Claimant has instituted this claim alleging dental malpractice in the treatment
he received following a wisdom tooth extraction that took place on December 1,
1998, while he was in the custody of the Department of Correctional Services and
incarcerated at Auburn Correctional Facility. The trial of this claim was
bifurcated and this decision deals solely with the issue of liability.
At this trial, claimant testified in his own behalf, and also called Thomas
Sansone, DDS, who presented expert opinion testimony. The State called Jayle L.
Bach, DDS, and V. Brian Gagliardi, DDS, both of whom are dentists who treated
claimant at Auburn Correctional Facility. In addition, Ann E. Driscoll, a nurse
at the facility, and Ken Warner, a dental hygienist at Auburn Correctional
Facility, testified. The State also called Emile Martin, DDS, who offered
expert medical opinion on behalf of the State. Finally, a transcript of the
deposition testimony of Paul N. Spring, DDS, an oral surgeon who performed the
wisdom tooth extraction on claimant, was received into evidence and considered
by the Court.
Testimony, as well as the medical records introduced into evidence, established
that claimant was examined by Dr. Bach on April 8, 1998, upon his complaint of
wisdom tooth pain. She noted that a wisdom tooth of claimant's had almost
erupted, and she made note that claimant would be scheduled for teeth cleaning.
Claimant next visited the dental clinic in September, 1998, again complaining of
pain in his lower right jaw. Claimant was examined by Dr. Gagliardi on
September 21, 1998, who recommended that his #32 wisdom tooth needed
to be extracted. Dr. Gagliardi advised claimant that the procedure would
be performed by an oral surgeon, and that claimant would receive a
when the extraction was scheduled. Subsequently, claimant received his
"call-out" scheduling the extraction for December 1, 1998. On this date, the
oral surgeon, Dr. Spring, removed the #32 tooth. According to claimant, the
procedure was "quick and easy". Claimant testified that he did not recall
receiving any written or oral instructions for post-operative care on this date.
Claimant testified that even though he did not receive any written instructions
after the extraction, he was provided written instructions several days prior
to the procedure, although he testified that he did not read these
He was provided with Ibuprofen
to take, if necessary, for pain.
Claimant testified that he did not experience any problems for the two days
immediately following this extraction but thereafter his mouth started to give
him some pain. The extraction by Dr. Spring occurred on a Tuesday. According
to claimant's testimony, he first complained about the pain on Saturday,
December 5, 1998, when he made a complaint to a correction
Claimant was apparently advised that the dental clinic was closed on weekends,
and he would therefore have to wait until the dental clinic opened on Monday
morning to be examined.
On that Monday morning, December 7, 1998, claimant was taken to the dental
clinic at which time he was examined by Dr. Gagliardi. Dr. Gagliardi diagnosed
claimant as having osteitis (dry socket), and prescribed Penicillin for
treatment, and directed that claimant was to be seen again in 48 hours for a
The next morning, however, claimant passed out on his way to the mess hall for
breakfast. Claimant was taken to the infirmary, where he complained of
dizziness and pain in his jaw. Nurse Driscoll was on duty at the time, and she
gave claimant Ensure, a nutritional drink, for energy.
The following day, Wednesday, December 9, 1998, claimant returned to the dental
clinic where he was examined by Dr. Bach. Dr. Bach noted that the right side of
claimant's jaw was severely swollen, and she prescribed another antibiotic
Zithromax, in addition to the previously prescribed Penicillin, and told
claimant to return again the next day for another follow-up examination.
The following day, Thursday, December 10, 1998, claimant went back to the
dental clinic where he was examined once again by Dr. Gagliardi. At this point,
the swelling in claimant's jaw still had not subsided and Dr. Gagliardi
immediately referred claimant to University Hospital in Syracuse for evaluation
and further medical treatment of his infection.
Mr. Coffie arrived at University Hospital at approximately 12:00 noon on
Thursday, December 10, 1998, and was admitted into the hospital at that time.
