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THE TEXAS DENTURES THAT WOULDN’T FIT
In this case of the dentures th a t wouldn’t fit, a Texas patient brought suit on three claims: violations of the state’s Deceptive Trade Practices Act, breach of implied w arranty and breach of contract. In September 1988, all the patient’s teeth were extracted by another dentist. The defend ant prepared her dentures. But the patient claimed the den tures never fit. The dentist/ defendant continued adjusting the dentures until May 1991 when he referred her to another dentist. After this referral, the patient claimed she discovered th a t the dentures were defec tive and could not be made to fit. First, the trial court granted the dentist’s motion for summary judgment, and the patient appealed. The U.S. Court of Appeals in Texas found th a t summary judgm ent for the dentist was not appropriate on certain counts and returned the case to the trial court. The patient claimed th a t the dentist knowingly made false, misleading and deceptive representations th a t violated DTPA provisions. The dentist m aintained th a t this was really a dental malpractice action th at should be governed by the state’s Medical Liability and Insurance Improvement Act. The appellate court held th at summary judgm ent should not 124
JADA, Vol. 124, September 1993
have been granted on the DTPA claim. The MLIIA pre-emption of the DPTA for malpractice (dental negligence) claims doesn’t bar DTPA claims th a t are based on knowing m isrepresentations. Next, the patient alleged a breach of implied w arranty of suitability and fitness for a particular purpose. She argued th at because she contracted for properly fitted dentures, the dominant nature of the transaction was the sale of dentures. On this appeal, the dentist countered th a t the dentures were related to the professional services provided, making the services the dominant transaction. The court explained th a t the alleged denture failure wasn’t attributable to the product, but to the professional services of designing and fitting the dentures. The dentures were designed to meet the patient’s particular needs. The dentures didn’t exist when the patient sought the dentist’s services, nor were they a finished product offered to the public in regular commercial channels. As a result, strict liability for breach of implied w arranty didn’t exist. But the Texas courts have held th a t the defendant must establish th at the professional services, not the product, caused the alleged harm. In this case, to bar the implied warranty claim, the dentist
could have but did not show at the trial level either th a t the dentures resulted from his professional skill and judgment, or th a t the dentures were intimately related to his professional services. Since he did neither, the appellate court ruled th a t the claim of breach of implied warranty should not have been dismissed at the first judgment. On the third claim, the patient said th a t the dentist breached a contract to provide a suitable set of dentures. The dentist responded th a t under Texas law, such a claim can’t be enforced unless the agreement is in writing. Since no written agreement was presented, the breach of contract claim was barred by the statute (Tex. App.-Dallas, No. 05-92-01551CV, decided June 25, 1993). ORAL SURGEON FAILED TO GIVE COMPLETE TREATMENT INFORMATION
In Connecticut, a patient sued both an orthodontist and oral surgeon for adverse results after surgery to correct her overbite. The patient said th a t the oral surgeon failed to inform her of an alternative treatm ent th a t didn’t involve surgery and, if chosen, would not have resulted in the problems th a t occurred. The U.S. Court of Appeals in Connecticut held th a t the patient had presented expert
testimony to support her action against the oral surgeon but not the orthodontist. The patient consulted the orthodontist about correcting her overbite and the protrusion of her front teeth. She began orthodontic treatm ent with braces. But three months later, on the advice of the ortho dontist, the two upper first premolars were extracted. After extraction, the orthodontist for the first time indicated that surgery m ight be required. He advised the patient th a t because her jaw was out of alignment, he might not be able to correct her overbite with braces alone. He explained th at if surgery were needed, her jaws would be broken and then wired shut for six to eight weeks. Some 10 months later, the orthodontist concluded th at surgery would be necessary to close the space created by the extractions and to correct the overbite. He discussed no alternative treatm ent plan and told the patient only th a t she required surgery. He told her th a t the surgery might not go well and she m ight not achieve the desired result. He didn’t specifically explain other problems because he normally left th a t explanation to the oral surgeon. The patient consulted the oral surgeon who later advised the orthodontist th a t he was considering treatm ent options including maxillary surgery th a t would close off the spaces and move the mandible. The oral surgeon’s notes from the patient visit, however, did not reflect th a t he had discussed non-surgical options. At the trial, the oral surgeon testified th a t he discussed with
