TRACY BRETON Journal Staff Writer. The Providence Journal.

Copyright Providence Journal/Evening Bulletin Jan 2, 1999

A Newport County Superior Court jury has ordered a Providence periodontist to pay $1.25 million in damages to cover the pain and suffering of a former patient on whom he performed implant surgery.

The periodontist, Peter A. Payne, whose office is at 534 Angell St., claims the jury erred and has filed a motion for a new trial. Payne’s lawyer, Mark P. Dolan, said he would have no comment on the verdict, pending the hearing on his new-trial motion.

With interest, the verdict – delivered Dec. 18 after a two-week trial – amounts to $1,963,000, according to Providence lawyer David Morowitz, who represents the patient, Deborah Jimenez.

Jurors found that Payne was negligent in his treatment of Jimenez, a former Portsmouth resident who now lives in Oro Valley, Arizona. They also found that Payne had failed to properly obtain Jimenez’s informed consent before performing the dental implant surgery.

Payne didn’t give Jimenez a written consent form to sign and never told her of the risks associated with implant surgery, the jury found, even though he wrote in her medical chart that he had advised her of the risks three times before the surgery. Morowitz said he argued to the jury that Payne’s handwriting was squeezed on that portion of the chart, indicating Payne had added this "after the fact," something the periodontist denied.

If she had known of the risk of nerve damage associated with dental implant surgery, Jimenez testified, she never would have elected to have it.

ACCORDING TO testimony and evidence presented by Morowitz, Payne inserted implants into the nerve canal below Jimenez’s left two rear molars, which resulted in nerve damage, numbness and "electric shock-like pain."

The implants were eventually removed by another dentist, but Jimenez got a stomach ulcer from the pain medication she was put on. Later, in Arizona, she underwent two more surgeries; in the second one, the whole nerve was removed as a last resort because of the pain Jimenez had complained of since Payne’s insertion of the implants.

"She’s now totally numb all the way to the middle of her left lower lip and to the top corner of her upper left lip," Morowitz said. Further, he said, she can’t chew on that side and feels crawling sensations on her face.

Jimenez had been seeing Payne for seven years for bridge work before he suggested, in 1993, that she get implants on her left lower jaw. She was missing her first molar and she said Payne told her the second molar was about to fall out, Morowitz said.

When Payne did the surgery, Morowitz said, he used a two-year-old x-ray to gauge the amount of bone in Jimenez’s jaw, which would be a determining factor in how deep he could drill.

"If the implant touches the nerve or you drill into the nerve it can cause injury to the nerve, including pain and numbness," Morowitz said.

He said that after drilling two pilot holes into the jawbone and inserting guide pins, Payne took another x-ray, which – according to testimony from a Cleveland implant specialist presented by Morowitz – showed that the doctor had drilled too deep. But Payne put the implants in anyway.

At the trial, Payne denied he had drilled too far. Three expert witnesses he presented in his defense testified that the x-ray showed that one implant may have been inserted just on top of the nerve canal but that the other was above it, and that overall, the surgery conformed with acceptable practice.

Jimenez testified that she was in tremendous pain throughout the procedure, despite repeated shots of Novocain.

Payne, said Morowitz, testified that Jimenez experienced slight pain once and that he stopped drilling when she indicated her discomfort.

When she left Payne’s office, the whole side of Jimenez’s face was numb, Morowitz said.

Payne and Jimenez gave conflicting testimony about a followup call from the doctor that night, according to Morowitz – Payne said she or her husband told him she felt fine; Jimenez said she was asleep, and her husband told Payne he didn’t know how she felt.

Payne testified that the first he heard of any problem was 10 days after the surgery, when Jimenez returned to his office for a post-operation checkup, Morowitz said.

But Jimenez testified that Payne called her the day after the surgery and she told him her mouth was still numb, Morowitz said. Payne told her the numbness could have been due to the Novocain.

After three days he called her again and she said she was still numb, Morowitz said. And three days before the scheduled checkup, Payne’s receptionist called Jimenez, Morowitz said. Jimenez told her she was still numb and in pain.

"Oh my God, God help us," Morowitz said the receptionist replied.

On Sept, 23, 1993, Jimenez went to her post-operative appointment. According to Morowitz, Payne wrote in her medical chart that she had some numbness and "electric shock-like pain." He told her to return in two weeks.

When she did, Payne testified, her pain had lessened significantly – which Jimenez said wasn’t so.According to Morowitz, Payne admitted during that appointment that he "doesn’t know what’s wrong; maybe it’s in too deep; maybe she has some nerve damage; maybe she has an infection."

Jimenez consulted with an oral surgeon in Newport, who after sending her for a CT scan, removed the implants. The CT scan, said Morowitz, showed that both implants were inserted into the nerve canal and were impacting on the nerve.

All three of Payne’s expert witnesses said the radiologist from Miriam Hospital – who is now deceased – had misread the CT scan and that the implants weren’t in the nerve canal.

Jimenez testified that she was still in bad pain after the implants were removed. She went on pain medication, which resulted in an ulcer.

In 1996, after Jimenez had moved with her husband and two children to Arizona, she underwent more surgery because of the pain.

During the first surgery, the doctor examined the nerve, thought it could be saved and made more room for it inside the nerve canal. Screws and a plate were placed in her lower jaw, Morowitz said.

A year later, still in pain, she returned to the oral surgeon in Arizona and he removed the nerve. This resulted in an 80 percent improvement in her pain level, but brought on a host of permanent side effects, Morowitz said.

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