Date: 10-22-2015

Case Style: Ryan Maslen v. Smile Zone Pediatric Denistry, P.C., Robert Brian Molloy, D.D.s., d/b/a Smile Zone Pediatric Dentistry, P.C., Hyung Phil Jun, D.D.S., and Cherry David Blevins, C.R.N.A.

Case Number: CJ-2011-6914

Judge: Bryan C. Dixon

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Bill Davis and Peter Ram

Defendant's Attorney: Ryan Childress and Tara Goodnight for Cherry Davis Blevins

Vanessa Hick, Katie Templeton and Kyle Sweet for Smile Zone Pediatric Dentistry, P.C., Molloy, Robert Brian D.D.S. Jun, Hyung Phil D.D.S.

Description: Oklahoma City, OK - Dental group settles medical negligence claims

Ryan Maslen, a minor, by and through his Mother, Guardian and Next Friend, Cynthia Darlene Merril, a/k/a Laslen; and Cynthia Darlene Merrill, individual sued Smile Zone Pediatric Denistry, P.C., Robert Brian Molloy, D.D.s., d/b/a Smile Zone Pediatric Dentistry, P.C., Hyung Phil Jun, D.D.S., and Cherry David Blevins, C.R.N.A. on a medical negligence theory claiming:

1. Plaintiff is the natural mother and Guardian by court appointment of! Ryan Maslen, and brings this First Cause of Action on behalf of Ryan Maslen, a minor, as and for damages resulting from negligence committed by each of the defendants, who jointly and severally, caused and contributed by their acts to producing injuries to him, resulting in permanent disabilities and impairment, which will require medical and nursing care 24/7 for the balance of his life.
2. The acts complained of herein occurred on and prior to April 28,
2011 wherein the minor patient underwent restoration oral surgery procedures in the clinical environs of Smile Zone Pediatric Dentistry Clinic, operated as a Professional Corporation by its owner, Robert Brian Molloy, D.D.S.
3. The negligent acts herein complained of were at all times performed by the agents, servants, and employees of Smile Zone Pediatric Dentistry, P.C. and under the direct control and management of the defendant Robert Brian Molloy, DDS.
4. The defendants, Robert Brian Molloy, a licensed dentist by the
State of Oklahoma; Hyung Phil Jun, DDS licensed dentist by the State of
Oklahoma; and, Cherry Davis Blevins, C.R.N.A., a Nurse Anesthetist, licensed by
the State of Oklahoma, undertook on April 28, 2011 to perform in the Smile Zone
Clinic a pediatric restoration of the teeth of the minor patient, Ryan Maslen.
5. The surgical procedure was commenced by Dr. Jun, supervised by Dr. Molloy, anesthesia administered by defendant Blevins, C.R.N.A., at which time, in the course of the oral surgery, the patient coded, suffering ventricular! tachycardia, which due to the negligence of each of the defendants caused the patient to suffer brain damage, and permanent disability and impairment.
6. That the defendants, and each of them, were negligent in failing to obtain an informed consent to perform the subject surgical procedure.
7. That the defendants negligently failed to conduct standard practice pre-anesthesia screening of the patient prior to placing him under general anesthetic agents that were negligently selected by the defendants.
8. The defendants deviated from standard medical practice in failing to immediately use the appropriate code response and effective medication to reverse the patient’s medical condition allowing for complete recovery.
Wherefore, on this First Cause of Action, plaintiff prays for damages in excess of $75,000 in actual damages, for the pain, suffering, and permanent disability suffered by the minor plaintiff: and, an additional amount in excess of $75,000 as and for the gross failure to safeguard the minor patient from a long- term brain injury, for which punitive damages are sought..
Second Cause of Action
Comes now Cynthia Darlene Merrill, and as the mother of the minor plaintiff, Ryan Maslen, adopts and realleges all of the allegations stated in the First Cause of Action, and for her cause of action alleges and states:
That as the natural Mother of Ryan Maslen, by reason of his permanent impairments suffered by reason of the defendants’ negligent conduct, she has suffered damages for the loss of the love, companionship, and society of her son.
Wherefore, Plaintiff on this her Second Cause of Action, prays for judgment against the defendants for a sum in excess of $75,000.

