New York State Court of Claims

New York State Court of Claims

GIERSZ v. THE STATE OF NEW YORK, #2003-009-117, Claim No. 103349


Synopsis


This claim alleging negligence and dental malpractice was dismissed for failure to provide expert medical testimony.

Case Information

UID:
2003-009-117
Claimant(s):
ANDRE GIERSZ
Claimant short name:
GIERSZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103349
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ANDRE GIERSZ, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 16, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate appearing
pro se, has instituted this claim alleging negligence and dental malpractice arising from a tooth extraction that occurred on or about August 1, 2000, while he was in the custody of the Department of Correctional Services and incarcerated at Oneida Correctional Facility. The trial of this claim was held at Marcy Correctional Facility on June 18, 2003, at which time claimant was the sole witness to testify.
According to his claim and trial testimony, claimant stated that he consulted with a dentist at Oneida Correctional Facility on or about August 1, 2000, while he was experiencing severe pain from his first molar. The dentist recommended to claimant that the tooth be extracted, and claimant agreed to the procedure. During this extraction, the tooth broke, and after approximately one month of continuing pain, for which claimant was given Tylenol and penicillin, he was ultimately referred for oral surgery. During the oral surgery, a large section of his gum was removed.

In his claim, claimant alleges that the dentist was negligent by causing his tooth to break during the initial attempt at extraction, and thereafter by removing a large piece of his gum, as well as failing to properly x-ray his tooth socket before performing the oral surgery.

It is well settled that the State has a duty to provide reasonable and adequate medical care to the inmates of its correctional facilities (
Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701), including dental care. If the alleged negligent act or omission is readily determinable by the trier of fact based upon common knowledge, the appropriate theory of recovery is negligence (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254). However, if a patient's treatment, or lack thereof, is in controversy, a claim is more appropriately premised upon the more particularized theory of malpractice (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). Whether a claim is couched in terms of negligence or malpractice, expert medical proof will be required if the issues involve conditions beyond the common knowledge of a fact finder (Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810).
In this case, claimant's allegations of negligent dental treatment present issues beyond the common knowledge of a layperson, and therefore expert medical testimony is required to determine whether there has been any deviation from accepted standards of care (
Macey v Hassam, 97 AD2d 919).
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).
At trial, claimant did not present any expert medical testimony concerning his treatment and the injuries allegedly sustained by him, and instead offered only his own testimony as a layperson that the dental treatment was inadequate. In the absence of any testimony from a medical expert, the Court cannot find that the treatment provided claimant was inadequate.

I therefore find and conclude that claimant has failed to establish his claim by a preponderance of the credible evidence. Accordingly, this claim is hereby dismissed.

Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.


September 16, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims