The Washington State Supreme Court ruled on February 5 that a woman who had cow bone grafted into her mouth against her wishes cannot sue the dental office that did the surgery under the state's Consumer Protection Act.
The patient, Mystie Michael, first went to Bright Now! Dental of Olympia for a periodontal bone graft in July 2004. Prior to the procedure, Michael consulted with the periodontist, Betsy Mosquera-Lacy, D.D.S., and informed her that she did not want cow bone used in her mouth -- only human bone.
Dentists typically use the patient's bone (autogenous), synthetic bone, or bone from a bone bank (allograft), or bovine/cow bone (xenograft) for this procedure.
Dr. Mosquera-Lacy ultimately used allograf but ran short during the procedure and had to use a small amount of xenograft to finish, according to court documents.
Michael had an incident of vasovagal syncope after the procedure and had to be taken to the hospital emergency room, according to court documents. Michael blames the incident on an allergic reaction to lidocaine.
"During subsequent calls with Dr. Mosquera-Lacy in regard to medical treatment stemming from the administration of lidocaine and the overdosage of other prescription drugs prescribed by Bright Now Dental of Olympia, Ms. Michael learned that cow bone had in fact been implanted in her jaw," the documents state.
Bright Now! Dental did not charge Michael for the bone graft and reimbursed her $75 for her trip to the emergency room.
Even so, Michael sued Dr. Mosquera-Lacy and Bright Now! Dental for negligence, medical battery, and violations of the Consumer Protection Act (CPA). She later settled her claims against Dr. Mosquera-Lacy, and voluntarily dismissed her negligence and medical battery claims against Bright Now! Dental, choosing instead to pursue the CPA case.
The state Supreme Court rejected the lawsuit on February 5, ruling that Michael's case was not actionable under the CPA law because Bright Now did not act in trade or commerce, nor did its actions impact the public interest.
"There is no evidence that cow bone was used to increase profits or the number of patients," the Supreme Court records state. "When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. We hold Dr. Mosquera-Lacy's use of cow bone was not an entrepreneurial activity."
"We had argued from the beginning that the case was not subject to CPA, and we are pleased that the court agreed," Christopher Tompkins, Brite Now! Dental's attorney, told DrBicuspid.com. "There was no public interest in the charge."
Michael's attorney, Lincoln Beauregard, did not return calls for comment.
Copyright © 2009 DrBicuspid.com
