about multiple potential donor sites, which was not
what Dr. Jaeblon actually did. Finally, Nordgren pointed out that LSU
erroneously characterized his case as a “material risk” case. He argued that
the rational patient standard for causation in material risk cases did not apply
to his claim.
In opposition to the motion, Nordgren submitted the same documents
that he submitted earlier in support of his own summary judgment motion,
along with Dr. Jaeblon’s original interrogatory answer, the petition, and an
excerpt from Nordgren’s prison medical records.
Finding there was “accurate informed consent,” the trial court granted
LSU’s motion for summary judgment and dismissed Nordgren’s lawsuit. 7 Although the trial court did not directly rule on Nordgren’s motion for
partial summary judgment, it is assumed that it was denied. Nordgren has
appealed.
DISCUSSION
A summary judgment is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate, i.e., whether
there is any genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.
2/26/08), 977 So. 2d 880.
A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of
law. La. C.C.P. art. 966(A)(3).
The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the court
on the motion for summary judgment, the mover’s burden on the motion
does not require him to negate all essential elements of the adverse party’s
claim, action, or defense, but rather to point out to the court the absence of
factual support for one or more elements essential to the adverse party’s
claim, action, or defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
La. C.C.P. art. 966(D)(1).
The law on informed consent is set forth in La. R.S. 40:1157.1, which
states, in part: 8 A. Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1163.1, to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts. B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such consent. C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A of this Section, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Subsection A of this Section, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases. D. In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. E. Consent to medical treatment may be evidenced according to the provisions of Subsections A and C of this Section or, as an alternative, a physician or other health care provider may choose to avail himself of the lists established by the Louisiana Medical Disclosure Panel pursuant to the provisions of R.S. 9 40:1157.2 as another method by which to evidence a patient's consent to medical treatment.
La. R.S. 40:1157.1 was redesignated from La. R.S. 40:1299.39.5 in 2015.
A plaintiff in an action based on the failure to obtain informed consent
is required to prove the following four elements in order to prevail: (1) a
material risk existed that was unknown to the patient; (2) the physician
failed to disclose the risk; (3) the disclosure of the risk would have led a
reasonable patient in the patient’s position to reject the medical procedure or
choose another course of treatment; and (4) the patient suffered injury. See
Snider v. Louisiana Medical Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So.
3d 922.
However, two distinct categories of lack of informed consent cases
have been recognized. In the more common “material risk” cases, a doctor
fails to inform the patient of a material risk of the procedure performed. In
the less common “no-consent” cases, a doctor fails to notify the patient of
the type or the parameters of the procedure to be performed. In “no-
consent” cases, the patient may also suffer damages to his dignity, privacy,
and emotional well-being. See Lugenbuhl v. Dowling, 96-1575 (La.
10/10/97), 701 So. 2d 447. Nordgren contends his claim is a no-consent
case because he never consented to his knee being used as the harvest site.
As noted by the Louisiana Supreme Court in Lugenbuhl, liability for
the failure to obtain informed consent was originally premised on the
concept of battery. However, later informed consent cases based liability
upon a breach of the doctor’s duty to disclose material information when
obtaining consent. The Lugenbuhl court “reject[ed] battery-based liability in
lack of informed consent cases (which include no-consent cases) in favor of
10 liability based on breach of the doctor’s duty to provide the patient with
material information concerning the medical procedure.” Id., 96-1575 at p.
9, 701 So. 2d at 453.
Of course, the inquiry in an informed consent case does not end with
the question of duty and breach. There must also be a causal relationship
between the doctor’s failure to disclose material information and material
risk of damage to the patient. LaCaze v. Collier, 434 So. 2d 1039 (La.
1983).
There are two aspects to the proof of causation in a lack of informed
consent case. First, the plaintiff must prove, as in any other tort action, that
the defendant’s breach of duty was a cause-in-fact of the claimed damages.
Second, the plaintiff must further prove that a reasonable patient in the
plaintiff’s position would not have consented to the treatment or procedure,
had the material information and risks been disclosed. Lugenbuhl, supra.
