Grant v. N.C. Department of Correction

The Full Commission has reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner John Hedrick. The appealing party has shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order.

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The Full Commission finds as fact and concludes as matters of law the following, which was entered into by the parties at the hearing as:

2. A set of plaintiff's medical records, marked as Stipulated Exhibit Number One, is admitted into evidence.

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The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:

2. Prior to undergoing the extraction, plaintiff executed a document consenting to the extraction procedure. During the course of the extraction, Dr. Roe determined that it would be necessary for him to extract tooth number 28 in addition to tooth number 29. Plaintiff executed a document whereby he consented to the extraction of tooth number 28. The surgery to remove these teeth lasted approximately one and one-half hours.

3. Following these extractions, plaintiff experienced paresthesia or numbness in the area of his right, lower lip and gum as well as his chin. This numbness is permanent. As a result of this numbness, plaintiff sometimes bites his tongue and the inside of his mouth. He also has difficulty drinking from a glass and at times he drools.

4. Dental extractions may cause trauma to the adjacent teeth and permanent paresthesia, if the applicable standard of care is breached. Whether a tooth other than the impacted tooth must be extracted is dependent upon the location of the various teeth in relation to one another.

5. There is evidence of record that the medical treatment provided to plaintiff by Dr. Roe failed to comply with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar community.

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Based upon the findings of fact, the Full Commission concludes as follows:

2. Plaintiff sustained damage as a result of the negligence of an employee of defendant.

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Based upon the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:

2. This case is hereby remanded for additional evidence on the amount of damages due to plaintiff as a result of defendant's negligence.

3. Defendant shall pay the costs.

This the ___ day of November 1998.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/_____________ RENEE C. RIGGSBEE COMMISSIONER

DISSENTING:

S/_____________ CHRISTOPHER SCOTT COMMISSIONER

TJB/cnp/db

On 23 July 1993, plaintiff underwent oral surgery to remove an impacted tooth. This surgery was performed on defendant's premises by an oral surgeon under its employ. Following this procedure, plaintiff was left with permanent numbness in the area of his right, lower lip and gum and in his chin. As the result of this permanent numbness, plaintiff bites his tongue and the inside of his mouth, has difficulty drinking from a glass and at times drools.

Given his incarceration, plaintiff faced the difficult, if not impossible task, of obtaining the medical records and expert testimony from other physicians which would be necessary to prove his claim. Without expressing an opinion regarding the merits of plaintiff's claim, the logistical and procedural impossibility of him even having a chance of proving his case is patently unfair and not reflective of the interests of justice. In my opinion, procedural mechanisms should be put in place to ensure that someone in plaintiff's position has a fair opportunity to pursue their claim.

For the foregoing reasons, I respectfully dissent from the majority's Decision and Order, although under the law, their decision is technically correct based upon the evidence plaintiff was able to present.

S/_____________ CHRISTOPHER SCOTT COMMISSIONER