New York State Court of Claims

New York State Court of Claims

KNAPP v. THE STATE OF NEW YORK, #2006-028-011, Claim No. 106438


Claimant, who suffered a fractured jaw in connection with the manual extraction of a tooth, failed to prove either that the dentist was negligent in his decision to perform a manual extraction or, once there was a partial fracture of the tooth, to attempt to continue with the procedure. There is also no basis for concluding that Claimant is entitled to recovery based on the dentist’s failure to obtain informed consent.

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:
SPADA LAW FIRMBY: Eugene R. Spada, Esq.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
April 13, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is a dental malpractice action that arose on January 24, 2002, when Claimant Raymond Knapp was an inmate of Hudson Correctional Facility (hereinafter referred to as Hudson). Trial of this action was bifurcated, and this decision relates only to the issue of liability.
Claimant, who was 53 years old at the time in question, testified that a tooth in the upper right quadrant of his mouth, “you call it Number 1 or Number 2,” (Tr, 23) suddenly became inflamed and painful that morning (Tr, 51). He quickly saw the dental hygienist at the facility and reacted very strongly when she touched the tooth: “I jumped a good six inches out of the chair” (id.). The hygienist said that she thought the tooth needed to be removed but that the facility dentist, Dr. Krane, was at another prison that day. Arrangements were made for Claimant to be transported from Hudson to Greene Correctional Facility (hereinafter referred to as Greene), and he arrived at Greene at approximately 9:00 or 9:30 a.m. As it came to pass, he was seen by Dr. Krane within two hours after first experiencing pain (Tr, 53).
Although Claimant was hoping that the tooth could be filled, Dr. Krane said after taking an x-ray of the area that he believed the tooth was too badly damaged and would have to be removed. Claimant again asked if there was any way the tooth could be saved but testified he was told by Dr. Krane that the tooth was simply “too badly gone” (Tr, 25). Claimant stated that he was told of no alternatives other than extraction performed by Dr. Krane and he was not informed of any risks associated with the procedure (id.).
Claimant then described the procedure that was carried out by Dr. Krane. After administering novocaine and waiting for his patient’s mouth to become numb, Dr. Krane started pulling the tooth. After three or four minutes, Claimant stated, it was evident that the tooth was not coming out. “So, I put my hands up in a gesture to push him away to tell him he needs to stop” (Tr, 26). Dr. Krane told him they could not stop in the middle of the procedure and continued to pull on the tooth. “[P]ossibly another minute later I heard the sound of what sounded like a two by four breaking behind my head” (Tr, 27). Blood then started coming out of Claimant’s nose and mouth, and he heard Dr. Krane say to his assistant, “[O]h, boy. We’re in trouble” (id.). The dentist and his assistant began trying to get the bleeding to stop, in Claimant’s opinion doing the best that they could. Dr. Krane went to the phone twice to call someone to take Claimant to Albany Medical Center.
Eventually two people came to transport Claimant, but – apparently because they were working overtime – they took him first to Coxsackie Correctional Facility, which is located very close to Greene. Twenty to thirty minutes later, two other officers took him to Albany Medical Center. During this time, Claimant stated, he was experiencing pain that was “probably a nine or a ten on the scale [of ten]” (Tr, 29). On arrival at Albany Medical Center, Claimant stayed on a gurney for one and a half to two hours, still in pain. Eventually he was given something for pain and transferred to the Dental Department. The young dentist or resident examined his mouth, got him some more medication for pain, and took x-rays. After examining them, the dentist said that he wanted to get a second opinion, and a second dentist took a look in his mouth. They then proceeded to make arrangements for Claimant to be transferred to an oral surgeon in Clifton Park, Dr. Johar. Because it was approximately 4:30 p.m., arrangements were made for him to see Dr. Johar the following day.
