New York State Court of Claims

New York State Court of Claims

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.

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:
WALTER, THAYER & MISHLER, P.C.BY: Lanny E. Walter, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 25, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

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 a specialist.[1]
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, 2000.

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 mass extractions.

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 June 10
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 difficult.

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 been warranted.

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 well.

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.

  1. Jurisdiction
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 of the 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.[2] (Dargan v State of New York, Ct Cl, October 16, 1998, Lane, J., Claim No. 85719).

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.
  1. Medical 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 76 NY2d 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 Wank, 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 teeth.

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 was inevitable.

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 disease.

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.


February 25, 2005
Binghamton, New York

Judge of the Court of Claims

[1]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, p 5).
[2]Claimant was appearing pro se when he served his "Notice of Claim".