Claimant seeks damages from the State of New York as a result of improper or
negligent dental care while he was an inmate at Ogdensburg Correctional Facility
(OCF). This action has an arduous procedural history which is set forth in a
written Decision and Order.
Claimant filed an amended claim on July 14, 2003, which asserts that Claimant
went to the facility dentist on January 31, 2000, for treatment of a fractured
tooth and replacement of a temporary dental bridge, and the dentist placed an
ineffective filling in his tooth and refused to replace the dental bridge.
Claimant alleges that the facility dentist acted with depraved and reckless
indifference to Claimant’s dental condition.
Claimant testified that he was transferred from Downstate Correctional Facility
to OCF in July 1999. While at Downstate, his temporary dental bridge became
loose but he was advised to wait until he arrived at his next facility to seek
dental treatment for it. According to Claimant, on July 26, 1999, Dr. Naved A.
Qudsi, the dentist for OCF, examined his teeth. At that time, Claimant advised
Dr. Qudsi about his loose temporary bridge. The dental bridge covered three
teeth on the lower lefthand side of his face. Claimant had tooth #19 removed
and the temporary bridge covered that opening and the two adjoining teeth, #18
and #20. This dental bridge was the result of some dental treatment commenced
while Claimant was out of the custody of the Department of Correctional Services
(DOCS) but which had not been completed before his return to
Dr. Qudsi advised Claimant during
this first visit to remove the bridge daily and clean the teeth. Claimant
testified that thereafter the bridge became jagged and very loose. It caused
Claimant pain because its sharp edges cut into his gums.
Claimant asked to see Dr. Qudsi again and was seen on August 3, 1999. Claimant
told Dr. Qudsi that his gums were being cut by the jagged edges of the bridge,
causing bleeding and that the bridge would not stay on his teeth. Claimant
asked for a temporary or permanent bridge to replace what he had. According to
Claimant, Dr. Qudsi said he could not replace the bridge because of restrictions
in the DOCS policies. In order to replace the bridge, Dr. Qudsi would have to
obtain approval from his superiors in Albany. Claimant then wrote to the OCF
superintendent regarding his bridge problems seeking a bridge replacement. His
request was denied. At the August 3 appointment, Dr. Qudsi told Claimant that
all he could do was replace the bridge with a removable prosthetic device and
that he would need to remove the two teeth (#18 and #20) which held the bridge.
Claimant told him that such treatment was unacceptable because those two teeth
were still good. Claimant told Dr. Qudsi that the State of New York should
replace his temporary bridge or correct the situation and left the appointment
without any treatment.
Dr. Qudsi saw Claimant next on September 22, 1999, for a lost filling. On
December 15, 1999, Claimant returned again for a bridge replacement. Claimant
had lost his temporary bridge while eating; the bridge got caught in his food
and he swallowed it. Claimant also complained that he could not eat hot or cold
food without feeling pain in the two exposed teeth (#18 and #20). Dr. Qudsi
advised Claimant that without special permission, the available treatment option
was to provide a removable prosthetic device similar to a denture. That
procedure would require the removal of Claimant’s two teeth, (#18 and
#20). At trial, Claimant called Dr. Qudsi as a witness and asked him if it was
normal and proper procedure to remove two healthy teeth. Dr. Qudsi responded
that those teeth would not be considered healthy teeth because they had been cut
to facilitate the placement of the temporary bridge.
When questioned, Dr. Qudsi agreed that it is always better to obtain a
permanent bridge. Dr. Qudsi testified that if a permanent bridge cannot be
placed, as with an inmate, he would attempt to salvage the temporary bridge
until a permanent replacement could be obtained. He testified that the cement
used for a temporary bridge usually only lasts for about three months. However,
without the temporary bridge, Dr. Qudsi could not craft a new temporary bridge.
Dr. Qudsi’s records reflect Claimant told him he would wait until he got
out of prison to have the bridge replaced. Dr. Qudsi testified that he did
speak with his director, seeking permission to replace Claimant’s
temporary bridge but was denied permission.