Claimant spent the night in the Regional Medical Unit at Coxsackie and was given Tylenol with Codine for the pain. The following morning, Dr. Johar examined Claimant and took more x-rays of his mouth. Claimant was then given a general anesthesia and underwent surgery that lasted over three hours. At the end of the surgery, he stated, there was a wire in the upper right part of his jaw where Tooth No. 2 had been. The intense pain was relieved, but he was instructed to remain on liquid food for about a week and soft food for about a month. He also wasn’t able to shave the right side of his face during that period. Following the surgery, Claimant was seen regularly by both Dr. Johar and Dr. Krane for about two months.
Since the surgery, Claimant said, he has had periodic problems with pain under his right eye along the nose and over his right eye. He estimated that the pain occurs once or twice a day and lasts about an hour, although sometimes it will be as long as an hour and a half (Tr, 43). On cross-examination, Claimant stated that he has made regular and frequent complaints to the health department and the dental department about headaches and other pain in his head. He also stated that he mentioned these problems when given a medical screening when he was transferred from one facility to another. On redirect, Claimant answered “[o]f course” when asked if, had he been told that there was a risk of jaw fracture if the tooth was simply pulled, would he have chosen to have the tooth surgically removed (Tr, 72-73)
Dr. Michael A. Krane was called to testify, as an adverse witness, by Claimant. He stated that he had thirty years of dental experience, including seven years with the United States Air Force and twenty years with the State of New York. He is not an oral surgeon but has performed both root canals and oral surgery in his practice. With the Department of Correctional Services (DOCS) the services for which he is hired provide that he cannot perform root canals on posterior teeth, but he may extract any tooth.
The tooth that was troubling Claimant was Tooth No. 2, the second molar on the upper right, a posterior tooth. When he began treating Claimant, he observed that the tooth was decayed but not fractured. The x-rays that he took prior to starting the treatment (Exhibit 4), showed, however, that it had decay in the mesial portion, and thus the tooth was not completely intact (Tr, 94). When asked to compare his x-rays with those taken the following day by Dr. Johar (Exhibit 1), he observed that the crown and one of the tooth’s three roots were missing, although they were present in his earlier x-rays (Tr, 97).
Dr. Krane confirmed that he alone had made the decision to extract Claimant’s tooth. He agreed that there are two types of extraction – manual and surgical – and that the decision as to which method to use depends on the facts and circumstances that are known at the time. Claimant’s tooth was abscessed and, in his opinion, nonviable. He was able to examine the root structure in the x-rays and observed that they appeared to have fused together, to create one large root which curved to the rear. Because they appeared to be fused, Dr. Krane thought at the time that it would be a fairly routine extraction, as the curvature did not appear to be severe. He determined that a surgical extraction would be contraindicated because there was enough crown present for a manual extraction and the roots were conical (Tr, 109). In addition, he felt that Claimant would remain in extreme pain, possibly for several days, if the tooth were not extracted immediately (Tr, 126).
To extract the tooth, since he assumed that there would be fused conical roots, he began by separating the tissue from the tooth, in order to loosen it in the socket. Next he used foreceps to luxate the tooth (move it back and forth) in the socket, and he was able to achieve some motion. It was at that point that the crown and the palatial root came out, leaving the two remaining buckle roots (Tr, 106, 130). The only thing Dr. Krane did after that was to use the elevator, a device that applies less force than forceps, to try to loosen the remaining two roots which he still considered to be fused. If he had determined that they were not fused, he stated, the appropriate procedure would have been to remove bone and start sectioning the roots themselves. He never got to that point, however, because the roots fractured just from the pressure of the elevator (Tr, 111).
The result of the roots fracturing at that point was that Claimant’s jaw also fractured. Diagrams introduced into evidence (Exhibits 5, 6, 7) were used to demonstrate the location of tuberosity
– the bone above and in front of the area of Tooth Number 2, toward Tooth No. 3 that fractured. The fracture went all the way through the bone into the sinus canal which was separated (Tr, 117). Because the fracture was repaired with only one ligature wire, Dr. Krane estimated that it was not very long. The risk of jaw fracture, Dr. Krane stated, comes from the condition of ankylosis.
