McLean v. Hunter
| Decision Date | 23 June 1987 |
| Docket Number | No. 84,84 |
| Citation | 510 So.2d 771 |
| Parties | Elaine E. McLEAN v. Raymond K. HUNTER, et al. CA 1386. |
| Court | Court of Appeal of Louisiana — District of US |
Macallynn J. Achee, Baton Rouge, for plaintiff-appellant Elaine E. mClean.
Carey J. Guglielmo, Baton Rouge, for defendants-appellees Dr. Raymond K. Hunter and Aetna Cas. and Sur. Co.
Before SAVOIE, CRAIN and LeBLANC, JJ.
This is a dental malpractice action which resulted in a jury verdict in favor of defendant, Dr. Hunter, and judgment was rendered accordingly. On appeal, we held that although the trial court improperly excluded expert testimony with respect to the standard of care applicable to Dr. Hunter, its exclusion was not so prejudicial that its admission would have resulted in a favorable judgment for plaintiff. Therein we stated:
Even with the addition of the proferred testimony, the jury could have reached the same result without committing manifest error. Significantly, testimony to substantially the same effect as the proferred testimony was entered into evidence through the testimony of two general dentists called by plaintiff.... Accordingly, the error committed by the trial court in this respect does not warrant reversal.
McLean v. Hunter, 486 So.2d 816, 819 (La.App. 1st Cir.1986). The Louisiana Supreme Court found that the proferred testimony of Dr. Lovelace may have changed the outcome of the trial. Under these circumstances it was held that the jury verdict could be given no effect on appellate review. Accordingly, the case was reversed and remanded to this court for reconsideration of plaintiff's appeal with the instruction that we consider all the evidence, including the proferred testimony, and make an independent determination of whether plaintiff has proved her case by a preponderance of the evidence. McLean v. Hunter, 495 So.2d 1298 (La.1986). We proceed in compliance with the Supreme Court instructions.
Elaine McLean was initially treated by Dr. Hunter, a general dentist, on an emergency basis on December 6 and 7, 1977. The December, 1977, consultations are not alleged to have given rise to this malpractice action. McLean was next seen by Dr. Hunter on November 13, 1979, and was thereafter treated by him or in his office until September 9, 1981, when she was referred for treatment to Dr. Bruce Lovelace, periodontist, who performed periodontal surgery on plaintiff.
McLean alleges as malpractice Dr. Hunter's failure to inform her that she suffered from periodontal disease; to refer her to a periodontist; to instruct her in proper oral hygiene techniques; and to properly treat the periodontal disease.
In a dental malpractice action the plaintiff has the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by ... dentists ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances;
* * *
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
"Periodontium" refers to the tissues surrounding the teeth and includes (1) the cementum (connective tissue covering the root of a tooth which assists in supporting the tooth); (2) the periodontal ligament (which anchors the tooth to the bone); (3) the alveolar bone (jaw bone to which the teeth are attached); and (4) the gingiva (gums). The gingiva is not attached to the tooth at the gum line. It is attached to the root approximately three millimeters below the gum line, forming the gum crevice or sulcus between the gum line and the root. In its natural, healthy state, the gum crevice is approximately three millimeters deep. "Periodontitis" or "periodontal disease" refers to the "inflammatory reaction of the tissues surrounding a tooth (periodontium), usually resulting from the extension of gingival inflammation (gingivitis) into the periodontium." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 991 (26th ed. 1981). Periodontal disease may result in the formation of periodontal pockets (with or without pus), resorption of the alveolar bone and cementum, destruction of the periodontal ligament and loss of teeth.
Periodontal disease in most instances is caused by poor oral hygiene by which tartar, calculus, and plaque cause inflammation. It can be acutely caused by an object, such as a popcorn husk, lodging in the periodontal pocket. It is also cyclical in nature.
