REPRINT OF: REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Defendant, Dr. Damion Gilday, hereby submits this Reply in support of his Motion for Summary Judgment. 7/12/05
I. Plaintiff has not established Res Ipsa Loquitur.
The doctrine of Res Ipsa Loquitur "allows a jury to infer both negligence and causation, even in medical malpractice actions, if the accident which occurred *** is of a kind which more probably than not would have occurred in the absence of negligence on the part of the defendant." Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 978 P2d 429, review den 329 Or 318, 994 P2d 123 (1999), quoting, Watzig v. Tobin, 292 Or 645, 649,
642 P2d 651 (1982)). Plaintiff argues that the fact that Dr. Gilday
broke a file while performing a procedure on his tooth (number 14) is
sufficient to allow a jury to find that this event would normally not
occur in the absence of negligence, and that this event caused his
damages. He also argues that Res Ipsa Loquitur relieves him of the
requirement to come forward with expert medical testimony to establish
that Dr. Gildays treatment fell below the standard of care for the
dental community. Plaintiff relies on other medical malpractice cases
that invoked Res Ipsa Loquitur, and quotes copiously from the Court of
Appeals opinion in Fieux, supra. In Fieux, plaintiff
filed suit against a surgeon and a hospital for negligence when a
serrefine clamp was left in his chest following open heart surgery. Fieux, 159 Or App at 639.
The
clamp was discovered just after surgery by a routine x-ray, which
caused the need for a second surgery to remove the clamp. Id. The
parties stipulated that "[t]he second operation would not have been
necessary if the serrefine clamp had been removed during the initial
surgery." The surgeon admitted in deposition that it was standard
operating procedure not to leave instruments in a patient, that it was
standard operating procedure to account for the instruments, that it
was difficult to loose large instruments in the pericardial sac, that
the area around the heart is usually inspected carefully before and
after surgery, and finally, that the clamp was in a place where he did
not see it." The court held that "the plaintiff was not required to
present expert medical testimony to establish that he was injured by
having the clamp left in his chest." Id at 641. The court reasoned that the second surgery would not have been required had the clamp been removed. Id. Further,
the court relied heavily on "common sense inference, supported by the
surgeons testimony," that the clamp "would have been found and removed
by a reasonable search of the area." Id at 643. The facts of
this case are distinguishable. First, Dr. Gilday has testified that his
treatment of the plaintiff did not fall below the standard of care for
dentists in the community. Second, another medical expert, Larry
Michael Over, D.M.D., with whom plaintiff consulted for an expert
opinion, also supported that Dr. Gildays treatment, including that the
separated file in tooth 14 did not fall below the standard of care. [NOT TRUE jj]
In a March 10, 2004, letter to the plaintiff, Dr. Over stated: "I can
not evaluate whether the separated file was below the standard of care.
The tooth was in heavy occlusion. This could have been or can be
adjusted very easily to alleviate the heavy contacting on that side.
That is not a violation of the standard of care." (Affidavit of Jean
Ohinan Back, hereafter ("Back Aff.") 2, Exhibit A). Further, the risk
of a file separating is an inherent risk in the procedure that Dr.
Gilday performed. (Exhibit A.). "Where risks are inherent in an
operation and an injury of a type which is rare does occur, the
doctrine [of res ipsa loquitur] should not be applicable unless it can be said that the injury was due to someones negligence." Fieux, 159 Or
App at 642 (emphasis added.) The plaintiff must present "enough
evidence for a jury to reasonably find *** that it is more probable
than not that the [injury] *** would not normally occur in the absence
of negligence * Fieux at 642, quoting Watzig at 561.
Plaintiff has provided no evidence that the file separating in tooth
No. 14 was a result of negligence. Additionally, there is no evidence
in this case that the subsequent treatment the plaintiffs tooth was
caused by the separated file. This is not a fact that the jury can
decide without expert medical evidence. The court should grant summary
judgment in this action because plaintiff has not established the
elements of Res Ipsa Loquitur, and has not provided expert testimony
that Dr. Gildays treatment fell below the standard of care in the
dental community.