Two letters were received in evidence written by Dr.
The first letter, dated January 10,
2000, was written in response to an inquiry of Vincent Jones, Superintendent of
Administration. In that letter, Dr. Qudsi discussed Claimant’s dental
treatment at OCF and indicated that he could not provide services beyond the
scope of DOCS policy. Another letter, dated June 21, 2000, was sent to the
Attorney General’s Office and indicated Dr. Qudsi received permission for
a second alternative treatment plan. Instead of the prosthetic device requiring
the removal of teeth #18 and #20, temporary crowns could have been placed on
Claimant’s two teeth to avoid extraction. However, this permission was
apparently granted after Claimant’s last visit with Dr. Qudsi on April 20,
2000, so Claimant was never advised of this option. Although Claimant was still
at OCF until October, Dr. Qudsi did not keep track of the location of inmates,
and Claimant did not seek further dental treatment at OCF.
Dr. Qudsi was questioned about the sensitivity of Claimant’s two teeth
(#18 and #20) that held the bridge. Dr. Qudsi testified he could not address
whether the removal of enamel from those two teeth, as part of bridge placement,
caused the sensitivity. Sensitivity he said was individualized. Nor could he
address whether those teeth would be more susceptible to decay without the
placement of the bridge. Dr. Qudsi’s notes did not reflect that Claimant
complained about pain in those two teeth. Claimant also questioned what would
happen to his surrounding teeth without the bridge. Dr. Qudsi felt that in the
short term there was no harm, but after 10 - 20 years, the upper teeth could
start to shift.
In 2000, Claimant was transferred to Lincoln Correctional Facility on a work
release program. He consulted with the dental staff at Lincoln about the dental
bridge and was given the same information as he received from Dr. Qudsi. He was
without a bridge for nearly a year. On December 9, 2000, while still an inmate,
he went to the American Dental Clinic for dental
He began treatment with Dr.
Ivonne Minching at that time. He had two of his upper teeth ground down and a
new bridge was inserted. He paid $975 for the procedure.
Claimant testified he repeatedly brought the problems with his dental bridge to
Dr. Qudsi but he received no treatment. Claimant suffered pain when eating hot
and cold foods after he lost the bridge, and his upper teeth moved. He
testified that he still suffers from pain caused by the deterioration of those
upper teeth, due to the failure of the State to provide adequate treatment,
while he was in its care and custody.
Also as part of this claim, Claimant testified that while at OCF, on January
31, 2000, he bit into a piece of uncooked or hard rice and his upper right tooth
cracked down to the gums. He saw Dr. Qudsi for this, and Dr. Qudsi told him it
could be corrected with a resin composite. Claimant asked about using a filling
other than resin. Claimant was worried because he believed the resin was only a
temporary correction. Dr. Qudsi told him that he was only authorized to use a
resin composite. Claimant allowed Dr. Qudsi to do the work. Claimant
testified the resin filling fell out in April 2000. Claimant acknowledged that
he saw Dr. Qudsi on April 20, 2000 at OCF. Claimant had Dr. Minching restore
the tooth. That procedure cost him $100. Dr. Minching recommended that he have
the tooth capped, but Claimant was without funds for this procedure.
Claimant acknowledged, on cross-examination, that he was incarcerated at OCF
from July 1999 to October 2000, and that he was still in the custody of DOCS
when he was transferred to Lincoln. Claimant never notified anyone at Lincoln
that he was obtaining outside dental treatment from Dr. Minching. He did
testify that he told the dentist at Lincoln that he would be seeking assistance
elsewhere. Claimant failed to make any requests to DOCS for permission to seek
Claimant agreed that his written request from July 29, 1999, to see Dr.
fails to include any mention that the
bridge was jagged or cutting into his gums, nor does it indicate that he was in
pain. The form only reflects that he needs a permanent bridge.
On redirect examination, Claimant explained that the request forms used to
obtain a dental appointment have limited space and, therefore, not all of his
complaints were included. He also said that Dr. Qudsi could have seen the sharp
edges on the temporary bridge when he examined Claimant’s teeth on July
26, 1999, and that by July 29, 1999, the bridge kept popping off.
