Dental Malpractice Appellate Opinion

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The Maryland Supreme Court reinstated a lawsuit brought by a patient claiming she lost sensation in her tongue following a dental surgeon’s extraction of her wisdom teeth. A Calvert County Circuit Court judge had previously granted summary judgment in a 97-page opinion for two dentists after determining that the testimonies provided by the plaintiff’s two medical experts lacked credibility.

Facts of Frankel v. Deane

This dental medical malpractice case revolves around the extraction of a patient’s upper and lower wisdom teeth by a dentist. The patient consented to the surgery and was informed about potential complications, including pain, burning, and paresthesia affecting the lower lip, chin, and tongue.

After the surgery, the patient experienced pain and was unable to feel or speak using her tongue. They were told that her condition would improve as the anesthesia wore off, but this did not happen. The dentist saw the patient several days later, and the medical notes indicate that the patient complained of pain, paresthesia, and tingling in the front third of both sides of her tongue. The patient recalled being told to allow more time for healing but denied noticing any improvement.

The medical notes also show that the patient had a follow-up appointment scheduled for one week later, which they did not attend. The notes state that the patient’s complaints were improving and they were “not coming back.” The patient did not recall discussing this follow-up appointment with anyone from the dentist’s office but remembered not wanting to return to the dentist because they still could not feel her tongue and were told everything was “okay.”

Several months later, with no improvement in the patient’s symptoms and certainly frustrated, she scheduled an appointment with a different doctor. The details of this appointment are disputed. The new doctor’s progress notes mention the patient’s complaints of numbness and tingling in her tongue, as well as a likely neuropraxia injury. The notes suggest that a referral to a neurologist might be necessary but recommend observation for now. The patient’s recollection of the appointment differs from these notes.

Approximately six months after the surgery, the patient still could not feel her tongue, leading them to research her symptoms. They discovered information about bilateral lingual nerve – the subject of so many dental malpractice lawsuits =  injuries that seemed to match her experience. However, due to a lack of dental insurance, the patient did not consult another oral surgeon until about two years after the surgery, when she contacted a dental malpractice lawyer who referred her to a board-certified oral and maxillofacial surgeon.

This specialist conducted sensory tests on the patient and prepared a report for the patient’s attorney. The report stated that the injury was likely a bilateral neurotmesis and, due to the time that had elapsed since the surgery, the injury was permanent. She filed a dental malpractice lawsuit in Calvert County Circuit Court.

Expert Testimony

During a deposition, a dentist testified that based on a patient’s symptoms and the findings of another dentist, he planned to testify in court that the patient had a permanent lingual nerve injury caused by a failure to take proper precautions during a tooth extraction procedure. The injury was believed to have occurred when the lingual nerve was severed during the extraction or when adequate measures were not taken to prevent such damage. The circuit court excluded the dentist’s testimony on the basis that it relied on the other dentist’s testimony.

Procedural History

The dentists filed a summary judgment motion. During the hearing, the court determined that a Frye-Reed hearing was necessary to consider the admissibility of the testimony of Ms. Deane’s experts. This is a brutal path in a dental malpractice case.  You start running the risk of the cost of the case exceeding the cost of the damages..

The court tentatively decided to grant summary judgment on the claim that the defendant negligently failed to refer her to a neurosurgeon but deferred ruling on the remaining issues pending the Frye-Reed hearing.

Before the Frye-Reed hearing, the defendants submitted a bench memorandum, arguing that the plaintiff’s expert witnesses should be excluded based on Frye-Reed principles. They claimed that her theory of liability was inadmissible, the testimony of one of her experts was inadmissible, and the standard of care required a certain technique was inadmissible. The plaintiff also filed a memorandum, arguing that Frye-Reed did not apply and her experts had sufficient factual support for their opinions.

On April 20, 2020, the court granted the summary judgment motions and dismissed the plaintiff’s complaint with prejudice as to all defendants. The court found that one expert’s opinions failed to meet the Frye-Reed and Maryland Rule 5-702 standards of scientific, clinical, and analytical reliability. The court also found that there was no genuine dispute of material fact that none of the defendants committed negligence or alternatively, that the plaintiff committed contributory negligence.

The plaintiff appealed, and the Maryland appellate court reversed the trial court’s decision, finding that the trial court erred as a matter of law. The defendants then petitioned the Court for a writ of certiorari, presenting three questions for review, which were consolidated and re-phrased.

Ruling in Frankel v. Deane

The Maryland Supreme Court determined that the trial court made factual determinations that should have been reserved for a jury, interpreted evidence in a manner favorable to the defendant rather than the plaintiff, and misinterpreted previous case law.  It is a harsh opinion.  The case was remanded to Calvert County Circuit Court, with instructions that a new judge should be assigned to avoid any appearance of partiality.

Dissenting Opinion

A dissenting judge, Judge Shirley M. Watts, disagreed with the majority’s decision and believed that the Circuit Court for Calvert County made an error in refusing to admit the plaintiffs’ expert witnesses’ testimony and granting summary judgment. However, the judge did not agree with the majority’s decision to remand the case for application of Rochkind, the new Daubert case, because the issues in the case did not implicate the factors set forth in Daubert v. Merrell Dow Pharmaceuticals, and other factors adopted by the Court in Rochkind v. Stevenson.

Judge Watts believed that the main issues in the case were whether the circuit court erred in ruling that evidence in a medical malpractice case must demonstrate that the alleged injury is not something that would have happened in the absence of negligence for expert testimony to be admissible, whether contributory negligence can be determined at the summary judgment stage, and whether an expert is required to review a treating physician’s notes for the expert’s testimony to be admissible. The judge would have affirmed the judgment of the Court of Special Appeals reversing the circuit court’s grant of summary judgment and remanded the case for trial.