II. A cause of action for "abandonment" does not exist in Oregon law.
Plaintiff
sites an Iowa case to argue that "Abandonment of a patient involves
unwarranted termination of professional relationship. Glenn v. Carlstrom, 556
NW2d 800 (Iowa 1996)." There is no Oregon case that adopts this rule.
"Unacceptable patient care" in Oregon is regulated by the Oregon Board
of Dentistry. The Board promulgated examples of unacceptable conduct
in OAR 8 18-012-0010. Absent the requirement to provide or arrange for
emergency treatment for a patient currently receiving treatment (OAR
818-012-0010(3)), there is no provision within that section relating
to sanctions for abandonment of medical care. Further, the general rule
relating to abandonment allows a physician to withdraw from a case with
reasonable notice of his intention to cease to treat the patient, so
that another physician maybe obtained. Gray v. Davidson, 15 Wn2d 257, 267, 130 P2d 341 (1942), adhered to 15 Wn.2d
257, 136 P2d 187 (1943). Dr. Gildays office provided the plaintiff
reasonable notice on February 4, 2004, that his office was withdrawing
from the plaintiffs dental care, and provided the plaintiff with a
referral for continued treatment. (Back Aff. 3, Exhibit B).
REPRINT: PLAINTIFF ANSWER TO REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT Plaintiff Requests Face To Face Arguments with court reporter.
17.2/ Code Pleading, FRCP12(6)(6) Pro se complaints are held to a less strict standard than those drafted by a lawyer 857F2d559, 563
Plaintiff, Jeff Jones, hereby submits this Answer to defendants memorandum in support of his Motion for Summary Judgment dated 7/12/05.
Attached
is an exhibit, labeled Jones A; an Email I just received from Renee, a
mother and daughter both injured by Gilday. The pattern of abuse is
similar to mine.
1. Plaintiff has established Res Ispa Loquitur. [Latin, the thing speaks for itself]
In ANSWER
from the defendant, Gilday admitting to count one, breaking and leaving
a tool in plaintiffs mouth and admitting to count four, abandoning his
patient. Since defendant is a licensed dentist he just became a
witness for me. Defendant claims Larry Over DMD supports Gildays
treatment. That is NOT what the [exhibit B] 3/10/04
letter says. It says the infection was so great, he states, "I can
not evaluate [make a determination] whether the separated file was
below the standard of care." Furthermore, Larry Over plainly states
it will cost $3,000 to repair the damage Gilday did on my two front
teeth [crowns]. Larry did not say I had any options, those teeth had
to be replaced. If this werent true, then it would be unethical for
Larry to quote $3,000 for unwarranted and unnecessary replacement of
those two teeth [crowns] and jeopardize his license. He stated that
the "occlusion was not a violation of the standard of care", Not the same issue and irrelevant
. Larry then contradicts himself on the placement of the crowns as
stated above. Discounting his contradictions and discounting his
personnel close friendship with Gilday, the truth is in the $3,000 quoted to redo Gildays crowns. Since Larry is a licensed dentist he just became a witness for me.
I
have called nearly every dentist in the county and the dental society,
nobody will testify against another dentist, I dont even get to explain
my case to these dentists, they simply say "not interested". This
makes the whole profession immune from the law if rule 47 is allowed.
But rule 47 cannot circumvent the constitution.
This
court is in possession of the latest x-ray as an exhibit of evidence,
taken only a few days ago, it shows the drill/file still in the jaw.
Gilday was hired to do a root canal, not a "drill in the jawbone job". It is "common sense"
that, had Gilday broken the bit off in the root only, he may possibly
be able to argue an accident. However, he drilled beyond the tooth,
beyond the root and broke the drill/file off, in the jaw itself. He
should have known exactly how deep he was drilling, as well as the
location of the root. That is negligence anyway you look at it, that is what is known as "common sense" in the way the court ruled in 159 Or. App. 637, 978 P.2d 429 Fieux Id at 643.
The removal of the whole tooth and roots would have removed all traces of the drill/file, if the damage was only limited to the area he was hired to work on.
