Van Zee v. Witzke

445 N.W.2d 34, 1989 S.D. LEXIS 150, 1989 WL 100012
CourtSouth Dakota Supreme Court
DecidedAugust 30, 1989
Docket16343
StatusPublished
Cited by6 cases

This text of 445 N.W.2d 34 (Van Zee v. Witzke) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Zee v. Witzke, 445 N.W.2d 34, 1989 S.D. LEXIS 150, 1989 WL 100012 (S.D. 1989).

Opinions

MORGAN, Justice.

ACTION

As a result of complications after surgery on one of her fingers, Sylvia Van Zee (Van Zee) brought negligence and breach of contract actions against Dr. D.J. Witzke (Dr. Witzke). Summary judgment was entered in favor of Dr. Witzke on all of Van Zee’s claims. Van Zee appeals only the adverse summary judgment on her breach of contract cause of action. We affirm.

FACTS

Van Zee began attending court reporting school in September 1982. As a child, Van Zee suffered a trauma to her right third finger in a car accident. This trauma created a deformity in the finger which caused it to lock up when Van Zee extended it to type.

[35]*35In August 1984, Van Zee consulted Dr. Witzke, a reconstructive and plastic surgeon, about performing surgery on her finger. Although Van Zee was' interested in improving the dexterity of her finger, her primary interest in having surgery was more cosmetic than the fact that the finger was hindering her court reporting. Dr. Witzke examined and X-rayed the finger finding metallic sutures in the flexor tendons. He diagnosed a Swann neck deformity, a hyperextension of the first joint of the finger which is a functional disability. No immediate decision on the surgery was made by Van Zee after the diagnosis.

Approximately three months after her initial consultation, Van Zee again consulted Dr. Witzke. Dr. Witzke agreed to operate on her finger and performed the surgery on December 4, 1984. The next day, Dr. Witzke inspected the finger, which looked fine, and put a plaster fitting around Van Zee’s forearm to hold the finger in position.

Dr. Witzke saw Van Zee seven days later. Her finger had an acute infection. Dr. Witzke removed the splint, inserted internal K-wires, placed Van Zee on antibiotics and instructed her to soak the finger in betadine. Thereafter, Dr. Witzke saw Van Zee every two or three days to monitor the infection. He also encouraged Van Zee to see a physical therapist.

Van Zee began physical therapy for her finger on February 1, 1985, but quit after February 13 because the therapist had-fractured her finger.1 Van Zee returned to Dr. Witzke who treated the fracture and recommended continued therapy when the finger healed. Van Zee refused to participate in any further physical therapy and her finger slowly deteriorated and got stiffer.

Dr. Witzke last saw Van Zee on October 16, 1985. Her finger was stiff and had a slight deformity of the distal tip. The finger was not very useful.

Van Zee commenced the present action in December 1986. Her complaint alleged causes of action against Dr. Witzke in three counts: Count I, breach of an express agreement to correct the deformity in her finger; Count II, negligent application of the cast to her finger following surgery; and, Count III, negligent referral for physical therapy. Dr. Witzke moved for summary judgment in May 1988. After a hearing, the trial court granted summary judgment in favor of Dr. Witzke on all of Van Zee’s claims. Van Zee appeals only that portion of the summary judgment relating to her breach of contract action (Count I).

ISSUE

DID THE TRIAL COURT PROPERLY GRANT SUMMARY JUDGMENT FOR DR. WITZKE ON VAN ZEE’S CLAIM FOR BREACH OF AN EXPRESS CONTRACT TO HEAL?

DECISION

The standard of review of the grant or denial of a summary judgment is well established:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 164 (S.D.1987). The evidence must be viewed most favorably to the nonmov-ing party and reasonable doubts should be resolved against the moving party. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Ruane v. Murray, 380 N.W.2d 362, 364 (S.D.1986). Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgement is proper. Weatherwax v. Hiland Potato Chip Co., 372 N.W.2d 118, [36]*36120 (S.D.1985); Ruple v. Weinaug, 328 N.W.2d 857, 859-60 (S.D.1983).

Pickering v. Pickering, 434 N.W.2d 758, 760-61 (S.D.1989).

Van Zee argues that the trial court erred in granting Dr. Witzke summary judgment because a genuine issue of material fact is present, concerning the existence of an express contract to heal her finger. We disagree.

A physician or surgeon normally undertakes only to exercise the skill and care common to the profession. Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986); Van Zee2 v. Sioux Valley Hospital, 315 N.W.2d 489 (S.D.1982). However:

A doctor may, although he seldom does, contract to cure a patient, or to accomplish a particular result, in which case the doctor may be liable for breach of contract when he does not succeed. In the absence of such an express agreement, the doctor does not warrant or insure either a correct diagnosis or a successful course of treatment, and the doctor will not be liable for an honest mistake of judgment, where the proper course is open to reasonable doubt.

W. Prosser & W. Keeton, The Law of Torts § 32 (5th ed. 1984) (footnotes omitted). See 1 D. Louisell & H. Williams, Medical Malpractice ¶ 8.10 (1989); Annotation, Recovery Against Physician on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L.R.3d 1221 (1972); 61 Am. Jur.2d Physicians, Surgeons, and Other Healers § 161 (1981); 70 C.J.S. Physicians and Surgeons § 59 (1987).

“The existence of a valid express contract is a question of law to be determined by a court, not a jury.” Mid-America Marketing Corp. v. Dakota, Etc., 289 N.W.2d 797, 799 (S.D.1980). In determining whether a physician has entered into an express contract to heal, courts have been careful to distinguish between a doctor’s promise of a particular result from mere generalized statements that the result of the treatment will be good. McKinney v. Nash, 120 Cal.App.3d 428, 174 Cal.Rptr. 642 (Cal.Ct.App.1981). As the Supreme Court of Michigan observed long ago:

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Van Zee v. Witzke
445 N.W.2d 34 (South Dakota Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
445 N.W.2d 34, 1989 S.D. LEXIS 150, 1989 WL 100012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-zee-v-witzke-sd-1989.