inmate, alleges dental malpractice/negligence due to improper
removal of Teeth # 24, #25 and #26. At all pertinent times, Claimant was in the
custody of the New York State Department of Correctional Services (DOCS) at the
Auburn Correctional Facility (Auburn).
At the commencement of trial I granted Claimant's motion to amend his claim to
allege negligence/malpractice rather than battery and to increase the ad damnum
(Motion No. M-65143).
The documentary evidence shows that Claimant has received treatments for
problems with his teeth during his incarceration, starting in June 1993 (Exhibit
A). In his claim, Claimant argues that he is seeking monetary damages on the
grounds that he did not give his consent for the extraction of Tooth #25.
Claimant opines that Tooth #25 was a good tooth, that he would not have agreed
to have it removed to simply make room for a partial (denture), that he did not
give his consent to have this tooth removed, and that he is therefore entitled
to damages on the grounds of dental malpractice/negligence.
On cross-examination, Claimant testified that he did not give consent to the
extraction of Teeth #24, #25 or #26. However, while cross-examining Mrs.
Mulvey, the dental assistant, Claimant acknowledged that he recalled giving
permission for Tooth #24 but not #25. This is an overt inconsistency with his
direct testimony and one which frankly undermines Claimant's direct
It is well settled that the State owes a duty to those inmates in its
institutions to provide them with medical care and treatment (
Gordon v City of New York
, 120 AD2d 562, affd
70 NY2d 839). This
care must be reasonable and adequate, as an inmate must rely upon the prison
authorities to treat and diagnose his medical needs (Rivers v State of New
, 159 AD2d 788, lv denied
Claimant, however, bears the burden of establishing that the care and treatment
afforded him by the State constituted a deviation from the applicable standard
of care (
Hale v State of New York
, 53 AD2d 1025, lv denied
40 NY2d 804),
and evidence that such deviation was the proximate cause of the injury or other
damage (Parker v. State of New York,
In this claim, Claimant is asserting damages resulting from a dental procedure.
To maintain this action he may proceed on a theory of dental negligence or
dental malpractice (
). Where treatment of the patient is at issue, as in the
present case, the theory of dental malpractice must be established (Hale,
. To succeed on a claim which sounds in dental malpractice, Claimant
must present evidence of expert medical testimony, the failure of which
necessarily results in the dismissal of the claim (Wells v State of New York,
228 AD2d 581, 582, lv denied
88 NY2d 814). The Claimant's dental
records (Exhibit A) do not suffice as "they are of no benefit to the Court
without expert testimony to establish that the dental procedures taken
constituted malpractice..." (Fominas v State of New York
, Ct Cl,, Sep.
27, 2001 [Claim No. 97030, UID No.
], Patti, J.). Since Claimant has
failed to provide expert testimony as to what the standard of care is with
respect to dental procedures, and that there was a deviation from that standard
of care in his treatment, the cause of action sounding in dental malpractice
fails and hereby is dismissed.
In order for a claim to be read as dental negligence, the facts must be so
blatantly obvious that they can be readily determined by a fact finder using
common knowledge without the need of expert testimony (
). Such cases have involved scalding a patient with a hot
water bottle (Phillips v Buffalo General Hospital
, 239 NY 188), leaving
an electric lightbulb under the sheets (Dillon v Rockaway Beach Hospital,
284 NY 176), leaving a postoperative patient unattended in a bathroom
(Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254), and
other similar circumstances. Since in this case it is not obvious to a lay
person that Claimant's tooth was wrongfully removed, to wit, without consent,
Claimant cannot be successful on the theory of dental
Furthermore, even if the claim was not dismissed on the aforementioned grounds,
I find after examining the documentary evidence and having listened to the oral
testimony, that Claimant
to having Teeth #24, #25 and #26 removed. The
treating dentist credibly testified that it has been his practice for the 16
years that he has been employed by DOCS to only perform procedures that patients
have consented to and never to force a patient or perform a procedure that a
patient had declined to have. The dentist went on to point out it is also his
practice not to obtain written consent for a recommended procedure, but that a
recommended procedure which was declined would be noted in the patient's
The dentist's testimony is further corroborated in this case by the Claimant's
dental records (Exhibit A) showing that in 1994 the dentist recommended that
Teeth #24 and #25 be extracted. However, the teeth were not extracted because
Claimant declined to have the procedure and the treating dentist did not proceed
due to Claimant's lack of consent, as reflected in the dental records.
Thereafter, the dentist performed the extraction procedure, only after (as noted
in the dental records, Exhibit A) Claimant expressed the wish to have the teeth
out, to wit,
Claimant gave consent
. The dentist's testimony is very clear and concise
and follows the linear pattern of the documentary evidence. Claimant's
testimony, however was equivocal, and was not in accord with the documentary
evidence. Claimant has failed to establish that any dental procedure, including
any extraction, was performed without his consent.
Accordingly the claim must be and hereby is dismissed. All motions not
heretofore ruled upon, and Motion No. M-64750 in which decision was reserved,
are now denied.
Let judgment be entered accordingly.