25 October 2006

lester v levy

UPDATE: in fairness we've found it necessary to update this post - sometime after this posting we found ourselves suffering from a severe toothache. we went to our family dentist who advised that we see an oral surgeon. he recommended dr. levy. we were aware of this suit but we also knew that the lady didnt bring her paperwork with her either. a mistake we werent going to make. especially, since our dentist put it all in an envelope to give to dr. levy.

long story short is that dr. levy pulled the correct tooth and it healed up perfectly with no complications whatsoever and both dr. levy and his assistant were very kind and gentle - so if you're researching him or whatever, you shouldnt fear going to see him or let this suit influence your decision but just be advised to bring plenty of money cos he's expensive.

the more we try to figure out the 3rd circuit's reasoning the more we decide that we would have better luck figuring out why some people believe the 911 scam or why some people think that george w. bush and his minions are good people. oh well, all in good time.

in this case alexandria city court judge richard starling (we dont know if judge starling is any good but we know that his predecessor eddie roberts was terrible) issued a judgement in favor of the defendant dr. robert levy a local dentist. judge starling dismissed the plaintiff alicia lester medical malpractice suit with prejudice mind you.

from what we can gather is that ms. lester first went to a dentist dr. gauthier who referred her to dr. levy. (dr. levy is an oral surgeon) dr. levy pulled some of her teeth and that was uneventful. ms. lester returned to dr. gauthier who again referred her to dr. levy to have 3 more teeth pulled. at this visit ms. lester didnt bring "a referral slip identifying the teeth to be extracted" so what happened is that dr. levy pulled the wrong teeth.

next the 3rd circuit in their opinion goes off into some goobly gook citing case law etc. then incredibly 3rd circuit judges elizabeth a. pickett, john d. saunders and james t. genovese go off scale and side with the theory:

All three members of the medical review panel agreed that if one believed Ms.Lester’s version of what happened in Dr. Levy’s office on the morning of October 20, 2003, then the actions by Dr. Levy fell below the standard of care. If, on the other hand, one believed the testimony of Dr. Levy and of Ms. Heidner, then, there was no breach of the standard of care. The members of the panel described the standard of care for an oral surgeon to extract a tooth (or teeth) as follows: first, having an x-ray of the patient’s mouth which was less than one year old—Dr. Levy had an x-ray of Ms. Lester’s mouth which was six months old. Next, examining the patient—which both Dr. Levy and Ms. Heidner stated he did. The plaintiff argued that upon examing a patient, the oral surgeon had a duty to inform the patient if, in his opinion, he thought a tooth, which was to be extracted ,was salvageable.

The panel agreed that such was the standard of care if the patient was a “walk-in” off the street, but stated that such was NOT the case with a referred patient, such as Ms. Lester. In the case of a referred patient, the question of whether a tooth was salvageable was between the patient and his/her general dentist. Oral surgeons were not to “second-guess” a patient’s general dentist. The last duty the oral surgeon had, to meet the standard of care, was to know which tooth/teeth to extract. Ms. Lester claims that Dr. Levy could not have known which teeth to extract because she forgot her referral slip, and he did not call Dr. Gauthier to obtain this information.

Dr. Levy and Ms. Heidner testified that Ms. Lester was offered a later appointment so she could return with her referral slip, but that Ms. Lester declined, stating that she knew which teeth had to be extracted. Also, Dr. Levy and Ms. Heidner both testified that Ms. Lester pointed at the teeth she wanted extracted and confirmed her choices to Dr. Levy when he pointed to the corresponding teeth on her x-ray. Ms. Lester denies pointing to any specific tooth(teeth), claiming it would have impossible for her to do so.
ms. lester isnt a dentist she didnt know which teeth were to be pulled. its silly to use the excuse that since ms. lester pointed to the teeth to be pulled that it was ok. why didnt dr. levy simply fone dr. gauthier and have him fax over the referral slip so that dr. levy would know exactly which teeth to pull? good grief ms. lester was supposed to have teeth numbered: 5, 12 and 13 pulled and dr. levy was batting zero because he pulled teeth numbered 3, 15 and 16. this is why we avoid dentists. lawyers too for that matter.