Dear PAO
I went to the dentist for my annual oral prophylaxis (dental cleaning). During the procedure, my dentist also performed a dental filling on one of my teeth to prevent the spread of cavities. After a few months, the tooth that had been filled with composite resin started to ache. The pain became unbearable! I consulted another dentist, who discovered that a piece of cotton was left inside my tooth. Because of this, I had to undergo an emergency root canal procedure. Can I sue my dentist for damages?
Chip
Dear Chip,
Yes, your dentist may be held liable for dental malpractice and may be required to pay you damages. The primary statute governing liability for negligent acts is Article 2176 of the New Civil Code, which reads:
“Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.”
“Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation.” (De Jesus vs. Uyloan, et al., G.R. No. 234851, 15 February 2022, penned by Honorable Chief Justice Alexander G. Gesmundo)
In a catena of cases, the failure of the attending physician to remove foreign objects left inside the body after a medical procedure gives rise to a presumption of negligence. As explained in Professional Services, Inc. vs. Agana, G.R. No. 126297, January 31, 2007, penned by Associate Justice Angelina Sandoval-Gutierrez:
“An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se.”
Applying the foregoing, the elements of medical malpractice appear to be present in your situation. First, as your dentist, she had the duty to ensure that all foreign objects that she used were removed upon completion of the operation or procedure. Second, said duty was breached when she left a cotton pellet in your tooth. Third, you suffered an injury that required an emergency root canal. And lastly, the retained cotton appears to be the proximate cause of your resulting complications.
Hence, if you do decide to push through with the complaint, and it is established that the negligence of your dentist caused the injuries you suffered and expenses you incurred, she may be held liable for damages.
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
