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Scherman v. Rasmussen9/25/2001
Appellant sued respondent, alleging dental malpractice after the dentist hit a nerve while giving an injection. The district court directed a verdict, ruling that appellant presented insufficient evidence as to causation, and denied his motion for a new trial. Appellant contends that (1) he presented sufficient evidence to create a factual question on the issue of causation; (2) the court erred in dismissing his informed consent claim; (3) the court erred in preventing his expert from providing rebuttal testimony; and (4) the court erred in granting respondent's request for costs and disbursement for experts who did not testify. We affirm.
FACTS
For over a year prior to the events giving rise to this action, Robert Scherman had been a dental patient of Gefrey Rasmussen, D.D.S. At his initial visit with Dr. Rasmussen, Scherman signed a consent form for medical treatment, indicating his understanding that the use of anesthetic agents involved a certain risk. On several occasions after the initial visit, Scherman received both Prilocaine (a form of Novocain) and nitrous oxide as anesthetics in his dental treatment.
On November 20, 1995, as part of a general treatment plan agreed upon several months earlier, Scherman came into Dr. Rasmussen's office for a root planing procedure. To accomplish this procedure, Dr. Rasmussen gave Scherman a local anesthetic injection. According to Scherman's later testimony, he requested only nitrous oxide, but Dr. Rasmussen indicated that he was going to get an injection instead. According to Scherman, Dr. Rasmussen seemed to be in a hurry when he gave the Prilocaine injection in the right side of Scherman's mouth. When the needle went in, Scherman immediately felt a sensation like an electric shock and experienced severe pain before the anesthetic took effect.
Scherman returned to the office for another procedure the next week, for which he also received a Prilocaine injection on the other side of his mouth. The pain from the previous procedure, however, never completely left him, requiring him to take anti-pain medication, from which he reported significant side effects.
Scherman filed a complaint alleging that Dr. Rasmussen negligently performed the injection on November 20, and that he failed to obtain informed consent for the procedure, which allegedly resulted in permanent damage to the right lingual nerve. Before trial, the district court granted defendant's motions in limine to dismiss the informed consent complaint as a matter of law, and to exclude as cumulative the testimony of one of defendant's expert medical witnesses.
Dr. Nelson Rhodus, Scherman's chief medical expert, testified at trial that in his opinion Scherman had suffered a neuroma, or an overgrowth of nerve fibers, consistent with injury to the lingual nerve. Dr. Rhodus testified that this type of injury still happens even with the best of technique, but that any time a procedure is done very rapidly, "you run a risk." He agreed that he could not tell whether it was the initial contact with the nerve, continuing to inject with the needle, or the injection of the anesthetic solution that caused the damage. Dr. Stephen Trobiani, Scherman's other medical expert, testified that the persistence of Scherman's symptoms suggested the presence of a neuroma, and that it would be unlikely that these symptoms would develop and persist if a nerve had not been penetrated. Dr. Rasmussen testified that he had no distinct memory of Scherman's injection as abnormal or unusual, and that he believed he had given over 20,000 such local anesthetic injections without incident.
At the close of plaintiff's case in chief, defendant moved for
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