the patient whether she wanted to undergo the surgery, whether she should have surgery on one jaw or two, whether the spaces created by extractions would be closed a t the time of the maxillary surgery or six months later. He did not discuss the option of using partial dentures rath er than segmental surgery to close the gap. The oral surgeon testified th a t the partial denture was a viable alternative if the patient would accept a final situation in which the maxillary deformity would not be completely corrected. The oral surgeon described the surgical procedures in detail to the patient. When discussing the risks of the surgery, the oral surgeon said he had performed the procedure hundreds of times and the worst things th at had happened were a postoper ative root canal was needed for one patient and another lost a tooth. The patient consented to the surgery. One week after surgery, the patient still had very bruised cheeks and gingiva and moderate discomfort. Six weeks after the operation, the gingiva ordinarily covering the anterior segment was gone. The bone was also exposed indicating a compromised blood supply. Ten months later, the patient had horizontal bone loss in the front part of the jaw. The patient sued both the orthodontist and the oral surgeon and included a claim of lack of informed consent—the subject of this appeal. The appellate court explained th at an informed consent action required the plaintiff to prove through expert testimony a duty on the part of the doctor and the breach of th a t duty. The court found th a t the
patient failed to present the needed expert testimony in regard to the orthodontist so the trial court’s directed verdict for him was sustained. The patient claimed th a t the oral surgeon had failed to warn her adequately of the danger of loss of teeth caused by inter ruption of the blood flow as a result of the surgery and failed to advise her of feasible alterna tive treatm ents. The oral surgeon testified th a t he discussed the aforementioned options of proposed treatm ent. He also testified th at the viable alternative to the surgery would have required th a t the patient be satisfied with a less than perfect result, so he did not discuss this alternative. Under Connecticut law, once the existence of a duty to inform has been established, the doctor m ust disclose the information that a reasonable, objective patient would have found helpful in making a decision. That includes all material risks attendant to the proposed treatm ent and all viable alternatives to such treatm ent. In this case, the oral surgeon was aware of a viable alterna tive, the drawback of which was an imperfect cosmetic result. But he failed to disclose this alternative to the patient. The court held th a t the jury could reasonably have found th a t the oral surgeon resorted to a “doctor knows best” standard, depriving the patient of her right to make an informed judgm ent about her treatm ent (31 Conn. App. 527). JURY FINDS FOR ENDODONTIST IN DEATH CLAIM
This action for wrongful death and malpractice was brought by JADA, Yol. 124, September 1993
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COURIS the spouse of a hypertensive patient who died after an endodontic procedure. The jury found for the endodontist and the U.S. Court of Appeals in Louisiana affirmed the judgment. After experiencing pain for two days, the patient visited a general dentist who took a radiograph showing a suspected abscess near the root of the upper left lateral incisor. The patient was referred to an endodontist who saw him two days later. The endodontist did not take a blood pressure reading although the patient noted his medically controlled hypertensive condition on a questionnaire. The endodontist performed a retrofil procedure and placed a filling in the root tip to prevent future infection. During the procedure, the endodontist administered no more than 85 micrograms of epinephrine along with a local anesthetic. At the trial there was con flicting testimony concerning the condition of the patient when he left the endodontist’s office. His wife claimed th a t the patient was shaky, gray and sweaty. The office staff testified th a t he was alert and they observed no ashen appearance or adverse reaction to the medication administered. By 3 p.m. of the day of treatm ent, the patient suffered convulsions, and by 5 p.m. he died, despite the efforts of paramedics and physicians. An autopsy showed the cause of death was acute cardiorespira tory failure, most likely attrib