As a witness for Claimant, Dr. Qudsi identified Claimant’s dental chart
as completed at Downstate Correctional
Dr. Qudsi described the procedure
at OCF when an inmate needs dental treatment. First, the inmate completes a
dental request form after which an examination is scheduled. The examination is
either an emergency examination or a more thorough general examination.
Dr. Qudsi testified that he first saw Claimant on August 3, 1999. Contrary to
Claimant’s testimony, the date of July 26, 1999, which appears in
is the date Dr.
Qudsi first reviewed the chart; not the date he saw Claimant. Dr. Qudsi
identified the request slip dated July 29, 1999, (Exhibit 7) by which Claimant
requested a dental visit seeking to have his bridge recemented or replaced.
On January 31, 2000, Claimant saw Dr. Qudsi for a broken bicuspid on the upper
right side of his mouth. Dr. Qudsi restored it with resin bonding. Dr. Qudsi
identified the DOCS guidelines for dental
and agreed that for restoration of
carious permanent teeth there are three alternatives; silver amalgam, resins or
composite materials, or stainless steel crowns; any of which he could use
without permission. When Claimant questioned why Dr. Qudsi used resin bonding
instead of silver amalgam, he replied that silver would not hold in a broken
tooth. Claimant’s tooth was completely broken off. The resin attaches
itself to the tooth through a chemical reaction, while the silver filling
adjoins by a mechanical process. Silver requires something on which to adhere,
while resin can glue onto the surface. Additionally, to place a silver filling,
Dr. Qudsi would have had to remove more of the broken tooth. These factors were
considered when deciding what procedure he would use to repair Claimant’s
broken tooth. Resin was his material of choice. Claimant did not return to the
clinic with pain or sensitivity, so Dr. Qudsi believed that the restoration was
successful. Dr. Qudsi repeatedly stated that resin bonding is a permanent
filling, not temporary, and that was his professional choice based upon the
alternatives given him by the DOCS guidelines. Dr. Qudsi testified that if
there were no restrictions on what treatment he could provide, the better
treatment would have been to crown the tooth but he was not allowed to do so.
He also noted that Claimant had a pre-existing gum problem which may have
precluded a crown being used. Dr. Qudsi could have also covered
Claimant’s tooth with a temporary silver crown, but that would not have
been a permanent repair. He used his judgment to determine the best solution
for Claimant’s problem.
Dr. Qudsi acknowledged that the resin could come out but that varies from
individual-to-individual, and he could not predict the likelihood that the resin
would become dislodged. It was his opinion that the silver filing would have
cracked before the resin bonding would become dislodged in Claimant’s
Dr. Qudsi was asked which repair, the resin bonding or the temporary silver
crown, would result in less tooth sensitivity. He responded that either method
of repair could result in sensitivity.
Claimant’s treating dentist, Dr. Minching, testified via
She first saw Claimant on
December 9, 2000, and developed a treatment plan for him which included
replacing the temporary bridge. She testified that Claimant’s upper teeth
above the area where the bridge had been had extruded and needed to be reduced
in size for the new bridge to fit. She confirmed that Claimant paid $975 for
that work. She was asked other general questions regarding extracting teeth and
repairing them. Pursuant to Claimant’s request, the Court finds Dr.
