New York State Court of Claims

New York State Court of Claims

NESBITT v. THE STATE OF NEW YORK, #2001-029-051, Claim No. 95357


Prisoner - dental malpractice. Difference of opinion between experts not sufficient to establish liability. No liability. Dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Martin L. Fisher, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: John M. Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This timely filed claim alleges dental malpractice by Dr. John Reilly, a dentist employed by the defendant at Otisville Correctional Facility (hereinafter Otisville). The trial of this claim was bifurcated and this decision deals only with the issue of liability.

It is undisputed that claimant had an uneventful dental checkup at Otisville on October 1, 1996. However, on October 22, 1996 he appeared at dental sick call complaining of a toothache in his lower left wisdom tooth. It was determined by the dental assistant, Nancy Schoonmaker, that claimant was not in any immediate need of intervention and she gave him Advil. Ms. Schoonmaker testified that claimant was to return to dental sick call the following day, October 23, but did not return until October 28, 1996. On that date, claimant was examined by Dr. Reilly who determined that the wisdom tooth should be extracted immediately. Claimant agreed to the procedure and Dr. Reilly extracted the tooth. Claimant did not receive any antibiotics either prior to the extraction or for two days following the extraction.

On October 30, 1996, Dr. Reilly prescribed Amoxicillin to claimant for an infection and when his condition deteriorated on October 31, 1996, claimant was taken to Horton Hospital. At Horton, it was determined that claimant had a left parapharyngeal space abscess. The abscess was drained and claimant was discharged from Horton to St. Agnes Hospital on November 8, 1996 (see Exh. 2). Claimant was discharged from St. Agnes on November 14, 1996 (see Exh. 3).

Claimant testified that when he went to dental sick call on October 28, 1996, his tooth was causing him a great deal of pain, he was unable to eat and had chills. He also stated that, despite receiving an anesthetic prior to the extraction, he yelled out in pain during the procedure. He further stated that his condition, instead of improving following the extraction, became worse. He stated he had difficulty eating, breathing, swallowing (dysphagia) and sleeping, so he returned to the dental clinic on October 30, 1996, saw Dr. Reilly and was given Amoxicillin, an antibiotic (see Exh.1, Pg. 11). Finally, he testified that he requested antibiotics prior to October 30 but did not receive them.

Claimant called Dr. Saul Stolzenberg to testify on his behalf as an expert witness. Dr. Stolzenberg is a dentist licensed to practice in the State of New York. The doctor stated he is a general dentist, not a specialist, but in all his years in practice, he has performed mostly oral surgery. The State did not object to the designation of Dr. Stolzenberg as an expert witness and he was so qualified.

Dr. Stolzenberg testified that he reviewed claimant's Department of Correctional Services (DOCS) dental records (Exh. 1), Horton Hospital records (Exh. 2), St. Agnes Hospital records (Exh. 3) and the periapical x-ray of claimant's lower left wisdom tooth taken on October 28, 1996 (Exh. 4). The witness stated that the x-ray shows the entire wisdom tooth, its roots and the structures beneath the roots, as well as two molars and that the x-ray shows a large area of decay communicating with the pulphorn - the part of the tooth that contains most of the nerve elements. The doctor stated that there is a dark area at the apex or bottom of the roots which denotes an infection. He opined that the x-ray shows the whole nerve of the wisdom tooth being infected.

Dr. Stolzenberg testified that in reviewing the DOCS dental records (Exh. 1) he did not see a medical history of claimant included. He stated that this is a major deviation from accepted dental practice. He reiterated that the x-ray taken on October 28, 1996 showed the existence of an infection; that when a dentist injects an anesthetic into an area of infection (which the doctor stated is a departure from accepted dental practice) an antibiotic is absolutely required pre-operatively and that the failure to prescribe one in this situation was also a departure from accepted dental practice. Dr. Stolzenberg further concluded that Dr. Reilly was negligent in his use of a dental instrument while extracting the tooth. He stated that two instruments were used, an elevator (a long, sharp instrument used to loosen the tooth) and forceps. He stated that an infection from an extracted wisdom tooth cannot infiltrate the pharynx unless the pharynx has been compromised by a wound. The witness concluded that the elevator tip pierced the pharyngeal wall and inoculated infectious organisms at that site. The witness further opined that Dr. Reilly deviated from accepted dental practice in failing to give claimant an antibiotic immediately following the extraction. Dr. Stolzenberg opined that claimant's symptoms could have been ameliorated by use of pre or post operative antibiotics [1]
and that the extraction should have been postponed until the infection was ameliorated.
On cross-examination, Dr. Stolzenberg stated that there is no indication in claimant's dental record (Exh. 1) of redness, swelling or pain swallowing prior to October 22, 1996. The witness also conceded that the dental records (Exh. 1, Pg. 6) contain a notation that claimant's medical chart was reviewed on October 1, 1996. Thus, this departure from practice standards appears not to have occurred.

