Meyer v. United States
464 F. Supp. 317 (D. Colo. 1979)



As the wife of a serviceman, plaintiff was an eligible patient at the Family Dental Clinic and on March 29, 1974, she was seen by Kent L. Aitkin, D.D.S. After his examination, Dr. Aitkin advised her that she needed several fillings and recommended extraction of her upper and lower third molars (wisdom teeth). He advised her that the teeth were impacted and absent removal she would have trouble in the future. She was already experiencing distress and pain from the molars. These molars are the end back teeth and generally are not functional either in concert or alone.

Plaintiff returned to the clinic on April 12, 1974, at which time two right third molars were removed by Dr. Aitkin. Packing was placed in the extracted areas. She was allowed to return home with the packing in place, additional replacement packing, medications, prescriptions for pain and infection, and instructions on care at home.

Later that same evening (or in the early morning hours), plaintiff had a coughing spell and was unable to swallow apparently because of residual bloody and boney fragments resulting from the operation. She was seen in the emergency room at Fitzsimons Army Medical Center and received a prescription that offered her relief. She returned home.

Shortly thereafter she experienced numbness to the right side of the tongue and right gum line.

On April 26, 1974, she was seen again by Dr. Aitkin at the clinic who noted that healing was proceeding in regular fashion. He informed her that her complaints of numbness to the tongue, right gum and partial impairment of sensation were temporary and would return in a matter of months. He also noted this condition was normal in some molar extractions.

Thereafter she was seen by Dr. Jones, an oral surgeon attached to Lowry Air Force Base. She was advised that the loss of sensation and numbness could dissipate in eighteen months, and failure to do so might mean permanent loss of lingual sensation to the right side of the mouth and, in that event, she should consult a lawyer. This suit was filed in January of 1977, following earlier filing of an administrative claim.

It is unrefuted that at this time plaintiff suffers from numbness, permanent loss of sensation and loss of taste in the right front quadrant of her tongue, and right front gum.

Plaintiff related that her injury as a result of nerve damage manifests itself in her inability to taste bland foods, lack of taste differentiation on the right side of the tongue, numbness to this area and to the right gum, and a tendency to stutter. Anxiety over the condition, she contends, makes her unsure of her speech and this has affected her progress and effectiveness as a banking executive for a savings and loan banking facility.

Dentists agree that the lingual nerve has been damaged. Causation of the nerve damage and question of informed consent are matters in dispute.


Dr. Aitkin, a dentist in general practice, had specialized dental surgical experience during his three year military service and surgical rotation at each of three duty stations. He had a three month training period in dental surgery at Fort Hood and like periods in Vietnam and in a V.A. residency dental program in California. He related that he had previously performed numerous extractions of third molars in military service and on a weekly basis at the Family Dental Clinic.

Dr. Aitkin does not recollect the various surgical procedures undertaken by him in treating the plaintiff nor the exact conversation he had with plaintiff prior to surgery. His testimony was based in part on his recollection refreshed by the patient's dental chart. He also based his testimony on his habit, custom, and treating routine followed over a considerable period of time.


Prior to the extraction procedure, Dr. Aitkin reviewed the x-rays of the teeth in question and in his opinion they were sufficient for the surgical procedure. He administered three injections of novocaine to deaden the pain. The top molar was removed without incident. The lower third molar presented more difficulty because of its mesial angular impaction. He cut a small flap in the lower right gum proximate to the lower molar, observed the impacted molar, removed the bone over the tooth by use of dental instruments, and sectioned and surgically removed the molar. The flap was sutured and area cleansed. Additional injections of novocaine were administered during the operative period. There is no evidence that the lingual nerve was visible to Dr. Aitkin during the operation. The evidence is clear that the nerve may be located along the gum line or elsewhere in the jaw. The nerve is frequently hidden, and the exact location not discernible. In his opinion, x-rays of the molars and locations of roots are of no assistance in knowing where the lingual nerve is situated. The preponderance of the evidence supports this view.


One issue in the case is that of informed consent. Plaintiff testified that she did not receive advice and warnings by Dr. Aitkin as to potential risks of the surgical procedure including possible nerve damage, and had she been so advised she may have declined to go through with the operation.

Dr. Aitkin testified that his habit and custom since dental school, during his three year military service and extending to his association at the Family Dental Clinic, was to give standard advice to patients about extraction of third molars. He advised patients as to the need for the extraction, potential for nerve damage from extraction of the molars including loss of sensation or taste, and general details of the extraction procedure. He generally gave the advice to the patient when he first diagnosed the need for the extraction, although, from his custom, it could come at any time prior to the surgical procedure.

While the testimony is in conflict, we find (a) that plaintiff was informed that as a result of the extractions there was a possibility of damage to the nerves that were proximately located in the area of the molars and roots, and (b) she fully and voluntarily consented to the extraction and medical procedure.

We find that Dr. Aitkin's habit and custom, and routine of advising patients of potential risk as a result of molar extraction was present with plaintiff and he acted in conformity with that long established habit and custom.

We further find that Dr. Aitkin advised plaintiff in a general way of the common and potential risks of extraction of the lower third molar, as shown by his habit, custom and routine, and corroborated by dental assistants Mugele and Smith. He thus complied with a dentist's or physician's duty under Colorado law to inform a patient in a general way as to procedures to be followed in the operation and potential risks....

In the context of Rule 406, habit is a person's or organization's practice of handling a particular kind of situation with a specific type of conduct. Habit is one's regular response to a repeated specific situation. McCormick on Evidence 195 (2d ed. 1972). In similar fashion, an organization's regularity of action is within the purview of Rule 406.

Habit in modern usage is described as "a tendency to act in a certain way or to do a certain thing; usual way of acting; custom; practice....'' World Book Dictionary (1974 ed.).

In the instant action there is substantial evidence establishing that the principal actor (Dr. Aitkin) routinely and regularly informed dental patients of the potential risks involved in extraction of third molars. His testimony is supported by two chair-side dental assistants (Mugele and Smith) neither of whom heard the testimony of the other (sequestration pursuant to Rule 615, Fed. R. Evid. was in force during the trial).


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