McLean v. Hunter

510 So. 2d 771, 1987 La. App. LEXIS 9843
CourtLouisiana Court of Appeal
DecidedJune 23, 1987
DocketNo. 84 CA 1386
StatusPublished
Cited by6 cases

This text of 510 So. 2d 771 (McLean v. Hunter) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLean v. Hunter, 510 So. 2d 771, 1987 La. App. LEXIS 9843 (La. Ct. App. 1987).

Opinion

CRAIN, Judge.

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 prof-erred 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.

FACTS

Elaine McLean was initially treated by Dr. Hunter, a general dentist, on an emergency basis on December 6 and 7, 1977.

[773]*773The 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.

BURDEN OF PROOF

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;
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(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.

La.R.S. 9:2794 A.

A. DEGREE OF CARE TO BE EXERCISED BY GENERAL DENTIST IN DIAGNOSING AND DETERMINING COURSE OF TREATMENT OF PATIENT WITH PERIODONTAL DISEASE

“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 gin-gival inflammation (gingivitis) into the per-iodontium.” 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 perio[774]*774dontal 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.

B. DEGREE OF CARE EXERCISED BY DR. HUNTER IN DIAGNOSING AND DETERMINING TREATMENT OF EXISTING PERIODONTAL DISEASE, AND DENTAL HYGIENE INSTRUCTIONS TO PLAINTIFF

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.

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Bluebook (online)
510 So. 2d 771, 1987 La. App. LEXIS 9843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-v-hunter-lactapp-1987.