Opinion
B159201.
11-13-2003
VICKY NGANGU, Plaintiff and Appellant, v. LINH VU, Defendant and Respondent.
Francis C.J. Pizzulli for Plaintiff and Appellant. Bonne, Bridges, Mueller, OKeefe & Nichols, Mark B. Connely, George E. Peterson, Alisa R. Knight and Jeffrey Moffat for Defendant and Respondent.
Plaintiff and appellant Vicky Ngangu appeals from a judgment in favor of defendant and respondent Linh Vu, D.D.S., in this dental malpractice action. Dr. Vu attempted to extract Ngangus molar without success and the procedure was completed by an oral surgeon. Ngangu contends: (1) Dr. Vu breached her duty to obtain informed consent by failing to inform Ngangu of an available alternative treatment; and (2) the trial court erroneously excluded rebuttal evidence that a needle injection did not cause nerve damage. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Extraction of Molar
In March 1994, Ngangus dentist, Dr. Yang, recommended that Ngangu have her third molars (wisdom teeth) removed by an oral surgeon, but Ngangu did not act on the recommendation. In June 1996, Dr. Vu purchased Dr. Yangs practice. Ngangu visited Dr. Vu for the first time in August 1996, and Dr. Vu reviewed her dental history. Ngangu had oral hygiene problems related to her third molars. Dr. Vu recommended that she have an oral surgeon remove them. Otherwise, she warned, accumulation of material around the teeth might cause pain requiring extraction. Ngangu did not act on Dr. Vus recommendation. Ngangu visited Dr. Vu on other occasions for teeth cleaning and other procedures.
In April 1998, Ngangu began to feel pain in her mandibular third molar. She scheduled an appointment with Dr. Vu for three days later on April 21, 1998. Dr. Vu examined the inside of her mouth visually and took a pre-operative X-ray. Ngangu had developed an inflammation of the gum tissue around the third molar with a mild infection. This condition is called pericoronitis. There was some discharge from the infection. Dr. Vu concluded that Ngangu needed to have the molar removed in order to alleviate the pain and the source of the infection. She explained to Ngangu that she could either refer her to an oral surgeon, or perform the extraction herself. She told Ngangu that an oral surgeon could remove the tooth more quickly and easily, but would be more expensive. Dr. Vu told Ngangu the inherent risks involved in third molar extraction were numbness of her lower lip, chin, and tongue; inflammation; swelling; infection; bleeding; jaw pain; possible damage to the adjacent tooth; possible nerve damage; and the possibility of a dry socket. Dry socket is a painful condition in which the blood clot at the extraction site does not form adequately and leaves the bone exposed to air. Dr. Vu made sure Ngangu understood the procedure, and Ngangu orally consented. Dr. Vu did not give Ngangu antibiotics prior to commencing surgery, nor did she irrigate the area with hydrogen peroxide.
Dr. Vu gave Ngangu an injection of anesthesia. She made an initial incision. When Dr. Vu checked Ngangus gums, Ngangu felt some pain. Dr. Vu gave Ngangu a second injection of anesthesia. Dr. Vu attempted to remove the third molar. It initially appeared to be a simple extraction. Dr. Vu removed a portion of bone in order to facilitate removal of the tooth. After approximately 30 minutes of operating time, Dr. Vu had been able to remove only the top rear portion of the tooth and visual access had become difficult. Dr. Vu took two additional X-rays and stopped the surgery. Dr. Vu concluded that the roots of the molar appeared to be ankylosed, a condition where the hard portion outside the root of the tooth is fused with surrounding bone. Dr. Vu gave Ngangu a third injection of anesthesia and referred her to an oral surgeons office for the same day surgical removal of the remaining portion of the molar. An injection of anesthesia requires inserting the needle near the lingual nerve. Dr. Vu may have damaged the lingual nerve during the second or third injection of anesthesia.
Ngangu saw oral surgeon Dr. Ralph Buoncristiani. Dr. Buoncristiani examined the X-rays from Dr. Vu and visually inspected the extraction area. Although Dr. Buoncristiani would not have made his initial incision in the same location as Dr. Vu, Dr. Buoncristiani used Dr. Vus incision and added another incision to gain a better view of the tooth. Dr. Buoncristiani concluded that the angle of the tooth and curve of the roots had made extraction difficult, but the roots were not anklyosed. Dr. Buoncristiani removed additional bone from a different area and removed the remainder of the tooth.
