JENNIFER GRAB v. MICHAEL A. KLEIMAN, D.D.S., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5411-04T35411-04T3

JENNIFER GRAB,

Plaintiff-Appellant,

v.

MICHAEL A. KLEIMAN, D.D.S.;

EDISON-CLARK ORAL SURGERY

ASSOCIATES.

Defendant-Respondent.

_______________________________

 

Argued June 6, 2006 - Decided July 17, 2006

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-10841-01.

Anthony P. Caivano argued the cause for appellant (Bongiovanni, Collins & Warden, attorneys; Mr. Caivano, on the brief).

Joseph K. Cooney argued the cause for respondent (Widman, Cooney & Wilson, attorneys; Mr. Cooney, of counsel; Colleen L. Brandt, on the brief).

PER CURIAM

Plaintiff, Jennifer Grab, appeals from an order dismissing her dental malpractice complaint against defendant, Dr. Michael A. Kleiman. Plaintiff contended that during surgery to remove her lower right wisdom tooth, Dr. Kleiman severed her lingual nerve, and she claimed this injury resulted from malpractice. Dr. Kleiman contended that he performed the surgery correctly, and that injury to the lingual nerve is a recognized risk of surgery to remove a wisdom tooth. Following a week-long trial, a jury concluded that Grab had not proven that Kleiman deviated from generally accepted standards of dental practice. We affirm.

I

On this appeal, plaintiff presents two arguments. First she contends that Dr. Ziccardi, the specialist who attempted to repair her lingual nerve, testified that the nerve was in the expected location. Hence, she contends that the trial court should not have permitted other medical witnesses to testify about the possibility that her lingual nerve was not located in the place where it would normally be expected. She also contends, based on the testimony of her expert, Dr. Schwimmer, that the trial court erred in refusing to charge the jury on the theory of res ipsa loquitur, that is, that severing of the lingual nerve does not ordinarily occur absent malpractice. The parties' briefs differed substantially in their representations as to the record on these issues. Consequently, we have closely scrutinized the record as it pertains to these questions.

II

Plaintiff presented two expert witnesses, Dr. Ziccardi and Dr. Schwimmer. Dr. Ziccardi is an expert in oral and maxillofacial surgery and microsurgery. Plaintiff was referred to him in January 2000, after she developed numbness in her tongue following the surgery performed by Dr. Kleiman in November 1999. Dr. Ziccardi diagnosed her as having "right lingual nerve injury, possibly complete." He explained that the lingual nerve "provides sensory innervation to the tongue." The nerve is located "in the region of [the] third molar."

He performed surgery to repair the nerve. He testified that after making a long incision in the tissue, from the area of the third molar to the area of the canine tooth, he found the lingual nerve. After delicately freeing the nerve from the surrounding scar tissue, he found that the nerve had been "transected" or severed. After removing some scarring or "neuroma" on the cut ends of the nerve, he sutured the ends back together.

When asked for his opinion as to "how the nerve was cut," Dr. Ziccardi described the following observations:

[E]verything seems within reasonable limits to be standard. The bone was [intact], I didn't see any breach in the bone. There [were] no fractures. The incision was placed laterally. Everything was done appropriately. Are you asking me to hypothesize as to what I think might have occurred?

Plaintiff's counsel clarified that he was asking "how the nerve was cut . . . by instrumentality . . . by traction . . . by some other function?" Dr. Ziccardi responded that

The two likely causes would be either retraction of the nerve in order to protect it, which is commonly done . . . [o]r . . . mechanical instrumentation during possibly curettage of a socket or removal of the follicle which is present in that area associated normally with impacted wisdom teeth.

He also testified that traction, or placing pressure on the nerve during surgery, was less likely to have been the cause.

Dr. Ziccardi did not testify on direct examination that plaintiff's lingual nerve was in the normal or expected location.

On cross-examination, he explained that wisdom tooth surgery is the "major cause" of trigeminal nerve injuries that he treated. The reason is "the location of the nerve relative to the bone and tooth structures" and because when wisdom teeth are impacted, "it puts them in closer proximity to those structures." He agreed that lingual nerve injury is a known risk of wisdom tooth surgery. He also testified that oral surgeons are taught that when they do wisdom tooth surgery, they should avoid striking the "lingual plate of bone" or the bone located on the "tongue" side as opposed to the "cheek" side of the wisdom tooth, in order to avoid damaging the lingual nerve. He testified that when he performed the surgery on plaintiff, he "didn't see any damage to the lingual plate of bone." He testified that based on his observations, the placement of the incision by Dr. Kleiman was proper. He could see the scar left by Dr. Kleiman's surgery and he agreed that "that's the normal place where you would expect to see an oral surgeon's incision to remove a bony impaction." He also did not see any "[burr] trough," or bone defect caused by a surgical drill, thus indicating that Dr. Kleiman's drill "did not violate the [lingual] plate and did not cause the injury to the lingual nerve."

