dissenting.
This is a multi-dentist/multi-complaint lawsuit which was reformed fairly quickly into one charge against one dentist. Appellant claims now that appellee failed to advise her adequately that she could have had her tooth pulled in lieu of his efforts to try to save the tooth. The effort to save the tooth was a match to the same process *115the dentist had performed successfully on another one,of her teeth nine months earlier.
Appellant was no stranger to dental treatment when this course of events developed. Appellant first started dental treatment with Dr. Richard John Giovale, D.D.S. in May 1983 for repair of a bridge which was installed in the early 1960’s as part of a multi-bridge installation.1 From initial interview, treatments continued through more than twenty sessions to repair and replace bridges and cure the continuing complaints of pain. During this course of treatment, which extended from May 2, 1983 through April 1, 1986, appellant was twice referred to Dr. Gregory F. Bell, D.D.S., M.S.D. for the apicoectomy; first for tooth designated number two on July 31,1984 and then for a second tooth, designated number twenty, on April 18, 1985. Following continued pain in that tooth, number twenty, which had been initially considered during the first interview in 1983 as painful, appellant was referred to Dr. Rex Dolan, D.D.S., who, in January 1986, pulled the tooth.
After leaving Wyoming, appellant returned to the state to file suit against all three dentists, which litigation remains today as her criticism of the intermediate dental treatment provided by Dr. Bell from contended failure to be furnished sufficient information for her informed consent to decide whether to undertake the second apicoectomy. In reality, what the case really means is that appellant, Angelina Roy-bal, claims failure to understand that she had a choice in July 1984 of extraction instead of continuing efforts for retention. That present contention is consistent with an original pleading change which she made against Dr. Giovale raising a failure of warranty claim. It belies a scintilla of evidence question, Cordova v. Gosar, 719 P.2d 625 (Wyo.1986), that the patient in 1985 did not realize that before the second apicoectomy was performed that she could have otherwise chosen extraction, since clearly the tooth had been continually causing her problems during the entire period of treatment commencing with Dr. Gio-vale’s first interview in May 1983. Appellant elected to hope that like the benefit she received from the procedure on tooth number two, a similar result could be obtained on tooth number twenty and permit retention instead of extraction.
I dissent without conclusion that a written consent is not preferable, nor by ignoring current knowledge that dentistry has now joined the real world of litigation involving doctors, lawyers and accountants, which mandates detailed records and all-inclusive forms. Essentially, I do not disagree with the concise and accurate analysis of the law of informed consent provided by the majority.
Conversely and specifically, I do not find a viable question in the controversy in this case disclaiming that appellant was not informed and did consent to the second procedure. She knew what the procedure would be when she went to the other dentist’s office and what would be done, as she both voluntarily went and submitted. I decline to unburden probabilities to adversely assess chances that she did not exactly, specifically and completely understand her three choices: do nothing, have the procedure, or pull the offending tooth. It is my conception and concern that we now substitute formula and formalism for actuality. It is in the concept of informed consent where this case is now postured that the well-established conceptualization of actuality occurs that there are three worlds: what I see, what you see and what actually is. Likewise in communication, there are three objective functions: what I intended to tell you, what you thought I meant and what the disassociated person *116perceives to have been said or written without the overlay of association as its attribution for implied meaning.
Each lawyer involved and the practitioner in the healing arts should comprehensively consider the current Illinois law journal article, Twerski and Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U.Ill.L.Rev. 607 (1988). Undoubtedly, the fact that hope springs eternal cannot be ignored as a functioning psychological content of informed consent. The litigative corollary thereafter may appear that if success is not achieved, consent may have not been adequate because an undesired result would not have been willingly chosen.
As long as courts and scholars insist on measuring informed consent damages by focusing on the resultant personal injuries, they cannot escape the causation dilemma. In recognizing the essential nonjusticiability of this personal injury model for informed choice cases, we do not suggest that this genre of litigation be obliterated. Instead, we suggest a radical restructuring of the informed choice doctrine. Rather than focusing on personal injury damages flowing from the hypothetical “but for,” which seeks to determine what the plaintiff would have decided had the defendant provided the information, we suggest that courts should identify and value the decision rights of the plaintiff which the defendant destroyed by withholding adequate information.
Id. at 608-09.
I conclude that this record reveals an alternative choice to pull or not to pull the tooth and nothing to suggest that appellant had inadequate information to make that choice. The travesty of what we do in many legal processes is to create fictions.2 Here, that fiction is that a patient, by signing a form, is provided usable information for reasoned decision. I do not find the form, which was included in the mass of material submitted by appellant’s expert witness, even minimally informative in making the choice whether appellant should continue treating the tooth or abandon hope and have it pulled. It is in the nature of the oral discussions between the health-care practitioner and the patient that can only provide a basis for realistic decision and not pro forma forms that mean nothing to either party in the real world of present choice with illness decisions immediately presented.
In the informed consent article earlier referenced, the authors remind us that matter of presentation predominates over what is said:
Everyone knows that “half-empty” and “half-full” have different connotations. Similarly, in many circumstances, descriptions of the risks of a medical procedure in terms of the chances of success or the chances of failure may have different connotations and lead to different decisions.
