dissenting.
I respectfully dissent.
A general practitioner who holds himself out as, and undertakes the work of, a specialist will be required to use the care and skill of that specialty. Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 (1976); Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326 (1978). In this case however, there is no evidence that occlusal equilibration is a dental specialty. There can be no standard of care attendant to that which is not shown to exist. Therefore, defendants cannot be held to any standard of care above that of a practitioner of general dentistry.
The duty of care of a medical specialist is correctly defined by Colo.J.I. 15:5 (2d ed. 1980), which, as applicable here, provides:
“A [dentist] who holds himself out to be a specialist in a particular field, of [dentistry] must use his skill and knowledge as a specialist in a manner consistent with the special degree of skill and knowledge ordinarily possessed by other specialists who have devoted special study and attention to the same field of expertise, and in a manner consistent with the state of knowledge in the same field of expertise at the time of the [treatment].” (emphasis added)
See Artist v. Butterweck, 162 Colo. 365, 426 P.2d 559 (1967); Brown v. Hughes, 94 Colo. 295, 30 P.2d 259 (1934). The notes on use to this instruction provide:
“This instruction should be used rather than Instruction 15:1 when the defendant has held himself out as being a specialist in an area commonly recognized as such in his profession. If there is a dispute as to which standard is applicable in light of the evidence in the case, both instructions should be given, with the appropriate modifications being made if necessary to avoid confusion for the jury.” (emphasis added)
If the plaintiff in a negligence action seeks to measure the defendant’s conduct by the higher standard applicable to a specialist, this issue must first be framed by the pleadings. C.R.C.P. 8. Then, to recover the plaintiff must show by expert testimony: 1) that a field commonly recognized as a specialty by the profession exists; 2) that there is a recognized standard in that field pertaining to the conduct at issue; and 3) that defendant’s conduct did not meet that standard. See Bloskas v. Murray, 646 P.2d 907 (Colo.1982); Smith v. Curran, 28 Colo.App. 358, 472 P.2d 769 (1970). And, it is axiomatic that before the trial court must give an instruction upon a party’s theory of the case, there must be evidence admitted which supports that theory. Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862 (1952).
Here, the plaintiff’s complaint alleged that the defendants were negligent in the following particulars: 1) in failing to use “appropriate treatment for plaintiff’s occlu-sal problem”; 2) in failing to use “due care in performing the equilibration work”; 3) in failing to “diagnose and treat other dental problems including those of a periodontic nature”; and 4) in failing to “warn and inform plaintiff of the consequences of their course of treatment.” There was no allegation in the complaint that the defendants held themselves out as specialists, that a recognized specialty of occlusal equilibration existed, or that defendants’ conduct failed to meet any recognized standard of care of such “specialty.” The pretrial order further reflected that the theory of the plaintiff was that defendants’ negligence arose out of their failure to diagnose and treat the plaintiff in accordance with the recognized standard of general dentistry in the locality in question.
The plaintiff presented three expert witnesses. The first was engaged in the practice of general dentistry in Boulder, Colorado. This doctor opined that the equilibration treatment given the plaintiff did not meet with “the standards and reasonable knowledge and skill and care possessed by dentists performing occlusal equilibration in this area.” On cross-examination he reiterated his opinion that the defendants’ conduct fell beneath the “standard of prac*214tice for dentists practicing generally in Colorado and in Boulder and in Greeley.”
The plaintiffs second expert witness was a periodontist who was a “specialist in regards to the treatment of gum disease.” As such, he testified that in the course of his practice he saw “general dentistry work” performed by a vast majority of the dentists in Boulder and Weld County. He expressed no opinion as to the standard of care required of the defendants in performing general dentistry of occlusal equilibration.
The plaintiffs third expert witness was a Boulder dentist who, in response to counsel’s question regarding specialization, answered: “I am a general dentist. For the last eleven or twelve years I have spent a great deal of time in post-graduate study in equilibration and reconstructive dentistry.” He testified that he offered equilibration services as part of his normal dental practice. He also testified that, although there were different schools of thought regarding occlusal equilibration, it was not recognized by the dental profession as a specialty and that he knew of no recognized standard applicable to the field. However, he testified that, in his opinion, the defendants’ treatment of the plaintiff was not “consistent with the standards of reasonable knowledge, skill, and care possessed by dentists performing occlusal equilibra-tions in this area.”
The defendant called one expert witness who was engaged in the practice of “general dentistry” but who limited his practice to “restorative dentistry and occlusion mainly.” He testified that the dental profession did not recognize restorative dentistry and treatment of occlusions as specialties and that practice in these areas was not licensed or licensable as specialties by the dental profession. In his opinion, the defendants’ treatment of the plaintiff “fell within the applicable standard of practice for dentists in Colorado.”
Although the defendants’ expert was offered as having “subspecialties in the fields of prothodonties and equilibration,” such “characterization” of a witness under CRE 702 does not as a matter of fact or law establish the existence of a dental specialty or the existence of an extraordinary standard by which the conduct of those who render such treatment must be measured. The offering of a recognized medical specialist as a witness is just that and no more; given proper foundation, there is nothing that prevents a recognized specialist from testifying as to the standard of care of a general practitioner.
In short, this case was pled and tried as an ordinary dental malpractice case. There was no contention that defendants were to be held to the duty of a dental specialist until plaintiff tendered her instructions after the close of the evidence. Obviously there was no showing of defendants’ deviation from a heightened standard of care because there was no evidence that occlu-sal equilibration was recognized by the dental profession as an area of specialty or expertise attended by a recognized standard of special skill and knowledge common to others in the field. See Restatement (Second) of Torts § 299A, comment (d). Therefore, plaintiff was not entitled to an instruction on a higher duty of care. Maloney v. Jussel, supra.
I agree that there may be a question of fact as to whether the defendants represented that they possessed special knowledge and skill in performing occlusal equilibration. Such representation may give rise to a claim for relief under a theory of “negligent misrepresentation.” Bloskas v. Murray, supra. However, plaintiff did not elect to proceed upon this theory but rather proceeded upon a theory of ordinary negligence.
On appeal, the plaintiff contends that the trial court abused its discretion by awarding, as costs, expert witness fees for time spent in preparation for trial. Plaintiff argues that an award of costs for expert witness fees may be calculated only upon time actually spent by the expert while testifying at trial. The majority opinion does not elect to address this issue.
Section 13-33-102(4), C.R.S.1973, states that:
*215“Witnesses in courts of record called to testify only to an opinion founded on special study or experience in any branch of science or to make scientific or professional examinations and state the result thereof shall receive additional compensation, to be fixed by the court, with reference to the value of the time employed and the degree of learning or skill required.” (emphasis added)
Costs allowed under § 13-33-102(4), C.R. S.1973, are circumscribed by a rule of reason and are totally within the discretion of the trial court. Leadville Water Co. v. Parkville Water District, 164 Colo. 362, 436 P.2d 659 (1967).
I would construe the statute to permit the trial court, within its sound discretion, to award reasonable costs of expert witnesses for time incurred in preparation for, as well as attendance at, the trial of the case. I can discern no abuse of discretion in this case.
I would affirm the judgment of the trial court entered upon the jury’s verdict and its award of costs.