New York State Court of Claims

New York State Court of Claims

WARD v. THE STATE OF NEW YORK, #2004-031-504, Claim No. 105697


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 9, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Kenneth Ward ("Claimant") filed Amended Claim Number 105697 on May 20, 2002, alleging that the State of New York was negligent in the extraction of one of his wisdom teeth. With regard to the procedure, he asserts a cause of action for dental malpractice and a cause of action for failure to obtain informed consent prior to the operation. His claim also alleges a cause of action for medical neglect relating to the treatment, or lack thereof, he received after the procedure. I conducted a trial of this matter on September 8, 2003 at Wyoming Correctional Facility ("Wyoming").

Claimant testified that, on November 30, 2001, Dr. Timothy O'Keefe, D.D.S. and M.D., an oral surgeon, at Attica Correctional Facility ("Attica") examined him and performed what Claimant believed was the removal of his lower left wisdom tooth. According to Claimant, this tooth had been causing him severe pain. Claimant stated that, previously, Dr. O'Keefe had advised him to have all four wisdom teeth removed. However, Claimant did not consent to removal of all four, agreeing only to removal of the tooth that was causing him pain. Early the next morning, once the anesthesia and pain medication wore off, Claimant complained of pain in his neck and a loss of feeling in the right side of his face. Claimant soon realized that Dr. O'Keefe had removed the lower
right wisdom tooth and not the lower left.
On December 5, 2001, Claimant went to see Dr. Young, D.D.S., another dentist at Attica. Dr. Young informed Claimant that he had permanent nerve damage due to the operation on his right wisdom tooth. Claimant also testified that Dr. Young explained that Dr. O'Keefe should have informed Claimant of the dangers relating to the operation. Claimant asserts that Dr. O'Keefe failed to do so. Claimant further testified that, as of the date of trial, he still had no feeling on the right side of his face and mouth. Claimant also testified that there had been no discussion between himself and Dr. O'Keefe regarding the extraction of his right wisdom tooth; it was, in fact, the lower left wisdom tooth that had been bothering him.

Dr. William Dawson, D.D.S. testified for the defense. Dr. Dawson is a State licensed dentist and currently supervises the dental services in 16 Departments of Correctional Facilities, including Attica. Dr. Dawson was helpful in that he explained that Dr. O'Keefe was an independent contractor paid by the State for each procedure performed at the facility.

Dr. Dawson was also helpful in explaining Claimant's dental chart, which I admitted into evidence as Exhibit A. This exhibit indicates that, on August 28, 2000, Dr. Feely, D.D.S., evaluated the claimant at Livingston Correctional Facility and noted in Claimant's dental record that tooth "#32", the lower right third molar tooth, a.k.a. "wisdom tooth", was tilted and imbedded in part, or in total, in the jaw bone in close proximity to the roots of the nerve on the right side of his mouth. Dr. Dawson testified that Dr. Feely referred Claimant to Dr. O'Keefe at Attica Correctional Facility for the removal of the right lower wisdom tooth and Dr. O'Keefe agreed with this evaluation. I note that this consult took place approximately one year and three months prior to the surgery.

I also admitted Exhibit B, a document entitled "Consent For Surgical Procedures and/or Major Medical Treatment" into evidence. Exhibit B is dated June 19, 2001 and is signed by Claimant and Dr. Falkner, D.D.S. This exhibit indicates that Claimant consented to the extraction of the "lower third molar" on his left side (tooth #17) because of "severe pain." The entry in Claimant's dental records (Exhibit A) for this same date, June 19, 2001, was not specifically addressed by Dr. Dawson at trial. My review of Exhibits A and B indicates that the consent form (Exhibit B) was executed after an examination performed by Dr. Falkner at Wyoming. Dr. Falkner noted that tooth #17 (the lower left side third molar) was "fully erupted", that claimant was in severe pain and requesting that Dr. Falkner "remove, clean, fill" his teeth. The Claimant's dental records (Exhibit A) also indicate that Claimant stated no preference for the sequence in which the treatment was done. The last line appears to state that the extraction of tooth #17 was to be done at Attica.

Upon being transferred to Attica, Claimant was seen by Dr. Heinzerling, D.D.S. on September 12, 2001, for a dental exam and x-rays. During this examination, Claimant complained of pain in the left wisdom tooth; the dentist noted that teeth #17 and #18 were "slightly mobile" and there were areas of significant recession.

