COMMONWEALTH OF KENTUCKY HARDIN CIRCUIT COURT DIVISION II CIVIL ACTION NO. 16-CI Electronically Filed

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1 COMMONWEALTH OF KENTUCKY HARDIN CIRCUIT COURT DIVISION II CIVIL ACTION NO. 16-CI Electronically Filed BLAKE GREGORY KERR PLAINTIFF V. DEFENDANTS, JAMES K. HARGAN, D.M.D, M.D. AND THE ORAL AND FACIAL SURGERY CENTER OF KENTUCKY, PLLC, PRE-TRIAL MEMORANDUM JAMES K. HARGAN, DMD, MD AND THE ORAL AND FACIAL SURGERY CENTER OF KENTUCKY, PLLC DEFENDANTS Come the Defendants, James K. Hargan, DMD, MD and The Oral and Facial Surgery Center of Kentucky, PLLC (the Defendants ), by counsel, and submits the following Pretrial Memorandum. STATEMENT OF FACTS. This is an alleged oral surgery / dental negligence action arising out of the extraction of the Plaintiff, Blake Kerr s, third molars (commonly referred to as wisdom teeth), by the Defendant, James K. Hargan, M.D., D.M.D. Dr. Hargan is an oral and maxillofacial surgeon practicing in Elizabethtown, Kentucky. He attended the University of Kentucky for his undergraduate studies, dental school training, medical school and residency. He has been practicing in Elizabethtown since Mr. Kerr was first referred to Dr. Hargan on June 8, 2015 by his general dentist, Dr. VanZant, specifically for the removal of his third molars. On that date, Dr. Hargan performed a comprehensive oral examination and took a complete medical history from Mr. Kerr. Mr. Kerr 1 MEM : of

2 did not have any preexisting conditions or symptoms that would preclude surgery. In addition, he obtained a panorex. The panorex revealed impacted teeth at #1, #16, #17 and #32. Following the examination, Dr. Hargan explained the treatment plan and discussed the procedure with both Mr. Kerr and his father because Mr. Kerr was only 17. In addition, Dr. Hargan ensured that Mr. Kerr and his father watched a video that further discussed and detailed the procedure and risks, including the risk of a lingual nerve injury. After watching the video, Mr. Kerr and his father were given an informed consent form. They were instructed to review the form and bring the unsigned form back with them on the date of the procedure. On June 19, 2015, Mr. Kerr presented to Dr. Hargan s office for the removal of his third molars. Dr. Hargan, again, discussed the treatment plan and inquired as to whether Mr. Kerr or his mother, who accompanied him on his occasion, had any questions or concerns. Having none, Dr. Hargan had Ms. Kerr s mother execute the form. The consent form is attached hereto as Exhibit 1. While the Plaintiff makes vague claims that he was not properly informed of the risks involved with the procedure, his sole expert, Hamlet Garabedian, acknowledges that Dr. Hargan employed appropriate methods in apprising Mr. Kerr and his parents of the risks involved in the procedure. In fact, Dr. Garabedian s informed consent form contains many, if not all, of the known complications as Dr. Hargan s. The form that was executed by Mr. Kerr s mother, Deidra Kerr, on behalf of her son, specifically warns of potential injury, to the nerve underlying lower teeth, resulting in pain, numbness, tingling or other sensory disturbances in the chin, lip, cheek, gums or tongue (including possible loss of taste sensation) and which may persist for several weeks, months or, in rare instances, permanently. There will be no additional testimony presented at trial regarding any deficiency in the informed consent process. Both defense experts who will testify at the trial support Dr. Hargan s informed consent process. 2 MEM : of

3 Typically, Dr. Hargan first begins with #16 and #17 and finishes with #32 and #1. In Mr. Kerr s case, Dr. Hargan made buccal hockey stick incisions and used a drill to extract #16 and #17. Thereafter, he used similar techniques in extracting #32 and #1. Buccal hockey stick incisions are incisions made on the cheek side of the tooth and are specifically designed not to interfere with the lingual (tongue) side of the tooth where the majority of nerves innervate the lower jaw. Dr. Hargan did not section any of the teeth during the extraction. Dr. Hargan did not encounter any difficulty in removing #32, and explained that he subluxed the tooth to the buccal side and had no reason to believe that he injured or damaged the underlying nerve. Mr. Kerr s lingual plate remained intact during the procedure and Dr. Hargan did not detect any fractures or other injuries. Mr. Kerr next presented on June 25, 2015 with complaints of numbness in his tongue. At that time, Dr. Hargan was not alarmed by the symptoms and has testified that some residual numbness is expected following the procedure. In addition, Dr. Hargan noted that Mr. Kerr had decreased sensation on the right side of his tongue. Following his examination, Dr. Hargan stressed the importance of following up within the month. Dr. Hargan explained close and careful follow up is warranted in patients such as Mr. Kerr because earlier intervention and treatment of nerve injuries often results in better outcomes. During the first post-op visit, Dr. Hargan was unaware of what might have caused Mr. Kerr s condition. Mr. Kerr next presented on July 31, At that time, he reported that he felt relatively the same, but did have some decrease in the level his pain. Mr. Kerr returned to Dr. Hargan on August 21, At that time, Mr. Kerr had no change in his condition and the right side of his tongue remained numb. However, he no longer reported pain when he protruded his tongue that he had previously reported. At that time, Dr. Hargan referred Mr. Kerr to Dr. Cunningham. 3 MEM : of

