BENNETT v. THE STATE OF NEW YORK, #2005-019-002, Claim No. 100711
Claimant failed to establish prima facie case of dental malpractice regarding
treatment of claimant's periodontal disease. Claim dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
WALTER, THAYER & MISHLER, P.C.BY: Lanny E. Walter, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
February 25, 2005
See also (multicaptioned
Claimant, Anthony Bennett, alleges that he sustained injuries as a result of
negligent dental treatment of his periodontal disease which he received while in
the custody of the Department of Correctional Services (hereinafter "DOCS"),
resulting in the extraction of 17 teeth. The unified trial of this claim took
place in the Binghamton District on May 18 and 19, 2004. Counsel requested and
were granted additional time to submit post-trial memorandums of law.
The relevant facts as developed at trial establish that claimant entered DOCS
custody in August of 1996. Soon thereafter, on August 15, 1996, claimant
underwent a dental exam and x-ray from which it was concluded that claimant
suffered from advanced periodontal disease. Claimant testified that he did not
know that he had periodontal disease and was never so informed at that time, but
rather was told to regularly brush and floss his teeth.
On January 3, 1997, claimant was seen for a "[s]wollen; perio abscess" in tooth
#3. (Cl. Ex. 4, p 4). On January 17, 1997, claimant had tooth #3 extracted.
On January 31, 1997, tooth #14 was extracted. On July 16, 1997, claimant had
tooth #13 extracted. In August 1997, claimant underwent a deep cleaning process
for his teeth.
On August 13, 1998 and September 17, 1998, Dr. Heinzerling performed deep
cleaning of claimant's entire mouth.
On February 5, 1999, claimant's teeth were cleaned by a dental hygienist. In
March and April 1999, claimant had several cavities filled.
In May of 1999, claimant's request for a referral to an outside periodontist
was denied unless claimant was willing to privately pay the expense of such
referral. (Cl. Ex. 8).
On June 3, 1999, William S. Dawson, the DOCS dentist at Attica Correctional
Facility, examined claimant and ordered charting and x-rays. On June 10, 1999
and June 15, 1999, x-rays were taken of claimant's teeth. It is undisputed that
up until this time, although DOCS dentists had identified claimant as suffering
from advanced periodontal disease, none of the dentists charted his teeth,
conducted x-rays (other than the August 15, 1996 x-ray), or referred claimant to
On July 29, 1999, Dr. Dawson met with claimant to discuss a treatment plan.
(Cl. Ex. 4).
Claimant saw Dr. Heinzerling on December 14, 1999; March 1, 2000; and March 16,
Claimant saw Dr. Dawson on January 6, 2000. Claimant underwent cleanings on
October 14, 1999; January 21, 2000; April 24, 2000; July 5, 2000; October 3,
2000; January 18, 2001; and April 11, 2001.
On April 11, 2001, Dr. Heinzerling examined claimant and ordered x-rays and
another charting of claimant's teeth. There is no dispute that these were the
first x-rays and charting ordered since June 1999. However, this recharting was
not conducted by Dr. Heinzerling until August 14, 2001 and the x-rays were not
taken until November 15, 2001.
Soon thereafter, claimant arranged to see, at his own expense, a periodontal
specialist, Gregory A. Farber, D.D.S. Dr. Farber examined claimant on January
17, 2002 and, as will be discussed in more detail hereinbelow, set out a
treatment plan dated February 27, 2002. (Cl. Ex. 13).
On June 27, 2002, claimant had tooth #4 extracted. On July 30, 2002, claimant
had tooth #12 extracted. On August 5, 2002, claimant had surgery to remove a
bone fragment leftover after the extraction of tooth #12. On August 29, 2002,
claimant had tooth #5 extracted.
On October 2, 2002, claimant had multiple extractions: teeth #s, 7, 8, 9, 10,
23, 24, 25, and 26. Claimant testified that he required a liquid diet after the
Claimant arranged to privately pay for additional consultations with Dr. Farber
and was examined by him on January 17, 2003 and February 28, 2003.
On March 20, 2003, Dr. Heinzerling extracted tooth #18. On October 16, 2003,
claimant was fitted for partial dentures. On December 9, 2003, Dr. Heinzerling
charted claimant's remaining teeth and multiple x-rays were taken.
On January 29, 2004, claimant had tooth #31 extracted. On March 9, 2004,
claimant's lower gums were operated on for bone outgrowths. On April 15, 2004,
tooth #29 was extracted.
