Question

• During the course of performing a root canal on Dawn, Dr. Toth, an oral surgeon, gets an implement stuck in Dawn’s tooth, and it breaks. Dr. Toth cannot extract the broken piece of the implement from Dawn’s tooth, so he leaves it there. He completes the root canal and does not disclose to Dawn that he has left part of a dental implant embedded in her tooth. Dawn’s other dental work, including the placement of a crown on the tooth with the implement in it, is then completed. Two years later, Dawn begins to have significant problems with the tooth on which Dr. Toth performed the root canal. Dawn has a serious infection that requires the removal of not only the tooth that Dr. Toth performed the surgery on, but also the teeth on either side of it. She misses a significant amount of work to have the dental work performed and suffers a considerable amount of pain. Does Dr. Toth’s conduct meet the requirements of a negligence claim? Explain why or why not.
  

• Jason’s neighbor has a large sycamore tree located near the fence between the two properties. The tree drops leaves and sycamore balls in Jason’s yard each fall. Jason has repeatedly asked his neighbor to trim the overhanging branches so his yard will not receive the litter from the tree, but the neighbor refuses to cut back the tree. While the neighbor is on vacation, Jason drills holes in the trunk of the tree just below ground level and also drills through any roots with which he comes into contact. Discuss why the neighbor may have a cause of action against Jason if the tree dies.

Answer 1

Part #1

Yes, the conduct of Dr Toth meets the requirement of the negligence claim.

By law, the time limit for general medical negligence and personal injury is 3 years. The situation given in the case happens after 2 years. So, the claim is well within the validity period.

For further argument here, the plaintiff is Dawn and defendant is Dr Toth. For dental negligence claim the following 3 criteria need to be matched:

1. Breach - Here, the plaintiff needs to prove that the defendant breached his/her duty falling below the required standard of care. This can be proved by the dentist operating on Dawn after 2 years as he/she will find the broken implement stuck in Dawn's infected tooth (on which she had her root canal done)

2. Causation - This is demonstrating that the defendant's breach caused harm to the plaintiff. This can be proved as the tooth which had root canal implement stuck was infected and needed to be removed.

3. Damages - Proof of damages to the plaintiff is needed. Here, the plaintiff suffered an infection in the tooth treated by Dr Toth and had to get that tooth as well as a tooth on either side removed which led her to miss her office work, pay for extra two tooth removal as well as suffer a lot of pain.

Hence, YES, Dr Toth is eligible under the negligence claim.

Part #2

Yes, the neighbour can have a cause of action against Jason if the tree dies because:

1. The tree belongs to Jason's neighbour and the trunk lies inside the neighbour's property. Jason has no rights to go and drill the truck of the tree.

2. As for the roots, the roots belong to the tree and the tree belongs to Jason's neighbour. This means the roots of the tree anywhere (on Jason's property or not) cannot be damaged by anyone except the owner of the tree.

3. Jason only has the right to trim the long overhanging branches which litters his yard.