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). 

Competency of Medical Expert To Testify In a Specific Area Addressed

In the case Phillips v. Gilbert, July Term 2016 No. 02819 (C.P. Phila. Co. June 17, 2019 Lauchman, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision that the Plaintiff’s expert in a dental malpractice case, who had never performed a dental implantation procedure during his lengthy career as a dental pathologist, lacked the training, experience, and knowledge necessary to testify regarding the standard of care applicable to the dental implant procedure that had been performed on the Plaintiff by the Defendant.   

The court noted that the Plaintiff’s expert was an oral and maxillofacial pathologist and not an oral and maxillofacial surgeon.  

Given that the court barred the Plaintiff’s expert from testifying, the Plaintiff was found to be unable to establish a prima facie case of negligence.  As such, the trial court granted a compulsory non-suit in favor of the Defendant and denied the Plaintiff’s post-trial motion.   The Plaintiff filed an appeal which prompted this Rule 1925 Opinion by the court.  

In its Opinion, the trial court emphasized that oral and maxillofacial surgeons and pathologists undergo completely different training and performed completely different procedures on patients.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 16, 2019). 

Failure to Produce Object that Allegedly Caused Injury Results in Summary Judgment

In the case of Swartwood v. Denny’s Restaurant, No. 9983 of 2016 (C.P. Luz. Co. Nov. 21, 2018 Polachek-Gartley, J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleged that he suffered severe dental injuries and damages from a foreign substance or particle that was in his breakfast that he had purchased from the Defendant.  

According to the record before the court, the Plaintiff indicated that he was eating breakfast with his son when he felt something in his mouth that felt like hard plastic.   The Plaintiff asked his son to look into his mouth what it was but his son was unable to see anything.

The Plaintiff then went to the bathroom and saw that a tooth was hanging.   The Plaintiff left Denny’s and went immediately to a dentist for treatment.

The Plaintiff did not know what happened to the alleged piece of plastic and opined that he may have swallowed it or spit it out.   The Plaintiff also asserted that he did not have any problems swallowing it or possibly later passing it.  

The court additionally noted that the Plaintiff could not describe what color the object was and had only testified that it felt like a little, hard chip.   The Plaintiff additionally admitted that he was not able to isolate the piece of plastic in his mouth with his tongue.  

The court also noted that the Plaintiff did not tell anyone at Denny’s about the broken tooth before he left the restaurant.   It was also confirmed that his son did not tell anyone.   After the Plaintiff went to the dentist and his tooth was repaired, he then returned to Denny’s in order to explain what happened.  

The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to meet his burden of proof of negligence due to the Plaintiff’s failure to produce the piece of plastic or the foreign object alleged to have been in the food.  

In granting the Motion for Summary Judgment, the court noted that the Plaintiff not only failed to produce the foreign object for inspection, but the Plaintiff never even saw the item himself and was unable to describe it with any particularity.   

Judge Tina Polachek-Gartley
Luzerne County
 

Judge Polachek-Gartley noted that the Superior Court has held that permitting claims of potentially defective products to proceed where the consumer throws the product away after an accident would encourage false claims and would make the defense of the same more difficult and would potentially put a Plaintiff in a position of deciding whether to keep the item based upon whether that retention of the product would help or hurt the Plaintiff’s case.  

The trial court in this Swartwood case found that the Defendant was prejudiced by the fact that the object cannot be examined and given that the defense had no opportunity to address whether or not this piece of plastic or foreign body originated from its own kitchen or was a product from the food supplier. 

The court additionally noted that the Defendant did to present any medical evidence or records that connected the object to the broken tooth.

There was no evidence that a foreign substance or object likely caused the tooth injury.   Nor was any circumstantial evidence presented in this regard. Given that the facts placed on record by the Plaintiff were found to be insufficient to make out a prima facie cause of action for negligence against the Defendant, the court found that there was no issue to be submitted to the jury and, therefore, the Defendant’s Motion for Summary Judgment was granted.  

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

I send thanks to Attorney Ann O. Farias of the Plains, Pennsylvania branch of the Law Offices of Lester G. Weinraub/Nationwide In-house for bringing this case to my attention.