Claimant Paul Higgins filed Claim Number 110645 on March 17, 2005, alleging
that Defendant was negligent in the extraction of one of his teeth. I conducted
a trial of this matter on June 2, 2008 at Auburn Correctional Facility.
Claimant testified that, on December 22, 2004, Stephen Del Piano, D.D.S.,
performed what Claimant believed was the removal of his second lower tooth.
According to Claimant, this tooth had been causing him severe pain. Claimant
did sign a consent form for the extraction of tooth #2 and Dr. Del Piano removed
the tooth. Claimant testified that an hour or two after the removal of the
tooth, he realized that Dr. Del Piano had pulled the wrong tooth. According to
Claimant, the doctor pulled his first tooth and not his second. It became
apparent during the trial that what Claimant called his “second
tooth” and what, in dental terms, is “tooth #2" were two different
teeth. Claimant asserts that he always thought tooth #3 was the tooth that was
giving him problems and was the tooth that was to be pulled. He alleges this
caused him unnecessary pain and suffering and that he had to return to the
dentist in February of 2005 to have the proper tooth pulled.
Defendant called Stephen Del Piano, D.D.S., the dentist who removed both of the
teeth in question. Dr. Del Piano testified that, not only did Claimant consent
to the removal of tooth #2, but that it was his judgment after reviewing
Claimant’s dental record (Defendant’s exhibit A) and his examining
Claimant’s teeth himself, that tooth #2 had decayed to the point where it
was causing the pain and swelling that Claimant was experiencing. He did note
however, that Claimant had significant periodontal disease that was affecting
several teeth. According to Dr. Del Piano, after extraction of tooth #2,
Claimant was not seen again until February 11, 2005. Dr. Del Piano opined that
if he had in fact pulled the wrong tooth, Claimant would have been in continuing
pain and it would be very unlikely that Claimant would wait until February of
2005 to see him again. Dr. Del Piano also testified that it was very possible
for an infection in tooth #2 to cause problems with tooth #3. The extraction of
tooth #3 was performed on February 11, 2005. According to Dr. Del Piano, this
was not unexpected, given the state of Claimant’s periodontal disease. He
stated that he had told Claimant to come back if and when another tooth started
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, lv denied 76 NY2d 701), including dental
care. The State may be cast in liability for injuries that result because its
physicians fail to use ordinary and reasonable care or to exercise their best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field (Hale v State of New York, 53 AD2d 1025, lv
denied 40 NY2d 804).
However, only expert medical proof can establish the necessary legal causation
required to impose liability and demonstrate that there was a deviation from
good and accepted standards of medical care (see Rossi v Arnot Ogden
Med. Ctr., 268 AD2d 916; Spicer v Community Family Planning Council
Health Ctr., 272 AD2d 317; Lyons v McCauley, 252 AD2d 516).
Here, Claimant failed to present expert medical testimony regarding the tooth
extraction. Defendant’s exhibit A includes a document entitled
“Consent to Undergo Oral and Maxillofacial Surgery.” This document,
signed by Claimant on the date of his surgery, indicates Claimant gave consent
to removal of tooth #2. Dr. Del Piano testified that, in his professional
judgment, tooth #2 was the tooth that had the greatest decay and was the source
of Claimant’s pain and swelling. Claimant has failed to demonstrate
For this reason, I find that Claimant has failed to demonstrate that Defendant
was negligent in any way with regard to the removal of tooth #2 on December 22,
Based upon the foregoing, it is
ORDERED, that the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.