For example, consider the following problems presented to two groups of subjects by Professors Kahneman and Tversky. In the first problem, seventy subjects were told that, in addition to whatever they own, they have been presented with $1000. The subjects were then asked to choose between (a) a 50% chance of an additional $1000, and (b) a 100% chance of an additional $500. In the second problem, sixty-eight subjects were told that, in addition to whatever they own, they have been presented with $2000; they were then asked to choose between (a) a 50% chance of losing $1000, and (b) a 100% chance of losing $500.
A moments’s reflection will reveal that the two problems are identical. In both problems, the subjects were asked to choose between (a) a gamble in which they had an even chance of ending up with either $1000 or $2000, and (b) a sure *117$1500. Yet the preferences expressed by the two groups of subjects were far from identical. In the first problem, 84% of the subjects selected the sure $1500 ($500 in addition to the original $1000); 16% chose the gamble. In the second problem, however, only 31% chose the sure $1500 ($2000 minus $500); 69% chose the gamble.
Professors Kahneman and Tversky theorize that the explanation for the disparity between the two groups of subjects is that “people normally perceive outcomes as gains or losses, rather than as final states of wealth or welfare.” Quite obviously, then, whether the risks of a medical procedure are framed as gains or losses could have a significant impact on the patient’s choice.
An example of the framing phenomenon in the medical decision-making context is provided in a study by Professors McNeil, Pauker, Sox, and Tversky. The researchers asked subjects to imagine that they had lung cancer and to choose between surgery and radiation treatment based on the information presented to them. Identical outcomes were framed differently for different subjects: they told some subjects the range of possible outcomes in terms of the probability of living at various points (e.g., 68% chance of living for more than one year), while they told others the range of possible outcomes in terms of the probability of dying (e.g., 32% chance of dying by the end of one year).
The framing of the various results in terms of survival or mortality had a significant impact. On the average, subjects preferred radiation therapy to surgery 42% of the time when the information was presented in terms of the probability of dying, but only 25% of the time when information was presented in terms of the probability of living.
Twerski and Cohen, supra, 1988 U.Ill.L. Rev. at 634-35 (quoting Kahneman & Tver-sky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263, 273 (1979)) (footnotes omitted).
After an analysis of functions of the thinking process and the reasoning capacity, the authors, in consideration of aspects in the functionality of reasoning, including illogical processing of information — under utilization of base rate information — assessing multiple risks or availability — manner of presentation invoking framing effects — anchoring and primacy, as accentuated by the effect of prior idiosyncratic information, conclude:
Unquestionably, the legal system’s insistence on determining the hypothetical results of a hypothetical decision-making process incorporates so much uncertainty that its credibility is minimal. Accordingly, determinations about decision causation in the informed choice arena can only be made by blinding ourselves to the complexities inherent in the process. The uncertainties are so great, and the margin for error so small, that any judgment, either way, cannot be made with any confidence.
Twerski and Cohen, supra, 1988 U.I11.L. Rev. at 641.
All of this returns in application for this case to the factual totality that the real question involved was since it worked on tooth two, shall we try and see if similar success will occur with tooth twenty? Cf Comment, Torts — Informed Consent — Informed Consent is Determined by Prudent Patient Rather Than Reasonable Physician Standard. Largey v. Roth-man, 110 N.J. 204, 540 A.2d 504 (1988), 20 Rutgers L.J. 837 (1989).
The summary judgment decision of the trial court should be related dispositively to this case and appellant’s decision to continue to .try to save the pain producing tooth (on employer provided insurance). The affidavit of appellant’s expert encouraging greater documentation convinces me that formalism without effective function in decision may be required for the law, but provides nothing for medicine.
We return in concept in this case to analyze whether a form, which would have been helpful as evidence but perhaps com-municatively meaningless in medicine, must be required in law. I am satisfied that our tests of Govin v. Hunter, 374 P.2d *118421 (Wyo.1962) and Stundon v. Stadnik, 469 P.2d 16 (Wyo.1970), developed generally in Vassos v. Roussalis, 625 P.2d 768 (Wyo.1981) and Kobos By and Through Kobos v. Everts, 768 P.2d 534 (Wyo.1989), are fulfilled in justification of the summary judgment granted. My reverse concern is formalistic reliance on which we can easily provide an inadequate foundation for the patient to make the thoughtful decision constituting “informed consent.” Having a heart by-pass or commencing chemotherapy may require expert assistance for the patient to assess the risk-benefit ratio which is the quantum of choices that life provides. However, the go or no go in tooth extraction cannot, I believe, fit under that umbrella of informational need.
I would affirm.
. Appellant testified in deposition that the reason for her commencement of treatment with Dr. Giovale was a loose bridge.
Q. Were you having any pain when you first went to see him?
A. No.
Q. None at all?
A. No.
Dr. Giovale’s initial interview records and comprehensive detail reveal a status absolutely to the contrary, since her pain is pervasively shown as the motivation for starting that sequence of dental treatment.
. Defined by dissent in Andersen v. Corbitt, 777 P.2d 48, 53, (Wyo.1989) (quoting Black's Law Dictionary 804 (5th ed. 1979)) as:
"Assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a court to dispose of a matter, though it need not be created improperly; e.g. Action of lost grant as basis for title by adverse possession.”