He did not consider the fact that Tooth No. 1 was angled in the direction of Tooth No. 2 to have played a role in the fracture, because it was not actually impinging on Tooth No. 2.
Although he acknowledged that his decision to use the elevator on the two remaining roots was the cause of the fracture, Dr. Krane stated that he did not consider that decision to be a deviation from the standard of care. The result that occurred on this occasion had never before happened to him and is extremely rare, occurring in only half of one per cent of the time (Tr, 120). In his opinion, even a surgical extraction of an ankylose tooth could have resulted in the same fracture of the jaw.
He did not specifically remember what he said to Claimant prior to this extraction (Tr, 134). With respect to the information that he typically gives his patients as a routine practice, however, Dr. Krane advises that there is a possibility of sinus exposure with any maxillary extraction and that there is some risk of injury to the jaw. At the time in question, it was not the facility’s policy to obtain written consents from general dentistry patients; written consents were used only for oral surgery.
Defendant’s fact witness was Ginger Rogers-Zwko, who works as a dental assistant at Greene Correctional Facility, where she is assigned as assistant to Dr. Krane. She recalled Claimant coming to the dental clinic on January 24th and that he was complaining of pain in the upper right quadrant. It was Dr. Krane who took the patient’s history. Ms. Rogers-Zwko assisted in the extraction procedure, which was performed in a special operatory room in the dental clinic. She stated that she never heard or observed Claimant trying to communicate with Dr. Krane or attempting to push him away. Although she had no independent recollection of Dr. Krane advising Claimant of the risks of the procedure, she stated that it was his routine practice to do so. The risks he typically warned about were numbness, possible breaking of the jaw, and perforation of the sinus if it was an upper tooth that was being extracted..
In lieu of taking direct testimony from Dr. Krane, defense counsel offered his deposition transcript into evidence, and Claimant’s counsel agreed to this procedure.
Expert Testimony
Dr. Richard Lewin-Epstein, Claimant’s expert, is licensed to practice dentistry in New York and New Jersey and has an Associates Degree in Risk Management from the Insurance Institute of America. He left the active practice of dentistry in 1994 when he developed a tremor. His opinions regarding this case were based on the records of both Dr. Krane and Dr. Johar and the deposition transcripts of Dr. Krane and Claimant.
He described Claimant’s tooth prior to any work being done on it in the following fashion:
The crown of the tooth was extremely broken down, It was carious throughout . . . Very decayed. . . . [I]t basically was a hollow crown. And there was no denten[4] left between the decay and the almalgam-restoration. And, it – And, the nerve was abscessed – It appeared as a brittle tooth.

(Tr, 150.) The x-ray taken by Dr. Krane showed that Tooth No. 2 had two silver fillings, and there was decay underneath the fillings. The tooth appeared to be intact, however, with only a small dissolution fracture of the enamel. The roots were curved toward the back and sitting just beneath the maxillary sinus. There was an impacted wisdom tooth next to Tooth No. 2 that, he stated, would make it more difficult to get the curved roots out. In Dr. Lewin-Epstein’s opinion, neither the records nor the x-ray revealed any indication that the three roots of Tooth No. 2 were fused (Tr, 155). On the other hand, he acknowledged, there was also nothing to indicate that they were not fused (Tr, 154).
In performing this extraction, he stated, the dentist would have to be aware of the adjacent impacted wisdom tooth, the other adjacent tooth, surrounding bone, and the area above the roots, which in this case was the maxillary sinus. The only thing separating the root of Tooth No. 2 from the maxillary sinus was a very thin layer of bone, and any upward pressure can fracture that bone quite easily (Tr, 156). The “broken downness” of the crown of the tooth, because it was abscessed and had no fluid inside to keep the tooth moist, would also be a consideration in determining whether the tooth should be extracted manually or surgically (Tr, 158).
