RICK KLINE, D.D.S. AND KLINE DENTAL IMPLANT, PLLC D/B/A SMILE TEXAS, Appellants
ANTHONY LEONARD, Appellee
Appeal from the 434th District Court Fort Bend County, Texas
Trial Court Case No. 18-DCV-252609
consists of Chief Justice Radack and Justices Landau and
RADACK CHIEF JUSTICE
interlocutory appeal,  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 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
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.
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.
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.
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
August 6, 2018, appellants answered Leonard's suit with a
general denial.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,  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.
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."
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
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
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
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
. . . . 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.
recommended a treatment plan involving reconstruction of the
prostheses, which Leonard was undergoing at the time of the
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.
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."
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 ...