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Kline v. Leonard

Court of Appeals of Texas, First District

December 19, 2019


          On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-252609

          Panel consists of Chief Justice Radack and Justices Landau and Hightower.



         In this interlocutory appeal, [1] appellants, Rick Kline, D.D.S. ("Dr. Kline" or "Kline") and Kline Dental Implant, PLLC, doing business as Smile Texas ("Kline Dental"), challenge the trial court's order denying their motion to dismiss the health care liability claim[2] brought against them by appellee, Anthony Leonard. In three issues, appellants contend that the trial court erred in denying their motion to dismiss Leonard's claim because he failed to serve them with an adequate expert report.[3]

         We affirm.


         In October 2011, Leonard underwent dental treatment by Dr. Kline at Kline Dental, doing business as Smile Texas. Leonard sought restorative dental work and expressed his desire to keep as many of his existing teeth as possible. Dr. Kline, a "cosmetic dentist," recommended a treatment plan called "Teeth in a Day," which involved extracting all of Leonard's teeth and replacing them with implants and prostheses, at a cost of $50, 000.

         On June 14, 2012, Dr. Kline extracted all of Leonard's teeth and installed implants and prostheses. Thereafter, Leonard's teeth were non-functional, his prostheses repeatedly detached or broke, and he experienced intense pain. Over the course of the next five years, Leonard returned to Kline for treatment more than 65 times, without success. In October 2017, Kline refused Leonard any further treatment.

         In January 2018, Leonard sought treatment from another restorative dentist, John T. Burdine D.D.S., M.Sc.D. Dr. Burdine determined that the dental work performed by Dr. Kline was non-functional, substandard, and incomplete. Burdine referred Leonard to a prosthodontist, Dr. Robert Velasco, who found that Leonard's prostheses were unstable, ill-fitting, "totally non-functional," and had caused Leonard pain and difficulty speaking. Velasco recommended re-construction of Leonard's prostheses.

         On June 28, 2018, Leonard brought a negligence claim against Dr. Kline, alleging that he owed a duty to exercise the degree of care, skill, and diligence ordinarily possessed and employed by other members of the dental profession in good standing under the same or similar circumstances. Leonard asserted that Kline breached the standard of care by failing to advise him of "all treatment options, including those preserving his existing teeth"; failing to diagnose his periodontal disease; failing to use ordinary care in his treatment; failing to complete his dental restorations in a timely manner; and abandoning him prior to completion of the work. Leonard further alleged that Kline was acting within the course and scope of his employment with Kline Dental and that Kline Dental was vicariously liable for Kline's actions under the doctrine of respondeat superior.

          Leonard asserted that appellants' breaches of the standard of care proximately caused him physical injury, unnecessary extraction of healthy teeth, pain, anxiety, and illness. And, as a direct and proximate result, he suffered pain, mental anguish, and disfigurement, in addition to unnecessary expense.

         On August 6, 2018, appellants answered Leonard's suit with a general denial.[4]On September 6, 2018, Leonard served upon Dr. Kline and Kline Dental an expert report authored by Dr. Burdine, along with his curriculum vitae ("CV"). Burdine, in his report and CV, states that he is a graduate of the University of Texas Health Science Center, Dental Branch, ("UTHSC") and has an advanced degree in periodontology from Boston University-Harvard Medical School. He is currently in private practice in Houston, specializing in the areas of periodontics, [5] oral medicine, and implantology. He has practiced in periodontics and oral medicine since 1975 and implantology since 1987. He is a Clinical Associate Professor at UTHSC, a Diplomate of the American Board of Periodontology, and a published author.

         In his expert report, Dr. Burdine states that he is "familiar with the dental standard of care for dental diagnosis, treatment, and care of patients undergoing full mouth restoration by virtue of [his] medical education, [his] years of dental experience, and specific practice in the field of periodontics." Burdine has personally diagnosed, treated, and cared for many patients with the symptomology Leonard exhibited. Burdine opines that the applicable standard of care "requires that a complete oral, periodontal, occlusal and restorative exam, with both functional and esthetic considerations be made prior to any comprehensive treatment, and that all treatment options be presented to the patient." The standard of care also requires that mounted models of the patient's dentition be created in order to analyze and determine the options for restoration of the natural dentition. Further, the standard of care "requires that all oral diseases be identified and treated prior to comprehensive restorative therapy or oral surgery" and "that a surgeon operate in as clean an environment as possible."

