• DENTISTS LIABLE FOR NERVE DAMAGE
• MEDICAL LICENSE CONSTITUTIONALLY PROTECTED INTEREST
• PHYSICIAN'S CONVERSATIONS WITH INSURANCE AGENT NOT PRIVILEGED
• DENTIST MAY BE LIABLE FOR FAILURE TO REFER PATIENT TO PERIODONTIST
• STANDARD OF CARE FOR DENTISTS TREATING PATIENT WITH HEART MURMUR  

DENTISTS LIABLE FOR NERVE DAMAGE

Dr. DeMaio, a general dentist, surgically removed a patient's third molar, which was partially impacted.  The next morning, the patient, Ehman, began experiencing the symptoms of paresthesia, numbness and a burning sensation, on the right side of her face.  She also lost the sense of taste on the right side of her mouth. Oral surgery failed to correct the problem, at which point Ehman was told the condition was permanent. In her complaint filed against Dr. DeMaio, Ehman alleged that he had fractured the bony plate surrounding the lingual nerve. The jury awarded the plaintiff $750,000. Ehman v. DeMaio, Case No. L-886-97, Bergen Cty. Super. Ct., N.J. May 20, 1997.

Dr. Wilensky, a general dentist, surgically removed the right lower wisdom tooth of his patient, Mr. Golden. After the surgery, Golden experienced numbness and loss of his sense of taste in the front two-thirds of the right side of his tongue.  Golden sued Dr. Wilensky, alleging that he negligently severed the lingual nerve, and claiming $145,000 in lost income after he hired someone to take over some of his sales duties at his glass company. The plaintiffs settled for $125,000. Golden v. Wilensky, Case Nos. 750806, 766623, Orange Ct. Super. Ct., Cal., Aug. 4, 1997.

Dr. Scharwatt performed an apicoectomy, removal of an abscess, on Ms. Palmedo's lower molar, after which Palmedo experienced permanent pain, tingling and numbness of the lip and chin.  In her complaint filed against Scharwatt, Palmedo alleged that he had penetrated the mandibular canal with the drill, damaging the inferior alveolar nerve. Palmedo's husband filed a loss of consortium claim.  The jury awarded Palmedo $415,000 in damages and $50,000 to her husband.  Palmedo v. Scharwatt, Case No. 9701-00385, Multnomah Cty. Cir. Ct., Ore., Aug. 8, 1997.
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MEDICAL LICENSE CONSTITUTIONALLY PROTECTED INTEREST

The Court of Appeals for the Ninth Circuit reversed the trial court's dismissal of a physician's suit against a Marine Corps general, holding that the general's outrageous conduct was "magnified" by the fact that a license to practice medicine is a constitutionally protected interest.  In his complaint, the physician alleged that the Marine Corps general had used "illegitimate" means to "go after" the his medical license by asking Marine Corps personnel to find ways to attack the doctor's medical license and by preventing inquiries into the general's brother's death. The general's brother, a Marine Corps colonel, had allegedly committed suicide. Sabow v. U.S., Case No. 94-56634 (9th Cir. 1996).
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PHYSICIAN'S CONVERSATIONS WITH INSURANCE AGENT NOT PRIVILEGED

A Massachusetts trial court has held that a defendant physician may be compelled to testify about the content of his conversations with agents of his medical malpractice insurance carrier.

During the deposition of one of the physicians sued by Grover, the doctor's attorney objected to a question by the plaintiff's counsel regarding conversations the physician had with agents of his liability insurance carrier.  The plaintiff moved to compel the physician's response.  The court granted the plaintiff's motion and held that the attorney-client privilege does not extend to conversations between the defendant and his insurance agents, even after receiving notice of a malpractice claim. The court noted that where the insurer is working directly for the attorney, the privilege may be justified, but found no such facts in the case at bar. Grover v. Rand, Case No. 94-2148, Middlesex Cty. Super. Ct., Mass., May 28, 1997.
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DENTIST MAY BE LIABLE FOR FAILURE TO REFER PATIENT TO PERIODONTIST

Dr. Relkin, a general dentist, provided dental services to Klass for 26 years. In her suit against Relkin, Klass alleged that over the years she suffered from progressive bone loss, loosening teeth and bleeding gums. She further alleged that when Relkin's saltwater washes treatment failed to cure a periodontal abscess, she visited a second dentist, who drained the abscess. Klass later had periodontal surgery to remove three teeth, for which she had to have replacements. After Relkin died, Klass sued his estate for failing to refer her to a periodontist for her progressive symptoms. The parties reached a settlement prior to trial in which Klass received $75,000 cash and a $20,000 annuity to be paid to her over 10 years. back to top
 

STANDARD OF CARE FOR DENTISTS TREATING PATIENT WITH HEART MURMUR

During Theresa Shay's first appointment with Dr. Palombaro, a dentist, she informed him that she had a heart murmur.  Palombaro testified that his standard practice was to contact the patient's physician to find out if antibiotic medical was recommended for dental work. Although Palombaro did not remember making this particular call, a note in the patient's chart indicated that the physician had advised Palombaro that no premedication was necessary.

Palombaro never administered antibiotics for Shay. On her last visit, Palombaro performed a "periodic diagnostic examination and adult prophylaxis." Two months later, Shay was admitted to a hospital where she died 10 days later from acute bacterial endocarditis caused by staphylococcus aureus.  Michael Shay, individually and as administrator of Theresa Shay's estate, filed a complaint against Palombaro alleging negligence. The trial court granted the dentist's motion for summary judgment, finding that the plaintiff failed to rebut Palombaro's evidence that nothing linked his dental treatment to Shay's death.

The appellate court agreed with the trial court that Palombaro had met his burden on summary judgment that he had met the standard of care, that he contacted the patient's physician, relied on his determination and that a determination of the necessity of antibiotics was not within Palombaro's scope.  The physician testified that, although he did not remember talking to Palombaro, he probably would not have prescribed antibiotics.  The court noted that the burden of proof then shifted to the plaintiff.

The plaintiff presented expert testimony that Palombaro had deviated from the accepted standard of care by not identifying the type of heart murmur.  Without identifying the type of murmur, the expert said, the dentist "could not apply the [American Heart Association] guidelines for preventing bacterial endocarditis which is the standard in the dental profession."

Palombaro submitted the affidavit of a board-certified physician of internal medicine and cardiology, who had examined Shay while she was in the hospital. This expert's opinion stated that because Shay had a staphylococcus aureus infection, and not a streptococcal infection, he concluded the dental procedure was not the cause.

The plaintiff submitted the affidavit of an expert who was of the opinion that the fact that the infection was staphylococcus and not streptococcal did not rule out the dental procedure as the cause. This evidence was sufficient for the appellate court to find that triable issues of material fact were in dispute and summary judgment was inappropriate, thereby reversing the trial court. Shay v. Palombaro, 229 A.D.2d 697 (N.Y. 1996).
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