New York State Court of Claims

New York State Court of Claims

BERRY v. THE STATE OF NEW YORK, #2004-034-006, Claim No. 106825


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: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant has sought to recover damages resulting from the alleged malpractice of Dr. Renzo Nylander, employed by Defendant as the Dental Director at Wyoming Correctional Facility. The matter proceeded to trial before this Court on May 13, 2004, during which Claimant and Dr. Nylander both testified, and three exhibits were introduced into evidence. At the conclusion of testimony the Court reserved decision, pending review of the evidence presented. The Court will now deny recovery and dismiss the Claim, finding as follows.

Mr. Berry is an inmate now incarcerated at Attica Correctional Facility. Between September 21, 2001, and October 22, 2003, he was confined to Wyoming Correctional Facility ("Wyoming"). While at Wyoming he was treated by Dr. Nylander, as well as another dentist and a dental hygienist on the staff of that facility. On February 22, 2002, he also underwent a consultation with Dr. Timothy O'Keefe, an oral surgeon not employed by the State. Dr. Nylander had ordered that consultation to address Claimant's temporal mandibular joint dysfunction (TMD). When Dr. O'Keefe reported that the condition should be addressed by continued medical management, rather than surgery, Dr. Nylander arranged for the casting of upper and lower partial dentures. That process of securing State approval, taking dental impressions, casting and adjustment occurred over a period of several months in late 2002 and early 2003. Dr. Nylander continued to treat Claimant, largely in the inspection and adjustment of his dentures, through the spring of 2003. Mr. Berry was transferred to Lakeview Correctional Facility in late October 2003, although his contact with Dr. Nylander appeared to have ended approximately five months earlier.

The claims of malpractice list an accrual date of July 23, 2002, but also encompass care rendered prior to that time. At trial Claimant identified three bases for relief: that tooth number 3 became decayed to a point where extraction was required on September 3, 2002; that tooth number 9 became abscessed, necessitating a root canal on July 24 and 25, 2002; and that his treatment for his TMD through the supply of partial dentures should have occurred at an earlier date. He also believed that he should have been prescribed a stronger medication to address the pain that resulted from his TMD. More generally, Mr. Berry has asserted that the State did not adequately staff the dental program at Wyoming Correctional Facility, such that he did not receive timely and complete dental care. However, Claimant failed at trial to establish with respect to any of those claims that Dr. Nylander or his staff had deviated from accepted dental practice, and that the alleged deviations proximately caused him injury. Such evidence is required to establish a prima facie claim for dental malpractice (
see Vona v Wank, 302 AD2d 516 [2003]). Moreover, issues regarding the propriety of his treatment and the causal connection between Dr. Nylander's manner of treatment and his injuries are beyond the experience of a trier of fact and require expert proof (see McGinn v Sellitti, 150 AD2d 967, 968 [1989]). Here, the only expert evidence regarding the quality of care rendered to Claimant came from Dr. Nylander himself, and refuted Mr. Berry's assertions. For that reason his various causes of action must fail.
During the trial Claimant acknowledged his lack of expert proof, but asserted that he had planned to secure records from the University of the State of New York's Office of Professional Discipline regarding the possible discipline of Dr. Nylander in order to satisfy that evidentiary requirement. Claimant further represented that this Court's denial of his motion to adjourn the trial had impaired his ability to research the issue and pursue those disciplinary records. In response the Court notes that Claimant did not raise the specific matter of expert evidence when he requested an adjournment of the trial. Further, there is no evidence to support that the Office of Professional Discipline ever conducted an investigation of the matter. Mr. Berry's belief in that regard is derived solely from a reference within a November 27, 2002 denial of his institutional grievance in which Claimant also complained of the treatment rendered by Dr. Nylander. That grievance denial indicated that a referral had been made to an unidentified "outside agency" for investigation. From the evidence it appears that Claimant has never contacted the Office of Professional Discipline to complain of Dr. Nylander's treatment, and that no representative of that office has ever contacted Claimant to secure information in support of an investigation. Dr. Nylander likewise testified that he had not been contacted by that office with respect to Claimant's complaints. It thus is fair to conclude that the Office of Professional Discipline has not issued a determination that might obviate Claimant's need for expert testimony to establish a prima facie cause of action.

Lastly, with respect to the assertion that the State failed to adequately staff the dental department at Wyoming Correctional Facility, the facility's records reflect that numerous treatments had been rendered to Claimant, both on a scheduled and sick call basis, commencing the very day he arrived at Wyoming Correctional Facility. The records also reflect at least one time when Claimant refused treatment, and one or more missed appointments, apparently due to Claimant's attendance at court proceedings, rather than the unavailability of the dental staff. Dr. Nylander attributed the delay in prescribing partial dentures for Claimant's TMD to a need to first correct his other dental problems, and not to a shortage of staff. Based upon the dentist's testimony Mr. Berry's diabetes would have contributed to those dental problems.

The Claim is denied and this matter dismissed. The Chief Clerk of the Court is directed to enter judgment accordingly.

May 25, 2004
Buffalo, New York

Judge of the Court of Claims