The Pre-Trial Order for the case provided in part:

2. GENERAL STATEMENT OF FACTS:
a. What: Medical/Dental/Nursing malpractice, Medical Battery and Lack of
lnforrned Consent case relating to alleged injuries sustained during a general anesthetic surgical dental appointment.
b. Where: Smile Zone Pediatric Dentistry office, Oklahoma City, OK.
c. When: April 28, 2011
d. Who: Ryan Maslen is the injured party. Since he is a minor he has a Guardian ad Litem, William C. Cook representing him as Plaintiff.
Defendant CRNA Blevins was the anesthetist who provided anesthesia care to Ryan Maslen at Smile Zone. Defendant Dr. Jun, an employee of
Defendant Smile Zone was the dentist/surgeon. Defendant Dr. Molloy was the supervising dentist/surgeon. Defendant Dr. Molloy was the sole
permittee to supervise the administration of general anesthesia. Defendant Smile Zone was the clinic where the procedure was performed.
Plaintiff’s Statement: This case relates to a young 13 year-old boy, Ryan
Maslen, who was born autistic with other developmental delays, who by reason of these infirmities as he grew older became more active and difficult for his Mother to manage at her home. She turned to the State to care and treat these medical infirmities at the J.D. McCarty Center. JD McCarty undertook the temporary care, but allowed the Mother the right to retain all legal rights associated with Ryan Maslen, including her right to consent to his medical care and treatment.
On April28, 2011, the minor Plaintiff, Ryan Maslen, was delivered by J.D. McCarty staff member, Melissa Hollis, his appointment nurse, to the Smile Zone Pediatric Dental Clinic. According to the records of the Dental Clinic Defendant, he was to have received dental restorations. Dr. Jun intended to do the procedures while Ryan Maslen was under general anesthesia.
The CRNA Defendant Blevins could conduct such dental anesthesia on the child only while acting in the presence of a dentist directly supervising her conduct in anesthetizing the child. The Smile Zone agent, servant and employee charged with this duty was Defendant Dr. Phil Jun. Additionally, the Professional Corporation Smile Zone was owned by Defendant Dr. Brian Molloy, who held the only permit issued by the Dental Board, permitting Dr. Molloy to conduct on-site dental surgery using general anesthesia. These surgeries were directly regulated by rules of the Oklahoma State Dental Board, and also, the Oklahoma State Administrative Code pertaining to Dentists, including references to Certified Registered Nurse Anesthetist.
The cause for the cardiac arrest was the defendants’ decision to use Sevoflurane, which is not to be used on a patient whose Family Medical History references members afflicted with various muscular abnormalities, medically termed as ‘myopathies’, which includes Muscular Dystrophy, and their failure to perform a proper pre-anesthesia evaluation. Maslen’s J.D. McCarty medical records were delivered to the Smile Zone Clinic and were present on April 28, 2011 for the defendants to review.
Defendants were obligated to review these records and failed to do so. Had they done so, they would have seen the records’ contents, which disclosed a family history showing his mother has Muscular Dystrophy, and a Grandfather died from Muscular Dystrophy.
The parties’ expert witnesses all agree the screening of a patient’s family medical history is an absolute duty imposed upon defendants..
Defendants, by their own admission on the Smile Zone Medical Records of Ryan Maslen, list the Family Medical History as ‘Not Known.’ This fact constitutes an admission of direct negligence and causation related to the anesthesia, Sevoflurane. There is testimony from several Smile Zone employees that contradict the anesthesia operative report. It is questionable as to whether any procedures were performed before Ryan Maslen went into cardiac arrest. However, it is not questionable that the Smile Zone employees were not trained for any medical emergency that could and did occur in their office. This is just one aspect of negligence.
Additional negligent factors include failure to use epinephrine’, failure to defibrillate the patient before full cardiac arrest, failure to diagnose malignant hyperthermia, failure to administer Dantrolene, which would have stopped the reaction
