‘Same Transaction’ Test Saves Refiled Suit

A plaintiff who nonsuited her dental malpractice suit alleging nerve damage from a negligent root canal, but refiled her complaint with additional allegations, survives defendant’s plea in bar with the Alexandria Circuit Court’s application of the “same transaction or occurrence” test, instead of the “same evidence” test advocated by defendant.

The original complaint stated that defendant commenced a root canal on teeth 18 and 20, and that a “radiographic evaluation showed that the root canal treatments on teeth numbers 19 and 20 were not complete.” In addition, it states that the lingual cortical plate was perforated, that a subsequent exam by a different doctor found “severe sensory nerve deficits,” and that plaintiff “suffered injury to her oral and maxillofacial dentition and nerve structures.”

The original complaint stated that defendant “incompetently performed an extraction injury” to plaintiff’s “left inferior alveolar nerve and left lingual nerve,” and that a doctor diagnosed plaintiff with “traumatic injury of her left inferior alveolar nerve and left lingual nerve.”

The new complaint, filed after the nonsuit, alleges additional details about the root canal of tooth 18, including that defendant: did not maintain the file within the body of tooth 18; pushed the file through and beyond the apex of tooth 18; by this instrumentation beyond the apex, defendant perforated the inferior alveolar canal with his endodontic file; and; as a result of perforating the inferior alveolar nerve canal with his file, defendant also injured the neurovascular bundle within the inferior alveolar canal by piercing it with the endodontic file.

Under these facts, the law supports applying the “same transaction or occurrence” test as applied by multiple Virginia trial courts. The court rejects the “same evidence” test urged by defendants and applied by additional, different Virginia trial courts.

The court overrules the plea in bar.

Panth v. Ashouripour, DDS (Clark) No. CL 16002520, Jan. 18, 2017 (amended Nov. 14, 2016 opinion); James C. Frogale, Marc A. Brown for the parties. VLW 017-8-006, 2 pp.