Professional Negligence Law Reporter

A Texas appellate court held that a dental patient’s negligence claim may go forward where her expert report met the provisions outlined in Tex. Civ. Prac. & Rem. Code Ann. §74.351. Under that section, a person bringing a health care liability claim must provide a timely expert report summarizing the expert’s opinions regarding the applicable standard of care, the manner in which the defendant had breached the standard, and causation.

Here, endodontist Steffan Scherer performed the first of two root canals on Melinda Gandy. Scherer used Septocaine as an anesthetic during the procedure. For the second root canal, Scherer injected prilocaine as an anesthetic. This caused Gandy to suffer severe pain; however, Scherer continued with the procedure. Gandy experienced continued pain over the next days and reported this to Scherer, who told her to use hot and cold packs and to rinse with salt water. A neurologist later diagnosed Gandy as having suffered an injury to her trigeminal nerve.

Gandy sued Scherer, alleging dental malpractice. The plaintiff served the defendant with the expert report of Maria Maranga, a dentist who stated that the standard of care requires recognition of an anesthetic reaction before, during, and after a procedure and that Scherer had deviated from the standard by choosing prilocaine, an anesthetic that can be toxic in some patients. Maranga also cited Scherer’s failure to timely recognize that a reaction took place, resulting in a two-week delay in treatment. The defendant moved to dismiss on the basis that Gandy failed to meet §74.351’s requirements. The trial court denied the motion.

Affirming, the appellate court noted that an expert is required to provide a fair summary of what a defendant should have done differently, not detail the specific steps a defendant should have taken. The expert also must provide a simple basis that the defendant’s act or omission proximately caused the plaintiff’s injury, the court said. Here, Maranga’s report stated that Gandy’s symptoms after the second root canal were classic symptoms of a nerve injury and that this should have prompted Scherer to pursue further diagnosis and treatment. Additionally, the court said, Maranga asserted that Scherer should have used an anesthetic other than prilocaine and should have stopped the procedure to evaluate the problem before proceeding.

Thus, the court concluded, the expert report constituted a good faith effort to comply with the statute’s standard of care requirement and also represented a good faith effort to show that the defendant could have anticipated the danger associated with prilocaine or timely recognized Gandy’s adverse reaction, preventing Gandy from enduring extreme pain from her ongoing nerve injury.

Consequently, the trial court’s decision had been proper.

Citation: Scherer v. Gandy, 2019 WL 988174 (Tex. App. Feb. 28, 2019).

Plaintiff counsel: Linda Russell, Dallas; Jim Hund, Lubbock, Texas; and Aaron Arenas and AAJ member J. Craig Lewis, both of Houston.