Amended CompLaint

 

IN THE COURT OF COMMON PLEAS WASHINGTON COUNTY, PENNSYLVANIA

 

Norman J. Staub Jr

                 

                           Plaintiff  

 

Dr. Anthony Kail DDS, and Washington 

Dental, 

 

                          Defendants,

 

COMES NOW, Plaintiff, Norman J. Staub Jr and brings this action against Defendants Dr. Anthony Kail DDS (hereinafter “Dr. Kail”), and Washington Dental (hereinafter “Washington Dental”), and showing the Court as follows:

PARTIES AND VENUE

  1. Plaintiff, Norman J. Staub Jr, was and remains a resident of Washington County, Pennsylvania. 
  2. Defendant, Dr. Anthony Kail DDS, is a Dentist licensed to practice dentistry in Pennsylvania. Said Defendant resides at [ENTER ADDRESS], where he may be served with the Summons and this Complaint. Said Defendant is subject to the jurisdiction and venue of this Court by virtue of being a joint tortfeasor with Defendant Washington Dental. 
  3. Defendant, Washington Dental, is a hospital located at 124 W Chestnut Street Washington, Pennsylvania 15301. Said defendant may be served the aforementioned address. Washington Dental is subject to the jurisdiction and venue of this Court.  
  4. Upon information and belief, Defendant Dr. Kail was an actual and/or apparent and/or ostensible agent and/or employee of Defendant Washington Dental and was acting in the course of said agency/employment, and within the scope of said agency/employment, at all times during which he provided care and treatment to Plaintiff at all times material hereto. Consequently, pursuant to the doctrines of respondeat superior and/or actual, apparent and/or ostensible agency, Defendant Washington Dental is liable to Plaintiff for any and all damages attributable to the negligent acts and/or omissions of said Dr. Kail.
  5. Upon information and belief, the personnel who cared for and treated Plaintiff while he was a patient at Washington Dental were at all times material hereto were actual and/or apparent and/or ostensible agents and/or employees of Washington Dental, and were acting in the course of said agency/employment, and within the scope of said agency/employment, at all times during which they provided care and treatment to Plaintiff. Consequently, pursuant to the doctrines of respondeat superior and/or actual, apparent and/or ostensible agency, Defendant Washington Dental is liable to Plaintiff for any and all damages attributable to the negligent acts and/or omissions of said personnel.
  6. Personal and subject matter jurisdiction in this court exists over the parties to this action and the claims pled. One or more of the Defendants is a resident, has a business and/or office in, or a registered agent for service residing in Washington County, Pennsylvania, and the Defendants are joint tortfeasors. Accordingly, venue is properly laid in this Court. 
  7. Plaintiff reserves the right to amend the complaint, with leave of court, adding additional facts and proving existing ones after the discovery process.

