KBR Partner Douglas J. FitzMorris won a defense verdict on behalf of an orthodontist following a 10 day jury trial in Richmond County, New York.  The defendant was accused of dental malpractice and wrongful death in failing to timely diagnose tongue cancer in a then 19 year old patient who he was treating with braces.

Plaintiff, the decedent’s mother, had alleged the defendant negligently failed to appreciate a highly suspicious lesion on the lateral left border of her daughter’s tongue during orthodontic consultations spanning over several months.  As a result, a delay in diagnosis of oral squamous cell carcinoma was alleged.  Plaintiff argued the later referral to an oral surgeon for biopsy was too little too late. The defense argued that the lesion was growing within the deep substance of tongue and was not appreciable until it had grown to 3cm or more in size and had spread both locally to cervical nodes and distantly to other sites. Accordingly, the decedent’s tragic death was not the fault of the orthodontist, but rather was the unfortunate and tragic consequence of the aggressive and advanced nature of the cancer. At the time of diagnosis the cancer had already progressed to stage IV.  The plaintiff’s decedent, then only 20 years old, died of complications secondary to widespread metastatic oral squamous cell carcinoma approximately one year after diagnosis. 

Following a ten day trial, the jury deliberated for less than two hours before returning a unanimous defense verdict.

(Hare, Supreme Court, Richmond County, Index No. 100622/06).