The Court of Special Appeals of Maryland (“Maryland Appellate Court”) held in its unpublished opinion filed on February 8, 2019 that “[v]iewed in its totality, the evidence adduced by [the plaintiff] in her case-in-chief was legally sufficient to prove the elements of a claim for dental malpractice, by the liberal legal standard that Maryland follows.”
The Underlying Facts
On December 5, 2012, the defendant oral surgeon surgically extracted the Maryland dental malpractice plaintiff’s left upper and lower third molars, commonly known as wisdom teeth. In the days following the extractions, the plaintiff noticed that she could not taste food on the left side of her tongue and she had lost sensation in that area. She was subsequently diagnosed by another oral and maxillofacial surgeon with a serious injury to her left lingual nerve.
The plaintiff subsequently filed her Maryland dental malpractice case against the oral surgeon who had performed the extractions and his dental pracice. The plaintiff designated a board certified oral and maxillofacial surgeon as her expert. The plaintiff’s expert testfied during the trial that he had determined that there was a departure from the standard of care and that it was the proximate or direct cause of the plaintiff’s injury to her left lingual nerve, which he explained supplies feeling to the front two-thirds of the tongue, along with the gum tissue on the inner aspect of the jawbone, and supplies taste to the two-thirds of the front part of the tongue.
The plaintiff’s expert explained to the Maryland dental malpractice jury that in a routine, non-surgical extraction of a tooth, forceps are used to pull the tooth out. In a surgical extraction of a tooth, a scalpel, known as a dental bur, is used to make an incision in gum tissue or other type of tissue for the express purpose of moving the tissue away from the tooth prior to extraction.
The plaintiff’s expert testified that wisdom teeth are more easily taken out when one of two things are done: either a trough or little channel is made between the tooth and the bone and/or the tooth is sectioned. Sectioning a tooth means using a drill or a bur to cut it into multiple pieces and then removing them. The plaintiff’s expert further testified that sectioning is especially useful for lower wisdom teeth because they often have two or three roots.
The plaintiff’s expert explained at trial the location of the left lingual nerve in relation to the wisdom teeth and that there are two ways in which that nerve can be injured during a surgical extraction. First, if the surgeon is making an incision to expose the neck of the tooth, to then use an instrument to elevate it out, the lingual nerve can be hit by an improperly located incision. Second, if the surgeon sections the tooth, the lingual nerve can be injured by drilling too far, beyond the confines of the tooth.
Inadequate Dental Records
The plaintiff’s expert stated that the defendant’s chart for the plaintiff does not show whether he sectioned the tooth or, if he sectioned the tooth, whether he used a dental bur or another instrument. During his deposition, the defendant testified that he may or may not have sectioned the tooth. The defendant’s chart for the plaintiff did not show his incision design, which the plaintiff’s expert testified should have been shaped like a hockey stick to avoid hitting the lingual nerve.
The trial court granted the defense motion for judgment on the plaintiff’s dental malpractice claim, finding that notwithstanding that the plaintiff’s expert had opined in general terms that there had been a departure from the standard of care and that that departure was the proximate cause of the injury to the plaintiff’s left lingual nerve, he had not testified about what it is in his opinion that caused her lingual nerve to be severed nor had he given any specifics as to what he believes the defendant did to cause that injury. Thus, the trial court found that the plaintiff had not met her burden to show a connection between any alleged negligence by the defendant and her injury.
The Maryland Appellate Court stated that in determining whether the plaintiff’s expert did no more than speculate in opining that the defendant breached the standard of care, “[i]t is significant that [the defendant’s] dental chart for [the plaintiff] does not document how [he] extracted [her] wisdom teeth. There is one handwritten note that the extractions were “surgical,” but nothing more. It is impossible to determine from these records whether the left lower wisdom tooth was removed by sectioning or by elevating. (Nor can that be determined for the left upper wisdom tooth). Not only are [the defendant’s] records sparse and uninformative, he testified in deposition that he does not remember [the plaintiff] or what procedure he performed to remove her wisdom teeth. What should be easily ascertainable from [the defendant’s] chart for [the plaintiff], had worthwhile notations been made, necessarily must be inferred instead.”
The Maryland Appellate Court held: “In our view, given the paucity of the chart [the defendant] created for [the plaintiff] and his inability to recall the precise method he used to extract her wisdom teeth, [the plaintiff’s expert] was not speculating when he drew inferences, from what facts are known, that [the defendant] probably sectioned the left lower wisdom tooth and likely damaged the left lingual nerve by sectioning the tooth without cabining his instrument to the confines of the tooth itself … [the plaintiff’s expert’s] testimony rested on reasonable inferences based on fact, not on conjecture … [h[ere, there is limited data available, through no fault of [the plaintiff], so [the plaintiff’s expert’s] opinions on what probably happened were necessarily inferential.”
Source Hill-Higgins v. Boucree, No. 1924 September Term, 2017.
If you or a loved one suffered serious injuries (or worse) due to possible dental malpractice in Maryland or in another U.S. state, you should promptly seek the advice of a dental malpractice attorney in Maryland or in your state who may investigate your dental malpractice claim for you and file a dental malpractice case on your behalf, if appropriate.
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