The recent death of a 3-year-old girl following a root canal procedure has sparked intense discussion about the safety of dental procedures across the country.
According to news reports, the girl’s mother has filed a claim of negligence against the dentist, alleging the young child was given numerous sedatives and anesthetics and not properly monitored throughout the procedure, resulting in a lack of oxygen that left the girl brain dead.
Our dental malpractice attorneys know that this is far from an isolated incident. According to the American Board of Legal Medicine, more than 13 percent of all medical malpractice claims in the U.S. are filed against dentists, with individual dentists averaging 1.63 malpractice reports on file between 1990 and 2003. About 4 out of 10 of these claims that make it to trial are won by the plaintiffs.
One such claim recently reviewed by the U.S. Court of Appeals for the Eighth Circuit is that of Winter v. Novartis Pharmaceuticals Corp.. Although the case was against the maker of two drugs that resulted in the patient developing a condition known as osteonecrosis of the jaw (ONJ), the company had argued that it supplied adequate warnings to the dentist, who had failed to heed them.
According to court records, the patient underwent a procedure to have two of her teeth extracted by her dentist. After that procedure, she was prescribed two drugs: Aredia and Zometa. She claimed that as a result of being prescribed these medications, she developed ONJ, which happens when the jaw bone is exposed and begins to starve due to lack of blood. The bone weakens and eventually dies. The condition is often associated with certain cancer treatments, but here, drug manufacturer Novartis was found liable for $225,000 in compensatory costs to the patient for failure to warn of the drugs’ dangers.
Novartis appealed this ruling on the grounds that, among other things, the court improperly found that inadequate warnings proximately caused the plaintiff’s injuries and that the court had admitted hearsay evidence.
The appellate court found that it is incumbent upon the manufacturer of a drug to make the doctor aware of the dangers. In establishing causation in a failure to warn claim, a plaintiff has to prove that such a warning would have altered the behavior of those involved (i.e., the dentist would not have prescribed the medicine). Absolute certainty isn’t required, but it has to be shown that the injury is a natural and probable consequence of the defendant’s actions.
The appellate court pointed to the fact that there was no risk of ONJ mentioned in package inserts of the drug at the time he prescribed them to the patient. The inserts were later modified, though the dentist conceded that he did not read those documents before continuing to prescribe the drugs.
Although this might constitute negligence on the doctor’s part (though that was not specifically alleged here), it did not excuse the drug manufacturer because, as the court found, Novartis knew of the risk of ONJ as early as 2002, but told its sales staff to stay quiet about it when talking to doctors about the products. In this particular case, the drug representative testified that he didn’t discuss ONJ risks with the dentist until a year after he’d prescribed the drug to the patient – which was two years from the time Novartis was aware of the potential consequences.
While the court did find that hearsay evidence was improperly admitted in the form of FDA reports, the error was not so severe as to warrant a new trial.
The damages part of the verdict, however, was remanded back to the lower court for further consideration, as it had improperly reimbursed the plaintiff for certain litigation costs.
This is just one example of how dental procedures can give rise to medical malpractice claims.
If you have questions about dental malpractice in North Carolina, contact the Lee Law Offices today by calling 800-887-1965.
Winter v. Novartis Pharmaceuticals Corp., Jan. 9, 2014, U.s. Court of Appeals for the Eighth Circuit
More Blog Entries:
Informed Consent in North Carolina Medical Malpractice Cases, Dec. 20, 2013, Asheville Medical Malpractice Lawyer Blog