New York State Court of Claims

New York State Court of Claims

McCRAY v. THE STATE OF NEW YORK, #2002-013-506, Claim No. 97930


Inmate failed to prove that prison dentist's choice as to which of two teeth to remove constituted dental malpractice where extraction of both of the teeth in question was warranted.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 26, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 part:

[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 76 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 Honsinger, 155 NY 201, 209-210). Claimant presented no expert testimony as to which of these duties were breached in this instance (Pike v Honsinger, supra; Hale v State of New York, 53 AD2d 1025, supra, lv denied 40 NY2d 804).
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, supra), 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 denied.

February 26, 2002
Rochester, New York

Judge of the Court of Claims