Blake v. Irwin, WD
| Decision Date | 23 January 1996 |
| Docket Number | No. WD,WD |
| Citation | 913 S.W.2d 923 |
| Parties | Julie BLAKE and Thomas Blake, Respondents, v. Douglas H. IRWIN, D.D.S., Appellant. 50648. |
| Court | Missouri Court of Appeals |
Michael P. Oliver, Wallace, Saunders, Austin, Brown and Enochs, Kansas City, for appellant.
Walter R. Simpson, Sanders & Simpson, Kansas City, for respondents.
Before ELLIS, P.J., and HANNA and SPINDEN, JJ.
Douglas H. Irwin, D.D.S., appeals the judgment of the Jackson County Circuit Court in favor of Julie Blake and Thomas Blake following a jury trial in an action for medical malpractice.
Toward the end of July, 1991, Julie Blake was referred by her dentist to Dr. Irwin after x-rays revealed she needed to have her third molars (wisdom teeth) extracted. Blake first saw Dr. Irwin on July 31, 1991, and on August 1, 1991, Dr. Irwin performed surgical extraction of Blake's four wisdom teeth. Following the extraction, Blake began to experience jaw pain, facial pain, gritting and popping in both jaw joints, inability to open her mouth, numbness in her lower jaw, lip and gums, ringing in the ear, dizziness, headaches, earaches, and throat and neck pain. After eight or nine return visits to Dr. Irwin regarding these problems, she went to see Dr. Robert Arms, D.D.S., who suggested she try again to talk to Dr. Irwin about her condition. Still dissatisfied with Dr. Irwin's failure to alleviate her problems, Blake returned to Dr. Arms who attempted minor treatments to relieve Blake's symptoms. Dr. Arms' treatments proved unsuccessful in relieving Blake's problems so he eventually referred Blake to Dr. Edward Moseby, D.D.S., a temporomandibular specialist.
In an effort to correct Blake's post-extraction problems, Dr. Moseby performed multiple surgeries and medical treatments on Blake, including, among other things, several arthrocenteses (placing needles into the jaw's joint space and flushing debris out of the joint with fluid), arthroscopic surgery on both temporomandibular joints, steroid injections in both joints, and open surgery on the right temporomandibular joint, removing the disk and inserting temporary interpositional material in place of the disk. In addition to his own treatments, Dr. Moseby referred Blake to a periodontist because he believed she had an excessive amount of bone loss where the third molar tooth (wisdom tooth) had been removed. He also referred her to a pain clinic for pain management and to a physical therapy clinic in an attempt to increase the range of motion of her joint.
On July 8, 1992, Blake and her husband 1 filed a petition for damages against Dr. Irwin, alleging his treatment was negligent and below the standard of care in the following respects:
a) Using excessive force in manipulating Blake's mandible;
b) Causing dislocation or derangement of the temporomandibular joints bilaterally;
c) Removing or damaging excessive bone and the extraction sites of the lower third molars bilaterally;
d) Failing to control the dental handpiece and drilling into the mandibular canal;
e) Failing to use adequate irrigation of the operative site during bone removal;
f) Failing to properly control the dental handpiece, scalpel, forceps and/or hemostat so as to avoid damage to the lingual nerves bilaterally; and
g) Failing to properly section the lower third molars.
Blake claimed damage to her lingual nerves and mandibular nerves bilaterally (resulting in permanent alteration and/or loss of normal feeling, sensation and taste in her tongue, gums, lips and chin); damage to her temporomandibular joints bilaterally (requiring the surgical removal of her right TM disc and permanently impairing the normal function of her lower jaw for speech, eating, and other activities of every day life); and past and future medical and dental expenses, lost wages, disabilities, disfigurement, pain, suffering and mental anguish.
On June 6, 1994, the case was tried to a jury in Jackson County Circuit Court. At the close of plaintiffs' case, Dr. Irwin moved the court for a directed verdict on all issues and counts. The Honorable Scott Sifferman entered a directed verdict on all of Blake's claims for future medical expenses and for any damages or claims relating to lingual nerve injury, and submitted the remaining issues to the jury. 2 After approximately eleven hours of deliberation, the jury announced it had reached an impasse and the trial court declared a mistrial as to the issues that had been submitted to the jury. On June 10, 1994, the court entered an order declaring a mistrial and reinstating the case on the active docket. It then entered an order nunc pro tunc modifying the June 10 order to enter the directed verdict regarding the issues relating to the lingual nerve injury and future medical damages.