126
JADA, Vol. 124, September 1993
utable to a history of hyperten sion. The coroner also stated th a t there was no evidence to tie the dental procedure to the death. Two and a half years later, however, the coroner supple mented the earlier certificate with a statem ent th a t death had been caused by an overdose of epinephrine, complicated by methemoglobinemia caused by an interaction between acetaminophen the patient was taking for pain and Prilocaine given to him during the endodontic procedure. During the trial, the coroner fully subscribed to his second report but also mentioned for the first time th a t he thought a heart attack caused the death. The court found th at the defendant, as an endodontist, did classify as a specialist. The court also explained th a t in Louisiana by statute, the duty of care of dental and medical specialists is gauged by a national standard, not by a local standard. The statute provides th a t where the defendant practices in a particular specialty and the alleged acts of negligence raise issues peculiar to the specialty involved, the plaintiff m ust prove the degree of care ordinarily practiced by dentists within the involved specialty. The plaintiff also must establish th a t a causal relation ship existed between the alleged negligent treatm ent and
the injury sustained. The court said th a t in a wrongful death action th a t means the defend an t’s malpractice resulted in the loss of a chance of survival. Expert testimony at the trial indicated th a t the practice of endodontists during the period in question did not routinely include obtaining a patient’s blood pressure, particularly when the patient related his condition as regularly moni tored and medically controlled. The appellate court concluded th a t the trial record adequately supported the verdict for the endodontist. The plaintiff had failed to show th at the standard of care for endodontists in 1987 required the taking of the patient’s blood pressure, preoperatively or otherwise. In regard to the coroner’s opinion th a t the patient had been given an overdose of epinephrine and suffered druginduced methemoglobinemia, the defense offered several witnesses who found his supplemental report to be speculative and the patient’s symptoms as much consistent with sudden death syndrome. The court affirmed the judgm ent for the endodontist (La. App. 2 Cir., No. 24,875, decided June 23, 1993). This report was prepared by Richard Berry, associate general counsel, ADA Division of Legal Affairs.
In this case of the dentures th a t wouldn’t fit, a Texas patient brought suit on three claims: violations of the state’s Deceptive Trade Practices Act, breach of implied w arranty and breach of contract. In September 1988, all the patient’s teeth were extracted by another dentist. The defend ant prepared her dentures. But the patient claimed the den tures never fit. The dentist/ defendant continued adjusting the dentures until May 1991 when he referred her to another dentist. After this referral, the patient claimed she discovered th a t the dentures were defec tive and could not be made to fit. First, the trial court granted the dentist’s motion for summary judgment, and the patient appealed. The U.S. Court of Appeals in Texas found th a t summary judgm ent for the dentist was not appropriate on certain counts and returned the case to the trial court. The patient claimed th a t the dentist knowingly made false, misleading and deceptive representations th a t violated DTPA provisions. The dentist m aintained th a t this was really a dental malpractice action th at should be governed by the state’s Medical Liability and Insurance Improvement Act. The appellate court held th at summary judgm ent should not 124
JADA, Vol. 124, September 1993
have been granted on the DTPA claim. The MLIIA pre-emption of the DPTA for malpractice (dental negligence) claims doesn’t bar DTPA claims th a t are based on knowing m isrepresentations. Next, the patient alleged a breach of implied w arranty of suitability and fitness for a particular purpose. She argued th at because she contracted for properly fitted dentures, the dominant nature of the transaction was the sale of dentures. On this appeal, the dentist countered th a t the dentures were related to the professional services provided, making the services the dominant transaction. The court explained th a t the alleged denture failure wasn’t attributable to the product, but to the professional services of designing and fitting the dentures. The dentures were designed to meet the patient’s particular needs. The dentures didn’t exist when the patient sought the dentist’s services, nor were they a finished product offered to the public in regular commercial channels. As a result, strict liability for breach of implied w arranty didn’t exist. But the Texas courts have held th a t the defendant must establish th at the professional services, not the product, caused the alleged harm. In this case, to bar the implied warranty claim, the dentist
