Miss. SC: Unlicensed witness not good enough for plaintiff in dental malpractice case

JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court has affirmed a trial court's directed verdict due to the failure of the plaintiff's expert to establish the standard of care in a dental malpractice case.

Justice Jess Dickinson wrote the opinion for the unanimous court, reversing the Court of Appeals, which had reversed and remanded the case to the trial court.

"To establish dental malpractice, a plaintiff must - as a matter of law - produce expert testimony to establish a prima facie case," Dickenson wrote.

There were several unusual twists in the negligent administration of anesthesia case. The expert, Dr. Martin Harris Turk, surprised everyone - including the plaintiff Bennie Braswell's attorney - when he answered "no" to whether he was licensed in any state. After a recess to allow the lawyers to research the law on expert testimony and licensure, the judge allowed the case to proceed.

After Dr. Turk's direct testimony but before his cross-examination, he met privately with Braswell's attorney and, as a result, defense counsel moved to exclude Dr. Turk's testimony as a result of the contact. Again, the trail judge allowed the trial to continue but warned the plaintiff's attorney that defense was "entitled to... full bore cross-examination."

Dr. Turk's testimony included statements such as "all that is standard" regarding aspects of the treatment and "that is not the standard of care" regarding the placement of the needle in the administration of anesthesia.

When asked whether the dentist breached her duty of care, the doctor, answered "Yes... My opinion is she deviated from good dental practice." When pressed as to his opinion on exactly where the dentist placed the needle, a fact instrumental to the plaintiff's case, he admitted, "I have no clue."

The Court, citing Northrop v. Hutto, stated "the standard of care in medical negligence cases is measured against a doctor of minimum competence... Given the circumstances of each patient, each physician has a duty to... treat... each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or genera field of practice throughout the United States."

In reversing the Court of Appeals and affirming the trial court, the Court concluded, "this testimony falls far short of establishing the standard of care, and that Dr. Stinnett breached it." They further stated, "Dentists are not required to do what is generally done, or what the average dentist would do. And our law certainly does not require dentists to conform to a vague, subjective standard such as good dental practice."