Dental Malpractice Attorney U.: Experts


A recent dental malpractice attorney case: Walter Martinez’ dental malpractice attorney appealed after a jury returned a verdict of no malpractice in favor of Nancy Herbst, a dental surgeon. The dental malpractice attorney filed a court complaint against Herbst in April 2010.

The dental malpractice attorney claimed that Herbst was negligent.  She allegedly severed Walter’s lingual and related nerves while extracting one of his wisdom teeth.

The dental malpractice attorney claimed Walter was entitled to a new trial.

Why? Because the trial judge erred in finding that Walter’s expert witness, a licensed general dentist, was not a specialist qualified to testify to the standard of care of a dental surgeon. This even though the expert received the same training as a dental surgeon.  The dental malpractice attorney further claimed the judge erred by finding the expert’s opinion was not supported by sufficient facts.

Walter was sixteen years old in 2008 when he went to Dr. Herbst’s offices.  During the extraction of his lower left wisdom tooth, Herbst allegedly improperly elevated the adjacent tooth. This caused her to sever Walter’s lingual nerve and inferior alveolar nerve. Walter experience loss of taste, sensory pleasure and feeling in his mouth. Another surgeon later operated on Walter to correct the damage. But, because of scar tissue and other problems, the second surgeon could not repair the damage.

The appeals court that reviewed the trial verdict in favor of the surgeon noted several things:

“The test of an expert witness’s competency [to testify] in a malpractice action is whether he or she has sufficient knowledge of [the applicable] professional standards … to justify [his or her] expression of an opinion.”

“A doctor in one field [may sometimes be] be qualified to render an opinion as to the performance of a doctor in another with respect to their common areas of practice.”

Walter’s expert “testified he was not [a dental surgeon], but [that], as a dentist, about fifteen percent of his practice involved tooth extractions.” Therefore, the trial judge had no “basis to find [Walter’s expert] unqualified.”

Just for that reason, the appeals court found that Walter deserved a new trial.

The appellate judges also disagreed with the trial judge’s conclusion that Walter’s expert’s opinions were without enough factual support. The trial judge faulted the expert for not citing academic literature. But the appeals court noted that the expert’s “conclusions can be based on his or her … personal experience, without citation to academic literature.”

For these reasons, the appeals court agreed with Walter’s dental malpractice attorney and ordered a new trial. I believe that the appellate court made the right call.

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