could have but did not show at the trial level either th a t the dentures resulted from his professional skill and judgment, or th a t the dentures were intimately related to his professional services. Since he did neither, the appellate court ruled th a t the claim of breach of implied warranty should not have been dismissed at the first judgment. On the third claim, the patient said th a t the dentist breached a contract to provide a suitable set of dentures. The dentist responded th a t under Texas law, such a claim can’t be enforced unless the agreement is in writing. Since no written agreement was presented, the breach of contract claim was barred by the statute (Tex. App.-Dallas, No. 05-92-01551CV, decided June 25, 1993). ORAL SURGEON FAILED TO GIVE COMPLETE TREATMENT INFORMATION
In Connecticut, a patient sued both an orthodontist and oral surgeon for adverse results after surgery to correct her overbite. The patient said th a t the oral surgeon failed to inform her of an alternative treatm ent th a t didn’t involve surgery and, if chosen, would not have resulted in the problems th a t occurred. The U.S. Court of Appeals in Connecticut held th a t the patient had presented expert
testimony to support her action against the oral surgeon but not the orthodontist. The patient consulted the orthodontist about correcting her overbite and the protrusion of her front teeth. She began orthodontic treatm ent with braces. But three months later, on the advice of the ortho dontist, the two upper first premolars were extracted. After extraction, the orthodontist for the first time indicated that surgery m ight be required. He advised the patient th a t because her jaw was out of alignment, he might not be able to correct her overbite with braces alone. He explained th at if surgery were needed, her jaws would be broken and then wired shut for six to eight weeks. Some 10 months later, the orthodontist concluded th at surgery would be necessary to close the space created by the extractions and to correct the overbite. He discussed no alternative treatm ent plan and told the patient only th a t she required surgery. He told her th a t the surgery might not go well and she m ight not achieve the desired result. He didn’t specifically explain other problems because he normally left th a t explanation to the oral surgeon. The patient consulted the oral surgeon who later advised the orthodontist th a t he was considering treatm ent options including maxillary surgery th a t would close off the spaces and move the mandible. The oral surgeon’s notes from the patient visit, however, did not reflect th a t he had discussed non-surgical options. At the trial, the oral surgeon testified th a t he discussed with
the patient whether she wanted to undergo the surgery, whether she should have surgery on one jaw or two, whether the spaces created by extractions would be closed a t the time of the maxillary surgery or six months later. He did not discuss the option of using partial dentures rath er than segmental surgery to close the gap. The oral surgeon testified th a t the partial denture was a viable alternative if the patient would accept a final situation in which the maxillary deformity would not be completely corrected. The oral surgeon described the surgical procedures in detail to the patient. When discussing the risks of the surgery, the oral surgeon said he had performed the procedure hundreds of times and the worst things th at had happened were a postoper ative root canal was needed for one patient and another lost a tooth. The patient consented to the surgery. One week after surgery, the patient still had very bruised cheeks and gingiva and moderate discomfort. Six weeks after the operation, the gingiva ordinarily covering the anterior segment was gone. The bone was also exposed indicating a compromised blood supply. Ten months later, the patient had horizontal bone loss in the front part of the jaw. The patient sued both the orthodontist and the oral surgeon and included a claim of lack of informed consent—the subject of this appeal. The appellate court explained th at an informed consent action required the plaintiff to prove through expert testimony a duty on the part of the doctor and the breach of th a t duty. The court found th a t the
