Monday, June 9, 2008
Dr. Giggles?: California Appellate Court Finds Testimony About Prior Child Dental Abuse Was Improperly Admitted Character Evidence
One of my least favorite days of the year is my trip to the dentist's office, which is probably fueled by the fact that I had about 12 baby teeth pulled when I was a kid because those suckers just didn't want to come out. Well, according to a recent lawsuit in California, the child patients of Dr. Donald Ryan had a more legitimate reason to fear entering his dentist's chair, but according to the ruling of the Court of Appeal of California in Bowen v. Ryan, jurors on re-trial will not hear their testimony.
In Ryan, Dr. Ryan was a dentist in practice for about 28 years who had treated around 45,000 patients, with the vast majority of his patients being children, some of whom had been referred by other dentists because they were difficult to treat. One of those patients was 8 year-old D'Michael Bowen. In 2002, Bowen developed an infected tooth but refused to open his mouth when his mother took him to a first dentist. When Bowen's condition worsened, his mother took him to Dr. Ryan, who planned to do a pulpectomy (a procedure similar to a root canal) and applied a topical anesthetic prepatory to Bowen. It is at this point that Bowen's version of events and Dr. Ryan's version of events diverged.
According to Bowen, he began to cry when he saw Dr. Ryan take a syringe from the counter, said that he did not want a shot, and cried “no, no, no” over and over. Bowen began kicking his feet and he put his arms above his stomach, whereupon Dr. Ryan placed his arm on the right side of Bowen's neck and pushed hard, making it impossible for him to breathe. Bowen, however inconsistently described the amount of time that Dr. Ryan placed his arm on his neck, with his estimate ranging from 3 to 4 to 60 seconds. Bowen was consistent in alleging that Dr. Ryan finally let go when his assistant told him to stop. Bowen then used the bathroom, and when he returned, Dr. Ryan slammed him against a wall and held him there, angrily asking if there was going to be a problem and if Bowen would let him work on his teeth. Although Bowen was scared, he said he would cooperate, and Dr. Ryan completed the planned treatment. Bowen thus brought causes of action against Dr. Ryan sounding in assault, battery, and professional negligence.
Bowen's version of events was contradicted by Dr. Ryan (and his dental assistant). Dr. Ryan claimed that after applying the topical anesthetic, he approached the injection site with an unsheathed syringe, whereupon Bowen began kicking and grabbed Dr. Ryan's wrist with both of his hands. Concerned that the needle would hurt Bowen, his dental assistant, or himself, Dr. Ryan put his forearm on Bowen's chest to stabilize the syringe and repeatedly told Bowen to let go of his arm. Bowen then asked to go the bathroom, and Dr. Ryan allowed him to do so after he let go of his arm. Before Bowen left the room, however, Dr. Ryan put his hand on Bowen's chest; he did not push him, but instead explained that his job was to fix Bowen's teeth, and that they could either be fixed here or at the hospital. When Bowen later returned from the bathroom, Dr. Ryan continued the procedure without further incident.
At trial, Bowen presented testimony relating to 9 other incidents of alleged dental abuse of child patients by Dr. Ryan, which involved, inter alia, slapping children, placing a hand over a child's mouth so the child couldn't breathe, strapping down and hitting a child, and lifting a child by the arms. The jury ultimately returned a nine-to-three verdict in favor of plaintiff, awarding him $10,000 for negligent treatment, $10,000 for dental battery, and $70,000 for battery.
On Dr. Ryan's appeal, the Court of Appeal of California noted that the testimony relating to the 9 other incidents would be inadmissible under California Code of Evidence Section 1101(a) if it were simply introduced to prove that Dr. Ryan had a propensity to commit dental abuse against children and thus likely committed dental abuse against Bowen. It noted, however, that the testimony could have been admissible to prove common plan or design under California Evidence Code Section 1101(b).
The problem that the appellate court found with this latter rationale, though, was that the testimony
"did not demonstrate the existence of a common plan. 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."
Moreover, the court found that testimony about nine incidents was highly selective and could not be considered representative of Dr. Ryan's 28 year/45,000 patient career. The court thus reversed and remanded the case with instructions that this testimony be deemed inadmissible on re-trial
I agree with the court's decision. The Bowen incident and the 9 similar incidents weren't that similar at all, and while 9 events would normally seem like a lot of prior incidents, decreasing the amount of similarity needed (i.e., in the case of a serial killer), in the case of a dentist with 45,000 patients, 9 events over 28 years seems, as the court noted, unrepresentative of Dr. Ryan's career.