Lee Lepelley and Eileen L. Lepelley v‪.‬

Plaintiffs-appellants Lee LePelley and Eileen LePelley brought an action against defendant-respondent Dr. Mark Grefenson following unsuccessful inner ear surgery performed by Dr. Grefenson on Lee LePelley alleging three causes of action: (1) for breaches of warranty; (2) negligence in the performance of the surgery, and (3) failing to inform the appellants as to the risks of the surgery. Following the taking of depositions of the parties and the two doctors identified by appellants as their expert witnesses, respondent moved for a partial summary judgment which was treated as a motion for complete summary judgment. Following a hearing on the motion the trial court entered summary judgment for respondent. Appellants then moved for reconsideration of the motion which was denied. Appellants appeal the granting of the motion for summary judgment. In July of 1973 Dr. Mark Grefenson performed a stapedectomy on appellant Lee LePelley, which is an operation involving the bones of the inner ear. Mr. LePelley was suffering from a disease known as otosclerosis causing severe hearing loss. Plaintiff asserts that Dr. Grefenson represented with respect to the operation that he had never had a failure and that the operation was simple with an extremely high success rate. However, following the surgery, Mr. LePelley suffered even further hearing loss, dizziness and nausea. Following this unsuccessful surgery and several return visits to Dr. Grefenson which did not result in Mr. LePelley feeling any better, Mr. LePelley sought assistance from Dr. Goltry in Boise, who subsequently operated on Mr. LePelley and found a small bone fragment in his ear which was dropped during the stapedectomy. In his affidavit, Dr. Goltry stated that the dropping of a bone fragment in the ear is a risk of the stapedectomy. LePelley claims that Dr. Grefenson never informed him that this was a possible risk of the operation and that there was a possibility that he would lose the hearing in the ear. Because of the failure of the first surgery, the greatly diminished hearing in his left ear, and the continuing dizziness experienced by the appellant, he was required to undergo a radical operation in which the nerves of the inner ear were severed. Later, after continuing to experience dizziness, Mr. LePelley consulted Dr. Gary Thomas in Idaho Falls. Dr. Thomas determined that still further surgery was necessary to complete the process attempted by Dr. Goltry to eliminate appellant's dizziness. This surgery was successful and the ear is no longer functional in any capacity.