patient failed to present the needed expert testimony in regard to the orthodontist so the trial court’s directed verdict for him was sustained. The patient claimed th a t the oral surgeon had failed to warn her adequately of the danger of loss of teeth caused by inter ruption of the blood flow as a result of the surgery and failed to advise her of feasible alterna tive treatm ents. The oral surgeon testified th a t he discussed the aforementioned options of proposed treatm ent. He also testified th at the viable alternative to the surgery would have required th a t the patient be satisfied with a less than perfect result, so he did not discuss this alternative. Under Connecticut law, once the existence of a duty to inform has been established, the doctor m ust disclose the information that a reasonable, objective patient would have found helpful in making a decision. That includes all material risks attendant to the proposed treatm ent and all viable alternatives to such treatm ent. In this case, the oral surgeon was aware of a viable alterna tive, the drawback of which was an imperfect cosmetic result. But he failed to disclose this alternative to the patient. The court held th a t the jury could reasonably have found th a t the oral surgeon resorted to a “doctor knows best” standard, depriving the patient of her right to make an informed judgm ent about her treatm ent (31 Conn. App. 527). JURY FINDS FOR ENDODONTIST IN DEATH CLAIM
This action for wrongful death and malpractice was brought by JADA, Yol. 124, September 1993
125
p
—
COURIS the spouse of a hypertensive patient who died after an endodontic procedure. The jury found for the endodontist and the U.S. Court of Appeals in Louisiana affirmed the judgment. After experiencing pain for two days, the patient visited a general dentist who took a radiograph showing a suspected abscess near the root of the upper left lateral incisor. The patient was referred to an endodontist who saw him two days later. The endodontist did not take a blood pressure reading although the patient noted his medically controlled hypertensive condition on a questionnaire. The endodontist performed a retrofil procedure and placed a filling in the root tip to prevent future infection. During the procedure, the endodontist administered no more than 85 micrograms of epinephrine along with a local anesthetic. At the trial there was con flicting testimony concerning the condition of the patient when he left the endodontist’s office. His wife claimed th a t the patient was shaky, gray and sweaty. The office staff testified th a t he was alert and they observed no ashen appearance or adverse reaction to the medication administered. By 3 p.m. of the day of treatm ent, the patient suffered convulsions, and by 5 p.m. he died, despite the efforts of paramedics and physicians. An autopsy showed the cause of death was acute cardiorespira tory failure, most likely attrib
126
JADA, Vol. 124, September 1993
utable to a history of hyperten sion. The coroner also stated th a t there was no evidence to tie the dental procedure to the death. Two and a half years later, however, the coroner supple mented the earlier certificate with a statem ent th a t death had been caused by an overdose of epinephrine, complicated by methemoglobinemia caused by an interaction between acetaminophen the patient was taking for pain and Prilocaine given to him during the endodontic procedure. During the trial, the coroner fully subscribed to his second report but also mentioned for the first time th a t he thought a heart attack caused the death. The court found th at the defendant, as an endodontist, did classify as a specialist. The court also explained th a t in Louisiana by statute, the duty of care of dental and medical specialists is gauged by a national standard, not by a local standard. The statute provides th a t where the defendant practices in a particular specialty and the alleged acts of negligence raise issues peculiar to the specialty involved, the plaintiff m ust prove the degree of care ordinarily practiced by dentists within the involved specialty. The plaintiff also must establish th a t a causal relation ship existed between the alleged negligent treatm ent and
the injury sustained. The court said th a t in a wrongful death action th a t means the defend an t’s malpractice resulted in the loss of a chance of survival. Expert testimony at the trial indicated th a t the practice of endodontists during the period in question did not routinely include obtaining a patient’s blood pressure, particularly when the patient related his condition as regularly moni tored and medically controlled. The appellate court concluded th a t the trial record adequately supported the verdict for the endodontist. The plaintiff had failed to show th at the standard of care for endodontists in 1987 required the taking of the patient’s blood pressure, preoperatively or otherwise. In regard to the coroner’s opinion th a t the patient had been given an overdose of epinephrine and suffered druginduced methemoglobinemia, the defense offered several witnesses who found his supplemental report to be speculative and the patient’s symptoms as much consistent with sudden death syndrome. The court affirmed the judgm ent for the endodontist (La. App. 2 Cir., No. 24,875, decided June 23, 1993). This report was prepared by Richard Berry, associate general counsel, ADA Division of Legal Affairs.