Minching qualified to be an expert; the Court accepts Dr. Minching’s
expert testimony, despite Claimant’s failure to provide CPLR 3101(d)(1)(i)
notice, since Dr. Minching was Claimant’s treating dentist and
Defendant’s counsel participated in her pre-trial deposition (see Breen
v Laric Entertainment Corp.,
2 AD3d 298; Stark v Semeran,
The State called Robert McArdle, D.D.S., who is the New York State Dental
Director for DOCS. He helped develop the dental portion of the New York State
DOCS health service policy manual that includes the scope of services provided
to inmates. Dr. McArdle testified that there are some excluded services similar
to the limitations on services that are available to a policyholder of dental
insurance. He testified that the DOCS effort is to maintain a constitutional
level of care: insuring inmates are seen in a timely fashion and get proper
Dr. McArdle reviewed Claimant’s dental chart from his incarceration. He
testified that Dr. Qudsi’s repair of Claimant’s broken tooth in
January, 2000, was found to be appropriate and within accepted dental
He further testified that Dr. Qudsi was correct in telling Claimant that he
couldn’t provide a permanent bridge for him without permission. DOCS is
not required to give ideal dental care, and there are fiscal considerations in
determining what care is to be provided inmates. In his opinion, the lack of a
bridge didn’t affect Claimant’s ability to eat or speak and,
according to the record, he was not in pain either. It was Dr. McArdle’s
opinion that there would be no negative effect on the teeth above the missing
tooth (#19) because a person’s teeth are not lined up evenly top to bottom
and the upper teeth are larger than the lower ones. Therefore, the upper teeth
would not hyper-erupt for a long period of time after loss of a bridge or the
loss of the lower teeth. It was also his opinion that there was no departure
from sound dental practice by Dr. Qudsi not treating the loss of the #19
Dr. McArdle testified that it is possible for an inmate to request private
dental treatment while incarcerated. First, the inmate must find someone
willing to come into the facility. The State would have to approve of the
provider. There would be an agreement that the inmate would be responsible for
any expense and that the State would not be liable for any faulty treatment.
Other steps would also need to be taken before approval is given. While an
inmate is in the custody of DOCS, including work release programs, this policy
is still in effect. No permission was given to Claimant by DOCS to obtain
outside dental treatment from Dr. Minching or anyone else.
On cross-examination, Dr. McArdle agreed that he could not testify about how
much pain Claimant had with either of his dental problems. His opinion was
based upon his own experience; he had never examined Claimant.
When an inmate comes into the dental clinic with a complaint of a loose bridge,
Dr. McArdle said an examination would need to be done to determine whether the
bridge is loose, or whether the surrounding teeth and structure underneath are
loose. When the bridge is actually loose, the bridge should be recemented with
temporary cement. The purpose of a temporary bridge is to prevent the adjacent
teeth from moving and to protect them from outside effects, minimizing
sensitivity. Dr. McArdle further testified that it would be unusual for the
upper teeth to have hyper-erupted because a temporary bridge was missing. It
would also be unlikely to have a loose bridge cutting gums unless the bridge had
Dr. McArdle was asked about Dr. Qudsi’s
to the Attorney General’s
office in which he had offered an alternative treatment of a removable
prosthetic device. He testified that Claimant may not have been eligible to
receive that treatment. If there are more than 6 occluded posterior teeth, an
inmate would not be eligible. The removable prosthesis would not prevent
sensitivity in the adjacent two teeth. Dr. McArdle gave Dr. Qudsi the
permission to offer, as a secondary treatment option, the placement of two
As for the repair of Claimant’s broken tooth, Claimant inquired as to
whether, in repairing a broken cusp of a tooth, consideration is given to the
extent the tooth is needed for grinding food. Dr. McArdle noted that Claimant
suffered a crack to the outside cusp of the tooth. It is the inside cusp that
masticates. The outside cusp has much less stress to it. Dr. Qudsi would have
had to do more reduction of the tooth to use a silver amalgam or to place a cap
on it. Dr. McArdle said that the potential option of placing a temporary metal
cap would be dependent upon evaluating bone structure and the extent of any
periodontal problems. From reviewing Claimant’s records, Dr. McArdle
noted Claimant had moderate generalized periodontal disease and poor bone
quality near the affected tooth.
Claimant asked Dr. McArdle what was stronger, a silver amalgam or the resin
bonding. Dr. McArdle said a dentist does not seek to make the tooth repair as
strong as possible but tries to replicate the compressive strength of the tooth
surface around it. The stronger covering would wear down the natural teeth
opposing it. A silver amalgam could make the tooth split. The resin was the
closer approximation to the natural tooth enamel.
