Thursday, August 4, 2011

Dental Malpractice for Failure to Diagnose Osteomylitis

In light of the current bill in front of the Pennsylvania House of Representatives that will require dentists to carry liability insurance (read the full article at PennLive) I wanted to examine a large dental malpractice verdict from 2007.  The case of Hutt v. Weiner, et al. concsrned the plaintiff, Hutt,  a female, age 40, who alleged that the defendants committed dental malpractice by failing to diagnose and treat osteomylitis which was shown on a Panorex (full-mouth) X-ray film.

The defendants included two general dentists, an oral/maxillofacial surgeon and the oral/maxillofacial surgeon's practice group. The plaintiff claimed the defendants caused an approximate eight-month delay in treatment, decreasing her chances of successful cure of the infection. One of the defendant general dentists settled prior to verdict and the second general dentist was voluntarily dismissed. The remaining defendant oral/maxillofacial surgeon/professional association disputed the interpretation of the plaintiff's Panorex film and argued that the standard of care in treating the plaintiff was met.

The plaintiff presented to her treating dentist (dismissed from the case) with complaints of difficulty in opening her mouth and lower jaw pain. Her treating dentist thought that the plaintiff suffered from TMJ and referred her to the defendant oral/maxillofacial surgeon.  On the first visit, in October 2002, the defendant oral/maxillofacial surgeon took a Panorex or total mouth X-ray extending from left ear to right ear. He also extracted a molar and put in a suture. There was no notation in the defendant oral/maxillofacial surgeon's records of him having reviewed the plaintiff's Panorex film.

The plaintiff testified that she returned to have the suture removed, but was not advised that follow-up treatment was required.  The plaintiff's experts testified that the Panorex, taken in October 2002, showed right-side osteomylitis which remained untreated. Approximately two weeks later, the plaintiff sought treatment from the second (settling) general dentist who began to repair cavities and to treat the plaintiff for TMJ under a six-month plan.

The evidence at trial showed that, approximately one and a half months after beginning the plaintiff's treatment, the (settling) general dentist received a copy of the plaintiff's Panorex film from the defendant oral/maxillofacial surgeon. The plaintiff claimed that the Panorex film received was so dark as to prohibit viewing. The plaintiff's theory against the (settling) general dentist involved the allegation that he was negligent in failing to order a new Panorex film, call the oral/maxillofacial surgeon for a clear copy or to otherwise determine the findings shown on the Panorex.

The plaintiff telephoned the (settling) general dentist in April, 2003, and reported that she was unable to open her mouth at all and she was experiencing severe jaw pain. The defendant referred the plaintiff to the (non-party) University of Pennsylvania Dental School where she was diagnosed in May, 2003, with osteomylitis on her first visit.

The plaintiff contended that she never suffered from TMJ and that the delay in diagnosing and treating her osteomylitis allowed the condition to worsen. The plaintiff's oral/maxillofacial surgeon used the plaintiff's original Panorex film from October, 2002, to point out the infection and compared it with later films to show the progression of the disease.

The plaintiff underwent two surgical procedures and two years of antibiotic therapy as well as hyperbaric oxygen treatment. Her doctors believed that the infection had been arrested, but after two and a half years of treatment, an MRI showed a recurrence. The plaintiff's experts testified that the plaintiff's jaw bone has been eaten away to a narrow width of 1 cm, whereas normal width is 2 - 2.5 cm. The plaintiff's experts testified that the plaintiff will be required to remain on a soft diet for the rest of her life and the normal opening of her mouth will never be restored.

The plaintiff's oral maxillofacial surgeon also opined that the plaintiff's right mandible will fracture at some point in her lifetime and she will be required to undergo a bone graft from her calf into her jaw.
The defendant's oral/maxillofacial surgeon opined that the plaintiff's Panorex from October, 2002, was normal and that the defendants made a reasonable diagnosis of TMJ. The defendant oral/maxillofacial surgeon argued that the plaintiff did not return for follow-up, as he advised, and that he forwarded the film to the (settling) general dentist. The defense also argued that the plaintiff would have received the same treatment and had the same outcome, regardless of when her condition was diagnosed.  The jury found the (settling) defendant general dentist 60% negligent and the defendant oral/maxillofacial surgeon 40% negligent. The plaintiff was awarded $ 1.8 million in damages.

This was a very large verdict in a dental malpractice action, where damages typically do not exceed six figures. The jury may have reacted to the defendant oral/maxillofacial's blanket denial that the plaintiff's Panorex film showed infection.  Plaintiff's counsel was able to effectively disprove the defense position by methodically exhibiting and comparing the plaintiff's actual films through shadow box viewing. The plaintiff had the added advantage of an exceptional and credible expert in dental radiology who has authored the radiology textbook used in 75 dental schools throughout the country.

Through this expert, the jury received a "mini-course" in radiology and was able to detect the gross difference between the left (normal) side of the plaintiff's jaw and the right (infected) side. The plaintiff's expert pointed out that the lower rim of the plaintiff's left mandible had a distinctive, bright clear line indicating bone density, whereas there was no such line on the right side, where the infection was found to exist.

In addition, despite the defendant oral/maxillofacial surgeon's assertion that he had reviewed the plaintiff's Panorex film, there was no such notation in the medical record. The plaintiff also claimed that the settling general dentist made no effort to obtain a legible copy of the Panorex film, when an unreadable copy was received by his office.

The general dentist reached a confidential settlement with the plaintiff before presenting his expert, so the jury did not hear his defenses nor his expert's assertion that he met the required standard of care. The jury was not made aware as to why the general dentist's expert did not appear, even though his testimony was discussed during opening statements. This factor may have impacted the jury's finding of 60% against that settling defendant.

The plaintiff became pregnant before the diagnosis of osteomylitis and after she had been on antibiotics for six or seven weeks. She testified that she was terrified that her condition could adversely affect the fetus. The jury was not permitted to learn that the baby was subsequently diagnosed with autism. The court ruled that the plaintiff was unable to establish a sufficient causal link between the defendant's alleged negligence and the baby's autism.

A confidential resolution was reached following the $ 1.8 million verdict. The plaintiff had demanded $ 500,000 to settle the case prior to trial. Share this post :
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