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Curtis v. Butler

United States District Court, D. Maryland

June 6, 2017

LORA CURTIS, Plaintiff,
v.
HAROLD E. BUTLER, DDS, et al. Defendants.

          MEMORANDUM OPINION

          Stephanie A. Gallagher United States Magistrate Judge

         Plaintiff Lora Curtis (“Plaintiff”) filed this dental malpractice action against Defendants Harold E. Butler, DDS (“Dr. Butler”) and Robinwood Dental Center (“Robinwood”) (collectively “Defendants”). Pending before this Court is Defendants' motion for partial summary judgment. [ECF No. 21]. The issues have been fully briefed, [ECF Nos. 22, 23, 24], and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, the motion will be granted.[1]

         I. Factual Background

         The facts below are taken in the light most favorable to Plaintiff, the non-moving party. From February 23, 2012 until May 14, 2014, Plaintiff saw Dr. Butler at Robinwood for routine dental services such as prophylaxes, radiographical studies, and restorative dentistry. (Amd. Compl. at ¶¶ 15, 16). On February 7, 2014, Dr. Butler informed Plaintiff that she should have her four third molars (commonly “wisdom teeth”) removed. Id. at ¶ 17. Plaintiff contends that, at that point in time, only one of the four wisdom teeth, the lower left third molar (#17), “was slightly problematic.” Id. at ¶ 18. Despite the absence of any “diagnosis, treatment plan, or other explanation” for the removal of the other three wisdom teeth, Dr. Butler removed all four teeth on March 20, 2014. Id. at ¶¶ 19, 20.

         Plaintiff's medical records contain limited evidence about how the third molars were removed. Id. at ¶ 21. Defendants' notes and files reflect that the four teeth were extracted, but do not indicate the order of extraction or the mechanism or instrument used. Id. Robinwood's billing records show that the extractions were “surgical” in nature. Id.

         As a result of the extractions performed on March 20, 2014, Plaintiff began experiencing numbness and pain in her mouth and tongue area. Id. at ¶ 25. The numbness and pain are permanent and interfere with her “ability to taste and enjoy food, and other functions.” Id.; Pl.'s Opp. [ECF No. 23, 2]. Accordingly, Plaintiff filed the instant lawsuit on August 4, 2016. [ECF No. 1].

         In her Amended Complaint, Plaintiff asserts that during the removal of teeth #17 (the lower left third molar) and #32 (the lower right third molar), Defendants failed to take precautions required by the standard of care and severed and/or severely traumatized her left and right lingual nerves. Id. at ¶ 22. Specifically, Plaintiff alleges that Dr. Butler “exerted improper force when extracting the teeth, failed to incise the gingiva in the proper way, [and] failed to properly control the dental instruments he used[;]” directly causing injury to Plaintiff's lingual nerves. Id. Furthermore, Plaintiff argues that the severing and/or traumatizing of the lingual nerve, especially when it happens bilaterally, does not ordinarily occur outside an act of negligence by the oral surgeon. Id. at ¶ 23.

         In addition to her claims for dental malpractice regarding the left and right tooth extractions, Plaintiff also asserts additional claims relating to (1) breach of the post-operative standard of care and (2) lack of informed consent for the surgery. Those claims are not addressed in the instant motion, which seeks partial summary judgment only as to the claim for dental malpractice regarding the alleged trauma to Plaintiff's left lingual nerve.

         II. Legal Standards

         Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Defendants, as the moving party, bear the burden of showing that there is no genuine dispute of material facts. See Casey v. Geek Squad, 823 F.Supp.2d 334, 348 (D. Md. 2011). If Defendants establish that there is no evidence to support Plaintiff's case, the burden then shifts to Plaintiff to proffer specific facts to show a genuine issue exists for trial. Id. Plaintiff must provide enough admissible evidence to “carry the burden of proof at trial.” Id. at 349 (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere existence of a scintilla of evidence in support of Plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 252. Moreover, a genuine issue of material fact cannot rest on “mere speculation, or building one inference upon another.” Casey, 823 F.Supp.2d at 349. Additionally, summary judgment shall be warranted if the non-moving party fails to provide evidence that establishes an essential element of the case. Plaintiff “must produce competent evidence on each element of his or her claim.” Miskin v. Baxter Healthcare Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999). If Plaintiff fails to do so, “there can be no genuine issue as to any material fact, ” because the failure to prove an essential element of the case “necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Casey, 823 F.Supp.2d at 348-349. In ruling on a motion for summary judgment, a court must view the facts and inferences “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

         III. Analysis

         Because jurisdiction is based on diversity of citizenship, Maryland substantive law determines the Plaintiff's burden of proof and what constitutes a “material fact.” See Anderson, 477 U.S. at 248. Under well-established Maryland medical malpractice jurisprudence, Plaintiff must show “both a lack of requisite skill or care on the part of the doctor and that such want of skill or care was a direct cause of the injury; and if proof of either of these elements is wanting the case is not a proper one for submission to the jury.” Nolan v. Dillon, 261 Md. 516, 533-34 (1971). In Puppolo v. Adventist Healthcare, Inc., the Maryland Court of Special Appeals emphasized the three elements required to establish a prima facie case of medical malpractice: (1) the applicable standard of care; (2) that this standard has been violated; and (3) that this violation caused the complained of harm. 215 Md.App. 517, 534 (2013) (quoting Sterling v. Johns Hopkins Hosp., 145 Md.App. 161, 169 (2002)).

         Maryland courts have held that expert witness testimony is required to establish medical malpractice in “complicated matters, including human anatomy, medical science, operative procedures, areas of patient responsibility, and standards of care.” Orkin v. Holy Cross Hosp. of Silver Spring, 318 Md. 429, 433 (1990). Here, Plaintiff relies on the expert testimony of Dr. Lloyd Klausner, DMD, a Board Certified oral surgeon who maintains a private practice in New York City. (Depo. Klausner 16:1-17:10).

         Dr. Klausner's testimony clearly establishes the first element of a dental malpractice claim - the standard of care. The standard of care is what is “ordinarily exercised by [other oral surgeons] in the profession generally” when it comes to extracting the third molars and protecting the lingual nerves. Nolan, 261 Md. at 534. Dr. Klausner states, in his expert opinion, that the standard of care for protecting the lingual nerve when removing the third molars is to (1) utilize a buccal oblique releasing incision also known as a “hockey stick incision;” (2) conduct a subparosteal soft tissue dissection by utilizing a periosteal or Seldin ...


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