Defendants were negligent in going to surgery without the consent of the Patient’s parent/legal representative, performing an unauthorized operation and anesthesia procedure constituting a ‘Battery.’
Defendants knew the standard of care required them to explain the special risks of the surgery and the use of general anesthesia to the minor child’s mother in order to have informed consent. Defendants misrepresented what took place in obtaining a form with the legal representative’s consent on it.
This Consent Form signed by the legal representative was later modified by the defendants, Dr. Jun and CRNA Blevins, when they falsely signed the form, stating they had explained the anesthesia, alternatives and risks to Ryan’s mother.
These acts of fraud, misrepresentation and lying in the creation of this medical record, for the purpose of satisfying the duty to obtain the consent to operate constitutes gross negligence or intentional acts, which would shock the conscious of the community so that they would appear to have satisfied the law of consent, which otherwise would be an unauthorized surgery and a battery. Because of the negligent and intentional actions of Defendants, Ryan Maslen suffered cardiac arrest, resulting in brain damage, and a spinal cord infarct, resulting in paralysis below the waist.
** Defendants specifically object to Plaintiff’s General Statement of Facts as it does not accurately reflect the medical records or evidence in this case. Furthermore, the allegations raised in Plaintiff’s purported General Statement of Facts is not supported by the evidence or testimony. Defendants object to any statement regarding Ryan Maslen’s family medical history in light of the Court’s Order of October 20, 2014, prohibiting mention of the same.
Defendants Statement:
Defendants deny Plaintiff’s allegations of negligence, battery, gross negligence, recklessness, ros ipsa loquitor fraud, and causation. Defendant Smile Zone Pediatric Dental Clinic is a dental clinic and falls within the rules and regulations of the Oklahoma State Board of Dentistry. Smile Zone Pediatric Dental Clinic is not an ambulatory surgical center (ASC), nor is it subject to The Joint Commission (formerly JCAHO) standards which only apply to hospitals and health care organizations which choose to become accredited by that organization. Plaintiff has failed to offer any evidence to support any negligence allegation as to the Defendants. Defendants responded quickly and appropriately to the cardiac arrest suffered by Plaintiff. Within minutes Ryan Maslen was transferred to Children’s Hospital for further treatment. The care and treatment of the minor Plaintiff by the Defendants was at all times proper and within the applicable standard of care.
3. Plaintiff’s Contentions:
a. Battery; Unauthorized TreatmentlTreatment without Consent of Patient Fraud and Misrepresentation. OUJI 14.8; Scott v. Bradford, 19790K 165, 606 P.2d 554; Parris v. Lime, 277 P.3d 1259, 20120K 18; Quarks v. Panchal, 2011 OK 13, 250 P.3d 320; Rolaterv. Strain, 1913 OK 634, 137 P. 96; Jennings v. Badgett, 2010 OK 7, 230 P.3d 861. Karriman v. Orthopedic Clinic, 1973 OK 141, 516 P.2d 534, 539; The Defendants’ failed to obtain authorization to treat/consent from Ryan’s Mother prior to administering general anesthesia and treating Ryan, and therefore committed a Battery. The Defendants obtained consent by fraud and misrepresentation, both in the manner the Defendants obtained the Mother’s signature and by the Defendants signing the consent form attesting to meeting with and explaining to the Mother the procedure, the anesthesia, the risks and alternatives of each, and answering any questions the Mother had, knowing at the time of signing that in fact this never occurred, thereby rendering the consent invalid. Also as a result of Defendants fraud and misrepresentation the consent form is a falsified medical record.