FACTUAL BACKGROUND

  1. On or about September 9, 2018, a fall damaged Plaintiff’s teeth and he made an appointment with Defendant Washington Dental.
  2. On or about September 10, 2018, Plaintiff got an initial appointment at Washington Dental after his teeth were shattered after falling roughly 20 feet as a result of a ladder slipping. Accordingly, Washington Dental offered to repair Plaintiff’s smile. Washington Dental advised that full extraction and dentures were the best option in the circumstances, since Plaintiff’s insurance would not cover the processes necessary to restore Plaintiff’s normal teeth. Notably, Plaintiff’s top teeth (maxillary) were cracked, chipped, and knocked out following the fall. Plaintiff agreed to the dentures.
  3. On or about September 26, 2018, staff from Washington Dental took the measurements of Plaintiff’s top and bottom teeth for the dentures. This procedure was done by either a dental student or assistant who was unsupervised. When finished with the measurements, the said student/assistant got Defendant Dr. Kail who approved the work. This is against standard of care or negligence. Dr. Kail introduced the student and left the room.
  4. On or about October 30, 2018, all of Plaintiff’s remaining top teeth were extracted and Washington Dental issued him his full top denture. Washington Dental did not give Plaintiff stitches and instructed Plaintiff to use denture as a band-aid. Accordingly, Plaintiff complained that the denture did not look or feel right. In response, Dr. Kail told Plaintiff that it was a new denture, so it would fit better once the swelling went down. Also, Plaintiff did not receive a lower partial denture, yet his measurement was taken, and he was informed he would get it.
  5. On or about November 5, 2019, Plaintiff had a Post Operation appointment at Washington Dental. Upon arriving, Dr. Kail asked if they took measurements for the lower partial denture. Dr. Kail proceeded to inform Plaintiff that they would need to take the measurement again since the last one never came in or were lost. Accordingly, Plaintiff agreed to taking the measurements again. This again was done by an unsupervised student/assistant. 
  6. Plaintiff asked why the upper denture sat behind his bottom teeth. All Dr. Kail said was that they are not supposed to do that. He told Plaintiff to make another appointment and he would look on how to fix it.
  7. On or about December 12, 2018, Plaintiff developed Candiditis. Plaintiff also experienced pain in his mouth while wearing the upper denture. Accordingly, he made an appointment with Dr. Kail who made a prescription for the infection and said he would Softline the problematic denture.  Dr. Kail also told Plaintiff that the denture had metal protruding upward from its framework, so he removed it and soft lined it. Plaintiff again asked again about fixing the fact that the denture rests behind his bottom teeth. Dr. Kail told him he did not have any more time to discuss it.
  8. On or about January 10, 2019, Plaintiff made an appointment at Washington Dental for a yeast infection(candidiasis) and was told that the bottom denture had arrived. The said denture occasioned a lot of pain to Plaintiff. When Dr. Kail initially tried to push it into place, it did not work. He pushed down hard until the denture clicked in place, a procedure that was unexplainably painful. The excruciating pain made Plaintiff beg Dr. Kail to remove it quickly and wanted to scream. Dr. Kail said the partial mandibular denture was made too small to fit over Plaintiff’s gums, and too long for his mouth. When Dr. Kail pulled it out for adjustment, Plaintiff screamed and trembled in pain. His mouth hurt still even after the denture was removed. Dr. Kail made some more adjustments and placed it again in Plaintiff’s mouth. The pain was even worse, with the dentures’ hooks digging further into Plaintiff’s tissue, and were cutting into the back of his mouth also. 
  9. Dr. Kail could see how Plaintiff was badly in pain and removed the denture again. He started making more adjustments, and before he could finish, he left the room. He directed Plaintiff to wait a moment, that he would be right back to finish up. Plaintiff was left in room waiting and after roughly 10 minutes, a female dentist or assistant came in to assist Him. She did not identify herself. She placed the denture in Plaintiff’s mouth again, so she could see adjustments to make. Unfortunately, Plaintiff witnessed the same excruciating pain. The female dentist tried to remove the dentures and anytime she pulled up, Plaintiff screamed. She could not handle the hurt. Consequently, the dentist’s attempt to remove the denture from Plaintiff’s mouth failed. 
  10. The dentist left the room, saying, ‘I can’t do this’. Again, Plaintiff was left in the room with an unsupervised student/assistant. Plaintiff made his way to the reception desk to seek for help. He was informed that Dr. Kail was attending to another patient. When Plaintiff realized he could not receive any assistance, he got out of the chair. and tried to pry the denture up himself. It was painful, but he was successful.  
  11. Dr. Kail returned about 15 minutes later, and informed Plaintiff that the appointment had to be rescheduled because they were out of time. Unfortunately, Plaintiff left Washington Dental without getting his issues fully addressed.  
  12. On or about February 4, 2019, Plaintiff went for permanent liner for the upper denture. Dr. Kail did whatever process he needed to press the denture in Plaintiff’s mouth. Plaintiff complained of how the upper denture, just falls out and sits behind his bottom teeth, how he could not talk or even open his mouth unless the denture is glued. Dr. Kail informed Plaintiff that there was nothing to be done, so Plaintiff would just have to keep the set. 
  13. At the time of this Complaint, Plaintiff still has the faulty dentures. He cannot wear them. It is apparent that Dr. Kail and Washington Dental will not fix the issue with dentures they ordered for the Plaintiff. 

21 On or about [ENTER DATE], Plaintiff visited another dentist who confirmed that the dentures were ill fitting and that they need replacement and were improper. 

  1. Dr. Kail had informed Plaintiff that he would help Plaintiff get his smile back. He told Plaintiff that he would use dentures to fix Plaintiff’s mouth and explained that dentures are easily covered by insurance. He added that he was doubtful whether the insurance will cover for the repair of the dentures. However, Plaintiff later learned that his insurance would cover restoration and that it merely required prior authorization.
  2. Consequential and incidental to the Defendants’ action and/or inactions, Plaintiff has been exposed to pain, suffering, mental anguish, and emotional hurt. Currently, Plaintiff experiences a lot of emotional hurt when he looks himself in the mirror every day and notices the void which Dr. Kail’s dentures failed to fill.  The full upper denture rests approximately 3⁄4 of an inch behind Plaintiff’s bottom teeth. Plaintiff cannot talk, eat, or open his mouth with the upper denture in unless it is loaded with glue. 

FIRST CAUSE OF ACTION

NEGLIGENCE 

(Common law negligence, and Pennsylvania Code, Title 42 §§8321-8327 et seq.) 