Claimant testified that throughout the course of his dental treatment he
suffered pain, bleeding, and difficultly in eating. Claimant equates the loss of
his teeth to the State's failure to provide him adequate dental treatment, as
well as the failure to refer him to a specialist to properly treat his
underlying periodontal disease.
At trial, claimant called Gregory A. Farber, D.D.S. as his expert witness who
has ten years experience as a periodontist. Dr. Farber testified regarding his
review of the State's treatment of claimant from 1996 through trial, as well as
his own treatment and examinations of claimant. Initially, Dr. Farber
described some basic concepts used in the treatment of periodontal disease which
warrant review at the outset. Dr. Farber described a "pocket" as describing the
degree of bone loss next to a tooth where tissue is attached to the bone. The
deeper the pocket the worse the bone loss. Dr. Farber also described "charting"
which is the method of probing and measuring the depth of a pocket at each
tooth, as well as the level of plaque and tooth mobility. Dr. Farber indicated
that a baseline full-mouth charting and charting at three-month intervals
thereafter are necessary to evaluate a patient's progress and treatment.
Additionally, Dr. Farber testified that x-rays are also a necessary tool in the
diagnosis and treatment of periodontal disease.
Dr. Farber testified that a general dentist employed by the State, as compared
to a periodontal specialist, has a minimum duty in the diagnosis and treatment
of periodontal disease as follows: the detection of periodontal disease through
the use of probing, charting, and x-rays; once periodontal disease is
identified, then either the documentation (e.g. continued charting) and
treatment of the same depending on the degree of damage and the general
dentist's comfort level in treating the same or referral to a periodontal
specialist; treatment including scaling and root planing to remove debris on the
root surface (deep cleaning); and re-evaluation by way of charting at regular
intervals (typically three months) to monitor the progression of the disease.
Dr. Farber described the use of charting and x-rays both as keys in being able
to monitor the progression of periodontal disease.
Here, Dr. Farber noted that the State did not chart or x-ray claimant until
th and 15th, 1999, which was nearly three years after his DOCS admission and
diagnosis of advanced periodontitis. Dr. Farber reviewed the State's treatment
of claimant and found deviations from the standard of care applicable to general
dentists in the failure to chart and x-ray and monitor claimant's pocket depths
and tooth mobility and continuing failure to perform deep cleaning at regular
three-month intervals. Additionally, Dr. Farber opined that many of the State's
subsequent treatments were inadequately documented making subsequent comparisons
Dr. Farber personally began treating claimant on January 17, 2002. As a result
of his initial examination, Dr. Farber prepared a treatment plan dated February
27, 2002 which diagnosed claimant with "Generalized Severe Early Onset
Periodontitis" with etiologic factors including "Plaque, Calculus, Genetics, and
Secondary Occlusal Trauma." (Cl. Ex. 13). Dr. Farber's treatment plan
consisted of a review of oral hygiene instruction to control bacteria plaque;
scaling and root planing with anaesthesia; antibiotic therapy; and periodontal
surgery along with osseous recontour. (Cl. Ex. 13). Additionally, Dr. Farber's
treatment plan also recommended the extraction of eleven teeth as follows:
[d]ue to a hopless [sic] prognosis, we have recommended that teeth #'s 4,
5, 7, 8, 9, 10, 12, 23, 24, 25, and 26 be extracted at the patient's earliest
convienience [sic]. Following these extractions, temporary partials may
be fabricated while going through periodontal therapy. Approximately three
months after all periodontal therapy has been completed the patient may recieve
[sic] final partial dentures.
(Cl. Ex. 13).
Dr. Farber testified that with proper treatment claimant would not have needed
all of the 11 extractions he recommended in his treatment plan, as well as
subsequent extractions. However, Dr. Farber testified that he could not state
with exact certainty how many of those extractions could have been avoided
because of the State's failure to initially perform a full- mouth charting upon
claimant's identification of advanced periodontal disease. In general, however,
Dr. Farber opined that claimant's disease should have been treated more
aggressively resulting in significantly fewer extractions and less pain and
bleeding. In sum, claimant's expert, Dr. Farber, testified that the State
deviated from the standard of care by failing to, among other things, perform a
full-mouth charting upon claimant's entry into DOCS after his advanced
periodontal disease was identified, failing to x-ray claimant's teeth, failing
to perform scaling and root planing at regular three-month intervals, and
failing to refer claimant to a periodontal specialist. Dr. Farber concluded
that the State's care of claimant deviated from the minimum duty of a general
dentist and that said deviation was a proximate cause of claimant's pain and
suffering and loss of a greater number of teeth than what might otherwise have
The State called Hollis F. Heinzerling, D.D.S., who was claimant's primary
caregiver while incarcerated at Attica Correctional Facility. Dr. Heinzerling
testified that she first examined claimant on July 20, 1998 during which she
observed claimant's teeth were in a horizontal condition, with many of the roots
visible and exposed, and the teeth splayed. Dr. Heinzerling determined that
claimant should be given basic care versus heroic care. Dr. Heinzerling
testified that claimant did not appreciate the serious nature of his periodontal
disease as demonstrated by his request for braces which she explained to him
would not fix the problem. Dr. Heinzerling informed the claimant at that time
that they had to pull some teeth and they might be able to save more with some
good dental hygiene. However, claimant was adamant that he did not want any
teeth pulled at that time. Dr. Heinzerling assured claimant that they would do
their best to save his teeth, however, she was clear that there could be no
guarantee due to his preexisting condition upon entry to the correctional
system. Dr. Heinzerling indicated that the claimant slowly came to understand
the nature of his condition and disease.
