By its decision rendered on May 6, 2015, the Supreme Court of the State of New York Appellate Division: Second Judicial Department (“Appellate Court”) reversed a jury’s verdict in the amount of $430,000 in favor of a dental patient in a New York dental malpractice case, finding that the plaintiff had failed to prove that a piece of a dental instrument went into his lung during his course of treatment by the defendant dentist.
The Alleged Underlying Facts
The plaintiff testified that in mid-2007, while he was undergoing a dental cleaning procedure performed by the defendant dentist, he overheard an exchange between the defendant and her assistant about an instrument needing to be replaced because it had broken. The plaintiff further testified that after the instrument was replaced and the defendant resumed working on him, he felt something stuck in his throat and could not breathe, until the defendant punched him on the back, which dislodged whatever was in his throat, and his regular breathing was restored.
On January 16, 2008, the plaintiff went to the emergency room of a local hospital, complaining of a fever, cough, chest pain, and nasal congestion. A routine chest X ray revealed the presence of a metallic object in the plaintiff’s left lower lung. Further testing determined that the object appeared to be a medical device.
The plaintiff filed his New York dental malpractice case against the defendant dentist, who had been his treating dentist from April 1, 2006 through February 2, 2008, alleging that the defendant had negligently broken the instrument she was using during the dental procedure in mid-2007, causing its metal tip (burr) to fall into his mouth, as a result of which he aspirated the burr into his left lung. Prior to coming under the dental care of the defendant dentist, the plaintiff had last been treated by another dentist on April 14, 2005.
The Appellate Court stated that it was undisputed that allowing a burr to come off in a patient’s mouth and failing to retrieve it, or to immediately take steps to retrieve it, would constitute a departure from accepted dental practice. The Appellate Court stated that the sole issue on appeal was whether the departure occurred while the defendant was treating the plaintiff, or while the plaintiff’s previous dental provider was treating him.
The Appellate Court found that when it considered the plaintiff’s testimony and the conflicting trial evidence, including the plaintiff’s own testimony that at the time he learned of the burr’s presence in his lungs, he had no idea of how it had come to be there, and his failure to mention, until more than one year after he had filed his dental malpractice lawsuit, the incident during his many visits to the pulmonary specialist, who did not appear at trial and with respect to whom the jury was given a missing witness charge, the evidence so preponderated in favor of the defendant that the jury could not have reached the verdict by any fair interpretation of the evidence.
Therefore, the Appellate Court held that the trial court should have granted the defendant’s motion to set aside the verdict on the issue of liability as contrary to the weight of the evidence, and the Appellate Court ordered a new trial on the issues of liability and damages.
Source Liyanage v. Amann, No. 2013-01226.
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