United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge
Lora Curtis (“Plaintiff”) filed this dental
malpractice action against Defendants Harold E. Butler, DDS
(“Dr. Butler”) and Robinwood Dental Center
“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.
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.
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.
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
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.
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.
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).
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)).
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).
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 ...