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Bey v. Sacks

Risk of jury confusion precluded dentist's attempt to prove informed consent by cross-examining malpractice plaintiff about prior unrelated tooth extractions.

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� 1 Fred Sacks, D.D.S. (“Dr. Sacks”) appeals from the judgment entered by the Honorable Norman Ackerman of the Philadelphia County Court of Common Pleas on December 21, 2000 in favor of Appellees, Robert and Diane Bey (“the Beys”), following a jury trial. Following our review of the trial record before us, we affirm.

� 2 The Beys filed two separate dental malpractice lawsuits against several defendants, including Dr. Sacks, alleging various claims of professional negligence and lack of informed consent, as well as a derivative loss of consortium claim on behalf of Diane Bey. Before trial, the actions were consolidated and certain parties were dismissed. At the conclusion of the trial, the jury returned a verdict in favor of all defendants on the claims of professional negligence, but in favor of the Beys and against Dr. Sacks on the claims of lack of informed consent and loss of consortium. The jury awarded Robert Bey compensatory damages of $400,000 and Diane Bey $200,000 for loss of consortium.

� 3 The record reveals the following relevant facts. On October 19, 1995, Robert Bey (“Mr. Bey”) went to Modern Dental Concepts, Inc. (“MDC”) complaining of a severe toothache. He was examined by a dentist who advised that his upper right second molar either required extraction or a root canal. Although Mr. Bey stated that he wished the tooth to be removed, the dentist was unable to perform the extraction that day because of infection. She prescribed antibiotics for him and requested that he return after several days. At trial, Mr. Bey testified that he returned to MDC the following day, although no indication of this visit appears in MDC’s records. At that time, another dentist in the office referred him to Dr. Sacks, an oral and maxillofacial surgeon also employed by MDC, to have the molar removed.

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