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03/01/88 Kennith Gaskin, v. Michael Goldwasser Et Al.

March 1, 1988

KENNITH GASKIN, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

MICHAEL GOLDWASSER ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

520 N.E.2d 1085, 166 Ill. App. 3d 996, 117 Ill. Dec. 734 1988.IL.272

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On August 13, 1985, the plaintiff, Kennith Gaskin, brought suit in the circuit court of Champaign County, alleging dental malpractice. On September 1, 1981, the defendant, Dr. Goldwasser, extracted the 19 teeth remaining in the plaintiff's mouth. Defendant admitted that 5 of the 19 teeth were removed without the consent of the plaintiff. The plaintiff sought recovery on theories of negligence, wilful and wanton misconduct, battery, informed consent, and fraud.

The jury returned a verdict of $25,000 in damages for extraction of the five lower teeth. The jury also found in favor of the plaintiff for extraction of the 14 teeth and awarded damages in the amount of $3,000 for present and future expenses. Following denial of all post-trial motions, the plaintiff appeals and the defendants cross-appeal the order of the circuit court.

We reverse and remand for a new trial.

On August 7, 1987, the plaintiff filed with this court an application to amend the pleadings pursuant to Supreme Court Rule 362. (107 Ill. 2d R. 362.) In the application, the plaintiff seeks to amend the complaint adding count VI (informed consent-negligence later amended to informed consent-wilful and wanton misconduct), which was previously dismissed by the circuit court. While we note the jury verdict, finding liability for the removal of the 14 teeth, warrants amendment of the pleadings to conform to the proof of the case, our Disposition renders the issue moot. Upon retrial, plaintiff will be allowed to properly replead his case, consistent with our decision in this cause.

The parties raise numerous issues on appeal specifically finding error with the trial court for: (1) denying plaintiff's motion for a new trial on the issue of damages; (2) directing a verdict against plaintiff on counts V and the punitive damages portion of count VIII; (3) dismissing plaintiff's claim of battery; (4) dismissal of both versions of count VI; (5) denial of plaintiff's motion for summary judgment on counts V

Background

On August 13, 1985, plaintiff filed a complaint against defendants alleging dental malpractice. The case had been previously filed and voluntarily dismissed by the plaintiff after an unfavorable ruling regarding admissibility of plaintiff's expert testimony.

The complaint was amended numerous times and in final form included the following 10 counts: count I against Carle Clinic Association (Clinic) alleging negligence for removing the five lower teeth; count II against defendant Clinic alleging negligence on res ipsa loquitur theory for removing the five teeth; count III against the defendant, Dr. Michael Goldwasser, D.D.S., for removing the five teeth; count IV against Dr. Goldwasser alleging negligence on a res ipsa loquitur theory for removing the five teeth; count V against Dr. Goldwasser on a wilful and wanton misconduct theory for removing the five teeth; count VI against Dr. Goldwasser on an informed consent-negligence theory for removing the 14 teeth; count VI (misnumbered-second version) against Dr. Goldwasser on an informed consent-wilful and wanton misconduct theory for removing the 14 teeth; count VII against Dr. Goldwasser alleging battery for the removal of the five teeth; count VIII against Dr. Goldwasser on an informed consent-battery theory for removing the 14 teeth; and count IX against Dr. Goldwasser on a fraud-misrepresentation theory for the removal of the five teeth.

On December 3, 1985, the circuit court dismissed counts VII and IX with prejudice. Both versions of count VI were dismissed and the first version alleging negligence-informed consent was refiled on December 24, 1985. That count was dismissed on February 5, 1986, and refiled again on February 26, 1986. That count was again dismissed on April 30, 1986. The plaintiff did not refile the second version of count VI (informed consent-wilful wanton misconduct).

During trial, the court withdrew from consideration any issue of punitive damages based on wilful and wanton misconduct thereby eliminating count V and the punitive portion of count VIII. Plaintiff's motion for a directed verdict on all counts at the close of plaintiff's case was denied. The defendants' motion for a directed verdict was also denied. At the close of the defendants' case, the court allowed the plaintiff's motion to withdraw from consideration any issue regarding plaintiff's contributory negligence. The court directed a verdict on counts I and III alleging negligence for removal of the five lower teeth. Consequently, the issue of liability and damages for removal of the 14 teeth and damages for removal of the five teeth went to the jury., PLAINTIFF'S CASE

Plaintiff initially called Dr. Goldwasser as an adverse witness. Dr. Goldwasser is a board-certified oral surgeon employed by the Carle Clinic Association in Champaign. Dr. Goldwasser explained his educational background and experience. The general goal of dentistry as reiterated by Dr. Goldwasser is to preserve and maintain oral health. The extraction of teeth is viewed as a last resort.

