LISA NIMMO FRANCOEUR V GREG D KOMYATHY DDS
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STATE OF MICHIGAN
COURT OF APPEALS
LISA NIMMO FRANCOEUR,
UNPUBLISHED
July 9, 2009
Plaintiff-Appellee,
v
No. 285141
Ingham Circuit Court
LC No. 04-000859-NH
GREG D. KOMYATHY, D.D.S.,
Defendant-Appellant.
Before: O’Connell, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
In this dental malpractice action, defendant appeals by leave granted from a circuit court
order granting plaintiff’s motion for a new trial on the ground that the jury’s verdict of no cause
of action was against the great weight of the evidence. We reverse. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
During a root canal procedure on plaintiff’s tooth six,1 defendant unintentionally
“perforated” the root, i.e., made a hole in the side of the root of the tooth. A perforation is
caused by directing the tool in the wrong direction, or by the tool going in the wrong direction
whether directed there consciously or not. Defendant testified that he did not realize that a
perforation had occurred. Although he felt a change in resistance as he was drilling, he believed
that he had reached the pulp chamber. He decided to take an x-ray “just to make sure that we
were in the direction we were supposed to be going.” Defendant’s assistant blew air into the area
before the x-ray. Because of the perforation, the air went into the surrounding tissue and caused
swelling of plaintiff’s face and neck, as well as extreme pain.
Plaintiff’s expert, Dr. Kirschner, testified that defendant deviated from the standard of
care by causing the perforation and, further, “by causing an air, a subcutaneous air emphysema in
her face and neck tissues by blowing air at a high level of compression into the root canal.”
Conversely, defendant’s expert, Dr. Borlas, testified that defendant practiced within the standard
of care. According to him, a perforation while trying to find the canal of the tooth is not a
violation of the standard of care, but rather is a rare complication that sometimes happens. He
1
Tooth six is the upper right cuspid, also known as a canine or eyetooth.
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explained that blowing air into the area was not malpractice if defendant did not know that a
perforation had occurred. The jury concluded that defendant did not breach the standard of care
and returned a verdict of no cause of action.
Plaintiff filed motions for judgment notwithstanding the verdict and for a new trial
pursuant to MCR 2.610(A)(1) and MCR 2.611(A)(1)(e). Plaintiff’s motions focused on the
strength of the evidence that defendant had breached the standard of care by causing the
perforation. She argued that defendant’s expert’s trial testimony was tantamount to an admission
that defendant had breached the standard of care because he persisted without x-rays when he
was having difficulty finding the canal.
The trial court granted plaintiff’s motion, but on the basis of an argument that she did not
raise. Rather than focusing on the purported admission of a breach by defendant’s expert, or
even on the perforation itself, the court focused on the application of air after the perforation and
before the x-ray. The court believed that the verdict was against the great weight of the evidence
because there was “no excuse” for the introduction of air before the x-ray.
We review a trial court’s ruling on a motion for a new trial based on a great-weight
challenge for an abuse of discretion. Severn v Sperry Corp, 212 Mich App 406, 412-413; 538
NW2d 50 (1995). The trial court’s function in ruling on such a motion “is to determine whether
the overwhelming weight of the evidence favors the losing party.” Id. The reviewing court
determines whether the trial court abused its discretion in ruling on the motion. Id. Although we
give substantial deference to a trial court’s determination that a verdict was not against the great
weight of the evidence, we afford less deference to a determination that the verdict was against
the great weight of the evidence. Id. at 412-413.
Contrary to defendant’s argument, the trial court had support for its understanding that air
was applied after defendant felt a change in resistance and decided that an x-ray was warranted.
At trial, the following exchange occurred when the trial court questioned defendant:
THE COURT:
You’ve gone through something, you haven’t seen the xray, but you have decided to have it x-rayed?
[DEFENDANT]:
Correct.
***
THE COURT:
I think the question, why wouldn’t you wait to apply any
air until you looked at the x-ray to find out what you were dealing with?
[DEFENDANT]:
My assistant at the time, it’s common practice as you are
drilling teeth to rinse and dry and that’s what she did prior to us taking the xray.
***
THE COURT:
So you’re saying that in order to take the x-ray, you had to
rinse that area and put air in there?