Claimant rested at the close of Dr. Stolzenberg's testimony and the Court reserved decision on the State's motion to dismiss.

The State called Nancy Schoonmaker as a witness. Ms. Schoonmaker testified that she has been employed by DOCS at Otisville as a dental assistant for 24 years. Dr. Reilly is her supervisor and has been for the last 18 years. The witness testified that her duties include screening all dental sick call and emergency patients and that she performs visual examinations to see if there is swelling. She also questions patients regarding their condition and takes the patient's temperature. She stated that if a patient presents with a toothache, she checks for redness, swelling and dysphagia.

Ms. Schoonmaker stated that claimant came to the dental clinic on October 22, 1996 complaining of a toothache. She spoke to him, and examined his mouth and did not see any inflammation or redness of the gums. She concluded that claimant was not in any immediate distress and that he should come to sick call the following day to see Dr. Reilly. He did not return on October 23, 1996.

On cross-examination, Ms. Schoonmaker stated that on October 22, 1996 she did not believe claimant had an infection as she did not see any swelling or redness of his gums when she examined his mouth. She further testified that she was present on October 28, 1996 when Dr. Reilly extracted claimant's left wisdom tooth and does not recall claimant yelling out in pain at any time during the procedure. She stated she would remember if he did yell out. The witness testified that on October 30, 1996 claimant came to the clinic complaining of discomfort, dysphagia and chills. She does not recall him complaining of difficulty breathing or swallowing.

The State also called Dr. John Reilly as a witness. Dr. Reilly is licensed in New York and has been employed by DOCS as a dentist at Otisville for approximately 18 years.

Dr. Reilly testified that he treated claimant for the first time on October 1, 1996. He reviewed all of claimant's medical records, questioned claimant regarding his medical history, reviewed x-rays taken in 1993 (the panarex x-ray) and did a hard and soft tissue examination. Of particular importance in this matter is the review of a "panarex" x-ray, taken in 1993, which included the area of claimant's lower left wisdom tooth and which Dr. Reilly testified showed a darkened area below the root structure.[2]
He looked for irregularities - such as redness, swelling and tooth decay. He noted that claimant had enlarged lymph nodes, several cavities and moderate periodontal disease. He also noted on claimant's chart (Exh. 1, Pg. 6) that claimant's wisdom teeth should be extracted at some time in the future. The witness stated that he did not set a date for the extraction of claimant's wisdom teeth.
Dr. Reilly testified that he next saw claimant on October 28, 1996 when he came to sick call complaining of pain in the lower left wisdom tooth. He took the periapical x-ray of the tooth (Exh. 4), palpated and examined the tooth and he also palpated claimant's glands and did not discern any swollen nodes or glands. When he examined claimant's mouth he did not observe any redness of the gum or any indication of any infection spreading through the tissue radiating from the wisdom tooth. The witness explained that the x-ray of claimant's wisdom tooth taken on October 28, 1996 (Exh. 4) showed a darkened area at the base of the root and that this is a sign of infection. It shows that the tooth is not a healthy tooth and needs to be removed. Dr. Reilly stated that swelling, redness, pus, pain and loss of function of the mouth are all indications of an infection in the mouth and when he examined claimant on October 28, 1996, he did not see any swelling, redness or pus and that, while claimant stated he was unable to chew (loss of function), Dr. Reilly stated this dysfunction could have been caused by the large cavity in the lower left wisdom tooth.

