New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2006-018-530, Claim No. 101924-A


Claimant failed to establish a prima facie case. The claim is 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:
Defendant’s attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, Esquire
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 6, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

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.[1] Compendiously, 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 custody.[2] 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. Qudsi.[3] 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 assistance.[4] 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 outside treatment.

Claimant agreed that his written request from July 29, 1999, to see Dr. Qudsi[5] 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 Facility.[6] 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 Claimant’s records,[7] 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 treatment[8] 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 case.

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 deposition.[9] 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, 244 AD2d 894).

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 dental care.

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 therapeutics.

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 tooth.

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 split.

Dr. McArdle was asked about Dr. Qudsi’s letter1[0] 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 temporary crowns.

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. McArdle’s opinion.

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. Qudsi.

Claimant argues that his claim sounds in “dental negligence,”1[1] 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 835).

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 ENTERED ACCORDINGLY.

September 6, 2006
Syracuse, New York

Judge of the Court of Claims

[1].Jones v State of New York, Ct Cl., unpublished Decision and Order, Fitzpatrick, J., dated April 27, 2004, Claim Nos. 105792 and 101924-A, Motion Nos. M-67753, M-67813, M-67899, M-67250, CM-67788, UID #2004-018-302.
[2].Claimant had apparently been discharged from custody in 1996 and returned in June 1999, pursuant to Exhibit D. No explanation was given during trial.

[3].See Exhibits 15 and 16.
[4].See Exhibits 1A & 1B, the contract with ADC.
[5].Exhibit 7.
[6].Exhibit 12.
[7]. Exhibits 11 and A.
[8].Exhibit 13 attachment 1.
[9]. Exhibit 18.
1[0]. Exhibit 16.
[1]1.The claim alleges Defendant’s care of Claimant’s dental problems evidenced reckless, depraved indifference. Since Claimant’s focus in his post-trial submissions was negligence, the Court deems any claim of depraved indifference has been abandoned (Huzar v State of New York, 156 Misc 2d 370, 371).