Metropolitan News-Enterprise


Friday, June 6, 2008


Page 3


Dentist’s Alleged Past Patient Abuse Not Evidence of Common Plan—C.A.


By STEVEN M. ELLIS, Staff Writer


A trial court’s ruling that a dentist’s alleged inappropriate acts towards other child patients were admissible to show a common plan or design in a suit by a child who claimed the dentist choked and shoved him during a dental appointment was error, the Third District Court of Appeal held yesterday.

The court ruled that San Joaquin Superior Court Judge Lauren P. Thomasson erred when she concluded that evidence of Donald Ryan’s treatment of other child patients was admissible under Evidence Code Sec. 1101 in D’Michael Brown’s suit alleging assault, battery and professional negligence because both the context of the other incidents and the acts complained of differed from those Brown alleged in his complaint.

Brown brought the suit against Ryan after the dentist performed a pulpectomy—similar to a root canal—on the then-eight-year-old minor’s infected tooth in 2002 while the child’s mother was in the dentist’s waiting room.

The minor claimed that Ryan had completed applying a topical anesthetic and was preparing to give Brown an injection when Brown saw the syringe approach his face and began crying “no, no, no” and kicking his feet. Brown said he also placed his arms above the stomach, but that Ryan then placed his arm on the right side of the child’s neck and pushed, making it impossible for Brown to breathe.

Brown said that one of Ryan’s assistants told the dentist to stop, which he did, and that Brown then requested to use the bathroom.

When Brown returned, he claimed that Ryan slammed him against a wall and held him there, angrily asking if there was going to be a problem and if Brown would let Ryan work on his teeth. Despite being scared, Brown said, he climbed back into the chair and allowed Ryan to complete the procedure.

Ryan, who had been in practice for approximately 28 years at the time and estimated having seen 35,000 to 45,000 patients in his career, agreed that Brown began crying and kicking when he saw the syringe, but he denied ever touching Brown’s neck, or shoving him in any way.

The dentist—whose patients were mostly children, some of whom referred by other dentists because they were difficult to treat—contended that Brown had grabbed his wrist with both hands, and that Ryan had put his forearm on the minor’s chest in order to stabilize the syringe Ryan was carrying because he feared it could hurt Brown, himself, or the dental assistant who was present.

Ryan claimed he let Brown go to the bathroom as soon as the child released his arm, but stopped him before he left by putting a hand on the child’s chest and explaining that there could be no kicking or grabbing. Ryan said that Brown expressed understanding, and then apologized for his conduct upon returning from the bathroom before Ryan resumed the procedure.

The dental assistant who was present with Ryan corroborated the dentist’s account, but another office worker testified that she witnessed Ryan grab Brown near the collarbone and neck and physically shove him against the doorframe.

At trial, Brown’s counsel disclosed that he intended to call numerous witnesses to describe Ryan’s treatment of other children, and Ryan objected, arguing that it was improper character evidence prohibited by Sec. 1101.

Thomasson, finding the evidence relevant to demonstrate Ryan acted with a common plan or design, overruled the objection and allowed 13 witnesses to describe nine separate incidents in which Ryan allegedly struck other child patients. At the close of the trial, the jury voted nine to three in Brown’s favor and awarded him $90,000 in damages.

However, the Court of Appeal, in an opinion by Justice Harry Hull, reversed Thomasson’s evidentiary ruling, holding that the evidence lacked the necessary concurrence of features that would naturally explain all the acts as being manifestations of a single, general plan Ryan had employed.

He explained:

“Defendant was accused of putting his arm against plaintiff’s throat when giving him an injection and then later shoving plaintiff against a wall. None of the witnesses described similar treatment. Some said they were hit, some said they were restrained, some said that defendant employed a hand-over-mouth technique. Neither the context of these other incidents nor the acts complained of shared the requisite common features with the incident plaintiff alleged to have happened.”

Noting Ryan’s testimony about the number of patients the dentist had treated in his career, Hull added:

“Testimony about nine incidents is highly selective and cannot be considered representative…. [T]his evidence demonstrated a character trait, precisely the type of use that section 1101 prohibits.”

Hull also opined that, even if the evidence had been admissible under the statute, Thomasson nonetheless abused her discretion under Sec. 352 in admitting it because the evidence’s probative value was only “slight” while it had “great potential for prejudice, confusion, and consumption of time.”

“The evidence tended to evoke an emotional bias against defendant that clouded the relevant issues in the case,” he said, reversing the judgment.

Justices Rod Davis and Fred K. Morrison joined Hull in his opinion.

The case is Bowen v. Ryan, C051930.


Copyright 2008, Metropolitan News Company