The Akron Legal News

Patient loses malpractice suit against OSU dental school

JESSICA SHAMBAUGH
Special to the Legal News
Published: May 27, 2014

Finding that a man was not injured during his dental treatment, the 10th District Court of Appeals recently affirmed that The Ohio State University College of Dentistry was not liable for dental malpractice.

The plaintiff and appellant in the case, Gregory Morgan, filed suit against the college after he argued they were professionally negligent in his treatment and conducted that treatment without his informed consent.

The facts of the case state that Morgan first went to OSU’s emergency pre-doctoral student dental clinic with a toothache in March 2006.

At that time, he was referred to the OSU post-graduate endodontics clinic where he received x-rays and was sent home.

A few days later, he returned to that clinic and discussed placing crowns on four of his back teeth.

Morgan continued to discuss his dental care with pre-doctoral clinicians for several months and indicated that he was interested in having restorative work done to lengthen his front teeth.

He eventually signed a treatment plan to have four crowns placed on his back teeth but did not sign an agreement concerning his front teeth.

In January 2007, Morgan met with the director of OSU’s post-doctoral prosthodontics department, Dr. Julie Holloway.

The two discussed methods of lengthening Morgan’s front teeth and Holloway presented him with two options.

While the first option would involve grinding down much of Morgan’s existing tooth structure while the second option was considered more conservative.

Morgan did not decide during that consultation which treatment plan he preferred but later expressed interest in the second plan, which included putting four permanent crowns on his back teeth, according to case summary.

Over the course of that summer, Morgan underwent a root canal at OSU and a pre-doctoral student placed temporary crowns on his four back teeth.

In October 2007, a dental student placed four permanent crowns on those same teeth, which was consistent with the second treatment plan.

“Appellant testified that he was aware at that time that he was effectively committing to treatment plan two, rather than treatment plan one, as treatment plan one contemplated the placement of longer crowns on appellant’s posterior teeth,” case summary stated.

Shortly after those crowns were placed, however, an OSU faculty member told Morgan that such a treatment plan was complex and might not be successful.

Morgan said that was the first time he was told the treatment could fail.

In a subsequent visit to the clinic, one of Morgan’s teeth broke at the gum line and a clinician informed him that his treatment plan would be “a bad idea.”

Morgan proceeded to discuss treatment with numerous doctors in the clinic and seemed to receive different responses from each of them.

After so many mixed messages, he resolved to meet with the doctors at the same time so that a resolution may be reached.

Instead, Holloway advised him that if he wanted to proceed, he would have to have his crowns removed at his own cost.

She stated that “things started getting contradictory” then and she advised Morgan that he could no longer be treated at the post-graduate clinics.

“Dr. Holloway thus effectively terminated the possibility of appellant proceeding with any treatment plan at OSU to accomplish the goal of lengthening his anterior teeth. She additionally advised appellant that his dismissal from the post-graduate clinics did not preclude him from seeking routine treatment in the pre-doctoral dental clinic for simple decay issues and cleanings,” according to case summary.

Holloway cited Morgan’s history of wanting refunds for work done and threats to contact an attorney as her reasons for dismissing him.

Morgan then initiated action against the college, alleging dental malpractice, failure to obtain his informed consent and breach of contract.

The Ohio Court of Claims, however, found that he had not entered a contract regarding the lengthening of his front teeth and therefore such a contract was not breached.

It also dismissed his other claims after finding that Morgan was not injured by the treatment.

He then appealed that decision to the 10th District, asserting the same claims.

“We begin our analysis by reiterating that the trial court found that appellant had failed to offer expert testimony establishing all of the elements of either dental malpractice or lack of informed consent,” Judge Julia Dorrian wrote on behalf of the three-judge appellate panel.

The judges held that to establish dental malpractice, Morgan had to show that he was injured and the injury was caused by a dentist’s act or omission.

In addition, they maintained that to show lack of informed consent, he had to prove that the dentist failed to disclose the risks and dangers associated with treatment and that such risks actually materialized and caused injury.

“Thus, proximate cause of injury is an element of both the tort of dental malpractice and the tort of lack of informed consent, and expert testimony is required to establish the proximate cause element of both torts,” Judge Dorrian stated.

Upon review of the record, the judges found that Morgan’s new dentist was the only expert witness and only gave the opinion that OSU prematurely placed crowns on four of Morgan’s teeth.

The trial court concluded that such testimony did not establish that any injury took place. The 10th District judges agreed.

Still, Morgan argued that the trial court erred by prohibiting him from presenting testimony from two OSU dentists via video conference.

“We note that appellant has failed to cite any authority requiring the trial court to accept testimony of witnesses not physically present at trial,” Judge Dorrian stated.

The judges found that no such requirement existed and overruled the argument.

They also determined that Morgan’s other assignments of error were moot because he failed to show a key element of the offenses he alleged took place. Therefore, they affirmed the lower court’s judgment in favor of OSU.

Presiding Judge Lisa Sadler and Judge Amy O’Grady concurred.

The case is cited Morgan v. Ohio State Univ. College of Dentistry, 2014-Ohio-1846.

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