Claimant inquired whether the failure to treat was appropriate in Dr.
Dr. McArdle noted that Claimant’s dental records indicate in August 1999,
Claimant did not want to have the facility treat him, in accordance with the
restrictions of DOCS, regarding his temporary bridge. It was Claimant’s
choice not to have the treatment plan implemented as proposed by Dr.
Claimant argues that his claim sounds in “dental
and he has made no claim
for dental malpractice. The Court finds this is a dental malpractice claim.
Where the actions or inactions of a dentist in the evaluation and treatment of a
dental condition are alleged to be improper, the nature of such a claim is
dental malpractice; unless the conditions are of “such a character as to
warrant the inference of want of care from the testimony of laymen, or in the
light of the knowledge and experience of the jurors.” (Zettler v Reich,
256 App Div 631, 632; Cassano v Hagstrom,
5 NY2d 643). The question
of the proper exercise of skill or care on the part of the dentist typically
requires expert testimony to establish that the injuries may have been avoided
if proper care was given (Zettler,
256 App Div at 632). Here, whether
Dr. Qudsi’s denial of Claimant’s request for a permanent bridge and
suggested treatment, which included the possible extraction of two of
Claimant’s teeth was proper care of Claimant’s dental condition, are
matters not within the experience of laymen. Nor is it self-evident that Dr.
Qudsi improperly repaired Claimant’s cracked tooth by using resin filling.
Expert testimony is necessary to establish whether Dr. Qudsi’s care was
improper (Mossman v Albany Medical Ctr Hosp.,
34 AD2d 263, 264).
To prove a claim for dental malpractice, evidence must be presented
establishing the standard of care in the community, a deviation from that
standard of care, and proof that the deviation caused the injuries suffered
(Bennett v State of New York, 2006 WL 2076548, 2006 N.Y. App. Div. Lexis
9633 [App Div 3d, July 27, 2006]; Salzman v Rosell, 129 AD2d 833, 835;
Williams v State of New York, 164 Misc 2d 783, 785). Claimant has failed
to establish Dr. Qudsi committed dental malpractice causing Claimant injury.
The testimony elicited from Claimant’s treating dentist and expert, Dr.
Minching, failed to establish the standard of care for a loose dental bridge or
a cracked tooth. Nor did her testimony suggest Dr. Qudsi’s care of
Claimant’s dental issues was improper (Salzman, 129 AD2d at
Although Dr. Minching did testify that it would be unethical to extricate two
healthy teeth, she was not asked whether teeth, #18 and #20, would be considered
healthy or whether removal of those two teeth would deviate from the standard of
care. Dr. Qudsi testified, uncontradicted, that those two teeth were not
healthy. Dr. Minching’s testimony did not indicate the treatment option
offered by Dr. Qudsi, namely, a temporary prosthetic and possible removal of
teeth #18 and #20 was outside the standard of care. In fact, her testimony was
that the “ideal plan” was replacement of the bridge. Treatment
outside of the ideal care does not establish malpractice. The dental problems
Claimant incurred as result of the missing bridge, the shifting and extruding
teeth, were also not causally linked to the time frame Claimant was under the
care of Dr. Qudsi.
Claimant also failed to establish that using a resin filling to treat his
cracked tooth was a deviation from acceptable practice. Although Dr. Minching
testified that in a healthy tooth that has cracked, she would use amalgam
filling, she did not testify that using a resin filling was outside the standard
of care. A choice of one acceptable treatment over another is not malpractice.
Since Dr. Minching did not testify specifically regarding Claimant’s
cracked tooth, she also may have found this cracked tooth not healthy enough to
warrant an amalgam filling. From Dr. McArdle’s testimony, the resin
filling was the most appropriate choice given the condition of the remaining
portion of Claimant’s tooth and his surrounding teeth.
Accordingly, Claimant has failed to establish a prima facie case. The claim is
DISMISSED. All motions not heretofore ruled upon are DENIED. LET JUDGMENT BE