Dr. Bruce Lovelace, McLean's treating periodontist, testified that in treating periodontal disease a general dentist should: use a periodontal probe (a calibrated instrument) to measure the depth of periodontal pockets; record the pocket depths, if any, of each tooth; advise the patient that she has periodontal disease; instruct the patient on oral hygiene techniques; and set up regularly scheduled visits for the patient.
Dr. Bruce Kestler, general dentist, testified that in treating periodontal disease a general dentist should use a periodontal probe to measure periodontal pockets; give oral hygiene instructions to the patient; record the pocket depths if he is to treat the patient for periodontal disease rather than refer her to a periodontist; place the patient on a recall schedule; and advise the patient that she has periodontal disease.
Dr. Robert Branstetter, general dentist called by plaintiff, testified essentially that upon examination of the patient for periodontal disease, the clinician should measure and record the pocket depths; give oral hygiene instructions; and inform the patient that she has periodontal disease. He stated that a periodontal probe is the instrument of choice for examining and measuring periodontal pockets primarily because it makes the clinician's work easier and faster. He testified, however, that examining, probing and measuring the periodontal pockets may be done by any instrument with which the clinician is familiar and by which he can probe and estimate the depth of the periodontal pockets. In Dr. Branstetter's opinion, the measurement of a periodontal pocket may differ upon examination by different clinicians even when using a periodontal probe.
According to the testimony of various general dentists and periodontists, the purposes of charting or recording pocket depth are to motivate the patient into better oral hygiene practices and to monitor the disease process.
DISEASE, AND DENTAL HYGIENE INSTRUCTIONS
Dr. Hunter testified that he uses an explorer, rather than a periodontal probe, to probe and measure periodontal pockets. The type of explorer used by Dr. Hunter is calibrated and he has used it during his twenty years of practice to estimate pocket depth. He stated that he probed and measured the periodontal pockets in McLean's mouth with the explorer, and was aware that she had periodontal pockets associated with periodontal disease. Dr. Hunter testified that it is not his practice to record or chart every clinical finding and every procedure performed. He stated that although he did not record pocket depth and all details of plaintiff's visits, he diagnosed the periodontal disease and monitored plaintiff's progress at each visit during the twenty-two months which she was treated at his office.
Plaintiff alleges Dr. Hunter did not inform her that she had periodontal disease; he did not instruct her in proper oral hygiene techniques; nor did he place her on a recall program by which she would be seen regularly in his office.
Dr. Hunter testified that it is not his normal practice to record when oral hygiene instructions are given or the substance of conversations between himself and a patient. Although he did not recall the exact times or dates that plaintiff was given oral hygiene instructions and told that she had periodontal disease, he recalled many conversations with plaintiff during which they discussed her "gum disease" and the importance of maintaining good plaque control, and numerous sessions when she was taught how to clean her teeth and gums. Additionally, Dr. Hunter stated that it is his routine practice to give oral hygiene instructions to every patient. Ms. Janelle Bello, a dental assistant employed by Dr. Hunter, testified that she recalled specifically teaching proper brushing and flossing techniques to plaintiff. She further testified that she heard Dr. Hunter discussing with plaintiff the importance of taking the responsibility of keeping her teeth and gums clean in order to control or arrest the periodontal disease with which she suffered. Plaintiff, on the other hand, testified that neither Dr. Hunter nor any office employee ever taught her how to clean her teeth and gums. She admitted on cross examination, however, that Dr. Hunter told her many times to brush her teeth, and to floss and massage her gums but never told her how it should be done.
Dr. Hunter testified that plaintiff was seen in his office as needed on an emergency basis and was also placed on a recall schedule. He did not remember specifically for what time intervals the recalls were set and his office did not keep appointment books dating back approximately five years. However, the dental record reflects that plaintiff was seen in Dr. Hunter's office seventeen times during a twenty-two month period. Ms. Vickie Fredericks, a dental assistant employed in Dr. Hunter's office, testified that it was common practice to place every patient on a recall...
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