The Dead Tooth And Nothing But

An unhappy client may not sue a dentist who told her that a tooth was deceased and the she needed a root canal, according to a decision of the Montana Supreme Court.

On August 28, 2002, a piece of Davenport’s tooth broke and the filling inside dislodged. The following day she sought treatment from Davidson, a dentist. Davidson advised Davenport he believed her tooth was dead and he recommended a root canal to restore the tooth. Davenport firmly did not believe her tooth was dead and requested Davidson restore the filling without a root canal, to which he declined. After further damage to her tooth occurred, Davenport ultimately sought care from another dentist who confirmed Davenport’s belief that her tooth was salvageable without a root canal. On August 24, 2005, Davenport filed a complaint against Davidson with the Montana Medical Legal Panel. After the Panel rendered its decision, she filed a complaint against Davidson in District Court alleging three separate counts: deceit; malice; and fraud.

The court

Davidson represented a diagnosis and a necessary course of action to cure an undisputed problem with Davenport’s tooth. However, Davenport unequivocally asserts she did not believe Davidson’s representations were true. Furthermore, even if Davenport’s allegations are assumed to be true and Davidson fraudulently and deceitfully represented that Davenport’s tooth was dead and the only remedy was a root canal, Davenport did not choose to undergo the recommended procedure, nor did she even see Davidson again. For reasons unknown, Davenport chose to take no course of action until further damage to the tooth occurred.  Simply put, she chose a path exactly opposite from Davidson’s representations, as was her right, but it cannot be construed as detrimental reliance

 And malice cannot stand alone

the District Court properly concluded malice is not a standalone tort claim under Montana law, and rather is an element of a claim for punitive damages that is contingent upon the success of an underlying claim. Sections 27-1-220, -221, MCA. Therefore, because no underlying claim remains to support a parasitic claim of malice, its dismissal by summary judgment is also proper.

It is phrases like “parasitic claim” and “attractive nuisance” that give life to the law.  (Mike Frisch)