Frankel v. Deane
| Decision Date | 25 August 2022 |
| Docket Number | 43-2021 |
| Parties | BENNETT FRANKEL, ET AL. v. CASEY LOU DEANE |
| Court | Maryland Court of Appeals |
Argued: March 7, 2022.
Getty C.J., [*] Watts, Hotten, Booth, Biran, Gould, McDonald, Robert N. (Senior Judge, Specially Assigned), JJ.
This is a medical malpractice case arising out of the removal of Casey Lou Deane's lower and upper wisdom teeth by Dr Bennett Frankel. Dr. Frankel performed the surgery on January 14, 2016.[1] Ms. Deane signed consent forms and was, according to Dr.
Frankel's medical notes, "told of possible complications, mainly pain, burning, paresthesia lower lip, chin, tongue[.]"
When Ms. Deane awoke after the surgery, she was in pain and couldn't speak or feel her tongue. She was told to go home and rest and was assured that her condition would improve once the anesthesia wore off. But that did not happen.
Ms. Deane had a follow-up appointment with Dr. Frankel several days after the surgery. Dr. Frankel's notes from the visit reflect that Ms. Deane complained of pain, paresthesia, and tingling on the front third of both sides of her tongue. Ms. Deane recalled being told "to give it more time to heal[,]" but denied reporting any improvement.
Dr. Frankel's notes also indicate that Ms. Deane had a follow-up appointment scheduled for one week later, which Ms. Deane did not attend. Regarding that appointment, the notes state, "patient's complaints getting better" and "not coming back." Ms. Deane recalled no conversation with anyone from Dr. Frankel's office about the follow-up appointment. She did recall, however, not wanting to go back to Dr. Frankel because she could not feel her tongue, and yet he told her that she was "okay" and assured her that in time the problems would resolve. She testified, "[s]o I think I was just done."
Several months after the surgery, Ms. Deane's symptoms continued to show no improvement, so she called Dr. Frankel's office and scheduled an appointment with a different doctor, Dr. Clay Kim for April 18, 2016.
What transpired at Ms. Deane's appointment with Dr. Kim is in dispute. Dr. Kim's progress notes state that Ms. Deane complained that her tongue was numb but also stated that she was "getting better and still tingling" and that her "whole tongue [was] not numb anymore," and that ". . . [n]ow only [the] right anterior tongue is numb." The notes also reflect that Dr. Kim examined her mouth and conducted some neurosensory tests, stating, "right anterior 2/3 with mild pain perception, direction, and soft touch sensation intact[.]" Dr. Kim diagnosed a "likely neuropraxia injury" and noted that referral to a "neurologis[t]" might be necessary, but that he recommended "observation for now" and that the "[p]atient will schedule for the above procedure[s]."[2] The notes do not reflect that Dr. Kim tested Ms. Deane's sense of taste or her reaction to hot or cold stimuli.
Ms. Deane maintains that, contrary to Dr. Kim's notes, she told him that her tongue was numb on both sides of the front of the tongue, that it was difficult to talk and eat, and that she was experiencing pain, throbbing, and tingling. She recalled that Dr. Kim poked her tongue with something, but did not recall him mentioning the possible need to see a nerve specialist.
Roughly six months after the surgery, Ms. Deane still could not feel her tongue, which prompted her to do some research. She found information on bilateral lingual nerve injuries which seemed to produce the same symptoms as those she had been experiencing. Lacking dental insurance, Ms. Deane did not follow up with another oral surgeon. About two years after her surgery, she decided to call a lawyer, who, in turn, referred her to Dr. Richard Kramer, a dentist who was board-certified as an oral and maxillofacial surgeon.
Dr. Kramer's practice included third molar extractions and diagnosing nerve injuries. After conducting a series of sensory tests on Ms. Deane, Dr. Kramer prepared and sent a report with his findings to her attorney. His report said: "[t]he injury here is likely a bilateral neurotmesis."[3] Dr. Kramer also opined that, due to the time between the date of the surgery and his evaluation, the injury was permanent.
In August 2018, Ms. Deane filed a malpractice claim against Dr. Frankel and Southern Maryland Oral and Maxillofacial Surgery, P.A. ("Southern"), the practice that employed Dr. Kim. Ms. Deane alleged that she suffered permanent loss of feeling in her tongue because Dr. Frankel severed the lingual nerve while extracting her wisdom teeth, and because Dr. Kim failed to promptly refer her to a nerve specialist. Ms. Deane subsequently amended her complaint to add Dr. Kim as a defendant.[4]
Ms Deane designated two experts: (1) Dr. Kramer, to provide expert testimony on the nature and extent of her alleged injury; and (2) Armond Kotikian, D.D.S., M.D., a board-certified dentist in oral and maxillofacial surgery, to testify on standard of care and causation.
