Bojorquez v. O'Keeffe
| Decision Date | 07 July 2020 |
| Docket Number | No. ED 107858,ED 107858 |
| Citation | 605 S.W.3d 380 |
| Parties | Christina BOJORQUEZ, Respondent, v. Thomas E. O'KEEFFE, D.D.S., a Professional Corporation, and Thomas E. O'Keeffe, D.D.S., Appellants. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Bruce E. Baty, Wade P.K. Carr, 4520 Main Street, Ste. 1100, Kansas City, MO 64111, Betsey L. Lasister, 2611 Skyview Court, Lawrence, KS 66047.
FOR RESPONDENT: Jamie L. Boock, 124 Gay Avenue, St. Louis, MO 63105.
Thomas E. O'Keeffe, D.D.S., a professional corporation, and Thomas E. O'Keeffe, D.D.S. (individually "Defendant O'Keeffe" or "Dr. O'Keeffe") (collectively "Defendants"), appeal the judgment entered upon a jury verdict in favor of Christina Bojorquez ("Plaintiff") on her dental malpractice claim. In accordance with the jury's verdict, the trial court's judgment awarded Plaintiff a total of $2.5 million in noneconomic damages on Plaintiff's claim alleging, inter alia , that Plaintiff suffered damages as a result of Defendant O'Keeffe lacerating her tongue with a dental drill during a crown preparation procedure. We affirm.
A jury trial took place on Plaintiff's dental malpractice claim from January 14-17, 2019. Viewing all the evidence and reasonable inferences that can be drawn therefrom in the light most favorable to Plaintiff,1 the evidence presented at Plaintiff's trial revealed the following.
Plaintiff is a native of Tucson, Arizona and a twenty-year veteran of the United States Navy. When Plaintiff was not on active duty with the Navy, she worked for the City of Tucson in various capacities.
In 2012, Plaintiff was on active duty with the Navy and she was assigned to the National Personnel Records Center in St. Louis. Plaintiff began treating with Dr. O'Keeffe in July 2012.
On October 9, 2012, Plaintiff, then about 51 years old, visited Dr. O'Keeffe for a crown preparation procedure to be performed on one of Plaintiff's teeth. As is standard with this type of procedure, Plaintiff's tooth, tongue, and side of her mouth were numbed so her tooth could be tapered on all sides with the use of a dental drill.
Dr. O'Keeffe used a hand mirror to attempt to protect Plaintiff's tongue during the crown preparation procedure. However, during the course of the procedure, Dr. O'Keeffe lacerated Plaintiff's tongue with the dental drill, which was rotating at 220,000 revolutions per minute and was tipped with a diamond burr bit. The laceration was approximately a centimeter-and-a-half long and one-centimeter deep.
Before Plaintiff left Dr. O'Keeffe’s office, he never informed her that he had cut her tongue. And because Plaintiff's tongue was numb, Plaintiff was unaware Dr. O'Keeffe had lacerated her tongue until after she left the office and looked inside her mouth in the rear-view mirror of her car. Plaintiff testified that when she saw her tongue in the mirror, it "was chopped up" and "looked like hamburger." She then returned to Dr. O'Keeffe’s office. At this point, Dr. O'Keeffe sent Plaintiff to a local oral surgeon, Dr. Scott F. Nolen. Dr. Nolen saw Plaintiff immediately and sutured her tongue.
Plaintiff returned to Dr. Nolen for two more visits – one three days after her injury and one ten days after her injury – and during both of those times she was still having problems speaking. Plaintiff then saw Dr. Anne Steward for completion of the crown, who was "shocked" by Plaintiff's condition and who was also concerned about Plaintiff's slurred speech.
Plaintiff subsequently saw several physicians in St. Louis for treatment. On December 4, 2012, Plaintiff was seen by Dr. Paul Burk, an ear, nose and throat surgeon. Dr. Burk recommended Plaintiff undergo speech therapy, which she did from December 10, 2012 to January 25, 2013, attending all visits as ordered. While there was some improvement in her speech during this timeframe, it did not return to normal.
Dr. Burk recommended Plaintiff see a neurologist, Dr. Daniel Mattson. Plaintiff saw Dr. Mattson on March 4, 2013. During the visit, Dr. Mattson ruled out that Plaintiff had suffered a stroke and recommended counseling, telling Plaintiff her altered speech was "in [her] head." Plaintiff did not undergo this counseling, instead deciding to seek treatment with other doctors because she was upset and believed Dr. Mattson was conveying to her that her speech problem was not related to a real, physical injury. The counseling recommendation by Dr. Mattson is the only recommendation or treatment declined by Plaintiff from the time she was injured in October 2012 until the time of trial in January 2019. Furthermore, other than Dr. Mattson's counseling recommendation, Plaintiff saw every physician recommended to her, attended every visit that was scheduled, and completed every course of speech therapy that was prescribed.
On April 22, 2013, Plaintiff was seen by Dr. Randal C. Paniello at Washington University in St. Louis, an ear, nose and throat surgeon with a specialization in voice disorders. After examining Plaintiff, Dr. Paniello concluded Plaintiff had a voice disorder and the most likely explanation for the disorder was that Plaintiff had sustained a partial injury to the twelfth cranial nerve in her tongue.2 Dr. Paniello noted during his examination of Plaintiff that her tongue was moving in an uncoordinated manner, which would be consistent with a partial injury to the twelfth cranial nerve. Dr. Paniello also opined the location of the scar on Plaintiff's tongue was consistent with an injury to the twelfth cranial nerve.