         Dr. Burdine states that he reviewed the records of Dr. Kline's treatment of Leonard from October 2011 through October 2017 and the dental records of Dr. Velasco's treatment of Leonard from February 2018 through June 2018. Burdine also personally examined and evaluated Leonard's condition.

         Based on his review of Dr. Kline's medical records, Dr. Burdine noted that, when Kline first examined Leonard on October 18, 2011, Leonard reported having no loose teeth and no jaw or tooth pain. Leonard complained that his missing teeth simply prevented his full smile, and he stated that he wanted to keep as many of his teeth as possible. The dental x-ray showed that Leonard had 17 teeth remaining, including an impacted third molar. Kline recommended only that he extract all of Leonard's remaining teeth and construct upper and lower prostheses. On June 14, 2012, Kline removed all of Leonard's teeth and placed 11 implants, and "upper and lower prosthetic teeth replacements were delivered." Thereafter, Leonard's course of treatment, some 65 appointments, continued until October 2017, without success. The records reflect that, throughout that period, Leonard experienced infection, prostheses failure, dysfunction, and pain.

         On January 4, 2018, Leonard presented to Dr. Burdine's office complaining of pain, inability to chew, difficulty speaking, and social embarrassment. Leonard was without teeth, aside from a still-impacted third molar. In his examination of Leonard, Burdine noted that "[i]ll-fitting dentures were cemented" to implant abutments and that there was inflammation present around the prostheses. Leonard reported to Burdine, and Kline's records reflected, that the prostheses had a history of detaching and breaking. Burdine referred Leonard to Dr. Velasco, a prosthodontist, for treatment.

Dr. Burdine notes that Dr. Velasco's records reflect his findings that:
The prosthes[e]s [were] ill-fitting, with a very poor occlusal scheme, causing [Leonard] pain and difficulty speaking. Further, Dr. Kline did not deliver what was discussed and promised on the original treatment plan, as the final prosthesis is cement retained Porcelain Fused to Metal (PFM), as opposed to Multilayered full-contour zirconia.
Both upper and lower prosthes[e]s were totally non-functional, with poor fit of each abutment, unstable and hygienically being very difficult to clean, due to both poor fit and design. Because the prosthes[e]s were so ill-fitting, the patient has to re-cement [them] on his own (at home dentistry), and this excess cement caused gingival inflammation around the implants and bone loss around the implants.
. . . . There is a finite life expectancy for the lower implants, as a direct result of the bone loss that has occurred since they were done in 2012.

         Velasco recommended a treatment plan involving reconstruction of the prostheses, which Leonard was undergoing at the time of the report.

         Dr. Burdine opines that, based on a reasonable degree of medical probability, Dr. Kline breached the applicable standard of care by failing to provide Leonard with appropriate and functional dental treatment. Burdine states that the record of Kline's exam, although cursory and limited, indicates "adequate bone on the FMX," "minimal pocket probing on the probe chart," and that the teeth were "stable." Thus, he opines, Leonard's teeth were "clearly salvageable." However, notwithstanding that his teeth were salvageable and that Leonard stated to Kline that he "wanted to keep as many remaining teeth as possible," "the only recommendation made by Dr. Kline was to extract all of [Leonard's] erupted teeth and the construction of upper and lower prosthetic replacements, at a cost of around $50, 000." And, the medical records reflect that Kline discussed treatment fees with Leonard even before taking diagnostic records and formulating treatment options. Burdine explained that such action suggests that Kline utilizes a pre-determined treatment plan, which is "entirely outside of the standard of care." And, "there is no indication that models were mounted," i.e., that models of Leonard's teeth were created to evaluate the way in which they fit together naturally. Burdine opines that Kline breached the standard of care by not discussing all treatment options with Leonard, such as periodontal therapy, routine restorative work, partial denture prostheses, implants, and bridges.

         Dr. Burdine further notes that Dr. Kline stated on the anesthesia record that Leonard had periodontal disease. Thus, opines Burdine, Kline also breached the standard of care by making "no effort" to refer Leonard for a periodontal evaluation or to treat the disease before "embarking on this extreme treatment plan." And, Kline further breached the standard of care by providing Leonard with ill-fitting, non-functional implants and prostheses, that, despite at least 65 follow-up visits over the course of five years, were "never properly completed."

         Dr. Burdine opines that Dr. Kline's breaches of the standard of care resulted in an excessively long course of treatment, during which Leonard experienced pain, difficulty chewing and speaking, and unnecessary expense. In addition, Kline's failure to treat Leonard's oral disease before beginning the restorations ...

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