The total loss of that tooth, disfigurement, money, suffering, time,
travel other doctor visits are all real losses and real harm.
II. A cause of action for "abandonment" does not exist in Oregon law.
Well,
why not save the taxpayers hundreds million dollars Statewide or
Nationwide, by removing all the textbooks, law books, Cause-of-Action
books, Lexis, Journals, Westlaw and remove the Librarians and their
staff, from the Law Libraries in the court house basement, and all
other court houses through out Oregon. Remove the books from the U of
O law library and from the House and Senate in Salem, they must be
totally useless. More than 90% of all printed matter and 98% of all
online data from Westlaw are not Oregon cases.
Apparently
its a waist of money and Oregon must be above the laws of the Union.
Apparently all the laws that Oregon will ever need have already been
written, so lets fire the whole legislature. A licensed contractor can
be sued if he walks off the construction job and leaves the owner with
a mess.
Are rich doctors a protected class?
Does this not violate federal law, US CONSTITUTION ; Amendment I, Amendment VII, Amendment IX, Amendment X, Article XIV. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws? Amendment VII - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise reexamined in any court
of the United States, than according to the rules of the common law.
In
Cause-of-Action book 21COA1, it states: "A dentist is held to the same
standard of care as a physician or surgeon on the question of
abandonment of patient. Domurad v Hill, 414 Mass 1001, 605 NE2d 858 (1993)."
I
never saw defendants exhibit A and even if I had, it is irrelevant, he
cannot dismiss me before the problems he created are solved. However,
the fact that he mentions Dr. Harper tells me that he knows I intended
to sue him, because I told Harper I was going to. Its likely that he
was afraid of that suit and wanted to distance himself as a result.
Furthermore he states here that the treatment has been "completed".
Would you move into a newly constructed house that has no roof or
ceiling (open sky) because the "licensed contractor" says its
"completed"? OK Mr. contractor, I believe you
Defendant
exhibit A, claims that my family received "the best possible dental
care", ouch! It doesnt get any better than this? Then he states he terminated my entire family and me, then forgave a $600 balance after accepting a total of $8,688 from us.
By what right does he have to "terminate my whole family? Take the money and run run run.
This, from a man with over THREE MILLION DOLLARS (2003)
in ASSETS, made off people like me. Wouldnt it be nice if everybody
could avoid responsibilities for their actions. Gilday is not a child
and he can afford to own up to his mistakes and bad behavior. That
$600 "forgiveness" is an admission of guilt. Also, defense has not
sent any of the "request for production of documents", including
exhibit A.
Defendant says the "Oregon Board of Dentistry" regulates "Unacceptable patient care".
That is the Fox guarding the Hen House. A
group of dentists regulating themselves. A group of persons who place
themselves above the law by claiming they arent subject to the law.
(See page 3, line 8 above). Exactly how many times in the whole
history of this Board, has this board ever found and fined
a dentist for "Unacceptable patient care"? I doubt that it ever
happens, so are you going to let these people "police themselves" to the total exclusion of the courts and a patients constitutional rights to recourse and justice?
I believe every juror has been a dental patient and has the mental acuity to decide this question.
According to Gildays affidavit, he states he did "No Harm" to me. If
that is indeed a truthful fact, than it would not be harmful, or
assault or injury, if I or a licensed dentist performed exactly the
same procedure on Gildays #14 tooth, complete with the same broken
drill/file embedded into his jawbone. If Gilday agrees to an eye for
an eye, then I will drop my case against him.
Therefore, Gilday should accept and admit that I have met Res Ispa Loquitur or get his jaw drilled.
By
defense saying "abandonment" does not exist in Oregon law, or relying
on rule 47, they are admitting that they cannot win on the merits of
their evidence or legal expertise. (hey E where were your debating skills?)
The defense has actually not proved their man innocent at all.
I am making all documents available to the public including 20/20 & 60 Minutes.
Each
legal wrangling from this defense further erodes any credibility Gilday
may have had with the public. Trying to get the case thrown out
without a jury hearing this case only belittles himself. The same is
true when he refuses or weasels out of producing documents that I have
already complied with. It shows the true character of the man.