4 Despite being referred to Dr. Cunningham in August 2015, Mr. Kerr was not seen by Dr. Cunningham until October 9, At that time, his numbness had progressed to dysesthesia and allodynia. Following his examination, Dr. Cunningham recommended an excision of a lingual nerve neuroma and neuroplasty. Dr. Cunningham recommended surgical exploration and, but Mr. Kerr elected to wait another 2 months before having surgery. The reconstructive surgery was performed by Dr. Cunningham at University of Kentucky in December At that time, Mr. Kerr s lingual nerve was excised, and a cadaver graft was put in its place. According to Dr. Cunningham and the resident physician, Dr. Hoffman, Mr. Kerr s lingual nerve was found to be in an aberrant location that could not have been detected by Dr. Hargan prior to the surgery. QUESTIONS OF FACT 1. Do lingual nerve injuries happen in the absence of negligence? The Plaintiff, through the testimony of Dr. Garabedian, an oral and maxillofacial surgeon practicing in Hollywood who advertises his expert witness services more than he does his clinical practice, claims that lingual nerve injuries do not occur in the absence of negligence. The Plaintiff cannot specify a mechanism of injury, but rather argues the injury in and of itself is evidence of a breach of the standard of care. The Plaintiff is wrong. In stark contrast to Dr. Garabedian, Dr. Hargan and his practice have retained 2 well qualified experts. George Kushner, MD, DMD, a professor or oral surgery at the University of Louisville and Bradley Wurth, DMD, a local oral surgeon, will both testify that Dr. Hargan acted well within the standard of care and that lingual nerve injuries are known complications of third molar extractions. The testimony of Dr. Hoffman will confirm that Mr. Kerr had abnormal anatomy that predisposed him to suffering a lingual nerve injury despite Dr. Hargan s appropriate approach and technique. 4 MEM : of

5 2. Did Dr. Hargan deviate from the standard of care in his treatment of Blake Kerr? As discussed above, the Plaintiff postulates that simply because Mr. Kerr suffered an injury to his lingual nerve, Dr. Hargan was negligent. This is a red-herring. The Plaintiff has no proof of how the injury occurred and the Plaintiff s expert ignores the fact that Mr. Kerr had an abnormally flared mandible that predisposed him to a lingual nerve injury. There was nothing that Dr. Hargan could have done to detect this abnormality and the standard of care does not require it. Dr. Hargan adequately advised Mr. Kerr s parents of the inherent risks involved with the procedure and they accepted those risks. Further, Dr. Hargan will, through the testimony of Dr. Wurth and Dr. Kushner, unequivocally prove that Dr. Hargan met the standard of care in his treatment of Mr. Kerr. 3. Was Mr. Kerr damaged by the alleged negligence? Mr. Kerr is seeking in excess of $2,000,000 for his alleged damages. Dr. Hargan contests the validity of all claimed damages and will call into question Mr. Kerr s actions or inactions in doing so. Further, the Plaintiff has not sought any treatment for his alleged pain and suffering for 3 years. QUESTIONS OF LAW There are no novel issues of law, and no motions pending before the court other than Motions in Limine filed this date, to be heard at the pretrial conference. 5 MEM : of

6 Respectfully submitted, /s/ Carl W. Walter II Mark E. Nichols Carl W. Walter II Jeffrey A. Darling Nichols Walter PLLC 3120 Wall Street, Suite 210 Lexington, KY Counsel for Defendants CERTIFICATE OF SERVICE The foregoing has been served upon the following on this the 28th day of February Christopher W. Haden 1041 Goss Avenue, Suite 4 Louisville, KY (502) chris@hadeninjurylaw.com /s/ Carl W. Walter II Carl W. Walter II 6 MEM : of