New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2002-005-003, Claim No. 100176, Motion Nos. M-64750, M-65143


Claimant's dental malpractice/negligence claim is 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):
M-64750, M-65143
Cross-motion number(s):

Claimant's attorney:
Earnest L. Johnson, Jr.,
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a
pro se 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 testimony.

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 York, 159 AD2d 788, lv denied 76 NY2d 701).

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, 242 AD2d 785).

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 (
Hale, supra). Where treatment of the patient is at issue, as in the present case, the theory of dental malpractice must be established (Hale, supra). 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. 2001-013-509[1]], 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 (
Hale, supra). 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 negligence.

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
did consent 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 record.

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.

July 2, 2002
Rochester, New York

Judge of the Court of Claims

Court of Claims web site, contains the text of the decision.