New York State Court of Claims

New York State Court of Claims

BORGES v. THE STATE OF NEW YORK, #2002-019-020, Claim No. 99651


Claimant failed to establish prima facie case of dental malpractice; Claimant failed to present expert medical proof supporting contention that alleged departure from the requisite standard of dental care by leaving foreign object in jaw was a proximate cause of subsequent pain and swelling. Claim 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:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
August 5, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, a
pro se inmate, brings this Claim alleging negligence and dental malpractice arising from a tooth extraction that occurred on August 26, 1996, while he was in the custody of the Department of Correctional Services while at Southport Correctional Facility. The trial of this Claim was held at the Elmira Correctional Facility on June 25, 2002.

Claimant testified that he had a wisdom tooth extracted on August 26, 1996, but continued to suffer swelling and pain thereafter. On follow-up visits Claimant testified he was assured by various dentists the healing process would take some time and that the pain he was suffering, and the swelling associated therewith, was not out of the ordinary. On August 19, 1998, Claimant was seen at Strong Memorial Hospital at which time he was advised that he had a cyst inside his gum at the point of his prior tooth extraction and that oral surgery would be required. He never underwent surgery to remove that cyst. On November 30, 1998, Claimant was examined and x-rayed at the Attica Correctional Facility at which time a foreign metal object was discovered embedded in his gum at the point of the previous tooth extraction. On September 30, 1999, Claimant underwent surgery at Erie County Medical Center with dental surgeon William D. Ziter for the surgical extraction of impacted third molars number one, sixteen, and seventeen, as well as the removal of a foreign body located in the right posterior mandible. Claimant alleges that after the surgery of September 30, 1999 he suffered from some intermittent swelling and pain in the jaw area at the sites of these extractions and dental surgery. Claimant states today that he suffers from infrequent pain and has otherwise recovered well.

The State called W. Dawson, D.D.S., who was recognized by the Court as an expert in dentistry. Dr. Dawson testified that the pain Claimant suffered from 1996 through 1999 was as a result of various dental problems including impacted wisdom teeth. In August of 1998 a review of Claimant's dental records showed that there was a procedure to extract a lower right wisdom tooth by Dr. Lax. The doctor apparently sectioned the tooth and removed it with hand instruments. Dr. Dawson stated that on rare occasions a piece of the drill bit or cutting instrument will separate from the tool causing what is call a dental burr. Dr. Dawson further testified when these burrs break they often get lost. In this case the five millimeter by one millimeter burr apparently became lodged in and around the right lower jaw area. It was Dr. Dawson's opinion, however, that the swelling and pain suffered by the Claimant was not in relation to this dental burr which was encased in the Claimant's lower jaw, but related specifically to the other impacted molars in the Claimant's mouth, more specifically the third molars numbered one, sixteen, and seventeen, and that the surgical intervention of September 30, 1999 was necessary to treat the Claimant for the pain and swelling from which he was complaining. He concluded that the foreign object or metal burr lodged in the right lower mandible was of no real moment and caused little or none of Claimant's swelling or pain and caused no permanent damage.

In order to establish a prima facie case of dental malpractice, a claimant must show that "(1) there was a deviation or departure from the requisite standard of dental practice, and (2) the departure from the requisite standard of practice was a proximate cause of the complained of injury [citation omitted]". (Knutson v Sand, 282 AD2d 42, 43). Here, even if this Court were to assume that Claimant established a deviation from the requisite standard of care despite the lack of expert medical testimony, Claimant has failed to establish that said departure was a proximate cause of his injury. In other words, this Court cannot speculate as to the causative relation between the broken drill bit and the subject injury without expert medical testimony to support such a theory. (Macey v Hassam, 97 AD2d 919). In fact to the contrary, the State's expert testified that this dental burr was not a causative factor in Claimant's jaw pain and swelling. Rather, Dr. Dawson opined that the pain described by Claimant through September 1999 was due to his other impacted molars and the additional dental work that was needed to be done. Moreover, Claimant confirmed that after the other impacted molars were removed, his pain and swelling subsided.
Based upon the foregoing, Claim No. 99651 is hereby DISMISSED.

Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


August 5, 2002
Binghamton, New York

Judge of the Court of Claims