Claimant was the only witness at trial who had first-hand knowledge of the
events giving rise to his claim. Ordinarily, this would cause me to place great
weight upon his testimony, but not in this case. His testimony was often vague
and contradictory. In my view, this was due in part to a selective memory and
in part to the significant passage of time from August 1987 to the date of
trial. Because I found Claimant's recollection to be wanting, I have relied
more heavily on Claimant's dental records than his testimony.
The records reveal that Claimant entered into the custody of the Department of
Correctional Services (DOCS) in 1983 and began receiving dental care from
Defendant's staff dentists. An initial clinical examination conducted on March
30, 1983 at the Attica Correctional Facility (Exhibit A, p. 250) noted that
Claimant's deciduous (baby) cuspid teeth, designated as D3 and D8, had not
fallen out of his upper gum and that adult cuspids, #6 and #11, had not
descended into his dental arch. X-rays taken on July 9, 1984 confirmed that he
had permanent cuspids, but that they were severely impacted and were lodged
behind, and at an angle to, his front teeth (Exhibits 4A-4D). His baby cuspids
were apparently preventing #6 and #11 from erupting and moving correctly into
his mouth. Claimant testified that he was not aware of this situation until
Defendant's dentists brought it to his attention and was not suffering any pain
or discomfort because of it. The contemporaneous dental records support
Claimant's recollection of this issue.
By 1985, Defendant's dentists had apparently formulated a strategy for dealing
with Claimant's cuspids. An unidentified dentist prepared a Request for
Approval for Outside Dental Procedure dated May 24, 1985, which suggested
extracting Claimant's deciduous cuspids, uncovering his adult cuspids and using
orthodontic wire loops to try to move the adult cuspids into his dental arch.
There is no indication that Defendant ever approved or rejected this 1985
The plan resurfaced six months later when Claimant came under the care of Dr.
Godfrey, a staff dentist at Auburn. Dr. Godfrey prepared a request for
consultation in which he asked to "please uncover #6 and #11 impacted cuspids
and put ortho wire around neck of each with a loop end on each to enable us to
move them. Extract D3 deciduous cuspid and D8 deciduous cuspid" (Exhibit A, pp.
49, 50, 134, 135, 136). Dr. Karpinski, who apparently had some responsibility
for evaluating such requests, responded on January 15, 1986 that he would
"discuss case [with] Dr. Godfrey" (Exhibit A, pp. 49, 50, 134, 135, 136). When
another Auburn dentist, Dr. Pollard, issued a request for referral on May 28,
1987, Dr. Karpinski replied on June 19, 1987, much as he had six months earlier,
that he "would discuss imp. cuspids [with] Dr. Godfrey" (Exhibit A, pp.
A note in the file states that Dr. Karpinski discussed the proposed procedure
with Claimant in June of 1987. According to the note, he informed Claimant that
it was a long, involved surgical and orthodontic process, and he recommended not
to move the cuspids but to leave them alone and to x-ray periodically (Exhibit
A, p. 252). At trial, Claimant acknowledged having a discussion of this nature
with Dr. Karpinski. He also recalled a similar conversation with Dr. Godfrey
about the duration of the procedure, but said that Dr. Godfrey encouraged him to
go forward with the entire procedure, including the wiring and movement of his
On August 11, 1987, Claimant decided to let Dr. Godfrey extract his deciduous
cuspids. Interestingly, the dental records for that day reflect that Claimant
initially refused the extraction of D3 and D8 (Exhibit A, p. 252). While
Claimant argues that the deciduous cuspids should not have been removed, and
there is no signed consent in the record to reflect that he changed his previous
refusal, he admitted on cross-examination that he had, in fact, verbally
consented to the extraction of these teeth, and indeed, to the entire plan for
Claimant's dental records reflect continued attention to his cuspids during the
next several months. An entry dated August 28, 1987, indicated that Dr. Godfrey
intended to uncover #6, place wire around it, and then move it distally and
labially to try to bring it into the arch (Exhibit A, p. 252). On September 16,
1987, the notes indicate that #6 was surgically uncovered, with tissue and bone
being removed and packs placed around the tooth (
). These packs were removed on September 18, 1987, and on
September 22, 1987, Dr. Godfrey noted that Claimant was healing (Exhibit A, p.