The standard of care applicable to oral surgeons is a national standard. The standard is to act in the best interests of the patient. Additionally, it is the duty of the dentist to inform the patient of options for alternative treatment, as well as explain the risks and benefits of the chosen procedure. Prior to extracting teeth, an oral surgeon is required to make an independent determination based upon a visual examination and X rays.

The plaintiff first saw Dr. Goldwasser on August 27, 1981. The plaintiff was referred to Dr. Goldwasser by Dr. Norman James, the plaintiff's general dentist. At the time of the first visit, the plaintiff had 19 teeth remaining; 8 upper teeth and 11 lower teeth.

During the initial consultation, Dr. Goldwasser prepared dental records indicating plaintiff's decision to have 14 teeth extracted. Although plaintiff initially indicated a desire to have all teeth extracted, he subsequently decided upon the advice of Dr. James to keep five teeth to anchor a partial lower denture. Dr. Goldwasser made a visual examination of plaintiff's mouth using a mirror and tongue depressor. He further consulted X rays which had been forwarded to him by Dr. James. Dr. Goldwasser did not discuss the plaintiff's dental condition or suggest alternative treatment procedures.

Dr. Goldwasser admitted that he did not use a calibrated periodontal probe to determine the amount of bone loss or extent of periodontal disease. Such an instrument is used by dentists (usually periodontists who specialize in gum disease) to probe underneath the gum to determine how tight the gums fit up against the teeth. The extent of periodontal disease, if any, is an important consideration in determining whether or not to extract teeth. Although Dr. Goldwasser failed to utilize a probe, it was his determination, based upon his clinical examination and X rays, that plaintiff had chronic bone loss (20% to 30%). However, on cross-examination Dr. Goldwasser did admit that 30% bone loss does not necessarily mandate extraction of teeth. It was also Dr. Goldwasser's opinion the majority of the plaintiff's teeth would have required root canal treatment and extensive restorative dentistry to be saved.

Records from Dr. Goldwasser further indicated that the only risk of surgery discussed with plaintiff was the possibility of infection. The doctor noted, however, that he would not necessarily have expressly noted reasonable alternatives discussed. If he had recommended that plaintiff try to save all of his teeth, however, it would have been an important consideration warranting documentation. The doctor did not recall at trial whether pus had been present in plaintiff's mouth in 1981 which would have indicated extensive infection. Again, however, Dr. Goldwasser indicated that he would not necessarily have charted it. Notations made by Dr. Goldwasser's nurse showed plaintiff's desire was to have all of his remaining teeth extracted. This fact was corroborated by Dr. Goldwasser, who stated that when he initially consulted with the plaintiff, he indicated "I want my teeth removed."

After the initial consultation, plaintiff returned to Dr. Goldwasser on September 9, 1981, for the surgical extraction. Dr. Goldwasser did not review the plaintiff's charts prior to the surgery. As a result, during the course of surgery that day, five teeth were extracted without the plaintiff's consent. Dr. Goldwasser noted that the surgery was otherwise uneventful with no complications. Dr. Goldwasser was first made aware of his mistake when the patient returned to his office on the day after surgery.

Dr. Goldwasser admitted this conduct deviated from the standard of care. Dr. Goldwasser, however, maintained that he acted within the standard of care in extracting the 14 teeth to which the plaintiff consented.

The plaintiff testified that throughout his life he only consulted dentists when in pain or experiencing severe dental problems. At the age of 16, the plaintiff was hit in the mouth with a roller skate resulting in four broken teeth. The plaintiff, however, waited over two years before seeking any dental attention. When the plaintiff finally sought attention, his dental condition warranted the extraction of 10 teeth.

In 1970, the plaintiff consulted Dr. Jordan, due to severe pain. Dr. Jordan examined the plaintiff's mouth and found extensive decay and periodontal disease, and as a result, extracted 10 teeth. The plaintiff did not replace the missing teeth. Over two years later, plaintiff received a partial plate to replace the missing teeth while in the Army. The plate, however, reduced the plaintiff's biting power and caused him pain and discomfort. As a result, the plate had to be adjusted by Army dentists, and following military discharge, by Dr. Eisenberg. The plaintiff admitted that he brushed his teeth approximately every other day despite dental instructions and a dental control program he underwent which taught him otherwise.

In March 1981, the plaintiff consulted Dr. James. At that time, plaintiff only had 19 of his natural teeth remaining. The plaintiff admitted that he had not worn his partial denture for four or five weeks because he had broken it. Instead of seeking dental attention, the plaintiff attempted, without success, to glue the partial back together himself. Following examination by Dr. James, the plaintiff was referred to Dr. Goldwasser for extraction of all but five teeth. Notwithstanding Dr. James' referral made on March 24, 1981, the plaintiff did not go to see Dr. Goldwasser for over five months. During the interim, the plaintiff experienced severe pain and infection in his mouth. Eventually, the plaintiff went to the emergency room at Burnham Hospital to remedy the ...


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