However, the latter standard does not always apply in a no-consent case.
As noted in Lugenbuhl, the typical reasonable patient standard for
causation is not applicable in a no-consent case concerning the plaintiff’s
entitlement to damages for deprivation of self-determination, insult to
personal integrity, invasion of privacy, anxiety, worry, and mental distress.1
See Nestor v. Louisiana State Univ. Health Sciences Ctr. In Shreveport,
40,378 (La. App. 2 Cir. 12/30/05), 917 So. 2d 1273, writ denied, 06-0221
(La. 4/24/06), 926 So. 2d 551.
1 In Lugenbuhl, the reasonable patient causation test would have applied to the plaintiff’s claim that his doctor’s failure to use mesh in his hernia repair caused his later herniation. 11 Misrepresentation
La. R.S. 40:1157.1(A) states that “consent shall be presumed to be
valid and effective, in the absence of proof that execution of the consent was
induced by misrepresentation of material facts.” Nordgren testified in his
deposition that Dr. Jaeblon told him that if they needed to do a bone graft, it
would be taken from his hip. He further stated that Dr. Jaeblon never talked
about the possibility of the graft coming from any other location on his
body.
Dr. Jaeblon did not recall this conversation. He even stated that he
does not use the word “hip” when describing that bone. In his original
interrogatory answer, Dr. Jaeblon denied that specific sites for the graft were
discussed.
When Dr. Bonvillain was asked what the most common donor sites
are, he mentioned the iliac crest, which is part of the hip. Interestingly, the
surgery report stated that Nordgren’s left hip and leg circumferentially to his
toes were prepped. His right upper extremity and right lower extremity were
prepped as well. An autograft procedure is done under general anesthesia,
so Nordgren would have been in no position to protest when Dr. Jaeblon
began cutting into his knee.
A genuine issue of material fact surrounds whether Dr. Jaeblon
misrepresented to Nordgren that his hip would be the harvest site. If
Nordgren can establish this fact at trial, he will defeat the statutory
presumption that his consent was valid and effective.
Breach of duty
Two of the three physicians on the MRP concluded there was a breach
of the standard of care because the hospital’s policy required informing 12 Nordgren of the specific site of the procedure. LSU contends that the statute
requires only that the form set forth the nature and purpose of the procedure
in general terms, and the hospital cannot expand the statutory requirements.
In support of its argument, LSU cites Siliezar v. East Jefferson
General Hosp., 04-939 (La. App. 5 Cir. 1/11/05), 894 So. 2d 373. The court
in Siliezar rejected the claim that verbal consent to hand surgery was not
valid because clinic policy required written consent prior to surgery. The
court noted that the informed consent statute permitted verbal consent
assuming it met the established criteria. Siliezar can be easily distinguished
as there is a significant difference between the manner in which consent is
given as compared to what is disclosed to the patient before consent is
obtained. Moreover, before and during the procedure, the patient in Siliezar
was aware of the location on her body for the procedure.
Dr. Oas, who is board-certified in orthopedic surgery, opined that
there was no breach of the standard of care regarding informed consent.
When he has performed surgeries like the one in question and there were
multiple potential harvest areas, he discussed the potential harvest sites in
detail with the patient. In general, he did not list all of those potential sites
on the consent form unless he knew exactly which bone would be harvested.
In summary, he did not believe the standard of care is breached when the
exact donor site is not listed on the consent form when multiple potential
sites are a possibility. He thought the consent form in question described in
detail the procedure to be performed.
Underpinning Dr. Oas’s opinion is that he discusses the multiple
donor sites in detail with his patients before obtaining their consent. Dr.
Jaeblon apparently failed to do that in this matter since Nordgren did not ask 13 him for examples of harvest sites. According to Dr. Jaeblon, he told
Nordgren the same thing that he tells all his patients, which is he will harvest
bone from one or several sites. No more information was forthcoming from
Dr. Jaeblon, who recalled that Nordgren had very few questions.