Although Dr. Vu had removed more bone than was necessary for the extraction, it had not been removed from an area that would cause damage to Ngangu. Both the amount of bone that Dr. Buoncristiani removed and the location of his incision were closer to the lingual nerve and posed a greater risk to Ngangu than the method used by Dr. Vu. During the procedure in Dr. Buoncristianis office, Dr. Buoncristiani gave Ngangu two injections of local anesthetic. The entire procedure in Dr. Buoncristianis office took approximately 10 minutes. Dr. Buoncristiani did not consider it necessary for Ngangu to receive antibiotics prior to commencing the procedure, because Ngangus infection was mild and localized. In Dr. Buoncristianis opinion, eliminating the source of the infection by removing the impacted tooth was the best way to eliminate the infection. Dr. Buoncristiani prescribed an antibiotic after the surgery.
Ngangu developed dry socket and made approximately six post-operative visits to Dr. Buoncristiani. During these visits, she also complained of jaw stiffness, which was due to normal post-operative swelling. Ngangu experienced persistent numbness, loss of taste, drooling, recurrent pain, excessive blinking and tearing, hearing difficulties, and migraine headaches. Some of these symptoms appeared several days after the surgery and some appeared as much as a month later. Ngangu did not mention these other symptoms to Dr. Buoncristiani. Dr. Buoncristiani treated the dry socket with medicated pads and it eventually resolved. Certain of Ngangus symptoms, such as numbness, increased over time. Apparently, the numbness was caused by injury to the lingual nerve.
Expert Testimony
Ngangu filed a complaint for dental negligence against Dr. Vu on July 7, 1999.[] Trial commenced on December 31, 2001. In Dr. Vus opening statement, her attorney told the jury that the evidence would show the lingual nerve could be penetrated and damaged without negligence by a needle delivering local anesthetic.
During trial, expert testimony was presented concerning the standard of care for dentists performing extraction of a third molar, including informed consent. The position of the American Association of Oral and Maxillofacial Surgeons is that temporary or permanent injury to the lingual nerve is an inherent risk in extraction of the third molar and can occur in the absence of any negligence by an oral surgeon exercising all due care.
Ngangus expert Dr. George Bernard, who is a dentist and professor of anatomy at U.C.L.A., testified that a surgeon exercising due care cannot injure the lingual nerve. He stated that if a patient had an infection in the area where the extraction was to be performed, the dentist should give the patient antibiotics prior to surgery. He opined that the failure to give antibiotics prior to surgery in this case was below the standard of care. Dr. Bernard also testified that several additional aspects of Dr. Vus treatment were below the standard of care. He could not say which violation of the standard of care had caused the damage to the lingual nerve, but he concluded there were no other causes of the damage other than the violations of the standard of care he had mentioned. He did not discuss whether a needle injection of anesthesia could damage the lingual nerve.
During cross-examination of Dr. Vus expert witnesses, Ngangu referred to passages from an authoritative textbook on oral and maxillofacial surgery concerning the treatment of pericoronitis. The textbook described the condition and stated that if a patient developed an inability to open the mouth more than 20 millimeters, a temperature greater than 101 degrees, facial swelling, pain, and malaise, the patient should be referred to an oromaxillofacial surgeon who might admit the patient to the hospital. Patients who have had one episode of pericoronitis, although managed successfully by these methods, will continue to have episodes of pericoronitis unless the offending mandibular third molar is removed. The patient should be informed that the tooth should be removed at the earliest possible time to prevent recurrent infections. The mandibular third molar should not be removed until the signs and symptoms of pericoronitis have been completely resolved. The incidence of post-operative complications, specifically dry socket and post-operative infections, increases if the tooth is removed at the time of active infection. Pericoronitis can be treated by debriding the large periodontal pocket that exists under the hyperculum by using hydrogen peroxide as an irrigating solution, which not only mechanically removes bacteria with its foaming action, but reduces the number of anaerobic bacteria by releasing oxygen. Other irrigants can also reduce the bacterial population of the pocket.