According to Dr. Lewin-Epstein, Claimant should have been warned about the possibility of the tooth fracturing, the risk of exposing or perforating the bone separating the tooth from the sinus, and fracture of adjacent teeth or the jaw. Claimant should also have been given the alternative option of surgical extraction, which would have lessened the chance of a fracture because, according to him, the pressure would only have been in one direction -- out or downward – as opposed to manual extraction where there would be pressure in all directions – back, front, side to side, and up and down (Tr, 161). He stated that it would have been a deviation from the accepted standard of care for the patient not to have been informed of these risks and of the alternative of being referred to an oral surgeon. In addition, he opined, at the point where the crown and one root had come out but two roots remained, Dr. Krane had an obligation to explain to the patient that it was no longer a simple extraction and that he should have the remaining work performed by an oral surgeon.
Apart from the issue of informed consent, Dr. Lewin-Epstein stated that in his opinion it was a deviation from standard dental practice to elect to manually extract the tooth in the first place, because of its condition and the pressure that would be applied on the tooth, causing it to fall apart (Tr, 174). It was also a deviation from standard dental practice for Dr. Krane to attempt to extract the two remaining roots manually, once the crown and one root had come out, because there was nothing to grab on to any longer. Continuing to attempt to carry out a manual extraction would inevitably put pressure in the wrong direction.
Reviewing Dr. Johar’s notes, Dr. Lewin-Epstein found no mention of ankylosis. If that condition had been present, the oral surgeon would have had to perform extra work, such as chiseling the tooth away from the bone or perhaps cutting it away with a drill. Any such work would have appeared in the operative notes and there were no such indications in Dr. Johar’s notes (Tr, 188-189).
On cross-examination, Dr. Lewin-Epstein acknowledged that at the time he formed his opinion about this case and wrote his report for Claimant’s attorney, he had not seen the actual x-rays taken by Dr. Krane and had only seen a photocopy of the x-rays taken by Dr. Johar. He also acknowledged that when a patient such as Claimant presents with a great amount of pain, there is a need to immediately address the pain in one fashion or another (Tr, 236).
Defendant’s expert, Dr. Stewart Kaskel,
an oral surgeon and an Associate Professor of Oral Surgery at Albany Medical Center for fifty years, testified that he presently works for DOCS, handling oral surgery needs in the Northeast region. As part of that job, he examined Claimant in May 2002 as a follow-up to the surgery that had been performed in January. He found everything to be “healthy and normal,” with no opening from the mouth to the sinus (Tr, 280-281). Subsequently, he was asked by the Department of Law to review the file in Claimant’s case (Exhibit E) for this litigation, and in connection with that, he performed another examination on Claimant in August 2003. Again he found the condition of Claimant’s mouth and remaining teeth to be normal and healthy and the fracture completely healed.
Based on the information available to Dr. Krane at the time the patient presented on January 24th, in Dr. Kaskel’s opinion, the correct diagnosis was made. In the same situation, he himself would have elected to perform a manual extraction, because it is the simplest form of surgery; it is less traumatic than a surgical sectioning and extraction; and it results in less bone loss (Tr, 287). He could see nothing in the pre-operative x-ray to indicate that a manual extraction was contraindicated. Only about half of the tooth was involved in bone, and there was no indication that the tooth was involved in the antrum (sinus). In Dr. Kaskel’s opinion, therefore, Dr. Krane had done what any other general practitioner would have done in their office if presented with the same tooth in the same situation (Tr, 291).
Given the amount of pain that Claimant was in, it was also Dr. Kaskel’s opinion that a patient in the same position would have consented to an immediate manual extraction even after being advised of the risk of sinus perforation and/or fracture. Furthermore, when asked on cross-examination if a surgical extraction would have lessened the risk of a fracture, he stated that that was not necessarily so. To remove the tooth surgically, the surgeon would have to cut the bone to get up to where the roots branch out from the tooth. Each root would then be cut individually from the tooth. To accomplish this, the roots are elevated from the same position that occurs in a forceps extraction; they are not removed downward but toward the cheek. Since it was the pressure of the elevator device on the roots that most likely caused the fracture, Dr. Kaskel felt that it could have occurred just as easily if they were being elevated during a surgical procedure.