Later that day, Mr. Coffie lapsed into unconsciousness, and remained unconscious
in the Intensive Care Unit at University Hospital until Christmas morning,
December 25, 1998.
While he was unconscious at University Hospital, incisions were made on both
sides of claimant's neck to externally drain abscesses that had developed. He
was finally discharged from University Hospital on December 31, 1998, at which
time he was then returned to Auburn Correctional Facility, where he was then
confined in the infirmary until January 31, 1999.
Claimant asserts that there were several instances in which the State deviated
from a proper standard of care in its post-operative treatment of him. Claimant
contends that the State failed to timely examine him when he first complained
about pain and swelling in his jaw area on the Saturday following the tooth
extraction; that Dr. Gagliardi failed to "pack" the dry socket, once he had made
a diagnosis of the osteitis on the following Monday; that Dr. Gagliardi failed
to re-evaluate claimant within 24 hours after he started the antibiotics; that
the State failed to have claimant timely evaluated by an oral surgeon, initially
when claimant failed to show any improvement after beginning treatment with the
antibiotics; and also immediately after Dr. Bach's examination of claimant on
the following Wednesday, December 9, 1998, when she observed claimant's right
face to be severely swollen. Any and all of these deviations from normal care,
according to claimant, contributed to the severity of the infection suffered by
him, and these delays in rendering appropriate treatment caused the
life-threatening complications suffered by him. In support of these allegations
of dental malpractice, claimant presented the testimony of Dr. Thomas Sansone,
who qualified as an expert witness.
Dr. Sansone testified that in his opinion, claimant should have been examined
on the Saturday when he first complained about pain and swelling in his jaw.
Dr. Sansone testified that at a minimum, antibiotics should have been
prescribed, even if it was not possible to examine claimant at that time.
According to Dr. Sansone, the failure to evaluate claimant on that Saturday
(December 5, 1998) gave the infection additional time to become entrenched,
which made it more resistant to treatment by antibiotics which were eventually
prescribed on the following Monday, December 7, 1998.
Dr. Sansone was of the further opinion that upon claimant's examination on
Monday, December 7, 1998, Dr. Gagliardi committed malpractice by failing to
apply a "pack" to the area, to promote healing. Furthermore, Dr. Sansone
concluded that Dr. Gagliardi deviated from proper standards of care when he
failed to re-evaluate claimant within 24 hours after starting claimant on
antibiotics on that Monday, December 7, 1998. Finally, when Dr. Gagliardi and
Dr. Bach failed to note any improvement in claimant's condition within 24 hours
after starting the antibiotic treatment, Dr. Sansone testified that proper care
would have required claimant to have then been examined by an oral surgeon
and/or immediately rushed to a hospital for further treatment, especially after
Dr. Bach observed the significant swelling on the right side of claimant's face.
Simply stated, Dr. Sansone concluded that the treatment rendered to claimant
deviated from good and accepted dental practice, in that the dental department
staff, although having numerous opportunities, failed to recognize that Mr.
Coffie's infection in this jaw was getting progressively worse, and that the
prescribed treatment was ineffective and inappropriate. As a result of their
failure to timely and properly evaluate and treat claimant, the infection became
entrenched, and as such could not be controlled by conventional antibiotic
treatment, thereby causing the serious medical complications suffered by
Dr. Gagliardi, who provided the majority of the dental treatment to claimant
and examined him on several occasions, testified that when he examined Mr.
Coffie post-operatively on Monday morning, December 7, 1998, he noticed the
swelling in claimant's jaw, and diagnosed claimant with osteitis. He decided to
treat the osteitis with antibiotics, and prescribed Penicillin. He also
testified that in certain situations he would recommend the patients be
re-evaluated within 24 hours, but that claimant did not exhibit the benchmark
indicators for such an immediate follow-up visit, and he determined that a
re-evaluation after 48 hours was appropriate. He also testified that during
this examination on December 7, 1998, claimant admitted that he had been smoking
during his post-operative recovery. He testified that he did not consider using
a "pack" to promote the healing process, since he did not believe it would be
effective and that the pack "tastes like a campfire".