For his part, Dr. Bonvillain had no specific recollection of what Dr.
Jaeblon told Nordgren. He recalled only that Dr. Jaeblon explained the
nature of the surgery and the risks, benefits, and alternatives, and then he
reviewed those with Nordgren.
Dr. Bonvillain testified that when he provided information to patients
before their surgery, he did not note the possible location of the bone donor
sites on the written consent form. He explained that including the possible
locations on the form would take multiple pages. We note that while the
consent form did not list any possible harvest sites, it did list the exact site of
the arm surgery, the right humerus, which was information already known
by Nordgren.
Finally, when Nordgren signed the consent form, he gave consent for
Dr. Jaeblon to perform other necessary procedures. However, those would
be in the nature of unexpected necessary procedures. Harvesting bone from
the knee was not an unexpected procedure.
In conclusion, a genuine issue of material fact remains concerning
whether Dr. Jaeblon breached his duty to provide Nordgren with material
information regarding the autograft procedure.
Causation
If Nordgren can establish a breach of duty at trial, he will then have to
prove that the breach was the cause-in-fact of his “dignitary” or mental
anguish damages. However, those are not the only damages that he seeks to 14 recover. He is also seeking damages related to his infection, and he is
required to meet the higher “reasonable patient” standard in order to recover
those damages.
Nordgren testified that he was an avid runner and would not have
agreed to surgery involving his knee for that reason. He claimed he only
agreed to the surgery because he believed that his hip would be the donor
location for the autograft. According to Dr. Oas, the hip joint and knee joint
are both utilized in running, hiking, standing, skiing, and other related
athletic activities, and the hip joint and knee joint are both susceptible to
bursitis. However, there is no indication the hip joint was going to be the
actual donor location on the hip itself.
Nordgren testified that he would jog up to eight miles a day before the
surgery, but now he cannot walk a mile without stopping to rest. He claimed
his participation in the prison’s exercise program has been affected. He also
claimed that his knee was unstable, and a large knot on it prevented him
from kneeling.
Nordgren reported during an examination on May 23, 2013, that his
knee pain was slowly decreasing, and there was no numbness or tingling in
his knee. The assessment at the time was right knee prepatellar
bursitis/cellulitis. A medical record from the next month showed that his
knee pain was getting progressively better and the wound had healed.
Nordgren reported that his knee pain increased the more that he walked or
was active. Minimal tenderness was noted over the patella, and he had a
good range of motion. An x-ray of the knee on July 22, 2013, showed that
the bones were well mineralized, and there was no fracture or dislocation.
15 Nordgren begged for the arm surgery because his fracture had not
healed through nonsurgical methods and his arm had been rendered
essentially useless. Surgery was the only way that the fracture would heal.
The surgery involved stabilizing the humerus and stimulating healing in an
area which was prone to poor healing because of its prior condition and
injuries. Dr. Jaeblon described Nordgren’s medical situation as being an
unconventional one.
Nordgren declined the option of continuing with nonsurgical
treatment. The arm surgery clearly offered great promise to him.
Nevertheless, begging for arm surgery is not tantamount to consent for bone
being harvested from the knee. If Nordgren was not informed that his knee
was a potential donor site, he was deprived of the opportunity to fully
consider whether the benefits outweighed the drawbacks. He would also
have been deprived of the opportunity to seek another medical opinion.
A genuine issue of material fact remains concerning whether a
reasonable patient in Nordgren’s position would not have consented to the
arm surgery had it been disclosed to him that the knee was a potential donor
site for the autograft.
CONCLUSION
In summary, genuine issues of material fact remain concerning the
alleged misrepresentation that would overcome the presumption of a valid
and effective consent, the alleged breach, and alleged causation.
Accordingly, the trial court erred in granting LSU’s motion for summary
judgment. However, the implicit denial of Nordgren’s motion for partial
summary judgment was proper. With each party to bear its own appeal
16 costs, we REVERSE the judgment of dismissal and REMAND this matter to
the trial court for further proceedings consistent with this opinion.