New York State Court of Claims

New York State Court of Claims

TAPP v. THE STATE OF NEW YORK, #2004-031-503, Claim No. 105509


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:
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 5, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Sean Tapp ("Claimant") filed claim number 105509 on January 23, 2002, alleging that he was the victim of negligence and dental malpractice while incarcerated at Attica Correctional Facility ("Attica"). I conducted a trial of this matter on September 8, 2003 at Wyoming Correctional Facility.

Claimant testified that on January 28, 2000, he was transferred to Attica to have one of his wisdom teeth removed by Dr. Timothy O'Keefe, an oral surgeon employed as an independent contractor by Defendant. While Dr. O'Keefe tried to "cut around" the tooth in question, the blade of the surgical instrument he was using became lodged between two of Claimant's teeth and broke. Dr. O'Keefe attempted to "yank" the blade out, but was not able to do so. Claimant stated that a piece of the blade ended up in his nasal passage, where it currently remains.

Claimant testified that, since this incident, his teeth are extremely sensitive and he cannot tolerate food or drink that is either too hot or too cold. Further, he states he has a constant runny nose, difficulty breathing and occasional pain in the area of his nasal passage. Claimant further testified that he experiences pain on both sides of his face, although this pain is worse on the right.

Claimant conceded that he did, in fact, refuse to see an ear, nose and throat specialist a few weeks prior to this trial, stating he was ill that day and also that he did not trust the particular specialist to whom he was being referred. Claimant was concerned that this specialist wanted to "put him to sleep" for the procedure.

The Defendant called William Dawson, D.D.S., the Western Region Dental Director for the NYS Department of Correctional Services. Dr. Dawson testified that he was familiar with the Claimant's medical records and, therefore, had knowledge of the January 28, 2000 procedure. Dr. Dawson testified that Claimant was transferred to Attica to have his wisdom teeth removed by Dr. O'Keefe. Dr. O'Keefe did, in fact, remove four teeth, numbers 1, 16, 17 and 32 (Exhibit C). While extracting tooth number 16 (upper-left wisdom tooth), the blade of the surgical instrument broke off. Dr. Dawson testified that he agreed with Dr. O'Keefe's decision not to go to extremes to remove the lodged blade at the time, as doing so could have caused further, unnecessary injury to Claimant.

Dr. Dawson stated that the foreign object is a piece of metal approximately 5 mm long by 2 mm wide and 1mm thick which is lodged in Claimant's left maxillary sinus and that this presentation has not changed in the past year.[1]
Dr. Dawson also testified that the foreign object's presence in Claimant's left maxillary sinus is not a problem because the object is sterile. Dr. Dawson opined that, because the blade presents no danger to Claimant, no attempts should be made to remove it at this time.
Dr. Dawson further testified that, in a situation such as this, where a surgical instrument breaks and becomes lodged between two of the patient's teeth, it would first be proper to proceed with the primary goal, that is removal of the tooth. If the tooth extraction made the foreign object more accessible, he would attempt to remove it at that time. According to Claimant, Dr. O'Keefe did not proceed in this fashion. I note that Claimant did not execute a consent form before Dr. O'Keefe performed this operation on January 28, 2000.

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. The State may be cast in liability for injuries that result because its physicians fail to use ordinary and reasonable care or to exercise their best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). Also, I note that Dr. O'Keefe's status as an independent contractor does not relieve the State of vicarious liability to Claimant for the doctor's negligence (see Malcolm v Mount Vernon Hosp., 309 AD2d 704; Cole v Tat-Sum Lee, 309 AD2d 1165).
However, only expert medical proof can establish the necessary legal causation required to impose liability and demonstrate that there was a deviation from good and accepted standards of medical care (
see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916; Spicer v Community Family Planning Council Health Ctr., 272 AD2d 317; Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d 814). Claimant failed to present expert medical testimony regarding the tooth extraction, therefore I dismissed the dental malpractice claim at trial. However, I reserved on the issue of medical negligence.
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; Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254). I find that this situation involves conditions not beyond the common knowledge of the fact finder, making the testimony of a medical expert unnecessary. Simply put, was the surgeon negligent when he applied such force to the surgical instrument that it broke and became lost in Claimant's mouth, eventually working its way into Claimant's left maxillary sinus? I find that negligence is reasonably inferable here "merely from the happening of [the] event and the defendant's relation to it" (Kambat v St. Francis Hosp., 89 NY2d 489 at 494).
Claimant testified about his teeth's sensitivity to extreme temperatures, his congestion and pain. I heard nothing from the State's expert that would suggest that these symptoms were caused by anything unrelated to the procedure and the imbedded blade. Unlike the situation in
Borges v State of New York (Ct Cl, August 5, 2002 [Claim No. 99651], Lebous, J., UID #2002-019-020), where the Court noted that Claimant's continuing complaints of pain related to "various dental problems including impacted wisdom teeth," Claimant here had all of his wisdom teeth extracted, removing any other possible cause of the post-surgical problems. I do note that Claimant's dental record indicates possible root exposure around teeth numbered 15 and 18 - a possible contributing factor to his sensitivity to extreme temperatures. Based on the testimony at trial, Claimant's dental records and all the evidence presented, I award Claimant $1,000.00. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to the Court of Claims Act § 11-a(2).

February 5, 2004
Rochester, New York

Judge of the Court of Claims

[1]Exhibit E is an X-ray requisition and Report for an x-ray taken on April 5, 2001. The report confirms the presence of the blade in Claimant's left sinus but is negative for any objective evidence of medical problems.