Friday, April 30, 2021

Summary Judgment Granted in Dental Malpractice Case Where Plaintiff Sued Defendant Personal and Not His Corporate Entity


In the case of Buarotti v. Terrery, No. 2013-CV-2018 (C.P. Monroe Co. Jan. 28, 2021 Harlacher Sibum, J.), the court granted a Defendant dentist’s Motion for Summary Judgment in a dental malpractice case.   

According to the Opinion, the Plaintiff saw the dentist for an examination and evaluation.  During the examination, the Plaintiff underwent x-rays and, while the Plaintiff was biting down on the radiographic sensor, the dental hygienist tripped over the wires to that sensor.  As a result, the sensor was ripped from the Plaintiff’s mouth and her head was pulled back.  The Plaintiff allegedly sustained a neck strain, vertigo, and TMJ as an alleged result of this incident.   


The Plaintiff and her husband then sued the dentist only on a personal basis.   


The dentist moved for summary judgment asserting that the Plaintiff had failed to establish a negligence claim against him as they had sued the wrong party.  More specifically, the dentist asserted that he did not administer the x-ray and was not even in the room at the time of the incident. 


 The dentist also asserted that he did not, in his personal capacity, hire the hygienist who administered the x-ray.   Rather, the dentist had his office set up under his name as a corporate entity which was a separate legal entity from his individual capacities.   The dentist asserted that the corporation had hired the hygienist as an independent contractor.   



Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas confirmed that the Plaintiff did not present any evidence to rebut the defense assertion that the individual Defendant dentist did not hire the dental hygienist.     As such, the court found that the individual dentist could not be held liable for the hygienist’s actions.   


The court also found that the Plaintiff did not demonstrate any factors that would warrant piercing the corporate vail such as the factors of gross undercapitalization, failure to observe corporate formalities, non-payment of dividends, and insolvency of the debtor corporation, and/or non-functioning of officers and directors.   


The court also rejected any suggestion that the individual dentist was potentially liable for the dental hygienist’s actions under an ostensible agency theory.  


In this matter, the Plaintiff did not also sue the hygienist.   The court ruled that, under Pennsylvania law, absence the agent’s presence in the lawsuit, liability on the part of the principle is extinguished.   


As noted, the court granted summary judgment in favor of the individual dentist Defendant.   


Anyone wishing to review a copy of this decision may click this LINK.


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 9, 2021). 


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