New York State Court of Claims

New York State Court of Claims

MABRY v. THE STATE OF NEW YORK, #2007-029-006, Claim No. 109143


State not liable for dental problems of Bedford Hills inmate. No medical testimony, no proof of violation of standard of care, no proof that claimant received substandard care and no proof that claimant did not give informed consent to extraction of tooth. Claim dismissed after trial.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 31, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Bedford Hills Correctional Facility proceeding pro se, seeks damages for alleged inadequate dental care provided to her from her admission to the facility in March, 2000 through February 14, 2004 and for the alleged extraction of a healthy tooth without her informed consent. The claim was tried by video conference on December 1, 2006.

Claimant’s Dental Treatment Record (Exhibit 1) reflects the treatment rendered to claimant beginning with her initial intake examination on March 10, 2000. After that initial evaluation, claimant was seen on 18 separate occasions from May 5, 2000 through the end of 2003 receiving either prophylactic treatment, fillings or, on six occasions, emergency attention. Her dentist was Dr. Usha Shukla and she was additionally seen by a number of dental assistants and hygienists. The treatment record also shows that claimant did not appear for eight scheduled appointments during that period.

On January 12, 2004, claimant was seen by Dr. Shukla on an emergency basis, complaining of pain and swelling in the area of tooth #32, the right lower wisdom tooth. Claimant testified she was told the gums around the tooth were inflamed and that she had periodontal disease. Dr. Shukla wrote in the treatment record that claimant had possible pericoronitis, that she was to return on January 22 for prophylactic treatment and that she was referred for oral surgery on February 10 (id., p 4). On January 22, Dr. Shukla performed a full mouth scaling and again noted pericoronitis in tooth #32. The doctor testified that, on both January 12 and January 22, she told claimant that the tooth would have to be removed.

Claimant testified that she came to her oral surgery appointment on February 10 unaware that an extraction was planned. Although she signed a consent form for the extraction of tooth #32 (id., p 6), she claimed that the line on the form that identified the procedure was blank when she signed it and the words “Extraction #32” were added subsequently. She claimed that she did not realize until the next day that the tooth had been extracted.

Dr. Shukla testified that she discussed tooth #32 with claimant at her initial examination in March 2000. She stated the wisdom tooth was not fully erupted from the gum and that it “was not a healthy tooth”[1] for that reason. However, since it was not causing any problems at that time there was no reason for any treatment. With respect to the February 2004 extraction performed by Dr. David Greenman, Dr. Shukla testified she was present and she saw claimant sign the consent form which contained the words “Extraction #32” when claimant signed it. She also stated she heard Dr. Greenman discuss the need for extraction of the tooth with claimant.

According to Dr. Shukla, if claimant’s wisdom tooth had not been extracted, she would have suffered from continual infections and pain. Her opinion was that the dental care claimant received at Bedford Hills was not only adequate but “superior.” She attributed claimant’s dental problems to poor oral hygiene, which she first noted on her initial examination report in March 2000 (Exhibit 1, p 1), and which she stated resulted from claimant failing to properly clean around her partial dentures.

Claimant disagreed, arguing that her dental records demonstrated four years of “inadequate care” and that defendant’s employees “failed to institute some type of regimen.” At the conclusion of testimony, the court partially granted defendant’s motion to dismiss on the basis that, without expert testimony, there was no way for the court to evaluate the causation of her dental condition, the reasons for its progression and the applicable standard of care. Thus, to the extent that the claim alleged dental malpractice, it was dismissed. The court denied defendant’s motion with respect to two aspects of the claim: claimant’s contentions that her wisdom tooth was extracted without her consent and that she was improperly denied replacement partial dentures.

With respect to the claim of lack of informed consent, claimant argued that the surgeon’s note in her treatment record stated that she “refused” extraction. Although Dr. Greenman’s handwriting is far from clear, it is apparent that what he wrote was “pt. referred for extraction #32,” not “pt. refused for extraction #32” as contended by claimant (Exhibit 1, p 5). While it is possible that one might look at the word, in isolation, and interpret it to be “refused,” such an interpretation results in a grammatically incomprehensible sentence which makes no sense in context. The rest of the entry is a routine note by an oral surgeon describing a routine procedure consistent with other entries in the treatment record, in which Dr. Shukla wrote that she was referring claimant to an oral surgeon for pericoronitis in tooth #32. The court accepted Dr. Shukla’s testimony that the need for the extraction had been discussed with claimant by her and Dr. Greenman and that the nature of the procedure was set forth on the consent form when claimant signed it. Finally in this regard, the court notes Dr. Shukla’s testimony that the extraction resolved the problems claimant was having in that area of her mouth and that the loss of a wisdom tooth would have no negative effect on claimant whatsoever.

Although it was only alluded to peripherally at trial by claimant, the amended claim alleges that “there was a medical need for Claimant to be afforded partial dentures as her right to adequate medical care” (Amended Claim, ¶ 10[e]). There was no testimony or evidence supporting this assertion. Indeed, the only testimony concerning claimant’s need for dentures was from Dr. Shukla, who stated that claimant did not meet the criteria for partial dentures at State expense. Claimant submitted a portion of the Department of Correctional Services dental care policy (Exhibit 6) which states “[p]artial removable dentures should be constructed mainly only if the inmate has fewer than six occluding posterior teeth or if one or more of the maxillary or mandibular anterior six teeth are missing” (id., ¶ l). The policy also states that the dentist “must exercise his best judgment” whether to provide partial removable dentures and “must not be influenced by an inmate’s insistence on receiving them” (id.). There was no indication that claimant met the criteria to be provided with dentures at State expense, that the dental staff abused their discretion in refusing her request for dentures, or that the failure to provide her with new dentures caused or exacerbated any of claimant’s dental problems (see also Exhibits 7, 10, 12 and 18 documenting claimant’s unsuccessful attempt to reverse the decision to deny her new dentures through the grievance process).

Based on review of the entire record, the court finds claimant failed to sustain her burden of proof with respect to her allegations of inadequate dental care, lack of informed consent or failing to provide her with new dentures to which she was entitled. Accordingly, the Chief Clerk is directed to enter judgment dismissing this claim.

January 31, 2007
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.