On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3815-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically February 17, 2011
Before Judges Carchman, Graves and Waugh.
In this dental malpractice case, defendant Elliot H. Goldman, D.D.S., appeals from a judgment entered October 6, 2009, awarding plaintiff Anthony J. Corino damages with prejudgment interest in the total amount of $138,669.50 and a subsequent order denying his motion for a new trial. After reviewing the record in light of the applicable law, we affirm.
Plaintiff first visited defendant on June 21, 2005, when he learned that his wisdom teeth, or "third molars," were impacted. Defendant recommended extraction, and four teeth were removed on July 18, 2005.
At a follow-up appointment on September 8, 2005, plaintiff advised defendant that his tongue had been numb since the operation. Defendant referred plaintiff to Vincent B. Ziccardi, D.D.S., M.D., who administered a number of neurosensory tests. Based on the results, Ziccardi recommended "exploration repair microsurgery."
The corrective procedure took place on November 22, 2005, and Ziccardi discovered a "[c]ontinuity defect," a complete severance of plaintiff's left lingual nerve. He attempted to repair the damage and took several photographs. Nevertheless, testing in May and November 2006 revealed that plaintiff's tongue had only "primitive sensations" and was unlikely to recover fully.
On May 11, 2007, plaintiff filed a complaint alleging that defendant negligently damaged his lingual nerve. He sought both compensatory and punitive damages.*fn1 Defendant's answer denied the allegations contained in the complaint.
Plaintiff retained E. Joseph Marged, D.D.S., as an expert. In a report dated April 29, 2008, Marged stated that "[t]he risk of a severed lingual nerve is not a potential complication recognized within the medical community." He further stated: "The standard of care dictates that proper flaps and retraction be utilized so that the lingual nerve remains out of the surgical field. In my opinion [defendant] practiced below the standard of care in allowing that to occur."
In response, defendant obtained an expert report from Patrick J. Pirozzi, D.M.D., that stated:
In the dental and more specifically, the oral surgery community, the potential risk for injury to the inferior alveolar or lingual nerve during third molar surgery is well established. Our literature is replete with surveys, articles, research and discussions regarding the inherent risk of nerve injury associated with the extraction of wisdom teeth. It is the proximity, anatomical relationship and variability of these nerves that account for this inherent potential risk when performing third molar surgery.
A review of the records provided failed to identify any inappropriate [or] negligent technique utilized by [defendant] in the removal of [plaintiff's] wisdom teeth.
While the records identify complications in the form of lingual nerve deficit, there is no indication that [defendant's] treatment deviated from the standard of care.
Trial commenced on September 8, 2009, with plaintiff as the first witness.*fn2 He testified that prior to Ziccardi's corrective surgery, he was biting his tongue and the inside of his cheek "several times a week," resulting in pain and bleeding. According to plaintiff, Ziccardi's corrective procedure partially alleviated this biting and improved his lingual sensation, but did not solve the problem completely. He complained of decreased sensation in his left lower lip, cheek, and gum line and stated that although he had no sensation on the left side of his tongue, he was constantly aware of its presence in a way that was "very, very distracting."
Plaintiff also testified at length about the negative impact the injury had on his life, both physically and socially. He stated that he continued to bite his tongue; had difficulty speaking, drinking, and eating; and had lost the ability to play the saxophone. According to plaintiff, all of these issues made him "extremely self-conscious," and he was continually forced to confront the reality of being "stuck with this problem."
On cross-examination, plaintiff explained that his speech sounded normal in court because he was making "every conscious effort" to speak properly. However, he confirmed that the problem was "always in the back of [his] mind."
Ziccardi testified on September 9, 2009.*fn3 Although he presented extensive qualifications, Ziccardi appeared as a fact witness rather than an expert. He described his initial appointment with plaintiff, the tests he performed, and the remedial procedure itself. Ziccardi confirmed that plaintiff's lingual nerve had been separated. He also testified that plaintiff did not complain to him about any speech issues and that he had "never had the need to refer a patient for speech therapy after [a] lingual nerve injury."
Plaintiff's mother, Marianne Corino, also testified. She generally described plaintiff's condition following the extraction and the negative impact the event had on his life. Jocelyn Heelan, one of plaintiff's friends, testified that plaintiff's drooling and difficulty speaking "seemed [to make] him a lot less confident."
Marged testified on September 10, 2009, and was certified as an expert in the fields of oral and maxillofacial surgery. He stated that he had reviewed the records of defendant, Ziccardi, and the hospital where remedial surgery was performed, as well as defendant and Ziccardi's depositions and plaintiff's answers to interrogatories. Marged also indicated that he had personally performed several neurosensitivity tests on plaintiff on March 5, 2008.
According to Marged, the lingual nerve was outside the "field of surgery" during plaintiff's operation, so there was no need for defendant to "go anywhere near" it. He further stated: "I believe based on all the records that I reviewed, and all the deposition transcripts, and pictures that I saw from Dr. Ziccardi, that [defendant] did deviate from the accepted standards of care by cutting that lingual nerve. That should never have happened."
In addition, Marged posited five possible ways in which a lingual nerve could be severed during the extraction of a wisdom tooth:
[T]he main cause could be a misplaced or improper incision. If that . . . initial incision is not made far enough to the buccal surface, then the nerve could be cut during [the] act of making that incision.
Secondly, when the tissue is retracted, the lingual tissue has to be held back in retracted in a certain way. Possibly, if the retractor is very sharp and it is not held properly, that could cause the lingual nerve to be cut.
Thirdly, it could be cut by slipping with an instrument, such as the elevators. Very often those elevators, which are very pointy and have to be wedged in to try to remove a tooth, if it's not controlled force and all of a sudden one slips, that elevator can go where it shouldn't be going and tear the nerve.
Also, another way that it can happen is when we use our burs, our rotary instruments to section the tooth, if that bur slips out or if the tooth is sectioned and it goes . . . too far toward that lingual plate of bone, sometimes it can perforate and go right through and cut the nerve.
And, another mechanism could be during the final stages when the tooth is removed, if we use our curettes improperly and curette out what we think is soft tissue against the lingual place and is actually nerve tissue, that can also sever a nerve.
Asked if a severance that occurred in any of these ways would constitute a deviation from the accepted standard of care, Marged responded: "Yes, it would." He further stated that "if everything is done in a judicious manner and a proper technique, severing of the lingual nerve should never happen." According to Marged, ...