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Roper v. Blumenfeld

March 09, 1998


Argued February 18, 1998

On appeal from Superior Court of New Jersey, Law Division, Passaic County.

Before Judges Pressler, Conley and Carchman.

The opinion of the court was delivered by: Conley, J.A.D.

Plaintiffs appeal a dismissal of their dental malpractice complaint based on a jury finding that they did not demonstrate that defendant deviated from the accepted standard of care when he attempted to extract tooth #31 from plaintiff Angela M. Roper (hereinafter plaintiff). As a result of this finding, the jury did not reach the issues of proximate cause or damages. We reverse.

Plaintiff claims damage to her right inferior alveolar nerve, the symptom of which is permanent numbness. The nerve lies just underneath the roots of the molar teeth. Here is what occurred. On December 7, 1991, while biting down on a Goober's chocolate candy, plaintiff broke off a portion of her lower second right molar (tooth #31). On either Monday or Tuesday, she made an appointment with defendant for early Thursday evening, December 12, 1991. She experienced "slight tingling," some sensitivity to hot and cold, but no pain or numbness.

Defendant practices general dentistry. After examining plaintiff's tooth and taking x-rays, defendant diagnosed irreversible pulpitis, an inflammation of a dying nerve within the tooth, but not affecting the inferior alveolar nerve. He advised plaintiff that she had two options, either a root canal or extraction of the tooth. Plaintiff agreed to the extraction. She claims, however, that defendant failed to discuss with her any of the risks inherent in tooth extraction, particularly temporary or permanent numbness. Defendant, on the other hand, insisted that he warned plaintiff of several possible risks associated with extractions including swelling, infection, numbness and a broken jaw.

In any event, and after plaintiff signed a consent form, the procedure commenced. The procedure was obviously difficult; five injections of anesthesia were required and the procedure lasted one and one-half hours. According to plaintiff, she heard "a lot of really horrible crunching noises" and experienced pain.

During the extraction, defendant placed a dental elevator *fn1 between teeth #30 and #31 and "luxated" tooth #31, producing some very slight movement. When defendant attempted this, plaintiff felt pain; that was when he gave her the fifth injection. Then he placed forceps on the crown of the tooth as far down as possible. Applying pressure, the bone should expand to allow the tooth out. At this point, the top of the crown of plaintiff's tooth fractured and defendant suctioned the area, removing tooth fragments with the dental elevator. When the crown and part of the tooth fractured horizontally below the gum, it left the residual root of the tooth "deeply embedded in bone." After taking an x-ray to confirm this and recognizing that retrieval of the root tip required cutting through the side of the gum, a procedure beyond his expertise, defendant called Dr. Michael Erlichman, an oral surgeon, and arranged for him to remove the root the following morning.

Numbness is a sign of injury to the inferior alveolar nerve. There was much dispute over when plaintiff began to experience such numbness. It was critical whether she experienced numbness shortly after defendant's procedure, for if she had done so that would indicate an injury to the nerve. The evidence as to this is as follows.

After the procedure, plaintiff left defendant's office and drove to her mother's house to spend the night. Arriving at the house, while "very upset," plaintiff was not in pain, but the inside of her lip and chin were numb. She spoke with her husband who testified that he did not recall whether she had complained of any numbness to him at that time. Mrs. Russo, plaintiff's mother, however, testified that when her daughter arrived at her house, her face was swollen and she was very upset, telling her that her lip, chin and jaw were numb. When plaintiff awoke in the morning, her right lower lip and jaw were still numb and her face was swollen. Upon attempting to drink some coffee with her mother, she noticed that she was drooling and could not sense that the temperature was hot.

Plaintiff was driven to Dr. Erlichman's office by her friend, Terry Ross. Terry Ross testified that during the drive to Dr. Erlichman's office, the right side of plaintiff's face was very swollen. She testified that plaintiff told her that her face was numb, but she did not complain of any pain. Defense counsel's objection, however, to her testimony concerning plaintiff's complaints of numbness, was sustained.

Although, therefore, plaintiff maintained that she had complaints of numbness prior to her appointment with Dr. Erlichman, it seems that she did not inform Dr. Erlichman about this. Dr. Erlichman's office records reflect only that plaintiff was anxious and complaining of pain in the temporal area, but contain no complaints of numbness. The record does not reflect, however, whether plaintiff was asked by anyone in Dr. Erlichman's office if she had numbness. In any event, she signed a consent form which provided in part:

Dr. Erlichman has explained to me that there are certain inherent and potential risks in any treatment plan or procedure, and that in this specific instance such operative risks include, but are not limited to:

Injury to the nerve underlying the teeth resulting in numbness or tingling of the lips, chin, gums, cheek, teeth and/or tongue on the operated side; this may persist for several weeks, months, or in remote instances, permanently.

Dr. Erlichman testified that he removed the root tip by making "a tiny incision in the gum," removing a piece of bone, and then teasing the root from its socket. The surgery took thirty-five minutes. He denied injuring plaintiff during the procedure and claimed not to have seen any damage to the nerve. He testified that a patient can sustain an altered sensation from an extraction of a tooth in several ways including post-operative swelling, such as that observed in plaintiff directly adjacent to the extraction site. On cross-examination he testified that he did not see any damage to the nerve when he looked in the nerve canal. *fn2

On December 15, 1991, plaintiff telephoned Dr. Erlichman's office and complained of numbness in her right chin and lower lip. When Dr Erlichman asked if she had experienced this problem before his surgery, she stated that she was not sure. Dr. Erlichman testified that the only condition of numbness that he had discussed with her was after the extraction. He insisted a patient's complaint of numbness would be denoted in his records. Plaintiff's expert, Dr. Alan Schwimmer, D.D.S., a board certified oral and maxillofacial surgeon at Beth Israel Hospital in New York, examined plaintiff on April 8, 1993. He confirmed that plaintiff suffers from hypesthesia (numbness) of the lip and chin on the right side of her face. In his opinion, and premised upon plaintiff's immediate and continuing complaints of numbness following defendant's treatment, defendant deviated from the accepted standard of care because the extraction of tooth #31 "ought not to cause permanent injury to the inferior alveolar nerve. It is not an expected anticipated or reasonable complication of the extraction." He found a deviation based, further, upon the length of defendant's procedure, the fact that plaintiff experienced pain during it and the use of the elevator. He was convinced that defendant must have used "xcessive force, extensive manipulation of the tooth" or allowed the elevator to ...

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