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[DEFENDANT]:
I didn’t say we had to, I said my assistant did.
Although the court’s understanding of the facts was correct in this regard, the testimony
of plaintiff’s expert did not provide an adequate basis for concluding that the application of air in
that circumstance was a breach of the standard of care, much less a basis for overturning a jury’s
verdict. Dr. Kirschner initially testified that defendant deviated from the standard of care by
causing the perforation and, further, “by causing an air, a subcutaneous air emphysema in her
face and neck tissues by blowing air at a high level of compression into the root canal, which
forced the air into the bone and the tissues and into her face and neck areas, causing what is
known as a subcutaneous emphysema.” He then clarified that the questionable practice
concerned the quantity of air that was blown:
Q. Is the use of air in and of itself the issue or is it the amount or manner in
which the air is used?
A. Exactly correct.
I was trying to say that before. And that is a dentist will use air to dry
something, give a little short burst or blast of air just to clean out something
for a moment. But the air was constantly being blown. I don’t know how
long, 10, 15, 20 minutes blowing air, literally the air syringe blew the lady’s
face up like a balloon, and that’s wrong. You don’t use that much air. It is
the quantity of air that’s in question.
Dr. Kirschner inferred that air was blown for a substantial period as defendant attempted to
repair the perforation.
Q. Who says that the air was being blown for 15 or 20 minutes straight?
A. Well, in my opinion, the dentist took a considerable period of time to attempt
to make repair of the tooth. He used a Fugi cement, and that’s a glass ionomer
cement, to try to close that hole and he didn’t do that very quickly, he did that
over a period of time. I don’t know how long it took him, but it certainly did
not take him less than ten minutes.
Q. I’m not asking about the cement, I’m asking about how you know how long
air was blown in there?
A. Because the air was being blown during that procedure. If the procedure took
that long, air had to be blown for at least that long a period of time.
Thus, Kirschner believed that defendant applied air for a substantial period while trying to repair
the perforation detected by the x-ray.2 Significantly, Dr. Kirschner did not state that defendant
2
Defendant denied applying air after the perforation was detected, and Dr. Borlas explained that
the material that defendant used for the repair was one that did not require the blowing of air to
(continued…)
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had breached the standard of care by the application of air before the x-ray, as the trial court
theorized.
In summary, the trial court’s reason for granting a new trial, i.e., that the record
demonstrated that defendant breached the standard of care by blowing air onto the site before
ascertaining that the pulp chamber had been accessed, was not supported by the expert
testimony.
We also disagree with plaintiff’s contention that the alternative reasons advanced below
supported her request for a new trial. Contrary to plaintiff’s contention, the testimony of
defendant’s expert was not tantamount to an admission that defendant had breached the standard
of care. Dr. Borlas testified that perforation while trying to find the canal of the tooth is not a
violation of the standard of care, but rather is a rare complication that sometimes happens. He
stated that defendant was using the right technique and doing things appropriately, “[b]ut these
things happen.” Dr. Borlas explained that drilling through the side of the root instead of straight
up the canal is not a breach of the standard of care. He explained that an x-ray is a twodimensional picture of a three-dimensional object. It provides an indication regarding which
direction to go in one plane, but not the other. A difference of a degree or two in approaching
and going up the canal could result in a perforation. According to Dr. Borlas, most, if not all, of
the perforation in this case was in the plane that would not be shown by the x-ray.
Dr. Borlas agreed that the standard of care required that whenever a dentist felt that he
had lost track of the canal or was having any other difficulty, he should stop and take an x-ray.
But Dr. Borlas maintained that defendant did so, stating, defendant “should have [taken an x-ray]
when he felt that he was no longer able to find the canal, which is what he did.”
In light of this testimony, plaintiff’s argument that defendant’s expert essentially admitted
that defendant had breached the standard of care is unpersuasive. The overwhelming weight of
the evidence did not favor plaintiff, and the trial court’s decision to grant a new trial on the basis
of a theory that was not supported by the testimony of plaintiff’s expert was an abuse of
discretion.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
(…continued)
harden. According to Dr. Borlas, because of the high volume of air from the handpiece, “[o]ne
little squirt of air is all that it would take” for a person’s body to have that result.
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