The Michigan Court of Appeals recently affirmed the lower court’s entry of a $151,093.23 judgment for a plaintiff, based on the jury’s ruling in a medical malpractice action.
In August 2011, a dentist extracted one of the plaintiff’s wisdom teeth. From the time of the extraction, the plaintiff experienced numbness on the left side of her tongue. When she returned to the defendant’s office, he treated her for a dry socket and advised her that her lingual nerve may have been injured during the procedure, but it would gradually recover. When the numbness continued, the plaintiff saw various other specialists, who also advised her that she most likely had a lingual nerve injury that would recover.
Eventually, the plaintiff was referred to an oral surgeon and lingual nerve specialist at the University of Michigan. In January 2012, he performed exploratory surgery on the plaintiff. He testified that he found that the plaintiff’s left lingual nerve was severed and was irreparable. Afterwards, the plaintiff brought this dental malpractice claim against the dentist. At trial, the defendant argued that the plaintiff’s numbness most likely was caused by toxicity from the anesthetic he used, and it was more likely than not that the surgeon severed the plaintiff’s lingual nerve during the exploratory surgery. The jury returned a verdict for the plaintiff.
On appeal, the dentist argued that the trial court should have granted his motions for a directed verdict or for judgment notwithstanding the verdict (JNOV). The appeals court disagreed.
The appeals court first explained that to establish a cause of action for medical malpractice, a plaintiff must demonstrate (1) the standard of care governing the defendant’s conduct at the time of the alleged negligence, (2) a breach of the applicable standard of care, (3) injuries, and (4) proximate causation of the injuries by the defendant’s breach of the standard of care.
Regarding breach and the standard of care, at trial, the plaintiff’s expert witness testified that severing the lingual nerve during a tooth extraction violated the standard of care, regardless of the type of instrument used to sever the nerve, assuming the nerve was in its normal anatomical position. The dentist and his expert witness also agreed at trial that if the dentist severed the plaintiff’s lingual nerve during the extraction, and the nerve was located in the normal anatomical position, such conduct would violate the standard of care. Accordingly, the defendant’s claim that the plaintiff failed to set forth the applicable standard of care lacked merit.
To demonstrate a breach of this standard of care, the plaintiff was required to show that her lingual nerve was located in the normal anatomical position and that the defendant severed the nerve during her wisdom tooth extraction. Contrary to the defendant’s assertions on appeal, demonstrating a violation of the established standard of care, i.e., severing a normally located lingual nerve during a wisdom tooth extraction, was not dependent on which tool or method was used to make the cut. Therefore, the plaintiff was not required to present evidence showing that he used a specific flawed technique or an improper instrumentality to demonstrate that he breached the standard of care, and the trial court did not err by denying the defendant’s motions on this basis.
The dentist next argued that the trial court erred by allowing the plaintiff to rely on the doctrine of res ipsa loquitur (a common law doctrine under which negligence can be presumed by the fact of the accident itself) at trial because the plaintiff failed to plead the doctrine in her complaint and furthermore failed to satisfy the required elements of the doctrine.
The plaintiff correctly argued, however, that the doctrine of res ipsa loquitur was not applicable to this case. The parties did not dispute that the plaintiff’s lingual nerve was severed, and there was expert testimony that severing the lingual nerve during an extraction violated the standard of care, assuming the nerve was located in its normal anatomical position. The plaintiff presented evidence that it was more likely than not that her lingual nerve was in the correct anatomical position and that it was the dentist, rather than the surgeon, who severed the nerve. The plaintiff, the court explained, was not unable to prove that a negligent act occurred and therefore did not need to rely on the doctrine of res ipsa loquitur at trial.
While the defendant argued that the trial court erred by allowing the plaintiff to make a belated res ipsa loquitur argument, the trial court expressly noted that res ipsa loquitur did not apply to this case when it denied the defendant’s motions for a directed verdict and for JNOV. Furthermore, the court did not instruct the jury on the doctrine of res ipsa loquitur, so the jury did not rely on that theory to return its verdict in the plaintiff’s favor. Accordingly, the defendant showed no error with respect to this issue.
Finally, the dentist argued that the trial court erred by denying his motion for a new trial on the ground that the verdict was against the great weight of the evidence. The appeals court disagreed. It was undisputed at trial that the plaintiff’s lingual nerve was severed and that she experienced numbness in the left side of her tongue since the time the dentist performed the extraction. Both experts and the dentist all agreed that severing the lingual nerve during an extraction violated the standard of care if the nerve was located in its normal anatomical position. And both experts testified that they believed it was more probable than not that the plaintiff’s lingual nerve was located in the normal anatomical position.
Although the dentist presented evidence suggesting that it was the surgeon who severed the nerve during the exploratory surgery and that the plaintiff’s numbness could have been caused by the anesthesia injection, he could not show that the verdict was manifestly against the clear weight of the evidence. Therefore, the court concluded that the trial court did not abuse its discretion by denying the defendant’s motion for a new trial.
For these reasons, the appeals court affirmed the lower court’s judgment.
The medical malpractice attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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