b. Professional NegligencelMalpractice; Lack of Informed Consent; Common Law. Scott v. Bradford, 1979 OK 165, 606 P.2d 554; Paths v. Lime, 277 P.3d 1259, 20120K 18; OUJI 14.10, 14.11. The negligence of the defendants subjecting the minor Ryan to general anesthesia and surgery without a dentist, CRNA, or physician obtaining a legally valid ‘informed consent’ from his Mother as required by law, explaining the details of the procedure and the administration of general anesthesia, identifying the anesthetic agent, identifying and advising her of all material risks associated with her son Ryan being placed under general anesthesia, and obtaining necessary and life-critical information from her or his care givers; the failure of informed consent allowing Ryan’s mother to have the option of having the procedure and general anesthesia in a hospital, or to not have the procedure at all.
c. Professional NegligencelMalpractice; Substandard Pre-anesthesia evaluation; Common Law. Failure to review available J.D. McCarty records of Ryan Maslen noting a Family Medical History of Muscular Dystrophy. The failure to advise the Mother that the fact of her and other family members having suffered from a myopathy or muscular dystrophy, a matter of her family history, the Smile Zone Clinic was not equipped nor staffed to handle a Malignant Hyperthermia crisis should it occur, thus the policy of Smile Zone and Dr. Molloy, owner of the Clinic and supervisor over all of the staff, Ryan Maslenshould have been referred to the Children’s Hospital for treatment
d. Professional NegligencelMalpractice; Common Law. Negligence in the failure to conduct a Pre-Anesthesia Evaluation in accord with acceptable screening standards applicable to all such General Anesthesia operations, including but not limited to screening for Malignant Hyperthermia potential. Failure to properly assess Ryan’s ASA class. Had this occurred in accord with medical/dental standards, the child would have been classified as a Class Ill, requiring his surgical needs to be performed in a Hospital venue where available equipment, staff were on duty to meet any medical crisis which could be anticipated to occur.
e. Professional NegligencelMalpractice; Common Law. Failure to select an anesthesia agent which was not MH sensitive, nor otherwise drug sensitive based upon the patient’s medical history; as per Def. Dr. Malloy, use of propofol’ would have been more appropriate and deemed totally safe for use in the subject case, although Ryan should not have been treated at his Clinic.
f. Professional NegligencelMalpractice; Substandard Rescue (CPR); Common Law. Failing to monitor timely, with standard responses of care timely made, during pre-infusion preparation, recording of all vital signs, extending into time of commencement of infusion of anesthesia, extending to negligent failure to timely monitor the patients’ developing hypermetabolic condition, spiraling into a medical crisis due to elevated levels of potassium, CPK, C02, which received sub-standard of care dental/anesthesia CPR response from the defendants attending in a timely manner as required by Dental/Anesthesia Standards of care.
g. Professional NegligencelMalpractice; Common Law. Failing to monitor the patient closely having undertaken the duty to use extreme caution due to the use of an Malignant Hyperthremia sensitive anesthesia drug, Sevoflurane; and, having causal relationship by such negligence omitting to check and monitor the patients developing symptoms of Malignant Hyperthermia, causing Ryan Maslen to develop a condition known as hyperkalemia, a known precursor to cardiac arrest which occurred shortly after the surgical process had commenced.
h. Professional NegligencelMalpractice; Common Law. Failing to exercise standard medical/dental care in timely “defibrillating” the patient transforming his Ventricular Tachycardia, Ventricular Fibrillation, to normal heart rhythm; failure to administer epinephrine as part of the CPR.
Professional Negligence!Malpractice; Common Law. Failing to have a specific anesthesia plan for responding to medical emergencies in the case of Ryan Maslen in that in such a medical crisis, transferring the patient to another facility requires pre-planning, communication arrangements with the receiving hospital’s response emergency teams, and a plan providing what in the form of medical records, medical histories, causes for the cardiac arrest, the method and manner of the resuscitation efforts, all to be included in the pre-planning for the transfer for a suspected MH patient, one of a differential diagnosis, requiring the use of ‘dantrolene’ as the drug of choice which defendants failed to give prior to transfer to EMSA.
