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Howie v. Walsh3/1/2005
Dental malpractice; res ipsa loquitur; circumstantial evidence
John T. Walsh, D.D.S., ("defendant") appeals a judgment entered on a jury verdict finding Shimisha Howie ("plaintiff") was injured by the negligence of defendant based on the doctrine of res ipsa loquitur and awarding $300,000.00 in damages for personal injuries. We reverse and remand for a new trial.
On 12 March 1999, plaintiff's jaw was fractured while defendant, a licensed general dentist, was attempting to extract her lower left wisdom tooth. Plaintiff's tooth was eighty to ninety percent impacted, meaning only ten to twenty percent of the tooth protruded above the bone of the jaw, and the tooth was tilted mesially, or forward towards the midline of the body. The tooth had two roots, was not diseased and had a normal, healthy periodontal ligament attaching the roots of the tooth to the bone of the jaw. Defendant successfully extracted the first three ofplaintiff's wisdom teeth before proceeding to the tooth in question.
Defendant testified that, prior to the procedure, there was no indication that plaintiff's jaw was abnormal in any way. Because defendant did not remember the surgery until the point where plaintiff's jaw fractured, his testimony concerning that portion of the surgery consisted mainly of his normal procedure during an extraction based on plaintiff's dental history and records. Defendant testified that, when extracting wisdom teeth, he first incises the tissue surrounding the tooth, then uses a flat spoon periostic elevator to reflect the tissue and expose the tooth. The tooth is wider at the middle than at its crown; thus, the surrounding bone holds a tooth in place and must be cut away with a surgical burr. Thereafter, defendant slides a straight elevator, an instrument somewhat resembling a Phillips-head screwdriver, under the exposed tooth and attempts to rotate it to determine if there is sufficient movement. Assuming sufficient movement, defendant applies pressure on the elevator to determine if the tooth can be raised, thereby allowing the attached ligament to be separated from the roots. If the tooth does not elevate, defendant removes more bone surrounding the tooth, sections (cuts) the tooth, or both.
Sectioning is often required when the roots of the tooth are growing in different directions. When sectioning a tooth, defendant cuts the tooth into two parts, each with a root and removes one section at a time. Defendant removes each sectioned portion with a Cryers elevator, a surgical steel pick-likeinstrument, which uses leverage to "roll" the section, along with the root, out of the socket. Although some force is necessary to remove the sections, a dentist relies primarily on technique to remove the section in a manner minimizing resistance. The ability of the patient to cooperate is also a factor in a successful outcome.
In this particular surgical procedure, defendant testified plaintiff's tooth did not elevate properly, and he opted to section it. Defendant could not recall if he removed any further bone surrounding the tooth. Defendant managed to remove the mesial section of plaintiff's tooth without incident; however, when he attempted to remove the second section of the tooth with the Cryers elevator, he heard a snap and knew plaintiff's jaw had fractured. Plaintiff sustained nerve damage and a compound fracture, which required surgical intervention to repair. Plaintiff brought this malpractice action against defendant to recover damages sustained as a result of the injury.
Plaintiff's experts testified that plaintiff's jaw was normal and not particularly susceptible to fracture and that the force required to cause a compound fractur
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