Dr. Bach, who examined claimant on Wednesday, December 9, 1998, testified that
when she observed the swelling in claimant's jaw, she concluded that the
antibiotics prescribed by Dr. Gagliardi were not working, and she therefore
added an additional prescription (Zithromax) for treatment to be used in
conjunction with the Penicillin prescribed by Dr. Gagliardi.
As previously stated, it was not until claimant was examined again on Thursday,
December 10, 1998, that Dr. Gagliardi then determined that claimant's
condition had deteriorated to the point where he required immediate
Dr. Martin, defendant's expert witness, upon reviewing the care and treatment
provided by Dr. Gagliardi and Dr. Bach, testified that they followed proper
dental standards of care in their treatment of claimant. He testified that the
antibiotic (Penicillin) prescribed by Dr. Gagliardi on Monday, December 7, 1998,
was the preferred choice of antibiotic treatment for osteitis. He also
testified that Penicillin normally requires up to 48 hours before there is
evidence of any significant improvement, and therefore there was no reason for
Dr. Gagliardi to re-evaluate Mr. Coffie in a shorter period of time unless
claimant complained and sought dental attention.
Interestingly, claimant testified that when he passed out on Tuesday, December
8, 1998, on his way to the mess hall, he complained to Nurse Driscoll about the
pain and swelling in his jaw. In her testimony, however, Nurse Driscoll
specifically denied that claimant ever mentioned that his jaw was bothering him
on that day, and that he instead told her that he had not eaten anything for a
week. As a result, she provided claimant with a nutritional supplement.
Dr. Martin further testified that the examination conducted by Dr. Bach on
December 9, 1998, and the treatment provided at that time, was also consistent
with appropriate standards of care, when she decided to continue treatment
of claimant's infection by antibiotics (Zithromax). Additionally, Dr. Martin
noted that in this particular situation, it was probably not possible for
Dr. Gagliardi to "pack" the site of the extraction on Monday, December 7th,
in all likelihood due to the swelling which had already occurred by that time.
In sum, Dr. Martin concluded that neither Dr. Gagliardi nor Dr. Bach deviated
from the accepted standard of care in their treatment of claimant.
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, lv denied
76 NY2d 701;
Gordon v City of New York
, 120 AD2d 562, affd
70 NY2d 839). An
action for injuries sustained while under the care of a medical professional or
facility may be premised upon a theory of simple negligence, ministerial
neglect, or medical malpractice (Hale v State of New York
, 53 AD2d 1025,
40 NY2d 804; Kagan v State of New York
, 221 AD2d 7). An
action may be premised upon simple negligence in cases where the alleged
negligence can readily be determined by the trier of fact upon common knowledge.
Where, as here, it is the treatment received by the patient that is in issue,
however, the case is premised upon medical malpractice and a claimant must
establish that the medical professional involved either did not possess or did
not use reasonable care or his/her best judgment in applying the knowledge and
skill ordinarily possessed by practitioners in the field (Hale v State of New
; Pike v Honsinger
, 155 NY 201). The proof
required in such a case includes the accepted medical standards of care in the
community in which the medical professional practices (Toth v Community Hosp.
at Glen Cove
, 22 NY2d 255) and a deviation or departure from those standards
(Kletnieks v Brookhaven Mem. Assn.
, 53 AD2d 169). The practitioner is
not required to achieve success in every case and cannot be held liable for mere
errors of professional judgment (Pike v Honsinger
DuBois v Decker
, 130 NY 325). The "line between medical judgment and
deviation from good medical practice is not easy to draw" (Schrempf v State
of New York
, 66 NY2d 289, 295; Topel v Long Is. Jewish Med. Center
55 NY2d 682, 684). Liability, however, can ensue if the physician's judgment is
not based upon intelligence and thus there is a failure to exercise any
professional judgment (Pigno v Bunim
, 43 AD2d 718, affd
As described herein, it is obvious that the two expert witnesses who testified
at trial, Dr. Sansone and Dr. Martin, had sharply divergent opinions regarding
the level of care that claimant received from the State's dental staff at Auburn
Correctional Facility. The Court has therefore carefully considered the
testimony of the fact witnesses presented at trial, which helped form the basis
of the opinion testimony provided by the two experts.