Dr. Paniello recommended Plaintiff undergo additional speech therapy with speech pathologist Dr. Archie B. Harmon at Washington University. Plaintiff underwent speech therapy with Dr. Harmon from April 22, 2013 through June 13, 2013, completing every session. At the conclusion of this therapy, Dr. Harmon opined, (1) Plaintiff had improved and was approximately thirty to forty percent intelligible; but (2) Plaintiff had plateaued and was not going to be able to improve further. Because Dr. Harmon opined Plaintiff would not benefit or regain her prior level of speech function from any other speech therapies, Dr. Harmon did not recommend any future therapy. Dr. Harmon also testified it was his opinion that Plaintiff's speech issues were related to a nerve injury.
Following Plaintiff's treatment at Washington University, Plaintiff saw a variety of different specialists through the Veterans Affairs ("the VA") in San Diego when she underwent a fitness for duty exam and then in Tucson. Consistent with the opinions of Dr. Paniello and Dr. Harmon, some of the VA specialists Plaintiff saw opined she had a twelfth cranial nerve injury consistent with a tongue laceration.
However, at least one of the VA specialists, a speech therapist, opined Plaintiff had a conversion disorder3 as opposed to a nerve injury. Plaintiff's medical records with the VA speech therapist dated October 21, 2014 provide in pertinent part: "[i]t is likely that the initial injury caused pain/discomfort causing [Plaintiff] to alter her tongue posture, tongue movements, and even jaw movement in an attempt to minimize the pain while trying to verbally communicate her messages"; and "[c]ombined with the emotional stress of having sustained such an injury likely contributed to the rapid seeding of a new speech pattern that is characterized by extreme tension in the jaw and tongue, altered speech rate and posturing contributing to speech distortions ...."
One of Plaintiff's experts, dentist Dr. Charles Fuszner, testified he opined Defendant O'Keeffe breached the standard of care by, (1) lacerating Plaintiff's tongue with the dental drill during the crown preparation procedure; and (2) failing to be aware of alternative methods of protecting the tongue and utilizing them when he felt the hand mirror he used on Plaintiff was not working.
It is undisputed the evidence at trial showed Plaintiff did not have a speech problem or voice disorder prior to Defendant O'Keeffe’s laceration of Plaintiff's tongue. It is also undisputed the evidence demonstrated that as of the time of the trial, Plaintiff spoke with a very notable articulation/voice disorder despite completing every round of speech therapy that was prescribed.
Additionally, there was significant amount of evidence presented at trial demonstrating, (1) Plaintiff's injuries and resulting voice disorder have caused her pain and suffering, impacted her lifestyle, and caused her embarrassment and humiliation; and (2) Plaintiff will continue to suffer such noneconomic damages in the future.
Finally, Defendants presented testimony from their experts indicating Plaintiff had a conversion disorder rather than a nerve injury.
After the close of Plaintiff's evidence and at the close of all of the evidence, Defendants moved for a directed verdict on the issue of causation, and the trial court denied the motions.
During closing argument, Plaintiff invited the jury to find Defendants’ liable for dental malpractice if there was sufficient evidence as to two wholly separate theories of liability: (1) a nerve damage theory of liability alleging Defendant O'Keeffe’s negligent conduct of lacerating Plaintiff's tongue with the dental drill caused an injury to the twelfth cranial nerve in Plaintiff's tongue that in turn, caused her voice disorder; and (2) a conversion disorder theory of liability alleging Defendant O'Keeffe’s negligent conduct of lacerating Plaintiff's tongue with the dental drill caused her to suffer a conversion disorder that in turn, caused her voice disorder.
The jury returned a general verdict in favor of Plaintiff, awarding her a total of $2.5 million in noneconomic damages ($500,000 in past noneconomic damages and $2 million in...
To continue reading
Request your trial
-
Scott v. Dyno Nobel, Inc.
... ... In fact, Missouri courts have deemed ... verdicts awarding only non-economic damages as not ... excessive. See, e.g., Bojorquez v. O'Keeffe, 605 ... S.W.3d 380, 396-400 (Mo.Ct.App. 2020); Payne, 543 ... S.W.3d at 130-133. Moreover, the Eighth Circuit has stated ... ...
-
Bayes v. Biomet, Inc.
...that “no bright-line rule” exists, Missouri courts have deemed verdicts awarding only non-economic damages as not excessive. Bojorquez, 605 S.W.3d at 397-400; 543 S.W.3d at 130-133. Accordingly, the Court finds that a damages award consisting of solely non-economic damages does not render t......
-
Advanced Physical Therapy, LLC v. Apex Physical Therapy, LLC
...Of course, compensatory damages are those that “fairly and reasonably compensate a plaintiff for her injuries, ” Bojorquez v. O'Keeffe, 605 S.W.3d 380, 396 (Mo.Ct.App. 2020) (citation omitted), and “are not recoverable . . . unless defendants' conduct proximately caused plaintiffs'' loss.” ......