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SHEPARD v. UNITED STATES

January 11, 1993

KENNETH SHEPARD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: EDWARD R. KORMAN

 KORMAN, J.

 Dr. Gordon Diehl graduated from Boston University Dental School in May of 1986. Tr. 5. On July 1, 1986, he began his residency at the Department of Veterans Affairs Medical Center in Brooklyn. Id. On October 27, 1986, in the second month of his surgical rotation, Dr. Diehl extracted the lower third molar of Kenneth Shepard, a veteran of the United States Army, who had complained of pain in the lower left quadrant of his mouth. Tr. 49, 58-59, 77. Because the tooth was impacted severely, Dr. Diehl sectioned it with a drill and removed it piecemeal. Sometime in the course of the extraction, Dr. Diehl severed the lingual nerve and caused Mr. Shepard to suffer permanent paresthesia, a condition marked by chronic numbness and difficulty in speaking for extended periods of time.

 The lingual nerve is located on the tongue side of the third molar which is commonly referred to as a wisdom tooth, *fn1" in what laymen would refer to as the gum area. The figure below, which is taken from an article in the literature, is helpful in visualizing just how close the nerve is to the wisdom tooth:

 [SEE FIGURE 1 IN ORIGINAL]

 FIGURE 1. Diagrammatic frontal section of the third molar region showing the mean horizontal and vertical distances of the lingual nerve from the mandibular lingual plate and alveolar crest. *fn2"

 The expert testimony adduced by plaintiff and the United States Attorney established that, notwithstanding the proximity of the lingual nerve to the wisdom tooth, the extraction of the wisdom tooth poses only "an infinitesimal risk" to the patient. Tr. 153. Specifically, Dr. Robert Himmelfarb, who was called by the United States Attorney, testified that if the procedure is performed with the requisite care and skill, the lingual nerve would be severed only in the rare case in which the nerve is located in such an anomalous position that injury to it is unavoidable. Tr. 153.

 On the other hand, because the lingual nerve is not visible on an x-ray, and because it is in such close proximity to the wisdom tooth even when the nerve is located in its usual place, the extraction of the tooth is a particularly sensitive procedure that requires skill and care at every step of the process to insure that the nerve is not severed. *fn3" Indeed, Dr. Himmelfarb acknowledged that because of the proximity of the lingual nerve to the wisdom tooth, and because "it could be cut even if it's where it should be, . . . you want to have it done by the most experienced or able doctor possible." Tr. 153.

 The extraction of plaintiff's wisdom tooth, however, was not performed by "the most experienced or able doctor possible." On the contrary, it was performed by Dr. Diehl, a resident in the second month of his surgical rotation, without the presence of an experienced surgeon in the room when the tooth was extracted. In this action, brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) (1988), plaintiff argued that Dr. Diehl's lack of experience in performing a sensitive procedure of the kind in which the skill and experience of the surgeon is of particular consequence, combined with evidence that suggests that the severance of the lingual nerve is an extremely unusual occurrence in the absence of negligence, provides a basis for concluding that the cause of the injury here was negligence rather than the anomalous location of the nerve.

 The issue of liability was severed for the purpose of trial and it was tried before me without a jury. I agree with the plaintiff that the evidence is sufficient to establish a prima facie case and to shift to the defendant the burden of explaining the manner in which Dr. Diehl severed his lingual nerve. Dr. Diehl testified that he performed the extraction in the manner in which he had been taught. If he followed this procedure, the United States Attorney argued, the severance of the nerve was unavoidable. I agree with plaintiff that Dr. Diehl's explanation, which tells us nothing about what he actually did here, is insufficient to bear the defendant's burden.

 Discussion

 The argument of the United States Attorney that the plaintiff failed to establish a prima facie case simply ignores settled rules for the evaluation of circumstantial evidence in a case where only the defendant is in a position to supply direct evidence concerning the event in question.

 If a plaintiff is not in a position to demonstrate the cause of his injury, the quantum of evidence necessary to establish a prima facie case is much lower than if it would be otherwise. Particularly apposite here is Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), a wrongful death action in which plaintiff alleged a negligent failure on the part of a subway motorman to stop his train in sufficient time so as to avoid hitting plaintiff's intestate. Because the decedent was not available to testify, the Court of Appeals held that "plaintiff is not held to as high a degree of proof . . . as where an injured plaintiff can himself describe the occurrence." Id. at 80. The Court of Appeals continued:

 [This rule] is based on the 'consideration' . . . 'that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.' [In fact,] it is a general rule of evidence, applicable to every sort of case, 'that where the defendant ...


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