Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals has reversed a directed verdict in favor of the defense in a dental malpractice, holding that the plaintiffs introduced enough evidence to show an injury and damages to get to a jury. Plaintiff Lucien Ouazin presented to his dentist with complaints of lower jaw pain. The dentist performed an x-ray. According to the evidence, Mr. Ouazin noticed a dark discoloration on the x-ray and asked the dentist about it. The dentist said it was fine but that he had a cavity in one tooth and another needed to be extracted. The dentist referred the patient for the extraction, which was ultimately done.

Three years later, Mr. Ouazin fell ill while shopping. He went to the hospital and was diagnosed with an endodontic tumor. The tumor and part of the jaw bone were extracted and part of the leg bone was used in the jaw. As a result, Mr. Ouazin was left with a limp and pain. Mr. Ouazin and his wife sued the dentist. At trial, the dentist moved for a directed verdict, claiming the Plaintiffs had not proven an injury and damages. The Plaintiffs claimed the tumor would have been much smaller if diagnosed earlier and the surgery would have been easier without the same impairments. The trial court granted the motion. The Court of Appeals reversed, holding that while surgery would have been needed no matter what, the jury could have found that the surgery performed in 2011 was “more drastic” than what would have been performed in 2011.

In addition, the dentist moved at trial to exclude Plaintiffs’ expert’s testimony on the grounds that he had not performed the treatment within the 5 years leading up to the incident. The trial court excluded the testimony but the Court of Appeals reversed. The Court held that the expert is not required to have performed the same treatment within 5 years of the incident. Rather, the expert must show that they have actual knowledge or teaching knowledge of the subject matter in order to testify.

Take-home:

For purposes of proving an injury, the general rule is that any change in the condition, pain, or treatment will be sufficient to get to a jury.

The case is Ouanzin v. Coast Dental Services, Inc., 2020 WL 1129766 (March 9, 2020).

For more information or to subscribe to our Health Law and Regulation Update Blog, please click here.