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Nichols v. Sabzwari

United States District Court, D. South Carolina

November 13, 2017

Linda Nichols, Plaintiff,
v.
Dr. Aleena Sabzwari; Little River Dental Center; and the United States of America, Defendants.

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge

         Plaintiff filed this action in state court bringing a common-law cause of action against Defendants for damages she allegedly sustained as a result of teeth that were extracted during an April 3, 2017 dental appointment. Comp., ECF No. 1-1; Horry Cnty. Magistrate's Court No. 2017-CV-261030363. Defendant United States of America (“USA”) removed this action on June 21, 2017, on grounds that this court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1442(a)(1), 1446, and 42 U.S.C. § 233(c). 28 U.S.C. § 1442(a)(1) provides for removal of a civil action commenced in a State court against “[a]ny officer of the United States, for or relating to any act under color of office or in the performance of his duties. . . .” Notice of Removal, ECF No. 1. In the Removal Notice, Defendant USA represents that Dr. Aleena Sabzwari is employed as a dentist at the Little River Dental Center and is an agent or employee of the USA. Id. at 2. Further, Defendant USA represents that the Dental Center is an entity covered under 42 U.S.C. § 233 because it receives grant money from the United States Public Health Services. Id. Defendant USA represents that “the exclusive remedy for negligence claims against a health care center under the Federally Supported Heath Centers Assistance Act is against the United States of America pursuant to the Federal Tort Claims Act [“FTCA”].” Id. at ¶ 5.

         I. Background

         After this case was removed, Plaintiff amended her Complaint. ECF No. 18. There, she alleged the following, verbatim, allegations took place under her “Statement of Claim” section:

1. Failure to obtain informed consent prior to performing a dental procedure. The defendant negligently broke a tooth off from the root while extracting the tooth, then performed a dental procedure in an infected area that included shaving down the plaintiff's jaw bone to expose the root left in after the extraction of a healthy tooth. A competent dentist would obtain permission prior to performing a dental procedure that consist of sawing into a patient's jaw bone.
Her failure to obtain consent from the plaintiff to shave the bone was a clear deviation from the dental standard of care in the community. The deviation from the standard of care caused the plaintiff damages that consist of unnecessarily suffered pain and discomfort and additional emergency treatment and cost.
2. Indicated dental procedure was not performed The plaintiff relied on the defendant to make a professional decision of the best treatment available to save her teeth. The defendant led the plaintiff to believe that extraction was the only treatment available. The defendant failed to recommend any dental procedure to save the teeth. Her failure to indicate a dental procedure to save the teeth was a clear deviation from the dental standard of care in the community. The deviation from the standard of care caused the plaintiff damages that consist of unnecessarily suffered pain and discomfort and additional emergency treatment and cost.
3. Contraindicated dental procedure was performed The defendant performed a contraindication procedure by removing healthy teeth and neglecting to perform the correct procedures to treat the teeth. One tooth had a small cavity, and the other tooth had no signs of decay. The defendant tested both teeth to heat and cold. Both teeth were strong and not sensitive to heat or cold. A competent dentist would have not extracted a healthy tooth.
Her failure to recommend procedures to save the teeth was a clear deviation from the dental standard of care in the community. The deviation from the standard of care caused the plaintiff damages that consist of unnecessarily suffered pain and discomfort and additional emergency treatment and cost.
4. Wrongfully administered pain relief The defendant improperly provided enough pain relief to numb the gum area before extraction. The defendant willfully continued to extract tooth after the plaintiff complained of pain. A competent dentist would have ensured that the patient had some level of comfort from pain before proceeding to extract the tooth.
Her failure to provide pain relief was a clear deviation from the dental standard of care in the community. The deviation from the standard of care caused the plaintiff damages that consist of unnecessarily suffered pain and discomfort and additional emergency treatment.
5. Mistreated Infection
After x-ray and examination, the defendant found a small infected area between 2 teeth and proceeded to recommend extraction of both teeth. The defendant used a saw in an infected area to shave the jaw bone to expose the broken off root and failed to close the area with stitches. A competent dentist would not have used a saw in an infected area. A competent dentist would take x-rays to locate the broken off root, manage the pain for the patient, extract the root and stitched the opened area instead of leaving the area open to avoid infection in the patient's blood stream. Her failure to do so was a clear deviation from the dental standard of care in the community. The deviation from the standard of care caused the plaintiff damages that consist of the spread of the infection and unnecessarily suffered pain and discomfort from a dry socket and additional emergency treatment and costs.
6. Unwarranted delay in treatment The defendant referred the plaintiff to a dental surgeon 30 miles away and failed to make an emergency appointment after she negligently broke the tooth off and left the root intact. The defendant shaved the jaw bone down to expose the root, then left the area open and vulnerable to infection. A competent dentist would have referred the plaintiff to a more experienced dentist in the Little River Dental Center and ensured that the gum was stitched and not acceptable to infection before leaving the facility. Her failure to do so was a clear deviation from the dental standard of care in the community. The deviation from the standard of care caused ...

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