Bowman v. Dept. of Rehab. & Corr.

[Cite as Bowman v. Dept. of Rehab. & Corr., 2011-Ohio-1430.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
DION K. BOWMAN nka DION K.
COOPER
Plaintiff
v.
DEPARTMENT OF REHABILITATION
AND CORRECTION
Defendant
Case No. 2008-01821
Judge Joseph T. Clark
Magistrate Anderson M. Renick
MAGISTRATE DECISION
{¶ 1} Pursuant to Civ.R. 53, Magistrate Anderson M. Renick was appointed to
conduct all proceedings necessary for decision in this matter.
{¶ 2} Plaintiff brought this action alleging dental malpractice. The issues of
liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
{¶ 3} From November 4, 2004, to December 27, 2004, plaintiff was an inmate in
the custody and control of defendant at the Northeast Pre-Release Center (NEPRC)
pursuant to R.C. 5120.16. Plaintiff testified that in early December 2004, she began to
experience significant pain in her jaw. On December 18, 2004, plaintiff consulted with a
nurse who arranged for her to visit the NEPRC dental clinic.
{¶ 4} On December 21, 2004, Vladimir Petkovic, D.D.S., examined plaintiff in the
dental clinic and determined that her pain was caused by an “impacted” lower left
wisdom tooth which needed to be extracted. Dr. Petkovic testified that after taking and
Case No. 2008-01821 -2- MAGISTRATE DECISION
evaluating x-rays of the tooth, he performed the extraction that same day. Dr. Petkovic
stated that he administered Novocain in the gum surrounding the tooth, separated the
gum from the tooth with a curette, slowly pried the tooth loose with a tool known as an
“elevator,” removed the loosened tooth with forceps, and sutured the gums together
over the former site of the tooth.
{¶ 5} Dr. Petkovic stated that while this method of tooth extraction is routine, it
must be performed “delicately” in that some force must be used to pry the tooth loose,
but not so much force as to break off the roots of the tooth or fracture the mandible.
According to Dr. Petkovic, the notes that he made in plaintiff’s medical chart reflect that
the extraction of plaintiff’s tooth proceeded routinely and without complication.
(Defendant’s Exhibit E.)
{¶ 6} In contrast, plaintiff recalled that the extraction was a long and difficult
procedure in which Dr. Petkovic seemingly struggled to remove the tooth, and she
stated that at one point during the procedure, she felt a “cracking” sensation in her
mouth. Plaintiff testified that she was in such pain after the procedure that she could
not sleep that night.
{¶ 7} Dr. Petkovic stated that according to plaintiff’s medical chart, a physician at
NEPRC followed up with plaintiff on December 22, 2004, and that he himself followed
up with her in the dental clinic on December 23, 2004, at which time he increased her
dosage of pain medication. (Defendant’s Exhibit E.)
{¶ 8} On December 27, 2004, plaintiff’s sentence expired and she was released
from custody. Plaintiff stated that the pain she experienced after the extraction
persisted and led her to consult with a dentist in Amherst, Ohio on January 5, 2005, at
Case No. 2008-01821 -3- MAGISTRATE DECISION
which time she was diagnosed with a fractured mandible. On January 20, 2005, plaintiff
underwent reparative oral surgery at MetroHealth Medical Center in Cleveland.1
{¶ 9} Plaintiff claims that her mandible was fractured as a result of Dr. Petkovic’s
negligence in extracting the tooth. In order to prevail on a claim of dental malpractice,
plaintiff “must show by a preponderance of the evidence that [s]he was injured, that the
injury was proximately caused by a dentist’s act or omission, and that the act or
omission was one that a dentist of ordinary skill, care, and diligence would not have
taken under like or similar conditions or circumstances.” Palmer v. Richland
Correctional Inst., Franklin App. No. 04AP-540, 2004-Ohio-6717, ¶10, citing Bruni v.
Tatsumi (1976), 46 Ohio St.2d 127, syllabus. The appropriate standard of care must be
proven by expert testimony which explains what a dentist of ordinary skill, care, and
diligence in the same specialty would do in similar circumstances. Id.{¶ 10} Plaintiff’s expert, Thomas B. Murphy, D.D.S., an oral and maxillofacial
surgeon, testified via deposition that his opinions are based upon a review of plaintiff’s
dental records. Dr. Murphy testified that, generally speaking, there is a “small risk” of
the mandible becoming fractured during the extraction of a lower wisdom tooth.
According to Dr. Murphy, however, the x-rays that Dr. Petkovic took just prior to
performing the extraction revealed that plaintiff’s tooth was not significantly impacted
and should therefore have been extracted with little difficulty or complication. Dr.
Murphy thus opined that the fracture sustained by plaintiff “most likely” resulted from Dr.
Petkovic’s using excessive force to pry the tooth loose.
{¶ 11} Defendant’s expert, Michael S. Hauser, D.M.D., M.D., an oral and
maxillofacial surgeon, testified by deposition that his opinions are based upon a review
of plaintiff’s dental records and the depositions of both plaintiff and Dr. Murphy. Dr.
Hauser stated that according to the x-rays taken by Dr. Petkovic prior to the extraction,
1
This is a refiled case. Plaintiff’s prior action in Case No. 2006-03770 was timely filed and then
dismissed, other than upon the merits. The instant action was timely filed on February 1, 2008, pursuant
Case No. 2008-01821 -4- MAGISTRATE DECISION
the roots of plaintiff’s tooth formed a conical shape that should have provided little
resistance to extraction. Dr. Hauser opined, however, that regardless of the root
structure, there is a slight risk that the mandible will fracture during such an extraction,
even when the dentist uses an appropriate degree of force to pry the tooth loose. Dr.
Hauser stated that, in his opinion, the degree of force used by Dr. Petkovic was within
the accepted standard of care and the fracture sustained by plaintiff was a “rare but
known complication” of the extraction procedure.
{¶ 12} The experts thus agreed both that the extraction of a lower wisdom
tooth is accompanied by a slight risk of fracturing the mandible, and that the fracture
sustained by plaintiff more likely than not occurred as a result of the force that Dr.
Petkovic used to extract her tooth. However, the experts disagreed as to whether the
amount of force used by Dr. Petkovic was appropriate under the accepted standard of
care. Although Dr. Murphy agreed with Dr. Hauser’s opinion that a tooth with a conical-
shaped root is relatively easy to extract, he testified the he had no knowledge either of
the shape of the roots of the extracted tooth or of the method that Dr. Petkovic had used
to perform the extraction.
{¶ 13} Upon consideration of the testimony of both experts, the court finds Dr.
Hauser’s opinion concerning the force used by Dr. Petkovic to be more persuasive than
the opinion offered by Dr. Murphy. In view of this finding and based upon the totality of
the evidence, the court finds that the dental treatment provided to plaintiff by Dr.
Petkovic met the standard of care.
{¶ 14} For the foregoing reasons, the court finds that plaintiff failed to prove her
claim by a preponderance of the evidence and, accordingly, it is recommended that
judgment be rendered in favor of defendant.
to the savings statute, R.C. 2308.19.
Case No. 2008-01821 -5- MAGISTRATE DECISION
A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).
_____________________________________
ANDERSON M. RENICK
Magistrate
cc:
Eric A. Walker J. Miles Gibson
Assistant Attorney General 673 Mohawk Street, 4th Floor
150 East Gay Street, 18th Floor Columbus, Ohio 43206
Columbus, Ohio 43215-3130
RCV/cmd
Filed March 10, 2011
To S.C. reporter March 22, 2011