Dr. Vus expert Dr. Steven Bruce Graff-Radford, a dentist who is board certified in orofacial pain, testified that he has had patients with symptoms similar to Ngangus involving the lingual nerve and the injury was attributable exclusively to the needle used for an injection of local anesthesia. Dr. Graff-Radford also stated that swelling alone can compress the blood supply and kill the lingual nerve.
Dr. Buoncristiani is a board certified oral and maxillofacial surgeon and not an expert in the standard of care for general dentists. In his opinion, pericoronitis does not necessarily need to be eliminated prior to extraction and the passages from the textbook did not apply to Ngangus case. He routinely extracts teeth without first prescribing antibiotics. Had he been the first to extract Ngangus third molar, she would not have received antibiotics prior to commencement of surgery. He does not customarily irrigate patients who have pericoronitis with hydrogen peroxide or other irrigants prior to extraction. He teaches dentistry students to remove the source of the infection, provide surgical drainage by removing the tooth, and provide appropriate antibiotics after the extraction to prevent post-operative infection. He acknowledged that antibiotics could be given prior to surgery without harming the patient, but stated that it would be ineffective in most cases and elimination of the source of the infection was the priority.
Dr. Vu also presented expert testimony from oral and maxillofacial surgeon Dr. Earl Freymiller. Dr. Freymiller does not believe that signs of pericoronitis must be completely resolved prior to extraction of a third molar. He would remove a tooth where the patient had mild redness in the gum tissue. To determine whether to prescribe antibiotics prior to extraction, Dr. Freymiller weighs different variables. If a patient had an underlying medical problem putting them at risk for infection, such as diabetes or chronic steroid use, he might delay extraction and place the patient on antibiotics. However, if a patient had a serious infection, he might operate first, because removing the source of the infection would be in the patients best interest. In his opinion, the standard of care did not require giving antibiotics for mild pericoronitis before attempting extraction of a third molar, where the signs and symptoms of infection were characterized as mild. Moreover, antibiotics are given to prevent post-operative infection or the spread of infection. Antibiotics would have no influence on temporomandibular joint problems or nerve injury. If the patient was otherwise healthy and not at risk for the spread of infection, then removing the source of the infection outweighs the risk of the spread of infection. Dr. Freymiller stated that a pre-operative antibiotic coupled with painkillers a few days prior to extraction would have decreased the risk of dry socket, but not the risk of nerve damage.
Ear, nose, and throat physician Dr. Michael Landman testified as an expert witness for Dr. Vu. He stated that the needle used to inject anesthesia in the area near the lingual nerve can hit and damage the lingual nerve. He also testified that if the nerve were severed, the patient would have no sensation, rather than the partial sensation that Ngangu experienced. The inflammation and infection from pericoronitis would have no effect on nerve recovery.
Dr. Vu presented another expert, board certified oral and maxillofacial surgeon Dr. Lester Machado. In his experience, an injury to the lingual nerve presents immediately as total or partial numbness that generally improves over time. He has never encountered a surgical cause of numbness where the onset is gradual and worsens over time. He opined that Dr. Vus incision most likely did not cause injury to the lingual nerve and was consistent with the standard of care. In addition, the lingual nerve could not have been located in the area where Dr. Vu removed bone. He opined that the injury did not appear to be a transection or severance of the lingual nerve, based on the delayed onset of symptoms and Dr. Buoncristianis testimony concerning his visual inspection of the incision. In Dr. Machados experience, patients have experienced a complete loss of function of the lingual nerve without having had any surgery that could have caused the injury. In those cases, a needle injection of local anesthetic caused the injuries. In his opinion, temporary or permanent loss of function of the lingual nerve from transection or any other cause was an inherent risk in the surgical extraction of mandibular third molars that occurs in the absence of negligence based on the proximity of the nerve to the tooth. Moreover, Dr. Vu complied with the standard of care for surgical extraction of the tooth. Dr. Machado stated that he is not a periodontist. Periodontists treat conditions of the gum tissue. Treatment of Ngangus pericoronitis through antibiotics and periodontal treatment would have been an acceptable alternative treatment.
Dr. John Mulvehill is a general dentist, who testified on behalf of Dr. Vu. In his opinion, a verbal discussion so that the patient understands the procedure meets the standard of care for informed consent. Dr. Mulvehill usually puts in a patients chart that he discussed the risks and the benefits and the alternatives specifically designated for the procedure. The standard of care requires that patients understand the risks, the benefits and the alternatives.
