20 Trial Lawyer • Fall 2023 By Tina Stupasky OTLA Guardian By Bryan Lessley No matter how experienced you are, you can still screw up the simple things. That was the lesson the defense learned in a dental malpractice trial in Eugene. The facts seemed straightforward, and, for the longest time, we had no idea why the defense did not make a meaningful settlement offer before trial, even after mediation. Over a weekend our client, Tianna, felt pain in her jaw. Having no regular dentist, she looked for one on the internet. Dr. Ari Binder, owner of 360 Dental, agreed to see her on the Monday morning following the weekend. At that appointment she signed the usual forms. Dr. Binder did imaging, diagnosed that all four of her wisdom teeth needed to be removed and set about removing them. Beginning with the lower right wisdom tooth — tooth 32 in the nomenclature — he did some initial prep work cutting back the gum, inserted a number 15 blade elevator underneath the tooth, applied pressure to lift the tooth from its position and broke her jaw. The injury was life-changing Bleeding and in severe pain, Tianna went immediately to an oral surgeon, who screwed a metal plate into her jaw to hold the broken sections together and then placed arch bars interlaced with wire to hold her jaw shut while it healed. Over several weeks, she graduated to rubber bands in place of the wires, and eventually all but the metal plate were removed. But she had permanent nerve damage that caused numbness, tingling, droolTina Stupasky Bryan Lessley ing, inability to chew certain foods, trouble talking, misalignment, and loss of confidence and self-image. She was 28-years-old when this happened, and these conditions are, as noted, permanent. At trial, we called four different dentists, an oral surgeon and a radiologist to testify as experts. They all said the same thing. Tianna had a healthy jaw that should not have broken during wisdom tooth removal except by negligence of the dentist. The mechanism of the break was straightforward. The panoramic xray taken by Dr. Binder shows that tooth 32 was wedged in underneath the tooth next to it, tooth 31. (See top of next page.) When Dr. Binder elevated tooth 32, it had nowhere to go because it was wedged under 31, causing the force to go downward into the jaw, causing the break. The proper technique in that circumstance would have been to “section” tooth 32, using a saw to cut it into pieces, each piece of which could have been easily removed. The failure to secA Tale of Missed Direction In dental malpractice Because Oregon has no expert discovery, it was only as the defense case began did we start to see why we had received no serious offer.
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