Fisher v. Zborowski

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

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. 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 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 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 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 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, intraoperative gauges and periapical X rays all were preoperative measures that were available in 1995 to prevent an implant from impinging the inferior alveolar nerve.

Following Wagenberg's testimony, the plaintiff called Gelb to testify. Gelb's testimony concerned, inter alia, the standard of care in 1995. During the plaintiffs direct examination of Gelb, he was asked about the range of available preoperative measures that the defendant could have employed to prevent the plaintiffs injury from occurring. The court limited Gelb's response to those preoperative measures that a physician could take in 1995 to prevent injury to a patient's inferior alveolar nerve. Gelb then testified that the use of periapical X rays, intraoperative depth gauge measurements, millimeter rulers, cross-sectional CAT scans and shorter implants could have prevented such an injury. Gelb was not, however, permitted to give testimony concerning those preoperative measures he preferred in his practice.

The plaintiff claims on appeal that the court abused its discretion when it precluded her from exploring with Gelb the range of available preoperative measures that the defendant could have employed to prevent an impingement of her inferior alveolar nerve. We are not persuaded.

We begin our analysis of the plaintiffs claim by setting forth the well established standard by which we review the court's determinations concerning the admissibility of evidence. "[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed." (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 654, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). In the present case, the record belies the plaintiff's claim that she was not able to question Gelb about the available methods of measurement.⁴ The record reveals that the plaintiff was precluded from questioning Gelb only about the preoperative methods of measurement he preferred to use in his practice in 1995. Because such testimony would not have aided the trier of fact in its determination of whether the defendant's use of panoramic X rays violated the standard of care, the court did not improperly exclude it on the ground of irrelevance. See id. ("`A predicate to the admissibility of expert testimony is its relevance to some issue in the case. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.'"). Accordingly, the plaintiffs claim is unpersuasive.

B

The plaintiff next claims that she is...