Fisher v. Zborowski, (AC 20835)

• Court: Appellate Court of Connecticut
• Writing for the Court: BISHOP, J.
• Citation: 847 A.2d 1057,83 Conn. App. 42
• Parties: GWENDOLYN FISHER v. ROBERT G. ZBOROWSKI
• Docket Number: (AC 20835)
• Decision Date: 18 May 2004

83 Conn. App. 42
847 A.2d 1057

GWENDOLYN FISHER
v.
ROBERT G. ZBOROWSKI

(AC 20835)

Court of Appeals of Connecticut.

Argued January 6, 2004.

Officially released May 18, 2004.

Schaller, Bishop and McLachlan, JS.

83 Conn. App. 43

Gary J. Strickland, for the appellant (plaintiff)

Alan L. Robertson, for the appellee (defendant).

Opinion

BISHOP, J.

This appeal concerns evidentiary and postverdict rulings made by the trial court in the course of a dental malpractice action tried before a jury. The plaintiff, Gwendolyn Fisher, commenced this action against the defendant, Robert G. Zborowski, an oral-maxillofacial surgeon, to recover damages for injuries she allegedly sustained as a result of the improper placement of a dental implant.¹ She appeals from the judgment

83 Conn. App. 44

of the court rendered after it denied her motion to set aside the jury's verdict in favor of the defendant. On appeal, the plaintiff contends that the court improperly (1) limited her direct examination of one of her expert witnesses, (2) denied her the opportunity to cross-examine adequately the defendant's expert witness and (3) denied her motion to set aside the verdict, which she claims was against the weight of the evidence. We affirm the judgment of the trial court

The jury reasonably could have found the following facts. At the time of the trial, the plaintiff was thirty-five years old. Prior to her treatment with the defendant, she had a history of dental maladies. At age thirteen, she underwent at least three root canal procedures involving several teeth, including tooth number nineteen.² As part of those procedures, the contents of the affected teeth were extracted. Shortly thereafter, the plaintiff visited a hospital with complaints of dental pain. There, she was informed that areas of her mouth had become infected because the cavities of the teeth involved in the root canal procedures had not been coated with a protective substance. The plaintiff continued to see a dentist for regular cleanings until she was eighteen years old. She did not, however, see a dentist again for at least twelve years.

During that hiatus from treatment, the plaintiff noticed that her teeth, specifically her molars, had begun to "decay from the inside out and break apart and break off." She became increasingly unhappy with the condition and appearance of those teeth and, ultimately, consulted a general dentist in August, 1994. That general practitioner, in turn, referred the plaintiff to the defendant.

Accordingly, in September, 1994, the plaintiff discussed various restorative dental procedures with the

83 Conn. App. 45

defendant and elected a treatment plan whereby eleven of her teeth, including tooth number nineteen, would be extracted and replaced by dental implants. On November 22, 1994, the defendant performed the planned extractions. Thereafter, in preparation for placing the implants in the sites of the extracted teeth, the defendant took a panoramic X ray of the plaintiffs mouth to locate her inferior alveolar nerve, a branch of the mandibular nerve, positioned in her lower left jaw. T. Stedman, Medical Dictionary (25th Ed. 1990) p. 1039. He then placed a plastic, transparent template, which was provided by the implant manufacturer, over the X ray so that he could identify an implant length that would be long enough to have sufficient strength and durability, but short enough so as not to impinge the inferior alveolar nerve

On April 13, 1995, the defendant performed an implant procedure during which he placed a sixteen millimeter implant in the site of extracted tooth number nineteen. A few days later, the plaintiff complained of numbness, pain and discomfort in her lower left jaw. When the plaintiff returned to see the defendant on April 21, 1995, the defendant took another panoramic X ray of her jaw. From that X ray, it appeared to him that the implant at tooth number nineteen had intersected the top line of the mandibular nerve canal. Accordingly, the defendant removed the implant on April 24, 1995. After the effects of the anesthesia from that procedure wore off, the plaintiff noticed that the pain and discomfort in her jaw had subsided. She claimed, however, that the numbness she had experienced in the lower left jaw remained. The defendant continued to treat the plaintiff until May, 1996. One month later, the plaintiff commenced an alternative treatment plan with a periodontist, David Gelb, and a dentist, Frederick Landry. That additional treatment involved extensive bridge and crown work, which

83 Conn. App. 46

included crown lengthening procedures in the area of tooth number nineteen

In April, 2000, the plaintiff filed an amended one count complaint against the defendant, alleging medical malpractice.³ In turn, the defendant filed an answer, denying negligence in any of the ways alleged by the plaintiff. At trial, the jury returned a general verdict for the defendant. In a posttrial motion, the plaintiff sought to set the verdict aside and sought a new trial. The court denied the plaintiff's motion, accepted the jury's verdict and rendered judgment for the defendant. This appeal followed.

I

The plaintiff makes two evidentiary claims on appeal. She claims that the court improperly (1) refused to allow direct examination of one of her experts concerning techniques that were available in 1995 to determine an implant size that would not impinge the inferior alveolar nerve and (2) refused to permit cross-examination of the defendant's expert as to the basis of his

83 Conn. App. 47

opinion that nerve injury is a normal risk of that dental implant procedure. We address each of those arguments in turn.

A

The plaintiffs first claim is that the court improperly precluded her from questioning Gelb, one of her expert witnesses, concerning the methods of measurement the defendant could have utilized in 1995 to prevent the implant at tooth number nineteen from striking the inferior alveolar nerve. She argues that the proffered testimony would have informed the jury of the wide range of measurement alternatives that could have been employed by the defendant to prevent her injuries. She further contends that because Gelb would have testified that the use of those available means would have been consonant with the requisite standard of care, the court's exclusion of that evidence was improper and, thus, she is entitled to a new trial.

The following additional facts and procedural history are relevant to our disposition of the plaintiffs claim. At trial, Lawrence Wagenberg, a periodontist, was the first expert to testify for the plaintiff with regard to implant dentistry. During direct examination, Wagenberg was asked about the preoperative measures that were available in 1995 to prevent an implant from striking the inferior alveolar nerve during placement. The defendant's counsel objected to that line of questioning on the ground of irrelevancy, arguing, in essence, that the precautions available in 1995 to prevent that injury were irrelevant because those that satisfied the standard of care had not yet been established by the plaintiff. The court overruled the objection, stating: "I understand that, but I'm assuming that's going to be forthcoming." Wagenberg then testified that the use of computerized axial tomography (CAT) scans, diagrams, panoramic X rays,...