Vila v. Faget

598 So. 2d 388, 1992 La. App. LEXIS 913, 1992 WL 57201
CourtLouisiana Court of Appeal
DecidedMarch 26, 1992
DocketNo. 91-CA-0536
StatusPublished
Cited by1 cases

This text of 598 So. 2d 388 (Vila v. Faget) 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
Vila v. Faget, 598 So. 2d 388, 1992 La. App. LEXIS 913, 1992 WL 57201 (La. Ct. App. 1992).

Opinion

ARMSTRONG, Judge.

Plaintiff, Carmel Vila, appeals from a judgment dismissing her malpractice claims against defendant, Dr. William E. Faget, a dentist, and his insurers, New England Reinsurance Company, Continental Casualty Insurance Company, and National Union Fire Insurance Company. We now affirm the judgment of the trial court.

Dr. Faget treated plaintiff from August 1978 through January 1986. In March 1986 she sought treatment from another dentist, Dr. Richard F. Gruner. Dr. Gruner eventually had to extract three of plaintiff’s teeth, replacing them with a partial bridge. Dr. Gruner blamed the loss on Dr. Faget’s treatment which he characterized as below the standard of care possessed by a general dentist practicing in New Orleans. Plaintiff submitted the case to a medical review panel1 which found that Dr. Faget’s treatment of plaintiff had not been below the applicable standard of care. On November 7, 1987, plaintiff instituted the instant action.

On appeal, plaintiff raises two assignments of error. She claims the trial court erred (1) in allowing Dr. Marvin Cavallino, a pediatric dentist, to testify as an expert; and (2) in failing to find that she proved by a preponderance of the evidence that Dr. Faget’s treatment of her fell below the applicable standard of care.

To recover damages in a dental malpractice action, La.R.S. 9:2794(A) places the burden on the plaintiff to prove each of the following:

(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; and- where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by ... dentists ... within the involved medical specialty.
(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.
(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.

[390]*390The burden is upon the plaintiff to establish the dentist’s negligence by a preponderance of the evidence. La.R.S. 9:2794(C). Proof of the knowledge, skill or degree of care and the failure of the dentist to possess or meet them are established through the expert testimony of witnesses who are members of the defendant’s profession and who are qualified to testify. Gurdin v. Dongieux, 468 So.2d 1241 (La.App. 4th Cir.1985), writ denied, 474 So.2d 946 (La.1985).

Dr. Marvin Cavallino testified on behalf of defendant. Cavallino was board certified in the field of pediatric dentistry and had been practicing in that field since 1971. Prior to 1971 he practiced general dentistry. Dr. Cavallino testified that the whole thrust of pediatric dentistry was the prevention of dental problems. Pediatric dentistry programs provide instruction to both parents and children on proper cleaning techniques for the prevention of dental problems. Dr. Cavallino taught dental cleaning to adults only in conjunction with his instruction of their children. Over the objection of plaintiff’s counsel, the trial court qualified Dr. Cavallino as an expert in dental hygiene as it related to both adults and children. The trial court further recognized Cavallino as an expert in the field of pediatric dentistry with an expertise in preventive dentistry. Plaintiff argues that Cavallino was not qualified to testify because the issue before the court was the skill and standard of care of a general dentist, not that of a pediatric dentist.

The qualification of an expert witness rests within the sound discretion of the trial court, and its decision whether to qualify a witness will not be disturbed unless it is a clear abuse of discretion. Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir.1979); Frank L. Beier Radio, Inc. v. Brown, 453 So.2d 656 (La.App. 5th Cir.1984), writ denied, 458 So.2d 121 (La.1984). See also Comment (d) to La.C.E. art. 702.

A specialist is not automatically excluded from testifying in a malpractice suit involving a general practitioner; the specialist’s qualification to testify must be determined on a case-by-case basis. McLean v. Hunter, 495 So.2d 1298 (La.1986). In McLean, a periodontist was qualified as an expert in periodontics in the trial of a malpractice suit against a general dental practitioner. The suit had been instituted by a patient who had allegedly developed periodontal disease while being treated by the dentist. The trial court refused to allow the expert to testify as to the standard of care exercised by a dentist engaged in the practice of general dentistry. On appeal, the appellate court found that the trial court had erred in refusing to allow such testimony in evidence. In its decision affirming the holding by the appellate court, the Louisiana Supreme Court quoted as follows from a California appellate court decision addressing the identical issue:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2) is familiar with the standard required of a physician under similar circumstances; where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility.

In the instant case, the record reflects that Dr. Cavallino was qualified to testify on the standard required of a dentist practicing general dentistry in the New Orleans area. Moreover, he did not actually give an opinion that overall, Dr. Faget’s treatment of plaintiff met the applicable standard of care. His opinions were limited to specific areas of treatment. Under these circumstances, we cannot say that the trial court abused its discretion in qualifying Dr. Cavallino as an expert witness.

At trial, plaintiff sought to prove Dr. Faget’s negligence by showing that he failed to take a proper medical history; he did not have an adequate recall system; he failed to adequately instruct plaintiff on dental hygiene practices — brushing and flossing; and his diagnosis and treatment [391]*391of plaintiff’s dental problems, particularly periodontal disease, otherwise fell below the standard of care practiced by general dental practitioners in the New Orleans area. Dr. Faget sought to defend against these claims by portraying plaintiff as an uncooperative patient with poor dental hygiene practices.

After being treated by defendant from August 1978 to January 1986, plaintiff sought treatment from Dr. Richard F. Gruner. Dr. Gruner testified at trial and was qualified as an expert in the field of general dentistry. Dr. Gruner testified that plaintiffs mouth was in “very poor condition” when he first examined her in March 1986. Her gums were red and swollen and she had calculus on her teeth. He also found numerous mobile teeth. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
598 So. 2d 388, 1992 La. App. LEXIS 913, 1992 WL 57201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vila-v-faget-lactapp-1992.