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Dental Patients Infected With Hepatitis Lose Malpractice Claim (1)

July 20, 2021, 7:27 PM; Updated: July 21, 2021, 2:23 PM

Three people who had hepatitis C failed to prove “to a reasonable degree of medical probability” that a dental clinic’s alleged negligence in sterilizing equipment caused their injuries, a district court judge in Texas ruled.

The plaintiffs instead offered “a mere suspicion of causation, and that is not enough,” Judge Jeffrey Vincent Brown of the U.S. District Court for the Southern District of Texas wrote in a Monday order.

Plaintiffs Steven Ledermann, Curtis Green, and Daniel Saldana all received an invasive dental treatment at Coastal Health and Wellness, a pair of federally funded clinics in Texas City and Galveston. All treatments included some sort of surgical extraction of teeth from October 2015 to August 2016.

In February 2018, more than a year after their appointments, the Joint Commission on Accreditation of Healthcare Organizations paid the clinics an unannounced visit where they concluded that the clinics didn’t meet accreditation standards because of administrative and infection issues.

The Joint Commission found their shortcomings were due to “faulty leadership and training of the clinic’s employees.” The commission also found that the clinic failed to properly document the maintenance of sterilization equipment and was “inappropriately administering the spore testing of dental instruments.”

Due to potential exposure to blood-borne pathogens, Galveston County Health District was directed to contact previous patients and invite them to be tested for hepatitis B, hepatitis C, and HIV.

The three plaintiffs sued the U.S. for medical malpractice under the Federal Tort Claims Act after testing positive and recovering from hepatitis C.

The federal tort law defers to Texas personal injury law in cases where the government employee’s negligence could make that employee liable for the plaintiff’s alleged harm.

The plaintiffs failed to prove a key component under the law—a causal connection between the breach and the injury, Brown found. “Given their risk factors, the time at which they visited the clinics, and the evidence of their later-staged infections, the plaintiffs have shown at best a temporal association. That is not enough,” he wrote.

They all had common risk factors for hepatitis C before they visited the clinics.

The evidence suggests the plaintiffs’ hepatitis C infections were longstanding, 10 to 15 years in development. “The advanced stages of the plaintiffs’ liver ailments make it unlikely that they were infected with Hepatitis C as late as 2015 or 2016,” Brown wrote.

Scott Greenlee, counsel for the plaintiffs and an attorney at Tracey Fox King & Walters, said in an email that the court’s “finding of facts are not consistent with the evidence that was admitted at trial. There was evidence of violations of the standard of care for sterilization of dental instruments going back for many years.”

He said the firm plans to appeal.

The U.S. attorney’s office represents the government.

The case is Ledermann et al v. U.S., S.D. Tex., No. 3:19-cv-280/285/312, 2021, 7/19/21.

(Updates July 20 story with comment from the plaintiffs' counsel.)

To contact the reporter on this story: Lesley Torres in California at ltorres@bloombergindustry.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Alexis Kramer at akramer@bloomberglaw.com

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