I
remind you that it was Gilday who did not want to go before the Small
Claims Judge. It was Gilday who asked for a jury trial. It is
cowardliness, to now ask for summary judgment. It is clear evidence to
me that the defense is weak and even serves to strengthen my Res Ispa Loquitur.
In
both my Affidavit and Memorandum, I presented more than a dozen of
cases to support me. The rule is the defense must put on a true
defense, not just attack one or two cases I quoted.
I pray this court will
(1) Deny Defendants Summary Judgment,
(2) demand that Gilday submit to the same injury he done to me or admit to claims 1~4, or
(3) offer me an fair and reasonable out of court settlement that is acceptable to me.
Dated this _____ of July, 2005.
By _____________________
Jeff Jones Pro Se
Per
my previous notice, I am leaving Oregon from now to September 1, 2005.
I can be reached by Cellphone from time to time @ 541-000-0000, do not
leave voicemail messages, it is broken.
I will NOT have access to my mail, computer or files.
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The following is an email I received from "Renee" who saw my ad in the Register Guard newspaper about www.suegilday.com
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"Date: |
Fri, 15 Jul 2005 04:43:39 GMT |
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Subject: |
Request from Dental Malpractice Damion Gilday Lawsuit Eugene Oregon - Contact Us page. |
MailFromAddress - wren_a86@hotmail.com
Comments - I had 2 teeth filled by Gilday, and it took almost 2 weeks each for my gums to heal.
Ive
never had a problem with my gums healing before because they were never
cut as a result of drilling. I now have pockets that collect food
particles in those teeth...did he cause this? I think so. Also he
deliberately ignored my daughters complaints about a small cavity in
her tooth, even tho he should have seen from x-rays that it was rotting
away beneath the surface. Later he had to do a root canal because her
jaw became infected.
He
did not prescribe an antibiotic. She later had a lymph node removed
from below that tooth. I dont know enough about dentistry to determine
if he caused any of the problems but I do know that we never had
problems with our teeth like this before. I dont think I have enough
evidence to sue him and I wish you all the luck and skill in your
pursuit. However my family and I will never go back to him now that I
have read about your suit.
You may contact me by email if you like.
Renee"
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I
just mailed out over 200 postcards, 100 of them went to the Oregon
Lawmakers in Salem, Senate, House, DOJ, Governor, Board of Denistry, US
DOJ, US attorney General, Or AG, 20/20, 60 minutes, Oregon Supreme
Court, Or Court of Appeals, Lane Co. Dental Society.
This is the text:
Front Side
It is right for a Doctor or Dentist to injure you and then be protected THIS NEEDS A FULL BLOWN INVESTIGATION !
by the State from Lawsuits, in violation of the US Constitution?
BACK SIDE
My Opinion, What is happening to me can happen to you!
You and all of Oregon are at risk. Did you know that any doctor or dentist can seriously injure you and there is nothing you can do about it? The proof of this is Rule 47 of Oregon Rules of Civil Procedure, read it here: http://www.leg.state.or.us/ors/orcpors.htm It says that the injured person must have a Lawyer hire another doctor to testify against the doctor that injured you, or you loose without ever going to court. (Regardless of the tons of evidence you may have and You cannot hire that witness) This is in violation of federal equal protection laws & the Constitution. Doctors & Dentists belong to societies that immunize one another by agreeing not to testify against each other. I am suing DAMION GILDAY DMD who it appears owns $3 Million in assets at Village Plaza Loop, Smith St., River Pointe, Park Grove, 10th St., Willamette St., Arrowhead. He admitted to injuring me with a broken drill/file then he hides behind Rule 47. He wants the case dismissed without a trial that HE ASKED FOR. He would not
face me in Small Claims for $5,000 for the loss of my tooth & much
more. Im on Disability. Hes collected over $8,000 from my family &
our insurance. Ive suffered huge expenses and pain. Read about it at WWW. SUEGILDAY.COM be sure to read pages 2 & 3. FOR YOUR OWN SAFETY Contact your LEGISLATURE, tell them to cancel Rule 47, for everyones good!
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