After he determined to extract the tooth, Dr. Reilly gave claimant a local parenteral anesthetic. He checked to make sure the anesthetic had taken effect prior to performing the extraction. Dr. Reilly does not recall claimant screaming during the extraction procedure. He did not prescribe any antibiotic medication on October 28 because he believed the source of the problem had been removed. There was no evidence that inflammation or infection was spreading from the area and he did not believe antibiotics were necessary. He placed a suture and the bleeding was controlled.

Dr. Reilly stated that he next saw claimant on October 30, 1996 between 6:00 and 6:30 a.m. in the clinic. Claimant had reported to the nurse during the night, complaining of chills and swollen glands. The doctor examined claimant and found (1) a tender gland near the area of extraction and (2) claimant's throat to be bright red and inflamed. The doctor found no problem with the extraction site. Dr. Reilly prescribed Amoxicillin, told him to stay in bed, rinse his mouth with warm salt water four times a day for four days, excused him from his regular program for three days and referred him to the medical department[3]
for his sore throat. Claimant returned to the clinic on October 31, 1996 at 4:55 a.m. (Exh. 1, Pg. 11). Dr. Reilly stated he examined claimant at sick call at about 6:15 a.m. and the nurse took his temperature, which was elevated. The doctor noticed increased swelling in the area behind claimant's jaw near the ear and suspected a post-operative infection. He told claimant to continue the Amoxicillin. He also spoke to DOCS oral surgeon, asked for his advice and prescribed a second antibiotic. Dr. Reilly stated he wanted to keep claimant in the clinic but claimant wanted to return to his cell to go to bed. Dr. Reilly agreed and told claimant to return every four hours for evaluation. Claimant returned to the clinic at about noon on October 31, at which time Dr. Reilly examined him and determined that the situation had deteriorated and claimant required hospitalization. Claimant was transferred to Horton Hospital at about 2:00 p.m. He was diagnosed with a lateral pharyngeal space infection and treated surgically for same (Exh. 2).
On cross-examination, Dr. Reilly testified that when claimant came to sick call on October 28, he was complaining of pain in the lower left wisdom tooth and of pain when chewing. He stated claimant did not complain of dysphagia. He also testified that he did not puncture the pharyngeal wall with the elevator during the extraction.

On redirect examination, the doctor stated that there is no indication in the Horton Hospital record (Exh. 2) that claimant sustained a laceration or any injury during the extraction.

Dr. John Frattellone, an oral and maxillofacial surgeon testified for the defense. He specializes in the surgical treatment of impacted teeth, as well as the pathology, disease processes, infections and trauma in the area of the body from the neck to the upper eye bone. He received his undergraduate degree from Seton Hall University and his dental degree from the University of Medicine and Dentistry of New Jersey. Following a one year general practice residency, he was in a four year surgical training program at the Westchester Medical Center and received a certificate in Oral Maxillofacial Surgery. The witness stated that he has reviewed all claimant's dental and medical records, which were entered into evidence at the trial, as well as the transcripts of the examinations before trial. The witness was qualified as an expert without objection.

Dr. Frattellone concluded, based upon his review of the medical and dental records, that Dr. Reilly did not deviate from the accepted standard of dental/medical care in his treatment of claimant. He stated that Dr. Reilly did not breach any standard of care by not prescribing antibiotics to claimant prior to the extraction. He testified that the current standard of care is to withhold antibiotics unless there is good reason and evidence to prescribe them. Based upon his review of the record, Dr. Frattellone saw no evidence to indicate a need for pre-extraction antibiotics and no indication in claimant's dental records of an active infection prior to the extraction.

