New York State Court of Claims

New York State Court of Claims

HIGGINS v. THE STATE OF NEW YORK, #2008–031-513, Claim No. 110645


Claimant failed to prove prima facie case of dental malpractice. Claim 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:
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 bothering him.

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 otherwise.

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, 2004.

Based upon the foregoing, it is

ORDERED, that the claim is dismissed.


September 29, 2008
Rochester, New York

Judge of the Court of Claims