He also testified that there are variations in the location of the lingual nerve. He testified that when he performed his surgery the nerve was in "generally the normal zone where I would expect to find" it. But when asked if he could "make a determination as to where . . . the lingual nerve was located before Dr. Kleiman . . . did his surgery," Dr. Ziccardi replied that he could not "ascertain exactly where the nerve was" at that time. He confirmed however, that "it appeared that the surgery that Dr. Kleiman had done had been done properly." He also testified that after removing the wisdom tooth, a surgeon removes residual soft tissue by scooping it out with a curette, and this process can inadvertently damage the lingual nerve; this is a known complication of wisdom tooth surgery. He also testified that it would not be possible to visualize the lingual nerve before surgery, other than by performing an MRI, which is cost-prohibitive, and the surgeon typically also cannot see the lingual nerve during wisdom tooth surgery.

According to his testimony on re-direct examination, it is an "acceptable [risk] that 1 percent of patients will have nerve injuries." He did not offer an opinion as to "whether or not [plaintiff's] injury could have been avoided by the exercise of reasonable care."

Dr. Schwimmer also testified for plaintiff as an expert in oral and maxillofacial surgery. He testified that it was possible to visualize on an X-ray the location of plaintiff's inferior alveolar nerve, which runs through the jaw bone, but it was not possible to determine from the X-ray the location of the lingual nerve, which runs through soft tissue, "closer to the floor of the mouth." He testified that an oral surgeon must "[anticipate] the course of the lingual nerve" and "has a responsibility to avoid transection of the nerve" by "planning the . . . incision in such a way as to not put the nerve at risk." A surgeon should not pass the surgical burr or drill over the lingual plate. Hence, in exposing the tooth and cutting the impacted tooth in half to remove it, the surgeon should make the incisions on the cheek side, not the tongue side, of the tooth. He testified that placing surgical instruments on the lingual side of the tooth is "a departure from the standard of care," because it creates a risk of injuring the nerve.

Dr. Schwimmer testified that plaintiff's nerve was "transected by an instrument. I can't say exactly what instrument transected it . . . it could have been . . . a dental elevator, it could have been a periosteal elevator, it could have been a surgical burr." He based his opinion that plaintiff's lingual nerve was severed on his review of the records of the surgery performed by Dr. Ziccardi. He testified that in order for the nerve to be severed, "the plane of the lingual plate had to be breached."

On direct examination he testified that he saw no evidence that plaintiff's lingual nerve was in an atypical location. He also concluded from Dr. Ziccardi's operative notes that Ziccardi had found the nerve in an "anticipated area." He also testified that he disagreed with the opinion of defendant's expert, Dr. Roser, that nerve injury was caused by a retractor, unless the retractor was used with such severe force as to be a departure from the standard of care. Also, use of a retractor on the lingual side of the tooth would have been a deviation.

He did not testify on direct examination that severing the lingual nerve was malpractice per se or that it was generally recognized in the medical community that the lingual nerve will not be severed during wisdom tooth extraction absent malpractice. He also acknowledged on cross-examination that "there's been a great deal of literature written that says that lingual nerve injuries can occur . . . despite the best precautions." He disagreed with that view, but admitted that there were "oral surgeons who disagree with the position that [I am] taking in court here."

Based on the deposition testimony of defense expert Dr. Roser that there are frequently variations in the location of the lingual nerve, and Dr. Ziccardi's testimony that he could not tell where the nerve was located before Dr. Kleiman performed his surgery, the trial judge permitted defense counsel to cross-examine Dr. Schwimmer on this issue. Dr. Schwimmer acknowledged studies reporting variations in the location of the lingual nerve, but testified that he disagreed with those studies, and he disagreed with Dr. Ziccardi's opinion that "in 10 percent of the cases that the lingual nerve is located above the alveolar crest in the soft tissue." He also agreed that he had "no reason to refute" Dr. Ziccardi's testimony that Ziccardi could not tell whether plaintiff's lingual nerve had originally been higher up or lower down in the soft tissue on the tongue side of her tooth. He also disagreed with a medical journal article stating that "it may be difficult to avoid encountering the nerve during surgery because of its variable position." Dr. Schwimmer testified that "my opinion is if he does the surgery the way I say it's supposed to be done then he won't transect the nerve." But, he also acknowledged that there were "physicians who disagree" with his view. On re-direct examination he was asked whether, when the lingual nerve is "at typical presentation, and there is a transaction . . . [i]s that always a deviation from the standard of care?" Dr. Schwimmer responded that "[t]ransection of the lingual nerve in these cases represents a departure from the standard of care." At no time during his testimony did he opine that it was generally accepted in the medical community that the lingual nerve will not be severed during wisdom tooth surgery unless there is malpractice.

He also admitted that Dr. Ziccardi would be in the best position to know whether plaintiff's lingual plate had been perforated or fractured during Dr. Kleiman's surgery. He also agreed with the judge's question that "there's a credibility issue as to where [the lingual nerve's] exact location was as to whether it was superior or on this [normal lower] location." On re-cross examination he also declined to agree or disagree with Dr. Ziccardi's opinion that "the likely cause of the injury was a mechanical instrumentation during curettage," stating that he could only opine "that it was caused by a surgical instrument."