Regrettably, the Court finds that the testimony provided by claimant was
replete with inconsistencies. Particularly troubling to the Court was
claimant's testimony that he refrained from smoking in the days following the
tooth extraction on December 1, 1998. Claimant testified that he did not read
the written instructions for post-operative care which were provided to him
prior to the procedure. Therefore, he would have been unaware that these
instructions advised against cigarette smoking. Even though he was unaware of
this instruction, claimant, an admitted smoker, would somehow have this Court
believe that he decided not to smoke following the procedure, on his own
initiative. However, this Court does not credit such testimony, and rather
accepts the testimony of Dr. Gagliardi on this issue, who testified that
claimant, during his examination on December 7, 1998, did admit that he
continued to smoke cigarettes following the extraction. It is significant that
all testifying physicians agreed that such smoking following the extraction
could very well exacerbate, if not in fact cause, the type of infection suffered
The Court must consider that claimant's contention of dental malpractice begins
with his assertion that his jaw started causing him pain and began to swell on
Saturday, December 5, 1998, and that even though he complained to a correction
officer, he was not provided any medical treatment at that time. In Dr.
Sansone's opinion, such neglect of claimant's complaint, and refusal to provide
him with either a medical evaluation or, at a minimum, antibiotics to treat the
infection, allowed the infection to become entrenched and more resistant to
treatment. The Court notes, however, that claimant was evaluated thoroughly on
the following Monday morning (December 7, 1998) by Dr. Gagliardi, who testified
that he did not observe any undue swelling or infection, and that the infection
could be successfully treated with Penicillin. Defendant's expert, Dr. Martin,
agreed that this was an appropriate course of action. The initial delay in
treatment, therefore, cannot be considered significant as it relates to the
allegations of dental malpractice. Even though there was an initial delay in
rendering treatment to claimant, this delay had not caused such significant pain
or apparent swelling in claimant so as to indicate to Dr. Gagliardi that
antibiotic treatment was not an appropriate course of treatment in this matter.
The Court also notes that claimant, from Monday, December 7, 1998 through
Thursday, December 10, 1998, was provided dental care by facility staff, and was
evaluated by health care providers each day. When Dr. Bach determined that the
Penicillin prescribed by Dr. Gagliardi on Monday, December 7
th, was not working, she took additional action and prescribed Zithromax in
addition to the Penicillin.
Based on the foregoing, and after carefully considering all of the testimony
(both fact and opinion), the Court finds, based upon a preponderance of the
credible evidence, that claimant has failed to establish that the dental staff
at Auburn Correctional Facility did not possess or did not use reasonable care
or their best judgment in applying the knowledge and skill ordinarily possessed
by practitioners in the field (see,
Pike v Honsinger
, 155 NY 201, supra, Hale v State of New
, 53 AD2d 1025, supra
). The difference of opinion of medical
experts does not provide an adequate basis on which to hold the State
responsible for medical malpractice (Centeno v City of New York
, 48 AD2d
40 NY2d 932; Mohan v Westchester County Medical Center
145 AD2d 474; Wilson v State of New York
, 112 AD2d 366). In this matter,
the Court finds that both Dr. Gagliardi and Dr. Bach acted upon their best
judgment in their treatment of claimant post-operatively, and that the
determination to prescribe antibiotics to treat claimant's infection was
medically reasonable. That such treatment was not successful constitutes, at
most, an error in professional judgment, and claimant was referred to
University Hospital when it became apparent that such treatments were not
effective. Unfortunately, the fact that claimant suffered his serious illness,
in and of itself, is not sufficient to hold the State liable for dental
malpractice in this matter.
Based on the foregoing, therefore, this claim must be dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.