Applicable Law
The State has an obligation to provide ordinary and appropriate health care and treatment to inmates in its institutions (Gordon v City of New York, 120 AD2d 562 [2d Dept 1986], affd 70 NY2d 839 [1987]). To establish a prima facie case of liability in a malpractice action, a claimant must prove (1) the standard for good and acceptable care in the locality where the treatment occurred , (2) that the defendant breached that standard of care, and (3) that such breach was the proximate cause of injury (Bracci v Hopper, 274 AD2d 865 [3d Dept 2000]). When the malpractice involves patient treatment, three component duties are owed by the practitioner to the patient: (1) the duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his best judgment in the application of this knowledge and skill (Littlejohn v State of New York , 87 AD2d 951, 952 [3d Dept 1982], citing Pike v Honsinger, 155 NY 201, 209- 210 [1898]).
Where the alleged wrongful act occurred when the practitioner was selecting among alternatives in developing a plan for treatment of the patient, expert testimony is almost always required to prove a claim of malpractice, because proving the negligence “necessitates a comparison to the standard of care customarily exercised” by other medical practitioners in the community (Zellar v Tompkins Community Hosp., 124 AD2d 287, 289 [3d Dept 1986]; Yamin v Baghel, 284 AD2d 778 [3d Dept 2001]; Miller v Albany Med. Center Hosp., 95 AD2d 977 [3d Dept 1983]). If such testimony establishes only that there is a difference of professional opinion between experts in the field as to the proper course of treatment, then there is no basis for finding Defendant liable (Topel v Long Is. Jewish Med. Center, 55 NY2d 682 [1981]; Gielskie v State of New York, 11 AD2d 877 [3d Dept 1960], affd 9 NY2d 834 [1961]; see also Darren v Safier, 207 AD2d 473 [2d Dept 1994]; Ibguy v State of New York, 261 AD2d 510 [2d Dept 1999]). Similarly, because success cannot be guaranteed in every case, a mere error in judgment cannot support the imposition of liability, as long as the practitioner exercised his or her judgment in choosing one of several medically acceptable alternatives (Oelsner v State of New York, 66 NY2d 636 [1985]; Schrempf v State of New York, 66 NY2d 289, 295 [1985]; Pike v Honsinger, supra; Sciarabba v State of New York, 182 AD2d 892 [3d Dept 1992]; Ibguy v State of New York, supra). Rather, the provider’s choice of treatment must be shown to be outside the range of acceptable treatment modalities (Ibguy v State of New York, supra; Weinreb v Rice, 266 AD2d 454 [2d Dept 1999]). On the other hand, decisions that are not based upon careful or intelligent examination cannot be considered to be an exercise of professional judgment (Clark v State of New York, 99 AD2d 616 [3d Dept 1984]; Bell v New York City Health & Hosps. Corp., 90 AD2d 270 [2d Dept 1982]).
In the instant case, all of the professional witnesses agreed that the choice facing Dr. Krane when he first examined Claimant was whether to extract the tooth manually, which could be done immediately, or refer him out for surgical extraction, which might require additional time to effect. While the experts disagreed about what they thought was the best course of action, there was no credible testimony from which the Court could conclude that electing the manual extraction alternative in this instance was a departure from the relevant standard of care. The crown of the tooth was present to permit a manual extraction; reading the x-ray to indicate that the roots were fused was not shown to be unfounded; it appears that Dr. Krane was correct in his assessment that neither of the adjacent teeth impinged on Tooth No. 2 so as to interfere with the extraction; and – perhaps most significantly – Claimant was in considerable pain, pain that was not going to be relieved until the tooth was removed. If the referral for surgical extraction were made, he might have continued to experience pain for several days; the surgical procedure would be more invasive and thus carry more risk of infection or other complications; it would result in greater bone loss; and Dr. Kaskel testified convincingly that the risk of a jaw fracture would not be totally eliminated. In these circumstances, the Court cannot conclude that the decision made by Dr. Krane fell below the standard for good and acceptable care in the locality.