The extraction of tooth #32, the lower right molar, was performed on November 30, 2001 by Dr. O'Keefe. Dr. Dawson confirmed that the anesthetic was inserted into the right lower side of Claimant's mouth, which in the witness's opinion, indicated that the right lower wisdom tooth was going to be removed. He also testified that Dr. O'Keefe's note in Claimant's dental record discussed only the right tooth and not the left. Dr. Dawson also testified that he advised Claimant on July 25, 2003 that he should proceed to have the lower left wisdom tooth removed. He testified that Claimant was hesitant to do this due to the results from the procedure at issue in this claim.

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). Claimant failed to present expert medical testimony regarding the tooth extraction, therefore, I dismissed the dental malpractice claim at trial. Additionally, Claimant failed to offer any proof, expert or otherwise, relating to his allegations of medical neglect after the procedure. For this reason the medical neglect cause of action is also dismissed.
However, I reserved judgment on the issue of Claimant's allegation that he did not give consent for the removal of his lower right wisdom tooth. In examining this cause of action, I note that there is an important distinction between lack of informed consent and lack of consent. In the former, a patient consents to an operation or procedure, but would not have done so had the doctor not failed to advise the patient of a risk inherent in the procedure. This type of action sounds in medical negligence. In such cases, a claimant must demonstrate that a reasonable person, knowing about the potential risks, would not have consented to the surgery (
see e.g. Messina v Matarasso, 284 AD2d 32, 34).
Lack of consent, however, where the patient did not consent to the operation or procedure in the first place, has been said to sound in battery, and the burden of proof is lower. In such cases, a claimant need only show that bodily contact was made, that it was made with intent, and that it was offensive in nature. It is not necessary to demonstrate that the injury was intended, merely that there was offensive contact (
Messina v Matarasso, 284 AD2d 32, supra; see also Oates v New York Hosp., 131 AD2d 368 [allowing battery claim after patient refused to consent to operation and distinguishing cases involving lack of informed consent]).
Schloendorff v Society of New York Hospital (211 NY 125, 129-30), Judge Cardozo explained the theory of recovery in such an action: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." Though this decision has been abrogated with regard to its definition of informed consent, this particular statement has been "accepted as fundamental law" (see Oates v New York Hosp., 131 AD2d 368, 369, supra).
This case concerns Defendant's failure to obtain Claimant's consent for the extraction of tooth #32. Dr. Feely called for an oral surgeon consult on tooth #32 on August 28, 2000. Ten months later, on June 19, 2001, Claimant saw Dr. Falkner and complained of severe pain in tooth #17 and signed a consent form to have tooth #17 extracted. Dr. Falkner noted that the extraction was to be performed at Attica. Claimant then saw Dr. Heinzerling at Attica on September 12, 2001. At that time, Dr. Heinzerling noted that tooth #17 was "mobile." He talked to Claimant about tooth #32 and recorded that Claimant was "very concerned re: procedure." On November 30, 2001, Dr. O'Keefe extracted tooth #32 without Claimant's consent.

It is clear to me that Claimant believed he was going to have tooth #17 removed, not tooth #32. Perhaps Dr. O'Keefe used his sound medical judgment in extracting tooth #32 and may have even tried to explain to Claimant why it was more important to remove tooth #32 rather than tooth #17 - the tooth that was causing Claimant pain. However, Dr. O'Keefe was not called to testify and I can only speculate in this regard.

Claimant testified that immediately after the procedure, he lost sensation on the right side of his face. This contention is supported by Exhibit A. At the time of trial, Claimant stated that he was just beginning to regain sensation in his lower lip. He described this as a "tingling feeling." It is not clear to me whether or not this "tingling" indicates that the nerve will completely heal and Claimant will again experience complete feeling on the right side of his face. It is also not clear to me the extent to which the nerve damage is directly related to the tooth extraction; Claimant's dental record indicates that he practices poor dental hygiene and suffered from several other dental maladies prior to surgery, including severe gum recession, bleeding and periodontal disease prior to the surgery. Without medical testimony regarding Claimant's alleged nerve damage, I am unable to award Claimant any compensation for future pain and suffering.

I find for Claimant on his case for medical negligence and award him $750.00.[1]

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 9, 2004
Rochester, New York

Judge of the Court of Claims

[1]In this regard, the claim has been amended to conform to the proof.