In addition, the State also called Robert E. Schifferle, D.D.S., an Associate
Professor with the Departments of Oral Biology and Periodontology at the School
of Dental Medicine, State University of New York at Buffalo. Dr. Schifferle
also maintains a small private practice in addition to his duties at the
University. Dr. Schifferle reviewed claimant's records including the x-rays
taken in 1996, 1999, and 2001, and spoke to Drs. Dawson and Heinzerling as
Dr. Schifferle opined that claimant likely suffered from periodontal disease
for many years prior to his entry into the DOCS system, most likely since his
late teens or early 20s considering the notation of advanced periodontal disease
in August 1996.
Dr. Schifferle reviewed claimant's x-rays from 1996, 1999, and 2001, and
indicated, most strikingly, that there was not a great deal of difference or
change in bone loss and deterioration visible in those three x-rays. In fact,
Dr. Schifferle stated if the x-rays were not dated it would be difficult, if not
impossible, for him to put the x-rays into sequence. Consequently, according to
Dr. Schifferle, there was no additional bone loss attributable to any action or
inaction on the part of the DOCS dental services between 1996 and claimant's
first charting in June of 1999. Further, although Dr. Schifferle conceded that
the failure to chart and take x-rays earlier were deviations from the standard
of care, Dr. Schifferle concluded that the State's overall treatment, with the
number of recalls, cleanings, and antibiotics, was within the standard of care
of good dentistry being practiced in the upstate New York area at the time.
Furthermore, Dr. Schifferle concluded that once the claimant's condition had
deteriorated to the point where he had multiple bad teeth, meaning each tooth
has a poor or hopeless prognosis, then he typically recommends extraction of all
teeth with a poor or hopeless prognosis. Dr. Schifferle explained that he makes
this recommendation due to the inevitable loss of the remaining teeth and rather
than going through the cost of preparing partial dentures only to be replaced a
short time thereafter with full dentures. Finally, Dr. Schifferle opined that
the treatment provided by DOCS slowed the progression of claimant's
periodontitis, but unfortunately, with the nature of the disease, it can only be
slowed but never cured.
The State argues in the first instance that this court lacks jurisdiction over
this claim. More specifically, the State contends that this claim must be
deemed to have accrued in February 1997 and that subsequent dental visits in
which claimant received no treatment do not qualify to entitle the claimant to
the doctrine of continuous medical treatment.
The court need not reach the issue of continuous medical treatment because it
finds the State failed to preserve this jurisdictional defense pursuant to CCA
11 (c). It is a fundamental principle of practice in the Court of Claims that
the filing and service requirements are jurisdictional in nature and must be
strictly construed. (
Finnerty v New York State Thruway Auth
., 75 NY2d 721, 722-723). However,
any defense premised upon CCA 10 or 11 is waived unless raised, with
particularity, either by way of a motion to dismiss before service of the
responsive pleading or in the responsive pleading. (CCA 11 [c]). Here, the
State's third affirmative defense, comprised of five separate paragraphs,
attempts to allege a lack of subject matter and personal jurisdiction. (State's
Verified Answer, ¶ ¶ 11-15). It is well-settled that such a defense
should, at a minimum, relate "(1) that the claim or notice of intention was not
filed or served in a timely fashion
; (2) that the claim should have been
filed at some earlier time; and (3) the statutory authority
requirement that was allegedly violated." (Sinacore v State of New York
176 Misc 2d 1, 9; emphasis added). In this court's view, the State's third
affirmative defense is lacking portions of both the first and third elements
cited above. For instance, the first paragraph of the State's third affirmative
defense states "[t]he court does not have subject matter jurisdiction over the
claim and personal jurisdiction over the defendant in this claim pursuant to
Court of Claims Act § 10 and 11 since a copy of the Notice of Intention and
the Claim were not filed
personally or by certified mail return receipt
requested within the time provided by statute
." (State's Verified
Answer, ¶ 11; underlined emphasis in original; italics emphasis added).