  1. 24. Plaintiff repeats and realleges the allegations and averments of paragraphs 1-22 as if fully set forth herein.
  2. Defendants, by violating the law indicated herein, engaged in negligence.
  3. Defendants owed a duty of care to Plaintiff to responsibly advise, examine, measure, and fit dentures on Plaintiff. Defendants also had a duty of care to protect Plaintiff from any and all harm in the provision of their services. 
  4. Defendants, including their staff, agents, and/or employees, knew or in the exercise of reasonable care should have known, a fault in their operations would result in harm or injury to Plaintiff. 
  5. Defendants, including their staff, agents, and/or employees, acted unreasonably and negligently in the manner they handled Plaintiff. First, Defendants allowed unsupervised dental students take the measurements. 
  6. Next, Plaintiff was left in a room alone while in pain and with a lower partial denture stuck in his mouth. Defendant Dr. Kail did not excuse himself or give a reason for his leaving the room. Plaintiff had to find his way to the reception desk to ask for assistance. 
  7. Defendants also negligently failed to diagnose Plaintiff’s periodontal disease. 
  8. Dr. Kail negligently told Plaintiff that his insurance would not cover restoration of his teeth. However, Plaintiff found out that the insurance covers such procedures, with prior authorization. Notably, dentures only require pre-authorization, and are easier to get approval for.
  9. Defendants’ acts and/or omissions mentioned herein were the direct and proximate cause of the damages and injuries to Plaintiffs alleged herein. Notably, the poor dental care, dentures and treatment has subjected Plaintiff to emotional hurt. Plaintiff lost his smile since he had his teeth removed because it was less paperwork and was given improper dentures which cannot be worn comfortably, and do not fit him. The improper fit of the dentures made Plaintiff’s upper lip sink in such that whether Plaintiff has the denture on or not still appears as though Plaintiff has no teeth. Accordingly, Plaintiff is always embarrassed to talk, speak smile or even open his mouth. Plaintiff also experiences a lot of pain when fitting the dentures. When he closes his mouth, the denture makes him bite his tongue, pinches the sides of his mouth, and cuts into the back of his mouth. Plaintiff has never been able to use the lower denture. 
  10. Some or all of the acts and/or omissions of the Defendants were grossly, recklessly and wantonly negligent, and were done with utter disregard for the consequences to Plaintiff, and therefore, Plaintiff is therefore entitled to an award of punitive damages.
  11. Plaintiff in no way contributed to the damages and injuries he has sustained.
     Defendants, by reason of their negligence, are liable for all the damages and injuries to Plaintiff proximately caused by their action(s) and/or inaction(s). 

SECOND CAUSE OF ACTION

DENTISTRY MALPRACTISE

(Pennsylvania Code, Title 49, Chapter 33)

  1. Plaintiff repeats and realleges the allegations and averments of paragraphs 1-33 as if fully set forth herein.
  2. Defendants, by violating the law indicated herein, engaged in dentistry malpractice.
  3. Defendants violated the minimum standards of practice required by the aforementioned law. First, Defendants permitted incompetent persons to conduct dental procedure on Plaintiff. Notably, Defendants allowed unsupervised dental students take the measurements.
  4. Defendants also performed unprofessional conduct in various instances. These include: 
  1. Failing to carry out supervisory responsibility with regard to auxiliary personnel or dental residents/interns/students.  

 

  1. Delegating to a person duty that the dentist knows, or has reason to know, the person is not competent to perform or not authorized to perform. Dr. Kail allowed the unidentified female personnel to attend to Plaintiff. The said personnel left a procedure undone stating that she could not do it. 

 

  1. Failing to provide necessary dental care to a patent in a timely manner or to apprise the patient of the need for the care. In this regard, Defendants failed to adjust Plaintiff’s dentures. They also failed to diagnose Plaintiff’s periodontal disease.

 

  1. Defendants also made Misleading, deceptive, untrue, or fraudulent representations to Plaintiff. Dr. Kail had held out to Plaintiff that they would restore Plaintiff’s smile back Accordingly, Plaintiff relied on the said representations to his detriment. 

 

WHEREFORE, upon the aforesaid Causes of Action, Plaintiffs seek the following relief:

  1. That this honorable Court grants an order for compensation against Defendants as joint tortfeasors, jointly and severally, for $240,000.

 

  1. That this honorable Court grants an order for punitive damages against Defendants as joint tortfeasors, jointly and severally, in an amount to be determined by the Court.
  2. That this honorable Court cast the costs of this action against Defendants; and 
  3. That this honorable Court award Plaintiff such other and further relief to which he may be entitled.

 

Dated: 

 

 

 

 

CERTIFICATE OF SERVICE

Plaintiff hereby certifies that a true and correct copy of the above Complaint was served upon all the parties to this action by electronic and/or U.S. mail to their respective addresses as stated below:

                 
                    Anthony J. Kail D.D.S. Inc.

                   124 W Chestnut St 

                    Washington, PA 15301




                    Washington Dental

                    124 West Chestnut ST

                    Washington, PA. 15301

 

Dated: 

 



                 

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