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Dental malpractice action dismissed: implants were not the cause of chronic pain

Hauer & Co. > Personal Injury  > Dental malpractice action dismissed: implants were not the cause of chronic pain

Dental malpractice action dismissed: implants were not the cause of chronic pain


In the recent case of De Sousa v. Rogers, 2019 BCSC 128 Maria De Sousa brought an action in negligence against two dentists, Dr. John Rogers and Dr. Michael Racich, both general dentists. Dr. Rogers treated Ms. De Sousa in June 2011. Dr. Racich treated her between December 2011 and January 2013.

Ms. De Sousa asserted that she received negligent dental work from the defendants in 2011 – 2012 resulting in a reduced quality of life and inability to work. The plaintiff’s claim is that Dr. Rogers breached the standard of care in extracting her tooth number 46 on June 14, 2011, despite not finding an issue with the tooth.  The plaintiff’s claim is that Dr. Racich breached the standard of care when he “chose to place three implants in the Plaintiff’s mouth on February 10, 2012” despite “knowledge of the possibility of neuropathic pain at the site of tooth 46”.

The history of the tooth is that Dr. Patrick Gowdy recommended a crown on the tooth which Ms. De Sousa ignored. In 2008, Dr. Barker performed a root canal and inserted a crown on the tooth. In 2011, Dr. Elaine Lam performed two root canals on the mesial and then the distal roots of tooth 46. Dr. John Fraser advised her that the pain may be myofascial, temporo-mandibular, or neurological.

She went to Dr. John Rogers who extracted the tooth. Dr. John Rogers explained that Ms. De Sousa requested that the tooth be removed. Dr. Rogers concluded that tooth 46 could have a cracked root or chronic periapical disease. Ms. De Sousa testified that Dr. Racich placed implants in the area of 46 and 15 (this tooth was extracted earlier). Ms. De Sousa did not want an implant in 15. Her pain in the area of 46 did not resolve after the implants. Dr. Racich testified that Ms. DeSousa agreed to have the implants placed in the 46 site and 15 site. The implants were placed on February 17, 2012. He placed two implants in 46 and one in 15. He testified the implant procedure went well. Dr. Racich denied that Ms. De Sousa was in pain when the implants were placed. He denied that she said that she did not think they were a good idea. He would not have proceeded if she had said that. Dr. Brian Ross and Dr. Ian Matthew suspected the pain was caused by tooth 47. Dr. Dean Foti, a neurologist, concluded that Ms. De Sousa had chronic pain involving her face, head, neck, and ear with an unknown cause.  Dr. Victor Mak concluded that neither of the implants was touching the nerve bundle. He did not think the implants were causing her pain.

The Court found that Ms. De Sousa suffers from chronic pain and that the pain has been debilitating and of long duration.  Ms. De Sousa’s evidence must be considered in light of her relatively poor memory. The court found her to be a poor historian. Moreover, much of what she told the Court was inconsistent with the “probabilities of the case as a whole”. The Court preferred the evidence of the defendants, Dr. Rogers and Dr. Racich. Their evidence was unshaken in cross-examination. They relied on contemporaneous chart notes.

Expert witness Dr. Nielsen’s opinion was that Dr. Rogers’ extraction of tooth #46 met the treatment standard of care of a competent general dentist in British Columbia. Dr. Meera Gupta concluded that Ms. De Sousa has persistent idiopathic facial pain (“PIFP”). She said this is a disorder of unknown cause which can be exacerbated by dental procedures. Dr. Mehta’s rebuttal report of Dr. Nielsen and Dr. Gupta was held to be inadmissible because the counsel for the plaintiff has effectively instructed Dr. Mehta to act as an advocate. The Court found that the evidence did not establish that either Dr. Rogers or Dr. Racich breached the standard of care. The evidence did not establish that damages suffered by Ms. De Sousa, that is, her pain, was caused by the actions of Dr. Rogers or Dr. Racich. Rather the pain was being caused by other factors. The plaintiff’s case was dismissed.

At Hauer and Co, our personal injury lawyers can assist with a wide variety of matters including chronic pain.

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