253). On December 9, 1987, Dr. Godfrey again examined Claimant and noted that
he had healed at #6 and that to apply the wire would be a 45-minute procedure
(Exhibit A, p. 253).
While there are further references to #6, it is clear that no effort was ever
made to use orthodontic wire to bring it into the dental arch. According to
Claimant, Dr. Godfrey exposed the tooth and placed a wire around it to begin the
relocation. The wire then broke and Dr. Godfrey allegedly told Claimant that
the wire was of the wrong gauge and could not be used in the procedure.
Claimant offered two versions of what followed. He testified that Dr. Godfrey
removed the wire, packed Claimant's tooth with gauze and told him to come back
in a few days. Claimant also testified that Dr. Godfrey left a fragment of the
broken wire in his mouth. According to Claimant, the fragment remained in his
mouth for a period of several months to more than one year.
In the months following September 16th, Claimant recalled asking Dr. Godfrey
repeatedly when he would begin to reposition the #6 cuspid. According to
Claimant, Dr. Godfrey kept telling him during this period that he was trying to
obtain the proper wire to complete the procedure. The dental records may
provide some corroboration for this part of Claimant's testimony. On June 10,
1988, the record reflects that Dr. Godfrey was "try[ing] to get ortho supplies
to move teeth" (Exhibit A, p. 254). While it is not clear whether Dr. Godfrey
was trying to get wire or some other ortho supplies, it is clear that the ortho
supplies, whatever they were, were sought to facilitate the relocation of the
cuspids. According to the records, June 10
th was also the date of Claimant's last visit to Dr. Godfrey regarding #6
(Exhibit A, p. 254). Dr. Godfrey left Defendant's employ in December 1988.
Before he left, he extracted another one of Claimant's teeth on October 13,
Slightly more than six months passed between Claimant's last visit to Dr.
Godfrey in October 1988 and his next dental evaluation on May 1, 1989. His
chart reflects that the next dentist who saw him, Dr. Herbert, recommended the
extraction of cuspid #6 to Claimant. According to Dr. Herbert's note, Claimant
agreed to proceed. The tooth was not then removed, however.
Claimant was next evaluated by Dr. Palm on November 2, 1989 -- about six months
to the day after his appointment with Dr. Herbert. The note of Dr. Palm on
November 2, 1989 is most informative, since it apparently reflects his
discussion with Claimant. It indicates that the deciduous teeth had been
extracted in the hope that #6 and #11 would erupt, but that it had not happened.
Dr. Palm also noted that while #6 was exposed, #11 was still impacted. Claimant
was apparently to decide whether he wanted to remove these teeth. However, there
is no further reference in Claimant's dental records to #6 until April 19, 1994,
when the record reflects that Dr. John E. Young removed it. At the time of
trial, #11 had not been removed.
Claimant describes the period following the exposure of cuspid #6 in September
1987 and its removal in April 1994 as a time when he was plagued by unrelenting
pain, swelling and infections. He says that the exposure of #6 left him with a
in the roof of his mouth and a "can opener" that cut his tongue. He claims that
he had to visit Defendant's dentists repeatedly to obtain penicillin for his
infections and pain killers for his pain. The dental records do not, however,
corroborate his story. They suggest that he endured an initial period of pain
and discomfort but had fully recovered by mid-October 1987. He received Motrin
and penicillin on August 11, 1987 when Dr. Godfrey removed his deciduous cuspids
and on September 16, 1987, when Dr. Godfrey exposed the #6 cuspid (Exhibit A,
pp. 252-253). This was followed by prescriptions for Tylenol No. 3 (with
codeine) on September 22, 1987 and September 30, 1987 (Exhibit A, pp. 253).
