Dental patient wins $250K in malpractice case

By Thomas Franz
BridgeTower Media Newswires
 
DETROIT—A Wayne County Circuit Court jury awarded $250,000 to a dental patient who sustained permanent numbness in half of her mouth after a numbing treatment went wrong.

In Karie A. Ferrell v. Jason Cohen, DDS & Cohen Modern Dentistry, PC, plaintiff’s counsel Robert Gittleman of the Robert Gittleman Law Firm PLC in Farmington Hills overcame a defense of informed consent for a known complication.

“There’s no such thing as informed consent for negligence,” Gittleman said.

Crown gone wrong

On April 19, 2016, the plaintiff went in for a crown procedure on her first molar, or tooth No. 30.

To provide patient comfort, the defendant injected Marcaine anesthetic through a syringe and needle.

The dentist misdirected the needle into a cranial nerve that provides sensory perception to the chin, lip and gums, Gittleman stated.

By inserting the needle into the nerve and then using the syringe to inject the numbing solution, Gittleman said the dentist essentially caused the nerve to blow up under pressure.

“The numbing solution has 100 times more volume than the width of the nerve,” Gittleman said. “It’s like filling up a balloon with water until it bursts.”

The incident caused the plaintiff to permanently lose sensory perception to her chin, lips and gums on the right side of her mouth, including perception of pain, pressure and temperature. Gittleman compared the injury to the numbness sensation following a numbing injection that never diminishes as opposed to going away in two or three hours.

“In her case, it’s a lifetime feeling of numbness because the nerve the injection was supposed to numb for three hours was traumatized, cut and lacerated and broken through by the negligent defendant’s misapplication and misdirection of his needle,” Gittleman said.

Legal argument

Despite the facts of the case, Gittleman said he had to get past the defense of informed consent for a known complication of the operation.

Gittleman said he did so arguing there’s no such thing as consenting to negligence.

“It’s against public policy for a professional or any service provider to tell the customer or patient you are agreeing for me to break the rules,” Gittleman said.

“You can only seek informed consent for accepted complications. What happened to her was obviously a complication, but certainly not an accepted complication.”

Gittleman said there must be a reason for an accepted complication that causes injury, but that reason didn’t exist for a patient with normal anatomy and normal health history.

“One of the reasons for an accepted complication for causing nerve injury would be a patient who has an abnormal distribution of the nerves, the nerve is in a different location or is predisposed to injury. Another cause would be a person who has a pre-existing nerve disease,” Gittleman said.

Plaintiff’s counsel requested $300,000 from the jury to cover life-altering effects of the permanent numbness and nerve pain resulting from the operation.

“The quality of her life has gone down significantly because she’ll never lose the sensation of the numbness we get from injection needles at the dental office, and that’s a feeling we can’t wait to get rid of,” Gittleman said.

Defense attorney James Hunt did not respond to a request for comment on this case.