Monday, October 17, 2005
When the Plaintiff loses, it was just to have her day in court; Red Willow County District Judge Battershell dismisses dental malpractice suit after he strikes Plaintiff's expert's testimony. North Platte Bulletin The jury trial against a North Platte dentist for negligence ended suddenly Oct. 12 after a Red Willow County district judge dismissed it. Dentist Gerald Thalken was accused of negligence by a former patient, Tracy A. Mavigliano. She said Thalken put caps on her teeth that were uneven and that the procedure was so bad she suffered pain and couldn’t even eat afterward. The trial began Oct. 11 after a Lincoln County jury was selected. But it ended suddenly early Oct. 12 after Thalken’s defense attorney, Kyle Wallor of Omaha, made a motion to strike the testimony of former North Platte dentist William Hull. Hull, who said Thalken’s treatment of Mavigliano’s teeth was poor and charged her $24,987 to repair them, appeared as an expert witness for Mavigliano. Hull admitted on the stand that he never reviewed Mavigliano’s dental records from either Thalken or Dr. James States of North Platte. Wallor argued that the a witness couldn’t be deemed an expert witness without reviewing the medical records first, a standard he said was set by the Nebraska Supreme Court. Red Willow County District Judge John Battershell threw out Hull’s testimony, then dismissed the case for a lack of evidence. P. Steven Potter, Mavigliano’s attorney, said the case was an uphill battle. He said it was difficult to differentiate the damage done to his client’s teeth by decay from the treatment she received from Thalken. “But it was never about the money to her,” Potter said. “It was her hope to bring an awareness so that others wouldn’t have the same problems. “She felt like a woman raped. She couldn’t have lived with herself if she didn’t do something.” “We accomplished what we wanted to,” Mavigliano said. In her lawsuit, Mavigliano said Thalken capped her teeth without repairing the decay on them first. She said she had to pay former North Platte dentist William Hull to have her teeth re-aligned and recapped. “This case is not about decay,” Potter said in opening statements Oct. 11. “It’s about the treatment Dr. Thalken gave Tracy.” Potter said X-rays would show that Thalken didn’t repair Mavigliano’s teeth before capping them and didn’t seal them properly. “She was in horrible pain,” Potter said. “She went into a depression and didn’t get help for her teeth until her mom and dad stepped in.” Potter said another dentist promised not to pull one of Mavigliano’s teeth right up until the moment he did when she was a child, which caused an unnatural fear of dentists in her. Mavigliano’s suit says the cost of the extensive and unexpected dental work done by the Hull was the “direct and proximate result of the negligence” of Thalken. The suit says Thalken failed to take an impression of Mavigliano’s her teeth prior to performing the procedure, placed low-grade metal caps on her teeth that subsequently had to be replaced, and failed to test her bite at the end of the procedure to ensure it was correct. Mavigliano said she lost $891.75 in wages and more than $24,987 in dental fees. She is asking for $25,878 in damages. Kyle Waller, Thalken’s attorney, said the case was about tooth decay “because of the nature and extent of decay” in Mavigliano’s mouth. “Of the 28 teeth in her mouth, 22 had decay,” Waller said. He said Thalken talked her out of having her teeth pulled and replaced with dentures or implants and began treatment, which he said was to be extensive. Waller said Mavigliano stopped the treatment after only three visits and three hours. He said she returned twice but only for maintenance on her fillings and did not continue treatment. Waller said William Hull formed his opinions on Mavigliano’s teeth without reviewing the records or X-rays of either Thalken or Dr. James States, another dentist she saw. Waller also said Mavigliano never complained to Thalken about pain or uneven teeth. William Hull charged nearly $30,000 to repair the teeth and an additional $7,000 to be deposed for the lawsuit, file an affidavit and travel to North Platte to testify, according to Waller. The defense intended to call Henry St. Germain, a dentist and professor at the University of Nebraska, according to Waller. Waller said St. Germain would testify that Thalken did provide the correct standard of care and that photos revealed scar marks on the caps that prove Mavigliano was able to chew. Battershell reprimanded Thalken during Hull’s during testimony Tuesday afternoon for making faces and shaking his head. Battershell asked him to stop demonstrating his disagreement by his body language. Battershell must have been satisfied because he did not repeat his request.
Posted by stan_sipple at 11:44 AM