The witness stated that indications of infection are redness, swelling, fever, chills and loss of range of motion of the mandible. The doctor reviewed the x-ray of claimant's wisdom tooth taken October 28, 1996 (Exh. 4) and disagreed with Dr. Stolzenberg's conclusion that the dark area of the x-ray definitively indicated the presence of an infection. Dr. Frattellone concluded that the dark area does not represent the presence of an infection as the dark area was also present in the 1993 panarex x-ray of claimant's teeth (which Dr. Reilly had also reviewed). He
estimated that claimant has a developmental abnormality where the root structure meets the bone and that possibly the roots perforated the lingual cortex in that area. He testified that when something penetrates the cortex, there is a lack of bone, which results in the dark area on the x-ray. The witness stated that the dark area could also indicate (1) a widening of the periodontal ligament space in cases of traumatic malocclusion; (2) a cyst formation or scar tissue from tooth buds developing in the roots in the area; or (3) an infection. The doctor stated his conclusion that Dr. Reilly did not deviate from accepted standards of medical/dental practice in concluding that no infection was present and not prescribing antibiotics to claimant prior to the extraction based upon the October 28, 1996 x-ray (Exh. 4).
Dr. Frattellone further testified that the only authoritative medical organization which provides clinical guidelines for dispensing antibiotics is the American Heart Association and that this organization is in the process of updating its guidelines by reducing the times that the association recommends antibiotics be dispensed to patients as it has been proven antibiotics are not as effective as they once were.

The doctor also opined, based upon his review of the records, that Dr. Reilly did not deviate from the accepted dental/medical standard of care in the manner in which he performed the extraction. He stated there is no indication that claimant's mouth was lacerated or that any instrument Dr. Reilly used during the procedure slipped.

The witness was asked to review the Horton Hospital discharge summary (Exh. 2 unnumbered page 19) and particularly the statement that claimant had a "left parapharyngeal space abscess with spiking fevers, which occurred secondary to a left wisdom tooth extraction". The doctor testified that there is evidence in the record that the infection was not causally related to the extraction and that the phrase "secondary to" is chronological rather than causal. According to the witness, the culture obtained by Dr. Gordon in the operating room at Horton Hospital on October 31 "grew out certain bacteria"
(Staphylococcus Epidermidis) that is not an oral organism, but a skin organism. The witness thus concluded that claimant's infection did not originate from oral microbes but from skin microbes and thus could not originate in claimant's wisdom tooth. Therefore, Dr. Frattellone opined that Dr. Gordon's notation that the infection was secondary to the tooth extraction is causally incorrect.
Dr. Frattellone further concluded that Dr. Reilly did not deviate from accepted medical/dental procedures in not prescribing antibiotics immediately after the extraction. Dr. Frattellone testified that there was no indication of a need for antibiotics post-operatively at the time of the extraction. Of more significance to the issue of proximate cause in the case at bar, Dr. Frattellone testified that had an antibiotic been indicated, Amoxicillin would be a correct choice of medication due to its broad spectrum effect. However, based upon the identification of the bacterial organism subsequent to culture, Dr. Frattellone testified that the organism is not sensitive to Amoxicillin and that, as a result, Amoxicillin would not have altered the outcome in this case even had it been prescribed immediately post-operatively on October 28, 1996. In the Court's view, the identification of the active pathogen as: (1) a dermal pathogen and (2) resistant to Amoxicillin bears directly on the issue of causation for the claimant's unfortunate subsequent complications.

The State is obliged to provide the inmates of its correctional facilities with reasonable and adequate medical treatment (
Rivers v State of New York, 159 AD2d 788, 789, lv denied 76 NY2d 701; Gordon v City of New York, 120 AD2d 562, affd 70 NY2d 839; see also, Powlowski v Wullich, 102 AD2d 575, 587). An action for injuries sustained while under the care of a medical professional or facility may be premised upon a theory of simple negligence, ministerial neglect, or medical malpractice (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Kagan v State of New York, 221 AD2d 7). An action may be premised upon simple negligence in cases where the alleged negligence can readily be determined by the trier of fact upon common knowledge. Where, as here, it is the treatment received by the patient that is in issue, however, the case is premised upon medical malpractice and a claimant must establish that the medical professional involved either did not possess or did not use reasonable care or his/her best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, supra; Pike v Honsinger, 155 NY 201). The proof required in such a case includes the accepted medical standards of care in the community in which the medical professional practices (Toth v Community Hosp. at Glen Cove, 22 NY2d 255) and a deviation or departure from those standards (Kletnieks v Brookhave Mem. Assn., 53 AD2d 169, 176). The practitioner is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment (Pike v Honsinger, supra; DuBois v Decker, 130 NY 325). The "line between medical judgment and deviation from good medical practice is not easy to draw" (Schrempf v State of New York, 66 NY2d 289, 296; Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 684). Liability, however, can ensue if the physician's judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment (Pigno v Bunim, 43 AD2d 718, affd 35 NY2d 841).
The two expert witnesses who testified at trial, Dr. Stolzenberg and Dr. Frattellone had differing opinions regarding the level of care claimant received from the State's dental staff at Otisville. While Dr. Stolzenberg concluded Dr. Reilly deviated from accepted standards of dental/medical care prior to, during and following the extraction of claimant's tooth, Dr. Frattellone concluded that Dr. Reilly did not. The doctors disagreed as to the meaning of the dark area in the x-ray (Exh. 4). Dr. Stolzenberg stated the dark area definitively indicated the presence of an infection, whereas Dr. Frattellone stated infection was one of four possibilities, the most likely of which was a developmental abnormality of a lack of bone in that area. This conclusion was based upon the 1993 panarex x-ray which also showed a darkened area. Thus, the Court cannot conclude that Dr. Reilly's medical judgment in this instance, even if erroneous, constitutes actionable malpractice.

