New York State Court of Claims

New York State Court of Claims

COFFIE v. THE STATE OF NEW YORK, #2003-009-126, Claim No. 103446


Synopsis


Case Information

UID:
2003-009-126
Claimant(s):
MARVIN D. COFFIE
Claimant short name:
COFFIE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103446
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
CEGELSKI LEGAL ASSOCIATES, PLLC
BY: Karen Sanders, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Michael R. O'Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 "call-out"[1]
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 instructions.[2] 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 officer.[3]
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 follow-up examination.

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 claimant.

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 hospitalization.

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, lv denied 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 York, supra; 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, supra; 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 35 NY2d 841).
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 by claimant.

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 York, 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 812, affd 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.


December 16, 2003
Syracuse, New York

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





[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[2] The Court notes that Ken Warner, a dental hygienist at the facility, testified that he provided claimant with a written set of instructions for post-operative care on December 1, 1998, the day of the wisdom tooth extraction, and that he routinely reviews these instructions with patients immediately after the extraction procedure.
[3] Claimant testified that he complained to Correction Officer Humphrey, who did not testify at this trial.