j. Professional NegligencelMalpractice; Common Law. The defendants negligently failed to maintain lVs necessary in the delivery of standard drug infusion prior to cardiac arrest, during CPR, and at all times the patient was in the care of the subject dental clinic providers and staff personnel.
k. Professional NegligencelMalpractice; Common Law. Defendants were negligent in failing to have provided, and trained for a medical emergency which occurred to Ryan Maslen, in that an inadequate number of necessary staff, Registered Nurses, required volume of ‘dantrolene’ to be kept on hand in cases of such MH events, underpin the negligence in failing to prepare and administer ‘dantrolene’ in the subject case, ‘dantrolene’ a standard life saving drug combating the medical ravages of malignant hyperthermia at the time the standard of care requires use prior to transfer to another facility. Failure to administer Epinephrene as required per PALS protocol.
Professional NegligencelMalpractice; Common Law. Defendants, on the day of the surgery, failed to diagnose the subject patient as suffering from Malignant Hyperthermia and responding in accord to such Code emergency as the standards of the MHUSA mandates.
m. Res Ipsa Loquitur; Common Law. OUJI 14.14; Smith v. Hines, 2011 OK 51, 261 P.3d 1129.
n. Reckless misconduct warranting imposition of punitive damages. Damages. OkIa. Stat. tit 23, § 9.1; OUJI 5.6.
o. Negligence PerSe. OAC § 195:20-1-1, etseq.
p. Respondeat Superior and Agency of Smile Zone and Dr. Molloy and
Doctor Jun for actions of CRNA Blevins as an agent, servant and
employee of Defendant Smile Zone, Defendant Jun and Defendant Molloy.
Common Law and Oklahoma Adm. Code, Sec. 195.
Fraud: Common Law. Smile Zone billed for services not rendered to Ryan
Maslen.
r. Negligence of Defendant Molloy; Common Law. Failure to train employees and staff; failure to implement appropriate policies and procedures to create the safety net required; failure to supervise.
Damages or Relief Sought: Plaintiffs seek damages for permanent injury in the form of brain damage impairing the plaintiffs daily functions, requiring tube feeding for the past several years, inability to process the intake of food, communicative difficulties, total paralysis and lack of use of his legs and lower extremities resulting from a spinal cord infarct. Damages for medical care, custodial care of Plaintiff will be for the balance of his life. Damages for pain and suffering, permanent injury, and medical expenses, are being made.
a. Permanent Injury: Amount in excess of $75,000.00;
b. Pain and Suffering, including mental anguish and fright: Amount in excess of
$75,000.00;
c. Medical and Hospital Expenses, past: in excess of $1,150,000.00 (based on current information)
d. Estimated future Medical, Hospital and nursing care expenses to be shown by the evidence;
e. Punitive Damages: An amount in excess of $75,000.00
Defenses:
Defendants deny the damages alleged by Plaintiff. Ryan was autistic and profoundly mentally retarded prior to the arrest, thought to have an IQ of approximately 20. He would have been institutionalized regardless of what happened on April 28, 2011 for the remainder of his life. As such, Plaintiff may not include medical billing related to past and future expenses related to that treatment as part of the damages. Additionally, Plaintiff has failed to present any specific information as to future damages and states that such damages will be based on the evidence. Nor has Plaintiff produced any information related to the medical lien that would allow Defendants the ability to evaluate the past special damages accurately. Furthermore, pursuant to 12 OS. §3009.1, only medical bills that were actually paid are admissible at the time of trial.1

Outcome: Settled for an undisclosed sum and dismissed with prejudice.

Plaintiff's Experts: Bruce Horn, D.D.S.; Evgeny Sidorov, M.D., Ph.D., Mohanad Shukry, M.D., Ph.D., Lon Huff, M.S., C.R.C., C.D.M.S.; Al Moorad, M.D., Oklahoma City, Oklahoma; Curtis Harris, M.S., M.D.,, J.D.; Bonnie Harry, MR.M.

Defendant's Experts: Scott Hamilton, D.D.S., J. Michael Vollers, M.D., Jerry Tomasovic, M.D., Steven Kernie, M.D.

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