Though antibiotics and pain relievers were prescribed at various times during
1988, the records make clear that the medications were given to him to treat
other dental conditions (Exhibit A, p. 253).
Claimant called Dr. William Mayes, Jr., a staff dentist at Wende, and
Claimant's current treating dentist. Dr. Mayes explained that DOCS dental
policies permit the extraction of baby teeth and the uncovering of impacted
teeth, but that special authorization is needed to perform an orthodontic
procedure such as the gross movement of teeth that Dr. Godfrey proposed for #6
and #11. Reviewing Claimant's file, Dr. Mayes saw no indication that Dr.
Godfrey had obtained such authorization. Over Defendant's objection, the Court
permitted Dr. Mayes to testify generally regarding the standard of care inmates
can expect from dentists on DOCS staff and to refer to the Health Service Policy
Manual. However, the manual was dated January 14, 1993, long after the
critical events at issue here, and Dr. Mayes' testimony demonstrated that he was
unable to offer the Court or Claimant any meaningful assistance about the
policies in effect at the relevant time. Consequently, the Court has given no
weight to his testimony or to the manual's contents insofar as they were offered
to establish a standard of care.
Claimant then called Dr. Richard J. Dietz, a duly licensed dentist who
practices in Syracuse. Dr. Dietz, although he had never examined or treated
Claimant, was aware of the general allegations in the claim and had reviewed
Claimant's record and the pleadings. Simply stated, Dr. Dietz concluded that
the treatment rendered to Claimant was a deviation from good and accepted dental
care and violated the generally accepted dental standard. Since the impacted
teeth were in the palate, which is rich in nerves and blood vessels, Dr. Dietz
believed that a regular dentist should not attempt the exposure or movement of
these teeth. He opined that Claimant should have been referred to an oral
surgeon, an orthodontist, or both, for the treatment proposed by Dr. Godfrey, as
they had specialized training for this procedure. He also felt that removal of
the cuspids known as D3 and D8 was unwarranted, as they were not causing
Claimant any distress. He opined that once cuspid #6 was exposed, Dr. Godfrey
should not have left it unattended, but should have had the necessary
orthodontic supplies on hand or immediately obtained the supplies so he could
wire the tooth in order to move it distally and labially. Uncovering #6
without the supplies available and approval from the regional dental director of
DOCS in the record, deviated from good and accepted practice. Lastly, in his
opinion, it was a deviation from accepted standards of care not to have removed
the piece of broken wire from the gum around #6.
It should be noted that due to the time constraints caused by prior commitments
of both Dr. Dietz and the State's expert, the Court released Dr. Dietz after his
direct examination and reserved to the State the right to cross-examine Dr.
Dietz on Friday, June 11, 1999, when he would next be available. After due
consideration, and by letter dated June 16, 1999, Defendant informed the Court
that it had determined not to conduct a cross-examination of Dr. Dietz. In
light of the waiver, the Court subsequently deemed Claimant's proof
The Defendant's only witness was Dr. Barry H. Hendler, DDS, MD, whose specialty
is in the field of oral surgery. Dr. Hendler's testimony, based upon his review
of Claimant's dental history and record, was very credible and the Court has
given it great weight. In the first instance, he opined that for a patient of
Claimant's age it was unwise and unhealthy to permit baby teeth to remain in
place. He explained that these teeth had long outlived their intended life
span. One of them, D3, was showing signs of decay, while the other, D8, was
missing part of its enamel. Because the teeth were baby teeth, their root
canals had likely calcified, making it impossible to do a root canal procedure
to address the decay. In addition, Claimant's dental chart recorded signs of
periodontal disease. In 1984, Claimant's x-rays already revealed significant
bone loss around the root of D3 and somewhat less bone loss around D8. In Dr.
