Claimant seeks compensation for all of his personal suffering as a result of
the defendant's alleged negligence, dental malpractice, negligent infliction of
emotional distress, and ministerial neglect pursuant to Public Officers Law
Claimant testified that while an inmate at Ogdensburg Correctional Facility, he
went to the dental office on January 13, 1998, to have a tooth removed. In the
process of removing the tooth, it broke off. The dentist then made an incision
to claimant's gum to remove the remaining piece of the tooth, which required
three stitches to close. According to claimant, the dentist never gave him
instructions for how to care for the extraction site and did not provide any
pain medication or antibiotics. Claimant testified that the left side of his
face was swollen and he suffered significant pain. On January 15, 1998,
claimant went out for sick call in order to obtain some pain medication. On
January 21, 1998, when the dentist removed the stitches, claimant's face was
still swollen. Apparently, claimant and the dentist engaged in a verbal
altercation at that time, and the dentist allegedly threw claimant out of his
office. Claimant apparently went out to sick call the next day, January 22,
1998, because he was still in pain. The dentist examined him, took an x-ray and
could find nothing wrong.
Claimant testified that he submitted a grievance request for a referral to an
outside specialist. That request was denied. Although the claim asserts both
negligence and malpractice, whether a tooth has been properly extracted and
whether follow-up treatment is necessary; and if so, what follow-up treatment is
appropriate based upon the standard of care in the profession, are matters
outside the common knowledge of the Court as fact finder. (
Wells v State of New York,
228 AD2d 581, lv. denied,
88 NY2d 814;
Hale v State of New York,
53 AD2d 1025, lv. denied,
40 NY2d 804)
As a result, expert testimony is necessary to allow the Court to render a proper
determination of whether the duty of care owed to the claimant was breached.
(Pike v Honsinger,
155 NY 201; Hale v State of New York, supra
Williams v State of New York
, 164 Misc 2d 783, 785) Medical records
alone are insufficient to permit the Court to determine whether the State's
dentist committed malpractice. Without expert testimony, claimant has failed to
establish a prima facie case of malpractice.
Claimant also cannot recover for ministerial negligence. Ministerial
negligence involves the potential liability of a governmental entity for
negligently performed ministerial acts of its employees meaning conduct
requiring adherence to a governing rule with a compulsory result.
(Lauer v City of
New York, 95 NY2d 95, 99) A ministerial act, as opposed
to a discretionary act, is not protected by governmental immunity; and
therefore, liability can attach for ministerial action which is tortious.
(Lauer v City of New York, supra)
Whether a dentist properly removed a
tooth and provided appropriate follow-up treatment are not ministerial matters
but rather issues of dental malpractice, which as determined above, claimant
failed to prove.
Claimant's negligent infliction of emotional distress cause of action fails as
well. Such a cause of action requires proof that the conduct is so extreme in
degree and outrageous in character as to go beyond all possible bounds of
decency so as to be regarded as atrocious and utterly intolerable in a civilized
Naturman v Crain Communications,
216 AD2d 150; Hernandez v City of New
255 AD2d 202) The conduct must be such that it
endangers one's physical safety or causes fear for one's physical safety.
(Losquadro v Winthrop University Hosp.
216 AD2d 533) Claimant has failed
to show the defendant engaged in such conduct.
Accordingly, the claim is DISMISSED. LET JUDGMENT BE ENTERED