Opinion
No. 11–P–503.
2012-05-24
Karyn M. SWANSON v. Dennis J. JODOIN.
By the Court (BERRY, KAFKER & MILLS, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment dismissing her medical malpractice action against the defendant, a dentist. The dismissal followed the medical malpractice tribunal's finding for the defendant and the plaintiff's failure to provide a bond in the amount of $6,000, pursuant to G.L. c. 231, § 60B. We affirm.
We summarize the following from the complaint and the plaintiff's offer of proof. The plaintiff's complaint arises out of a dental implant procedure performed by the defendant on June 22, 2007. The implant was supposed to be eight millimeters in length. The defendant exposed a flap and used a two millimeters twist drill to reach the necessary depth. During drilling, the drill dropped to ten millimeters, causing the plaintiff to jump. She said it felt like her body was being electrified. The defendant closed the area and did not finish the implant.
Following the attempted implant, the plaintiff experienced persistent numbness, which caused a heavy sensation on one side of her chin, lip, and gums. The defendant referred the plaintiff to an oral surgeon at Massachusetts General Hospital for further treatment. The resulting nerve damage caused paresthesia and sensitivity, described at one point as, “hyperesthesia associated with her left inferior alveolar nerve.” However, there was functional sensory return, and by March, 2009, the plaintiff reported that her nerve had virtually returned to normal, though it felt hypersensitive on occasion. On July 30, 2009, the implant was successfully completed by another dentist. This dentist employed a bone graft.
“Under G.L. c. 231, § 60B, the medical malpractice tribunal must determine whether the plaintiff's offer of proof presents evidence which, if substantiated, raises a legitimate question of liability for judicial inquiry.” St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994). To meet this standard, the plaintiff's offer of proof must demonstrate (1) the existence of a doctor-patient relationship; (2) that the doctor did not conform to good medical practice; and (3) that damage resulted therefrom. Ibid. See Kapp v. Ballantine, 380 Mass. 186, 193 (1980). The tribunal must view the evidence presented in the offer of proof as a trial judge would in deciding a defendant's motion for a directed verdict, that is, in a light most favorable to the plaintiff. See Blake v. Avedikian, 412 Mass. 481, 484 (1992); St. Germain v. Pfeifer, 418 Mass. at 516.
The centerpiece of the plaintiff's offer of proof to the tribunal was the expert affidavit of an oral surgeon, Alan Kelman, D.D.S. In the affidavit, Kelman opined that the defendant had failed to do an adequate “pre-implant work-up.” The complaint cites the failure to take an X-ray as one of the omissions in the work-up. However, the defendant did take such an X-ray and that X-ray was presented to the tribunal. The presence of this X-ray undercut a major point in the alleged inadequate work-up.
In addition, Kelman stated that it was below the standard of care not to determine whether there was sufficient bone to support the planned implant before beginning the implant procedure. The affidavit does not refer to how the presence of sufficient bone support is to be determined, but it would appear an X-ray would have shown the bone structure and, as noted, an X-ray was done.
The affidavit also states that the defendant should have had better control so that the drill would not have dropped to ten millimeters. But this conclusory statement in the affidavit fails to articulate how the drill handling was malpractice rather than, for example, a risk inherent in the drill's use in any case.
Judgment affirmed.