Hendler's view, it was only a matter of time before Claimant stood to lose both
teeth, even if they were not extracted. Leaving them in would exacerbate the
impaction of the adult teeth and lead to irritation and infection.
Dr. Hendler also explained that there were good reasons to want to address the
impacted adult cuspids. The location of the impacted adult teeth was such that
they would, in his opinion, eventually damage the roots of Claimant's permanent
front teeth, resulting in their loss at the worst, and at best root canals to
preserve them. He opined that the plan submitted on May 24, 1985 to remove D3
and D8, uncover #6 and #11, and thereafter to bring these teeth into alignment
by use of wires was a reasonable procedure. Further, since #6 was not impacted
in the palate of the mouth, the cutting away of the tissue covering #6 was
consistent with good dental practice. He further opined that while use of wires
to draw #6 and #11 into proper position was preferable, it was within the
standard of care to uncover these teeth and wait to see whether they would move
into proper alignment on their own.
The testimony of Dr. Dietz and Dr. Hendler demonstrated that reasonable
professionals could have made different judgments about the best way to address
Claimant's dental concerns. My task in this dental malpractice case is not to
decide what the best judgment would have been, but to evaluate whether the
course of action that Defendant actually recommended was inconsistent with the
standard of care and whether Defendant deviated from the standard in actually
carrying out that course of action (
see, Schrempf v State of New York
, 66 NY2d 289, 295;
Matosic v Gelb
, 232 AD2d 221).
I conclude that Dr. Godfrey did not depart from the standard of care when he
decided to remove Claimant's deciduous cuspids. Dr. Hendler persuaded me that
there were a number of valid reasons that a reasonable dentist might conclude
that it was healthier to remove Claimant's deciduous cuspids than to maintain
the status quo.
I also conclude that it was not a departure from the standard of care for Dr.
Godfrey to decide to expose Claimant's impacted adult cuspid #6 and to try to
use wire in an effort to move it. Dr. Dietz did not challenge the ultimate
validity of this procedure. He simply testified that he would have referred
this case to a specialist because the adult cuspids were positioned in a
sensitive area in the roof of Claimant's mouth. I find his opinion to be
inapposite for two reasons, First, I am persuaded that the tooth was not lodged
in the roof of Claimant's mouth as Dr. Deitz described, but rather was
positioned right behind his front teeth as described by Dr. Hendler. Second,
there was no proof that Dr. Godfrey was not qualified to perform the procedure
or that any lack of skill or care on Dr. Godfrey's part caused Claimant any
injury or unnecessary pain (
Matosic v Gelb
, 232 AD2d 221,
Though Claimant testified that a broken shard of wire was left in his mouth for
as long as a year, my review of his testimony and the medical files leads me to
conclude that this did not occur. The first time Claimant made any statement in
his testimony about a broken piece of wire being left in his mouth was on
cross-examination, when Defendant asked him about a reference to broken wire
contained in his bill of particulars. Even then, Claimant conceded that he had
never actually seen the wire. As noted above, Claimant's dental records
themselves are devoid of any reference to the application or removal of a wire.
Moreover, there was no testimony from Claimant or his expert linking the alleged
presence of a wire fragment in his mouth to the prolonged symptoms of pain and
infection Claimant described. Indeed, Claimant said that he was not even aware
of the wire until just before it was removed. He thought that it was the
exposed tooth, not the wire, that was cutting his tongue.
The more interesting question is whether Defendant committed dental malpractice
by exposing #6 and then by failing to go forward immediately with the
orthodontic procedure to move it. The experts disagreed on this point. Dr.
Dietz opined that it was malpractice not to apply the wires immediately, but
never explained why. Dr. Hendler testified that it was reasonable to expose the
teeth for a period of time before attempting to move them in an effort to see
whether they would move on their own. Though he pointed out that some
post-exposure movement could be noted from Claimant's 1992 x-rays (Exhibit D),
he conceded that it was improbable under the circumstances that Claimant's teeth
would ever descend into position without orthodontic intervention.