The second decision that was made, to continue an attempt to remove the remaining two roots after the crown and one root had broken off, was discussed in less depth by the experts. It is noteworthy that the same appliance, an elevator, would have to be used for the same purpose during a surgical extraction, making it possible that the same relative light pressure would have been applied at the same location, with the same results. In addition, Claimant was going to, and did, remain in pain until the two roots were removed.
With respect to that portion of the claim based on Claimant’s contention that Dr. Krane did not obtain his informed consent, such a cause of action requires proof of specific factors as set forth in Public Health Law § 2805-d (see Benfer v Sachs, 3 AD3d 781, 782, 783 [3d Dept 2004]; Jolly v Russell, 203 AD2d 527, 528 [2d Dept 1994]). Pursuant to that statute, lack of informed consent means that the medical, dental or podiatric provider failed to disclose to the patient alternatives to the treatment proposed and the reasonably foreseeable risks and benefits involved in such treatment that “a reasonable . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.” It must also be proven that “a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed.”
Although Claimant was a generally credible witness, prior to the extraction, he was in considerable pain and was primarily concerned with trying to save his tooth if that was at all possible. It is therefore difficult to believe that he was paying a great deal of attention to whatever the dentist was saying, or not saying, about various types of extraction procedures. In any event, given the same circumstances and the risks of each method of extraction that would have been outlined had they all been fully disclosed, the Court is unable to conclude that a reasonable person in Claimant’s position would have chosen to wait in pain for perhaps several days in order to undergo a more invasive procedure that carried its own set of risks.
Finally, it is possible that the requirements set forth in Public Health Law § 2805-d did not even apply in this case, for the statute also provides that recovery for a practitioner’s failure to obtain informed consent is limited to “(a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.” Consequently, there is no cause of action for lack of informed consent if it is based on procedures that are emergencies (see e.g. Connelly v Warner, 248 AD2d 941 [4th Dept 1998]; 1 NY PJI3rd, Civil 2:150A, at 832, Malpractice-Informed Consent [2006]). Although the definition of “emergency” as it is used in this statute has not been fully developed, it could be argued, perhaps successfully, that the circumstances in which Claimant presented constituted an “emergency.”
Claimant has failed to establish, by a preponderance of the credible evidence, either that the dental treatment he received from Dr. Krane fell below the accepted standard of good, professional care or that there is any basis for concluding that Claimant was entitled to but did not receive sufficient disclosure so that his decision to consent to surgery was fully informed. The Chief Clerk is directed to enter judgment dismissing the claim.
Let judgment be entered accordingly.

April 13, 2006
Albany, New York

Judge of the Court of Claims

[1]. This testimony was admitted over Defendant’s objection, with the Court stating that it would give it the weight to which it was entitled in law. The Court also overruled Defendant’s objection that neither the notice of intention nor the claim set forth a cause of action based on lack of informed consent. It was noted that more than a year had passsed since Defendant received the CPLR 3101(d) response of Claimant’s expert, clearly stating that he intended to testify regarding informed consent (Tr, 80-86).
[2]. The maxiallary tuberosity is the area of the jawbone behind the first molar (wisdom tooth) (Tr, 157).
[3]. Ankylosis occurs when the ligament or membrane that attaches a tooth to the bone is missing and the root actually fuses directly to the bone (Tr, 188).
[4]. This, Dr. Lewin-Epstein defined as “the tooth structure underneath the enamel of the crown of the tooth” (Tr, 150).
[5]. At trial the Court overruled Claimant’s objection to the CPLR 3101(d) response submitted by Dr. Kaskel and permitted him to testify (Tr, 257-275).