The Claimant, Diallo Rafik Asar
filed this claim on September 8, 1997 seeking compensation for injuries he
sustained through the alleged dental malpractice and negligence of an employee
of the State of New York. The claimant alleges that on or about June 16, 1997,
while he was incarcerated at the Eastern Correctional Facility (Eastern), a
facility dentist unsuccessfully attempted to extract a tooth and then failed to
provide appropriate follow-up treatment.
Claimant was the only witness to offer testimony at trial. Claimant testified
that a fracture of tooth number 15 was noted in March, 1997 when he went to the
dentist complaining of pain and swelling. Dental treatment records
(Claimant's Exhibit 2)
disclosed that in April 1997 claimant declined to
have the tooth extracted, but then in late May agreed to the procedure which was
scheduled for June 19, 1997. During the course of the tooth extraction,
claimant testified he heard the dentist state "I should've sent him to the
Following that statement,
the dentist told claimant that a small portion of the tooth remained in place
and that it would not cause him any problems. Claimant stated that he
experienced discomfort in the form of a stabbing pain and a feeling of rawness
when he ate. At a follow-up visit, the dentist massaged his gums. Claimant
testified he was not satisfied with the care he received at Eastern and the
attitude of the dentist toward him. In 1999, claimant again experienced pain
from the root tip and sought treatment. He was seen by an oral surgeon and in
February 1999, underwent successful surgery to remove the root
To establish a prima facie case of liability in a medical malpractice action, a
claimant must prove (1) the standard of care in the locality where the treatment
occurred, (2) that the defendant breached that standard of care, and (3) that
the breach of the standard was the proximate cause of injury.
Berger v Becker, 272 AD2d 565
. When the medical malpractice involves
patient treatment, three component duties are owed by the physician to the
patient: (1) the duty to possess the requisite knowledge and skill such as is
possessed by the average member of the medical possession; (2) a duty to
exercise ordinary and reasonable care in the application of such professional
knowledge and skill; and (3) the duty to use his best judgment in the
application of this knowledge and skill. Littlejohn v State of New York 87
AD2d 951, 952 citing Pike v Honsinger, 155 NY 201, 209- 210.
To sustain this burden, a claimant must present expert testimony that the
defendant's conduct constituted a deviation from the requisite standard of care.
Berger v Becker, 272 AD2d 565
, supra; and Koehler v Schwartz, 48 NY2d
(Expert testimony is necessary... unless the
matter is one which is
within the experience and observation of the ordinary juror). See also
Stanback v. State of New York, 163 AD2d 298
(Inmate's expert medical
witness testified to lack of treatment).
Here, the claimant failed to establish a prima facie case of malpractice.
Although the Court reviewed the x-rays and dental records submitted into
(Claimant's Exhibits 1 and 2)
, what constitutes the appropriate standard
of medical care and treatment when a tooth is extracted, and what, if any,
treatment is necessary when the root tip remains in place following the
extraction is not within the experience and observation of the trier of fact.
Claimant offered nothing of probative value to prove that defendant failed to
afford him medical appointments and procedures as appropriate. The claimant
presented no expert testimony to demonstrate that the defendant departed from an
accepted standard of care in leaving the root tip in his jaw or in the course of
treatment he received thereafter.
Accordingly, this claim is dismissed.
Let judgment be entered accordingly.