I am persuaded that failing to go forward did not constitute dental
malpractice. I conclude that Dr. Godfrey delayed the procedure because he
wanted to wait and observe whether the permanent cuspids would move on their
own, as Dr. Karpinski had previously suggested. This conclusion is supported by
Dr. Palm's note of November 2, 1989, which suggests that Dr. Godfrey wanted to
wait and see whether #6 and #11 would erupt after the deciduous teeth were
removed. It is also supported by Claimant's admission that Dr. Godfrey told him
that he would not try to move the teeth until "after a period of time" had
elapsed after the teeth were exposed and wired. Dr. Godfrey's apparent desire
to secure the orthodontic supplies is not in conflict with his plan to let the
cuspids move on their own, since it was reasonable to assume that should the
teeth not move over a period of time, reconsideration of the wiring procedure in
all likelihood would occur. Moreover, this was not a case where delaying the
procedure exposed Claimant to unnecessary pain or discomfort. The credible
evidence persuaded me that exposure of cuspid #6 did not involve the prolonged
bouts of pain, swelling and infection described by Claimant. Rather, the
procedure went off without significant complications and the pain subsided in a
few weeks. Dr. Hendler's testimony satisfied me that this was not an
extraordinary period of recovery for this procedure.
Having concluded that Claimant promptly returned to normal after #6 was
exposed, I am confronted with a simple question: what actionable harm did
Claimant suffer because Dr. Godfrey delayed the wiring procedure and ultimately
departed Defendant's employ without performing it? I can, on the record, find
none. Though Dr. Dietz thought that Dr. Godfrey should not have delayed, he did
not explain why he held this opinion. Nor did he point to any consequence that
resulted from waiting. It is true, of course, that abandoning the procedure
meant that Claimant's adult cuspids never descended into his dental arch, but in
the final analysis, this too is legally inconsequential. Dr. Hendler testified
that within the standard of care there were two acceptable ways to handle
Claimant's impacted cuspids: moving them as Dr. Godfrey proposed, or extracting
them as Defendant did to cuspid #6 in 1994.
The option of removal was extended to Claimant on his very first visit to
Defendant's dentist after Dr. Godfrey's departure in December 1988. Though he
waited until 1994 to have #6 removed, there is no evidence that Defendant was
responsible for the delay or, parenthetically, for the delay in removing cuspid
#11. To the contrary, it is clear on the record before me, that the staff at
each of the institutions in which Claimant was incarcerated treated his
complaints in a direct and professional manner. Though Claimant acknowledged
that he could request and receive an appointment at any time, there were
prolonged gaps between his visits.
Finally, I am not persuaded that Defendant embarked upon the procedure without
first obtaining Claimant's informed consent. Claimant acknowledged that both
Dr. Godfrey and Dr. Karpinski told him that the procedure would be a long,
involved surgical and orthodontic process. Although Dr. Godfrey reportedly told
him that it would be completed in six to twelve months, Claimant's description
of his discussion with Dr. Karpinski shows that Claimant knew that it might take
much longer. According to Claimant, he told Dr. Karpinski that he was not
concerned that the procedure would be a lengthy one because he was going to be
in prison for a long time.
I am not persuaded, either, that Claimant agreed to exposing #6 without knowing
about the pain it might trigger or the effect it would have upon the contour of
his mouth. Given the tenor of Dr. Karpinski's note and Claimant's own
description of his conversations with Dr. Karpinski and Dr. Godfrey, I find it
implausible that these matters were not discussed with him.
On the basis of the foregoing, I conclude that Claimant has failed to prove by
a preponderance of the credible evidence that the Defendant engaged in dental
malpractice in its treatment and care of his cuspids.
The Defendant's motion to dismiss this claim, made at the end of the trial and
upon which the Court reserved decision, is hereby granted. Claim No. 81829 is
dismissed in its entirety.
All other motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.