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St. Gemme v. Tomlin





Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.


Rehearing denied November 14, 1983.

Plaintiff brought suit against the defendant in the circuit court of Coles County alleging dental malpractice. A jury returned a verdict in favor of the defendant, plaintiff's post-trial motion was denied, and this appeal followed.

Four issues are raised: (1) manifest weight of the evidence; (2) error by the trial court in refusing admission of deposition testimony of plaintiff's expert; (3) error in the instructions; and (4) error in defendant's closing argument.

The basic facts are not controverted. Defendant practices general dentistry in Mattoon and was consulted by plaintiff for a general examination after her former dentist had died. She had not seen a dentist for several years prior to this first consultation. Defendant advised plaintiff that the third mandibular molar should be extracted. The tooth was tissue-impacted and extensively decayed. A preoperative X ray indicated that the apex of the root tip was close to, and possibly protruding into, the mandibular canal which contains the mandibular nerve. It also indicated that the tooth was probably ankylosed, that is, fused to the jaw bone, in certain areas. Left untreated in its condition, the tooth would have become infected and would pose a life-threatening situation. The only remedy was extraction, a difficult and complicated procedure.

One consequence of the operation is paresthesia, a change or loss of sensation in the lip. It occurs to some degree in 1% to 5% of the cases of extraction of all third molars and as high as 10 or 15% of the cases involving a tooth in the condition found here.

Defendant did not warn plaintiff of the potential paresthesia. It did ensue after the extraction, which occurred on April 25, 1978. Defendant left a portion of the root tip in place believing that it would be likely to cause less damage than that which might be caused by attempting to remove it. In September 1978 plaintiff consulted oral surgeons at the Christie Clinic in Champaign concerning her paresthesia. They reopened the surgical site and removed a calcified body which was probably the remnant of the root left by the defendant. The second procedure did not relieve the paresthesia, which is probably permanent.

Plaintiff filed a two-count complaint; count I alleged conventional malpractice under a theory of res ipsa loquitur; count II alleged failure to obtain an informed consent. At the conclusion of all the evidence plaintiff confessed a motion for directed verdict on count I and the case was submitted to the jury on count II.

• 1 The weight of the evidence issue resolves itself, as it nearly always does in these cases, into a duel of the experts with the jury electing to award the trophy to one of them. Plaintiff's expert was Dr. Richard Bianco, one of the treating oral surgeons from Christie Clinic. On the failure to warn question, he testified that the standard of care for a dentist about to perform the type of surgery here involved would require disclosure of the risk of post-operative paresthesia. Defendant's expert was Dr. Zellers, a practicing dentist in Mattoon. It was established that he was a friend of the defendant and associated with him in a business venture. He stated that the prevailing practice in Mattoon in 1978 was not to warn of the possibility of paresthesia, although since then the practice had been changed, largely because of the instant suit and others like it. He was cross-examined from treatises which stated that where a molar is in close proximity to the mandibular nerve, the patient should be warned of paresthesia. He responded that other treatises have taken the opposite view. Thus was framed a question which a jury is mandated to answer: which one is to be credited with the weightier opinion. The answer here was in favor of the defendant. "`* * * A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. * * *'" (Cochran v. Parker (1968), 91 Ill. App.2d 56, 60, 233 N.E.2d 443, 445.) We cannot say here that the opposite conclusion is clearly evident.

• 2 The question of proximate cause may be more easily answered. In all but the most gross malpractice cases there must be expert evidence not only as to the negligence of the defendant but also as to a proximate causal connection between the negligence and the injury suffered by the plaintiff. (Eckley v. St. Therese Hospital (1978), 62 Ill. App.3d 299, 379 N.E.2d 306.) This principle is applicable to failure-to-warn cases. (Green v. Hussey (1970), 127 Ill. App.2d 174, 262 N.E.2d 156.) In the instant case the only evidence on this matter favorable to the plaintiff came from the plaintiff herself who testified that if she had known of the risk, she would not have submitted to the procedure. All of the expert evidence, both plaintiff's expert and defendant's experts, was to the contrary.

All of the experts testified that there was no reasonable alternative. Dr. Cooper, called as a defendant's witness and who, with Dr. Bianco had treated plaintiff at Christie Clinic, testified that no reasonable person would refuse the treatment given. All agreed that within a short time the tooth would become abscessed and hence life-threatening.

• 3 We agree with the statement made by the Supreme Court of California:

"The patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient's bitterness and disillusionment. Thus an objective test if preferable: i.e., what would a prudent person in the patient's ...

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