Defendant called Dr. Roser, an expert in oral and maxillofacial surgery. He testified that, due to variations in the position of the nerve, lingual nerve injury can occur during wisdom tooth surgery even if the surgery is done properly. He also described in detail how such injury can occur even without negligence. He explained that transection of the nerve "could have occurred as a result of curetting if it was a high nerve and close to the soft tissues." And he explained specifically how transection could have occurred if Dr. Kleiman had "[followed] the standard of care in performing the surgery." He also testified, without objection from defense counsel, that studies concerning the location of the lingual nerve "all say the same thing, that there is variability and there's significant variability," and he described those studies in detail. Specifically he testified, again without objection, that in seventeen to twenty percent of specimens examined in a medical study, the nerve was located above the crest of the bone and therefore was in a position where it was "not protected." He also agreed with Dr. Ziccardi's testimony that it would not be possible for Ziccardi to tell "where the nerve was located before Dr. Kleiman did his surgery."

He also explained how the nerve could be injured during curettage, and he opined that Dr. Kleiman performed the surgery properly. He also disagreed with Dr. Schwimmer's view that there is malpractice any time the lingual nerve is severed, explaining that "if it was malpractice every time then we wouldn't call it a known risk." He also testified that there can be legitimate reasons to place instruments on the lingual side of the tooth during the surgery, so that placement of the instruments in that location would not necessarily constitute malpractice.

Defendant testified that he performed plaintiff's surgery in the manner he always did, making the incision on the "buckle" or cheek side of the jaw bone to avoid injury to the lingual nerve. He also testified that the lingual nerve can vary in location, and that he would avoid cutting all the way through the wisdom tooth to avoid injury to the nerve. He explained that the lingual nerve can be injured during extraction of the tooth, if it is adhering to tissue attached to the tooth.

He also explained the need to scoop out or "curette" tissue left after the tooth is removed, in order to avoid later infection. But he explained that after removing the tooth, working in the remaining empty socket is "like going through a minefield" because the lingual nerve could be hidden there and "it just blends in with all the other tissue, so you can't see it." He opined that the injury to plaintiff's nerve probably occurred either as he was removing the tooth or as he was "removing the tissue on the back of the second molar" after removing the wisdom tooth. He also testified that "[t]here is no way that anybody could tell where the lingual nerve was before the surgery." However, he testified to his opinion

that Jennifer's lingual nerve was above the level of the lingual plate in one of those positions where 17.6 percent in Dr. Kesselback's study was located, and that the nerve was torn during the stage of removing the tooth or removing the soft tissue from the socket.

He denied placing "an instrument medial to the lingual plate," which was the way Dr. Schwimmer opined that the injury occurred.

During the charge conference, plaintiff's counsel requested that the court charge the jury as to res ipsa loquitur. The trial judge refused:

The problem that I see in this case is that if res ipsa loquitur is to be relied upon there must be expert testimony to the effect that the medical community recognizes that the injury would not have occurred without negligence, so as to establish the first element of res ipsa loquitur. That is not the case. . . .

Here the medical community doesn't agree with [Dr. Schwimmer's position]. The medical community appears to suggest. . .

1) There's a division at the very best. Or

2) That these injuries can happen.

So accordingly, I will not be charging the issue of res ipsa loquitur.

III

Based on our review of the record, we conclude that plaintiff's appellate arguments are completely without merit. Judge Garruto's ruling on the issue of res ipsa loquitur was correct, because Dr. Schwimmer did not testify that the medical community recognized that the lingual nerve would not be severed during wisdom tooth surgery absent malpractice. See Buckelew v. Grossbard, 87 N.J. 512, 527 (1981); Saks v. Ng, 383 N.J. Super. 76, 91-92 (App. Div.), certif. denied, 2 006 N.J. Lexis 582 2006); Roper v. Blumenfeld, 309 N.J. Super. 219, 230 (App. Div.), certif. denied, 156 N.J. 379 (1998). In fact, not only was there a complete absence of such testimony, see Saks, supra, 383 N.J. Super. at 91-92, but Dr. Schwimmer admitted that his opinion was contrary to the opinion of the medical community as expressed in the scholarly articles with which he was confronted on cross-examination.

Further, since defendant did not move for a directed verdict at the close of plaintiff's case, plaintiff did not need to invoke the doctrine in order to get her case to the jury. See Roper, supra, 309 N.J. Super. at 231. And since plaintiff did not present any evidence to rebut the testimony of defendant's expert that the medical community recognizes that lingual nerve injury can occur without malpractice, she was not entitled to have the court instruct the jury on res ipsa loquitur.

We also find no merit in plaintiff's remaining contention concerning testimony about the location of the lingual nerve. Plaintiff's argument is based on an inaccurate characterization of Dr. Ziccardi's testimony. Defendant's presentation of evidence concerning the issue was a legitimate effort to explain to the jury how the lingual nerve could have been severed without the occurrence of malpractice.

 
Affirmed.

The lingual nerve is one of the trigeminal nerves.

(continued)

(continued)

14

A-5411-04T3

July 17, 2006