This claim, based on allegations of dental malpractice, arose on November 17,
1997, when, according to Claimant, a dentist at Wende Correctional Facility
(Wende) removed the wrong tooth.
At trial, Claimant testified that on the date in question he went to the
facility dental clinic complaining of a toothache and consulted with a Dr.
Walker. He had previously had problems with the tooth and it had been filled
at the facility. The tooth was removed, but as soon as the anesthetic wore off
and he was able to remove the gauze pad, Claimant discovered that it was the
tooth next to the one that had been extracted that was bothering him and the
pain was undiminished. He stated that it was another three months before the
"correct" tooth was removed. During that time he was given Motrin, but it was
not entirely successful in relieving the pain, especially at night.
The consent form signed by Claimant (Exhibit A) gave permission for two teeth,
indicated as #15 and #16, to be extracted. As shown on a chart from Claimant's
dental records (Exhibit 1), #16 was the last tooth on the right side of
Claimant's upper jaw; #15 was the adjacent tooth, which had previously been
filled. Claimant testified that while he did not know which tooth was which by
number, he was told that the tooth that was bothering him was the one that
already had a filling in it (i.e., #15).
Defendant called Dr. William Mayes, dental director of the dental clinic at
Wende, who testified that Dr. Walker, who had performed the extractions, is no
longer employed by the Department of Correctional Services. Dr. Mayes
identified Claimant's dental records (Exhibit B) and read an entry dated August
25, 1997 which stated that Claimant had complained about pain in tooth #15,
which had been filled in November 1995. At the August appointment, Claimant was
examined, given Motrin, and told to return for possible extraction of both #15
and #16. Claimant was seen again in October, at which time he continued to
complain about both #15 and #16, and he indicated at that appointment that he
wanted to have both teeth extracted. Dr. Walker approved the extraction of both
teeth and an appointment for their removal was scheduled.
The notation for November 17, 1997, signed by Dr. Walker states: "[patient]
requests only #16 be [extracted] at this time - 'it is the only one bothering
me'." Details of the extraction are given, with an additional note that the
patient was to indicate if he wanted #15 extracted at some later date.
According to these records, extraction of tooth #15 was requested and performed
on January 26, 1998. Dr. Mayes testified that, based on his review of the
records, in his professional opinion, both #15 and #16 needed to be extracted at
least as early as October 1997.
The file of Claimant's written communications with the dental clinic (Exhibit
C) includes a note from him dated November 18, 1997, which states in relevant
[Y]esterday, November 17, 1997, I was scheduled to have my top left tooth,
that was hanging down and giving me problems taken out. When I returned to my
cell location, then removed the gause [sic] pad after one hour from my mouth I
come to realize that they took out the wrong tooth. Therefore I am still left
with the same problem.
A notation on the bottom of that letter reads as
follows: "Sent response 11-21-97. We extracted the tooth inmate requested out.
Both teeth needed ext. Told inmate to write back when he was ready to have the
other tooth out." The next correspondence from Claimant was dated January 20,
1998, and Dr. Mayes stated that this was the only subsequent communication from
Claimant. In that correspondence, Claimant reiterates that he was told two
teeth needed extracting, that he believed the one causing him the most trouble
had been removed, but then discovered that it was the other tooth, and that he
now was in so much pain he needed the second one to be extracted. As noted
above, Claimant's dental records show that tooth #15 was extracted on January
26, 1998. When asked on cross-examination why both teeth were not removed at
the same time, Dr. Mayes referred to notations indicating that the decision to
take only #16 had been based on Claimant's own wishes. Dr. Mayes also stated
that it was entirely possible for pain caused by one tooth to be perceived as
coming from its neighbor.
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
NY2d 701). To establish that a medical or dental practitioner has committed
malpractice, the Claimant has the burden of proving that the level of care he
received fell below the level of care acceptable in the relevant professional
community (Toth v Community Hosp. at Glen Cove
, 22 NY2d 255). More
specifically, the Claimant must prove that the practitioner failed to carry out
one or more of the three duties owed to patients: (1) a duty to possess the
requisite knowledge and skill possessed by the average practitioner; (2) a duty
to exercise ordinary and reasonable care in applying such professional knowledge
and skill; and (3) a duty to use a practitioner's best professional judgment
(Hale v State of New York
, 53 AD2d 1025, citing Pike v
, 155 NY 201, 209-210). Claimant presented no expert testimony as
to which of these duties were breached in this instance (Pike v
; Hale v State of New York
, 53 AD2d
, lv denied
To the extent that Claimant may be asserting that the State is liable in this
instance for simple negligence, where the alleged wrong can readily be
determined by the trier of fact upon common knowledge (
see, Hale v State of New York
), he has
similarly failed to carry his burden. At best, Claimant has proved only that
there may have been some misunderstanding about his request or some acceptable
confusion about which of the two teeth -- both of which warranted removal -- was
the greater cause of pain and should be extracted first.
Accordingly, I hold that Claimant has failed to prove, by a preponderance of
the credible evidence, that the actions of Dr. Walker constituted dental
malpractice. Defendant's motion
to dismiss, on which I previously reserved decision, is granted and this
claim is dismissed. All other motions not heretofore ruled upon are
LET JUDGMENT BE ENTERED ACCORDINGLY.