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Click v. Lupori

United States District Court, District of Colorado

December 16, 2014

HEIDI CLICK, Plaintiff,


R. Brooke Jackson United States District Judge

This matter is before the Court on the plaintiffs Motion for New Trial Pursuant to Fed.R.Civ.P. 59 [ECF No. 42]. For the following reasons, the motion is denied.


This is a professional negligence case arising from the extraction of wisdom teeth. The following summary of the facts is based upon my review of the trial record, including the transcribed portions filed by the parties and both the reporter's notes and my own trial notes.

A. The Surgery.

The plaintiff, Heidi Click, went to her general dentist complaining of pain in her lower right jaw. The dentist determined that she should have her impacted right-side third molar (wisdom tooth) extracted and referred her to Dr. John Lupori, an oral surgeon practicing primarily in Steamboat Springs, Colorado. The dentist recommended extraction of the tooth and evaluation of her three other third molars for possible extraction.

Ms. Click was seen by Dr. Lupori the next day, June 7, 2012. Upon examination and review of a type of x-ray called a panorex, Dr. Lupori recommended that all four wisdom teeth be extracted in two separate sessions to reduce the trauma to Ms. Click. He also observed and informed Ms. Click that her interior alveolar nerves on both sides were very close to the roots of the lower molars, creating a risk of injury to those nerves. Ms. Click decided to proceed with the extractions. She opted to have all four teeth removed in one session, a decision that was contrary to Dr. Lupori's recommendation but one that he does not fault. He then extracted all four of Heidi Click's wisdom teeth in a 28-minute procedure.

Later in the afternoon a member of Dr. Lupori's staff placed a routine call to inquire how Ms. Click was doing, but apparently because Ms. Click was under sedation and asleep, she did not receive or return the call. Several hours after the surgery but still on the same day Ms. Click presented to the Emergency Room at Memorial Hospital in Craig, Colorado with severe facial pain, swelling, and bruising. She was initially seen by Dr. Diana Hornung, a family medicine specialist who was on call at the hospital that evening.

At about midnight Dr. Hornung, called Dr. Lupori at home. He confirmed that he had performed oral surgery on Ms. Click that day, that she had had IV anesthesia, and that there was no abscess or infection. Dr. Lupori apparently did not ask why Ms. Click was in the hospital. Dr. Hornung documented the call in her chart, but Dr. Lupori did not document the call in his records. In his deposition in this case Dr. Lupori denied that he had received a call and apparently suggested that Dr. Hornung's indication that she had placed such a call was fabricated. At trial he acknowledged that he received a call but said that he could not remember it. In any event, he did not follow-up with the hospital or Ms. Click the next day or at any time.

Ms. Click was diagnosed with a small displaced fracture of the lingual plate; bruising extending down her chest to the tops of her breasts; and injuries to three of the four major nerves servicing her tongue and jaw area. The fracture and bruising were relatively minor and temporary. The injuries to the nerves were severe and permanent. Ms. Click spent seven days in the hospital.

The inferior alveolar nerve branches through the lower jaw on both the left and right side. In the trial it was often referred to as two nerves, the left and right inferior alveolar nerves, providing sensation to the chin, gums, lower lip and certain teeth. The lingual nerve is also a bilateral sensory nerve that was often referred to during trial as two nerves, the left and right lingual nerves. The lingual nerves are important for the sense of taste and the perception of touch and temperature to the tongue.

The inferior alveolar nerve and the lingual nerve on the right side of Ms. Click's jaw were permanently injured in the extraction procedure. Her inferior alveolar nerve on the left side was also permanently injured, although the consensus of the experts was that the damage on the left side was less severe. Her lingual nerve on the left side was not injured. The overall result of the damage to the three nerves has been impaired speech and sensation and, notwithstanding the impaired sensation, severe chronic pain. These consequences have, in turn, had a substantial negative effect on Ms. Click's quality of life.

Ms. Click has subsequently been seen by at least two oral surgeons. One, a specialist in the repair of nerve damage, performed two surgical procedures in an attempt to alleviate as much of her pain as possible. The repair efforts were only marginally and temporarily successful.

On June 20, 2012, about a week after her discharge from the hospital, Ms. Click contacted Dr. Lupori's office and asked for a copy of her medical records. In response to a question by the person who took the call, Ms. Click said that Dr. Lupori had broken her jaw. Ms. Click was urged to come in so that Dr. Lupori could examine her. However, she declined to be seen by him again. According to Dr. Lupori, his staffs report of the phone call was his first indication that Ms. Click had sustained serious complications from the extraction procedure. However, he still did not attempt any follow-up with her, although it is unlikely that Ms. Click would have seen him in any event. Instead, viewing Ms. Click as still being his patient, Dr. Lupori obtained access to her records from her hospitalization and reviewed an x-ray with a radiologist to see whether she had a "broken jaw." The x-ray revealed the small displaced fracture of the lingual plate. Dr. Lupori has had no further contact with Ms. Click other than through this lawsuit.

B. Expert Testimony.

At trial the plaintiff called the two oral surgeons who had examined and treated her after the surgery. However, neither of those doctors was asked to provide opinions on the standard of care or possible deviation from the standard of care in their trial testimony. Plaintiff called two specially retained oral surgeons as experts concerning the applicable standard of care and whether Dr. Lupori deviated from the standard of care. The defendant called one oral surgeon to testify on the same subjects in addition to himself.

1. Dr. Thomas Flynn.

Plaintiffs first expert, Dr. Flynn, is an oral and maxillofacial surgeon, presently practicing in Nevada, who has extensive experience in both clinical practice and teaching. His opinion is that Dr. Lupori deviated from the standard of care in numerous ways.

Before surgery.

Dr. Flynn believes that Dr. Lupori failed to diagnose the cause of Ms. Click's pain properly. If he had performed a more thorough examination rather than relying on the panorex, he probably would have determined that the source of her pain was a garden-variety tooth ache due to decay or a crack in a tooth, not an impacted wisdom tooth.

Surgical errors.

a. Dr. Lupori removed excessive bone, thereby compromising bone and gum support for Ms. Click's second molars. He might have removed part of the bony canal in which the inferior alveolar nerves ran, thereby injuring those nerves.

b. Dr. Lupori applied excessive force, one consequence being the fracture of the lingual plate.

c. Dr. Lupori did not properly control his surgical instruments, evidenced by what Dr. Flynn interpreted on the films as drill holes showing that Dr. Lupori drilled through bone behind the tooth where he would expect to find the lingual nerve.[1]

d. Removal of the lower wisdom tooth on the left side without sectioning it into smaller pieces was below the standard of care. Dr. Flynn was so skeptical that Dr. Lupori could or would have Dated this that he was inclined to disbelieve Dr. Lupori's testimony that he did not section the tooth. Sectioning reduces bone loss and the chance of nerve damage.

e. Dr. Lupori probably should have performed a coronectomy on the lower wisdom teeth, whereby the surgeon separates the crown from the root and removes only the crown. Dr. Flynn believes that the ...

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