New York: Medical Malpractice Defense Verdict for Oral Surgeon in Kings (Brooklyn) Supreme Court
September 8, 2011

by Robert A. Fitch

Robert A. Fitch recently tried an oral surgery malpractice case against our client, the oral surgeon, to a defense verdict in Supreme Court in Brooklyn, New York. Plaintiff underwent elective oral surgery . The the oral surgeon performed a bilateral sagittal split of the plaintiff’s mandible to advance her lower jaw as part of orthodontic treatment.  This surgery placed plaintiff’s jaw in a position intended to maximize the efficacy of the orthodontic treatment used to correct plaintiff’s bite.  Per standard oral and maxillofacial procedure, the plaintiff’s jaw was wired shut after the procedure to allow for sufficient healing time, and a splint was wired to the upper jaw to position the teeth.

Plaintiff was non-compliant with her orthodontic treatment and removed the splint placed by our client soon after he unwired the jaw.  Plaintiff remained unsatisfied with the alignment of her teeth, and two years after the operation, she elected to undergo a second bilateral sagittal split of her mandible, this time under the care of another non-party oral surgeon.  The second surgery left plaintiff with numbness in her lower lip and chin, and was also unsuccessful in properly aligning her teeth, all of which she blamed on our client’s surgery.  Her expert witness was a nationally recognized oral surgeon from Michigan, and he opined that the original surgery was done improperly, and doomed the orthodontic treatment to failure also.

Plaintiff also claimed that our client departed from good practice by failing to adequately communicate to the orthodontist about the planned position of the teeth before the operation, which, she alleged, constituted an additional, substantial cause of her two failed surgeries.

Plaintiff’s settlement demand was $650,000, and $3.5 million was demanded in summation. We defended the case with our client explaining how and why he did the surgery, and that plaintiff’s failure to comply with post-operative treatment plans was the cause of the failed surgery.  At trial, we offered substantial evidence, including testimony from experts in the fields of orthodontics and oral surgery, as well as testimony from plaintiff’s treating orthodontist, and the non-party surgeon who performed plaintiff’s second surgery, to establish that plaintiff’s alleged injuries arose as the sole result of her non-compliance with post-operative treatment and the risks of the procedure.  After a three-week trial, the jury unanimously concluded that our client’s surgery did not cause plaintiff’s injuries, and even though they found a departure for the failure to properly communicate with the orthodontist, the jury determined it was not the cause of any injury.

Robert Fitch, a partner in the New York office, concentrates his practice in the defense of product liability, professional and medical malpractice and commercial motor vehicle litigation.  He is admitted to practice in the state and federal courts of New York as well as the U.S. Court of Appeals for the Second Circuit. Bob has tried over 70 cases to verdict in the state and federal courts of New York. He has been rated AV by Martindale-Hubbell.

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