Conclusion of Proceedings
Ngangu requested permission to call Dr. Bernard as a rebuttal witness to testify as to whether Ngangus injury could have resulted from a needle inserted into the lingual nerve. The trial court found the rebuttal testimony was either cumulative of Dr. Bernards previous testimony or should have been presented in Ngangus case-in-chief. The request was denied and closing arguments were presented to the jury.
The jury considered two questions concerning liability: (1) was Dr. Vu negligent, and if yes, (2) was the negligence a cause of injury to Ngangu. On January 11, 2002, the jury answered no to the first question, finding Dr. Vu was not negligent by a vote of 11 to 1. The trial court entered judgment on February 26, 2002. Ngangu filed motions for judgment notwithstanding the verdict and a motion for new trial, which the trial court denied. Ngangu filed a timely notice of appeal from the judgment.
DISCUSSION
Standard of Review
"When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment." (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571; Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.)
Informed Consent
Ngangu contends undisputed facts showed that Dr. Vu failed to disclose an available alternative treatment, namely, antibiotic and periodontal treatment to resolve Ngangus pericoronitis, and therefore, Dr. Vu failed to obtain informed consent as a matter of law. We conclude Ngangu failed to establish through expert testimony that the standard of care prevailing in the community required Dr. Vu to advise Ngangu of this alternative treatment.
A physician has a duty to disclose to a patient the available choices with respect to proposed therapy and the dangers inherently and potentially involved in each. (Schiff v. Prados (2002) 92 Cal.App.4th 692, 701; Cobbs v. Grant (1972) 8 Cal.3d 229, 243.) Further, a patient must be informed of the risks of refusing to undergo a proposed treatment. (Truman v. Thomas (1980) 27 Cal.3d 285, 292.) The scope of a physicians duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice. (Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.) At minimum, a physician must disclose the potential of death or serious harm known to be inherent in a given procedure and an explanation in lay terms of the complications that might occur. (Ibid.) In addition to these "minimal" disclosures, the physician must also reveal to the patient "such additional information as a skilled practitioner of good standing would provide under similar circumstances" (Ibid.)
"With respect to alternative treatments, under the doctrine of informed consent there is no general duty of disclosure with respect to nonrecommended procedures." (Ibid.) Instead, the failure to recommend a procedure must be addressed under ordinary medical negligence standards. (Ibid.) That is, a physician must disclose alternative treatments only to the extent it is required for competent practice within the medical community. (Ibid.) The standard of care prevailing in the medical community must be established by expert testimony. (Ibid.)
In this case, no expert testified as to whether the standard of care required Dr. Vu to inform Ngangu of the antibiotic and periodontal treatment alternative. Whether the standard of care required Dr. Vu to provide pre-operative antibiotics or eliminate Ngangus pericoronitis prior to extraction was disputed and several experts testified that the standard of care did not require these actions. Therefore, substantial evidence supports a finding that the standard of care did not require Dr. Vu to perform this treatment. However, whether the standard of care required Dr. Vu to inform Ngangu that antibiotic and periodontal treatment was an available alternative is an issue that Ngangu was required to establish through expert testimony and she presented no evidence on this question.
Exclusion of Evidence
The trial court denied Ngangus request to call Dr. Bernard as a rebuttal witness to present evidence as to whether an anesthesia injection could cause lingual nerve damage. Ngangu contends the trial courts denial of her request to present rebuttal evidence was in error.
Evidence Code section 354 provides, "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." A miscarriage of justice should be declared only when the appellate court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Even were we to conclude that Ngangus rebuttal evidence was erroneously excluded, it is not reasonably probable that a result more favorable to Ngangu would have been reached. The rebuttal evidence concerned whether a needle injection could have caused Ngangus injuries. The jury found no negligence in Dr. Vus actions and never reached the issue of causation. The rebuttal evidence would not have changed the result in this case.
DISPOSITION
The judgment is affirmed. Respondent Linh Vu, D.D.S., is awarded her costs on appeal.
We concur: TURNER, P. J. and MOSK, J. --------------- Notes: Dr. Buoncristiani was also named as a defendant, but the action was not prosecuted against him.