On April 14, 2005 Adina Raso, then 14 years old, had two impacted wisdom teeth extracted by an oral surgeon in Stony Brook.
A week or so later, Adina noticed that she was experiencing paresthesia (numbness) and had no sensation or taste on the left side of her tongue and the gums of her lower left jaw. Also, she was experiencing shooting, electric-shock type pain on a sporadic basis.
Within a few months, Adina was diagnosed with a traumatic injury to her left lingual nerve and she sued her treating surgeon claiming that her numbness and related injuries were caused when he negligently severed the nerve.
On March 18, 2014, a Suffolk County jury found that there had indeed been a departure from good and accepted standards of dental care during the extraction and they awarded Adina pain and suffering damages in the sum of $25,000 (all past – nine years).
Plaintiff promptly sought an increase in the amount of damages, arguing that $25,000 for nine years of past pain and suffering was an inadequate award and that the jury’s failure to award any future pain and suffering damages was irrational. The trial judge agreed, in part, and on August 4, 2014 he issued a decision awarding future pain and suffering damages in the sum of $120,000.
On defendant’s appeal, in Raso v. Jamdar (2d Dept. 2015), the future pain and suffering damages award has been vacated. The jury’s total verdict of $25,000 has been reinstated.
The appellate court held that the jury’s failure to award any damages for future pain and suffering was properly based upon the evidence and the jury’s assessment of the credibility of the witnesses. Unfortunately, the decision omitted any references to the injuries or the issues underlying the credibility determinations. Here are the details:
- New surgery on 11/14/05 – to repair the left lingual nerve (in which, under general anesthesia, a new surgeon was able to anastomose (reconnect) the nerve ends.
- Plaintiff testified at trial that while her condition had much improved after the repair surgery, she continued to suffer from a mild altered taste sensation (could not “experience the full depth of flavor of food”) and mild paresthesia. She admitted that she no longer had any pain, was not taking any medication or undergoing any treatment for her injury, had no difficulty singing, her social life was unaffected and she regularly engaged in athletic activities.
- A defense expert examined plaintiff in 2009 and testified that there was no objective evidence of any permanent damage.
- Dental records in evidence indicated that in October 2008 plaintiff stated she had no “serious” or “difficult problems associated with any previous dental work.”
- Plaintiff’s pre-trial settlement demand was $350,000 and her attorney asked the jury to award $650,000.
- Plaintiff argued that future damages should have been awarded because the defense expert testified that he made diagnoses of mild paresthesia and mild alteration of taste; however, he further testified that his diagnoses were based on “what the patient reports to me” and defense counsel argued that the expert’s finding that there was no objective evidence of permanent damage was much more important than plaintiff’s “subjective and self-serving” responses to the expert’s questions.