On November 2, 1994, the Honorable David W. Shinn entered an order setting the case for trial on November 7, 1994, to be heard by a visiting judge. Immediately after receiving notice of the trial date, Dr. Irwin filed an application for continuance, citing discovery issues and scheduling difficulties with Dr. Irwin, Irwin's counsel, and Dr. Irwin's expert witness. The trial court denied the motion for continuance and the matter proceeded to trial with The Honorable Daniel Chadwick, Visiting Judge, presiding. In the pre-trial conference prior to the second trial, Judge Chadwick overruled Judge Sifferman's directed verdict regarding the lingual nerve injury and future medical damages issues, and stated that those issues would remain in the case to be tried as issues in the second trial.
Following the retrial, the jury returned a verdict in the amounts of $680,000 for Julie Blake and $35,000 for Thomas Blake. The trial court entered judgment on the jury's verdict on November 10, 1994. After the trial court denied Dr. Irwin's motion for judgment notwithstanding the verdict or motion for new trial, Dr. Irwin filed his notice of appeal with this court.
Dr. Irwin raises six points on appeal. In his first point, he alleges the trial court erred in denying his motions for directed verdict and judgment notwithstanding the verdict because Blake failed to present sufficient evidence to make a submissible case in that she offered no testimony or other evidence that Dr. Irwin used excessive force or failed to sufficiently irrigate during the extraction of Blake's lower third molars.
In deciding whether the plaintiff made a submissible case against the defendant and whether a motion for directed verdict or for judgment notwithstanding the verdict should have been granted, the appellate court reviews the evidence from a viewpoint most favorable to the plaintiff and gives the plaintiff the benefit of every reasonable inference which the evidence tends to support, disregarding all contrary evidence. Under this standard, a jury verdict will not be overturned unless there is a complete absence of probative facts to support the verdict.
Howard Constr. Co. v. Teddy Woods Constr. Co., 817 S.W.2d 556, 560 (Mo.App.1991) (citations omitted). "A case should not be withdrawn from the jury unless the facts in evidence and the inferences fairly deductible therefrom are so strongly against plaintiffs as to leave no room for reasonable minds to differ." Bridgeforth v. Proffitt, 490 S.W.2d 416, 423 (Mo.App.1973).
In order to make a prima facie case of medical malpractice, the plaintiff must prove (1) that an act or omission of the defendant fell below the requisite medical standard of care; (2) that the act or omission was performed negligently; and (3) that there is a causal connection between the act or omission and the plaintiff's injury. Wilson v. Lockwood, 711 S.W.2d 545, 550 (Mo.App.1986). Dr. Irwin contends Blake did not offer evidence that he used excessive force or failed to sufficiently irrigate during the extraction of Blake's lower third molars, and therefore, Blake did not establish a submissible case. Dr. Irwin's argument fails.
Blake did offer substantial evidence regarding Dr. Irwin's negligence, including the use of excessive force in extracting Blake's lower third molars, drilling without sufficient irrigation, and removal of Blake's lower third molars without sectioning. Dr. Moseby, who performed the multiple surgeries and treatments following the extraction, testified on Blake's behalf. He testified that based on the post-extraction results he has observed in Blake, he believes Dr. Irwin's care fell below an acceptable standard. Regarding the damage to Blake's nerves, he testified:
Q. Based on what you observed about the total picture of Julie's condition, do you believe that her injuries to the alveolar nerve and the lingual nerve fall just within that statistical probability, or do you believe there's another explanation for it?
A. I believe that there was excessive bone removal and excess force used in removing those teeth that caused her problem.
He specifically testified that in his opinion, it was below the standard of care for a surgeon to remove Blake's wisdom teeth without sectioning them. He further testified:
Q. All right. With respect to the damage to the TMJ [temporomandibular joint] that you have told us about, do you have an opinion as to whether it would be below the standard of care for Dr. Irwin in the extraction of third molars to use the amount of force that it would have taken to cause the damage that you've observed?
A. In the overall picture, my answer is the same. Yes.
He then stated:
If the surgical procedure that was accomplished that ended up with the post-surgical results that we see is not below the level of standard of care--and that's within the norm--if it's within the norm to produce this kind of post-surgical result, then we would see hundreds of thousands if not millions of them a year. This is the first one I have ever seen in my entire life.
Furthermore, Dr. Arms, who was the first physician who saw Blake after she realized Dr. Irwin was unable to remedy her...
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