Mask Removal Blamed for Cold Sore, Herpes Virus

This case involves a thirty-six-year-old woman (plaintiff), who had a crown replaced by the co-defendant dentist and dental assistant. During the procedure, the dental assistant wore a mask to protect a cold sore on her chin. However, the dental assistant had to occasionally pull the mask down during the procedure to talk to the plaintiff. Three days following the visit, the plaintiff developed a cold sore, which she had never done previously.

The plaintiff filed a lawsuit against the dentist and dental assistant, alleging that she developed the cold sore after being exposed to the defendant dental assistant’s cold sore. She claimed that the defendants should have known that a cold sore was transmissible to patients and should have warned the plaintiff and made sure she did not come in contact with the defendant dental assistant. The plaintiff alleged that the defendant dental assistant touched her cold sore with her gloved hand, but then touched the plaintiff’s mouth with the same hand, which is a violation of standard procedure; however, the plaintiff stated she did not actually see this occur.

The defendant dentist asserted that the defendant dental assistant’s cold sore was still covered by the mask even when she had to speak to the plaintiff, and guidelines do not say the outside of the mask cannot be touched during a procedure. Defense experts also argued that herpes virus could have been in the plaintiff’s body for years, and it was merely coincidental that it became active when it did; there is no way of proving when the virus was contracted. Defense experts maintained that the virus requires a warm, moist environment to thrive, and even if it did come in contact with an inanimate object, like the dental assistant’s glove, it would have died quickly.

After deliberating forty-five minutes at the conclusion of a three-day trial, a defense verdict was returned.

With permission from Medical Malpractice Verdicts, Settlements & Experts; Lewis Laska, Editor, 901 Church St., Nashville, TN 37203-3411, 1-800-298-6288.