Dr. Kramer testified at his deposition that the standard of care for diagnosing nerve injuries was set forth in the "Nerve Evaluation Protocol 2014" from the California Association of Oral and Maxillofacial Surgeons (the "2014 Protocol"). The 2014 Protocol recommends a four-part test for providing "a framework upon which evaluation and treatment options could be based." Dr. Kramer routinely used that test in his practice to diagnose lingual nerve injuries, including with Ms. Deane.
Dr. Kramer explained that he "performed pressure, two-point discrimination, taste, and sensation of sharp" on Ms. Deane. He acknowledged that the test was partly based on the subjective reporting of his patients but stated that he tries "to make it as objective . . . as [he] can."
With Ms. Deane, he used the fluff of a wooden Q-Tip to determine if she could feel a light touch, a broken end of the Q-Tip to test if she could feel a sharp touch, and a metric gauge to measure the distance at which she could distinguish touching sensations in two places. He observed that Ms. Deane had no feeling and no ability to discern feeling in two places on the front two-thirds of both sides of her tongue. Dr. Kramer also conducted a temperature test on Ms. Deane's tongue, and again, "[t]here was no response."
In addition, Dr. Kramer performed a taste test with a local anesthetic, which is known to be bitter. He put the anesthetic in several different places on Ms. Deane's tongue, including at the back. Ms. Dean reported no taste in the front bilateral parts of her tongue. As to the subjective nature of the taste test, Dr. Kramer explained that, for most people, "when you do that, if they can taste it, you can look right at them and know they're tasting it."
As noted above, Dr. Kramer opined that "[t]he injury here is likely bilateral neurotmesis," or, as described in his deposition, a "complete transection of the lingual nerve bilaterally[.]" His report also stated that Ms. Deane "will experience no further improvement in her condition[,]" and that the injury was permanent. Dr. Kramer gave two reasons for his opinions: (1) the neurosensory tests showed that Ms. Deane had no feeling in the area of her tongue in front of the wisdom teeth; and (2) the fact that Ms. Deane had no sensation in her tongue two years after the injury meant that the lingual nerve had been severed because otherwise, he would have expected to see some improvement due to nerve regeneration.
Dr. Kramer did not review either Dr. Frankel's or Dr. Kim's notes prior to his examination. When asked if a neurosensory exam three months after surgery would have been pertinent to his opinions on nerve injury in this case, Dr. Kramer said He then explained that "[b]y example, . . . if someone did an exam of her at three months and she had a normal sensation, that would be quite pertinent to the outcome . . . [b]ecause she didn't have normal sensation when I saw her nearly two years after the injury." He testified that seeing improvement three months after surgery, as reported by Dr. Kim, was inconsistent with the conclusions he reached from his examination two years after surgery because if the symptoms had been improving at three months, Ms. Deane's condition would not have subsequently deteriorated. Dr. Kramer opined that the only diagnosis consistent with Ms. Deane's persistent loss of taste sensation or feeling in her tongue for two years was a complete severance of the lingual nerve.
Dr. Kotikian was designated to testify that "Ms. Deane has developed full anesthesia of her tongue, bilaterally and a likely severance of her lingual nerves, bilaterally, following the extraction of [the lower wisdom teeth] by Dr. Bennett F. Frankel[.]" In addition, he would testify that: (1) the injury "likely occurred while the third molar in question was being sectioned and the bur traversed the lingual plate causing the lingual nerve to be severed"; (2) the injury could have been avoided by placing "a retractor or a periosteal elevator . . . between the lingual plate and periosteum during the time of sections and/or adequate buccal and distal troughs . . . around the teeth"; and (3) the failure to take either precautionary step deviated from the standard of care in oral surgery practice and caused Ms. Deane's injuries. Further, Dr. Kotikian would testify that "if the teeth [had not been] transected, then the surgeon cut the flap too widely and outside the intended surgical field." According to Dr. Kotikian, "each is a deviation from the standard of care."
Dr Kotikian was also designated to testify that Dr. Kim should have recommended that Ms. Deane...
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