Dental malpractice verdict upheld but sanctions reduced based on definition of "taxable costs."
Norine Holder sued Richard M. Schwarcz, DDS, after he busted a drill in her tooth, apparently failed to inform her of the bit remaining in the tooth, or to address the problem, and she went on to suffer complications and significant additional treatment. After a jury trial resulted in a verdict for Norine in the amount of $67,500.00, the Court was compelled to add sanctions to the award because Schwarcz had rejected Case Evaluation. Schwarcz appealed, raising numerous objections.
Although the court of appeals reduced the sanction award because it included the cost of several depositions that were not admitted into evidence at trial, it unanimously upheld the verdict and the majority of sanctions.
The judges ruled that since Schwarcz claimed that the patient failed to mitigate her damages, but could not substantiate that he had ever informed her of the broken drill bit, it was fair argument for her attorney to claim that the failure to inform the patient of the drill bit was motivated by the fact that Schwarcz was on probation for similar deficiencies in care. It also noted that his claim that he would have informed her "as a matter of routine" made the probation ruling relevant. Lastly, it pointed out that his counsel was invited to submit a "limiting instruction" to address the use of the probation evidence, but never did so.