The court finds the State's use of the word "filed" to be misleading since a
notice of intention has not needed to be filed since 1995. (CCA 10 & 11, L
1995 ch 466). Moreover, the State's use of the phrase "within the time provided
by statute" does not specifically state the statute by name. Although it is
obvious to a seasoned Court of Claims litigator that the reference was to the
previously cited Court of Claims Act § 10 and 11, in view of the fact that
this claim was initially commenced when claimant was pro se, the court finds
this phrasing to be vague.
(Dargan v State
of New York
, Ct Cl, October 16, 1998, Lane, J., Claim No.
Additionally, the court also notes the State's third affirmative defense
contains another confusing passage in the last paragraph as follows:
[t]herefore, since the Notice of Intention to file a claim and claim were served
more than 90 days after the claim accrued, the court does not have personal
jurisdiction over the defendant nor subject matter jurisdiction over the claim
pursuant to the Court of Claims Act §§ 10 and 11 since the Notice of
Intention and Claim were served improperly under the statute.
(State's Verified Answer, ¶ 15; emphasis added).
The State's use of the phrase "were served improperly" is misleading
since the issue was untimely service, not manner of service. As such, this
court finds the State waived any jurisdictional defenses by failing to raise the
defense of untimely service with particularity pursuant to CCA 11 (c). Thus,
this court has jurisdiction to hear and determine this claim.
Malpractice - Dental
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, 789, lv denied
701), including dental care. In order to establish a prima facie case of dental
malpractice, a claimant must show that "(1) there was a deviation or departure
from the requisite standard of dental practice, and (2) the departure from the
requisite standard of practice was a proximate cause of the complained of injury
[citation omitted]." (Knutson v Sand
, 282 AD2d 42, 43; Vona v
, 302 AD2d 516).
Claimant argues, based upon Dr. Farber's testimony, that the State deviated from
the standard of care by not properly charting claimant's depth of bone loss from
1996 to June of 1999. Dr. Farber testified that the failure to chart due to the
nature of this disease was a deviation from the standard of care and that such
departure was a proximate cause of claimant's loss of 17
However, the court is satisfied from balancing the testimony of Dr. Farber
against the testimony of Dr. Heinzerling and Dr. Schifferle, that claimant was
in fact already suffering from advanced periodontal disease and had experienced
significant bone loss as early as 1996 when he entered DOCS custody. While Dr.
Heinzerling may have started with a more conservative treatment plan regarding
claimant's oral hygiene than Dr. Farber would have initiated, the court is
satisfied that due to the irreversible nature of periodontitis, that claimant's
prognosis was inevitably hopeless, and that ultimately the extraction of
claimant's 17 teeth would come to pass, regardless. While experts may vary on
the timing of the extractions, the fact that claimant's teeth would be extracted
As such, the court finds that the deficiency in charting between 1996 and 1999
was not a proximate cause of the claimant's injury. In fact, the testimony of
Dr. Schifferle indicated that the x-rays showed no real deterioration between
1996 and 1999, as well as during the period of 1996 and 2001. In fact, as noted
above, Dr. Schifferle testified that if the 1996, 1999, and 2001 x-rays had not
been dated he would not have been able to tell them apart. Consequently, the
court is satisfied that even absent appropriate charting and cleaning, no
significant deterioration occurred during the period of claimant's
incarceration, and that nothing done by the State resulted in claimant losing
otherwise healthy teeth. In short, when the claimant entered into DOCS custody
he suffered from advanced periodontal disease and had already experienced
significant bone loss. As a result, even assuming a deviation in the standard
of care, the court finds that claimant's loss of multiple teeth was not due to
said deviation, but rather was the natural consequence of his periodontal
Accordingly, Claim No. 100711 is hereby DISMISSED.
Any and all motions on which the court may have previously reserved on, or
which were not previously determined, are hereby denied.
ENTER JUDGMENT ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
Descriptions of various terms and techniques
in relation to the diagnosis and treatment of periodontal disease are set forth
as part of the discussion of claimant's expert's testimony. (Infra
Claimant was appearing pro se when he served
his "Notice of Claim".