The experts also disagreed as to the necessity of pre and post extraction antibiotics. Dr. Stolzenberg concluded the failure to prescribe them was a departure from accepted standards of medical/dental practice because of the presence of infection. Dr. Frattellone concluded that there was no evidence indicating the use of antibiotics either prior to or immediately following the extraction of claimant's tooth. This Court must find that, if the conclusion of lack of infection was medically reasonable (even if in error) it constitutes, at most, an error in professional judgment and the failure to prescribe antibiotics does not deviate from the standard of care.

Further, the experts differed as to whether Dr. Reilly was negligent in the manner in which he performed the extraction. Dr. Stolzenberg testified that an infection from the wisdom tooth could not jump to claimant's pharynx unless the pharynx was compromised by a wound, which the doctor concluded was caused by Dr. Reilly's negligent use of a dental instrument. Dr. Frattellone, on the other hand, concluded that the record did not contain any evidence that claimant's mouth was lacerated or that any instrument Dr. Reilly used during the extraction slipped, cutting claimant. A review of all evidence, including medical records from the outside hospital, absolutely fails to corroborate any laceration of the pharynx and thus this speculative part of the causal chain is disregarded by the Court.

The difference of opinion between the medical experts who testified at trial does not provide adequate basis to hold the State responsible for malpractice (
Centeno v City of New York, 48 AD2d 812, affd 40 NY2d 932; Mohan v Westchester County Med. Center, 145 AD2d 474; Wilson v State of New York, 112 AD2d 366).
We find, based upon a preponderance of the credible evidence, that claimant failed to establish that the defendant's dentist did not possess or did not use reasonable care or his best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (
see, Pike v Honsinger, 155 NY 201, supra; Hale v State of New York, 53 AD2d 1025, supra). We find that claimant was competently examined and treated. We find that Dr. Reilly acted upon his best judgment in determining the antibiotics were not necessary prior to the extraction or immediately following the extraction. We further find that claimant presented no evidence to establish that Dr. Reilly lacerated claimant's pharynx during the extraction and thus caused the pharyngeal infection. The Court accepts the testimony of Dr. Frattellone on this issue - that claimant's infection did not originate from an oral organism but from a skin organism. Claimant offered no expert testimony or expert documentary evidence to refute this testimony.
Therefore, based upon the foregoing, we find that claimant has failed to establish, by a fair preponderance of the credible evidence, that Dr. Reilly committed malpractice in his care and treatment of claimant. Accordingly, the State's motion to dismiss made at the conclusion of trial, upon which the Court reserved decision, is now granted and the claim is hereby dismissed. All other motions made at trial, upon which the Court reserved decision, are now denied. The Clerk of the Court is directed to enter judgment accordingly.

February 7, 2001
White Plains, New York

Judge of the Court of Claims

[1] Defendant's expert specifically disputes this opinion based upon the organism involved.
[2] This reading was corroborated by Dr. John Frattellone and formed an integral part of both dentists diagnostic impressions in reading the periapical x-ray taken on October 28, 1996.
[3] Although neither side stressed this referral, the Court considers it a critical element in maintaining proper standards of care when Dr. Reilly was faced with a disease process outside his area of practice.