New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2008-013-506, Claim No. 105756


Claimant did not present any expert testimony to establish a prima facie case of medical/dental malpractice against defendant, nor did he establish negligence on the part of the dental providers that they caused or contributed to any alleged injury sustained by Claimant. The record does not reflect Defendant’s intentional or negligent delay in its treatment of Claimant.

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: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on March 14, 2002 and alleges the Defendant’s negligence committed by a dentist employed at Wende Correctional Facility (Wende) “who has failed to provide... necessary medical dental care while acting within the scope of his employment.” There are additional claims for “pain and suffering, mental anguish and depression” because Superintendent Donnelly and Deputy Superintendent of Health Services Post, both employed at Wende, were similarly negligent. The claim seeks $5,000.00 in compensatory damages. The trial was conducted via videoconferencing technology on two separate dates, and after all the proof was presented, both parties rested.

Claimant’s proof consisted of his trial testimony and Exhibit A, his certified medical records maintained by the Defendant’s Department of Correctional Services (DOCS) for the period of time in question. Dr. William S. Mayes, the Wende dentist whom Claimant asserts is responsible for the delay in providing the “necessary” dental work, was retired from the employ of the Defendant at the time of this trial, and did not testify. Dr. William Dawson, the Dental Director at Attica Correctional Facility and the Western Region Dental Director for DOCS, encompassing numerous correctional facilities in that region including Wende, testified, albeit on behalf of the Defendant.

The gist of this claim is that Claimant believed he had four cavities that needed to be filled, and that he did not want any further dental care or treatment, in the form of dental cleaning, to be performed until the cavities were filled. He asserts that the failure of the dental staff, Dr. Mayes in particular, to provide this “necessary medical dental treatment,” i.e., filling the cavities, constitutes negligence.

It appears from the claim that the period of complaint commenced in 1998 at Wende and ended with the last date articulated in the claim (which was sworn to on January 16, 2002), December 30, 2001, the date of a letter to the Wende Superintendent. A chronology will be helpful.

Claimant’s initial dental screening by DOCS took place on October 2, 1997 at Downstate Correctional Facility. He arrived at Wende on May 26, 1998, and was transferred to Clinton Correctional Facility in February 2002, where he was housed at the time of this trial. On June 9, 1998 Claimant sought a dental examination at Wende (Exhibit A - p. 43) and was seen on June 26, 1998.

Significantly, in reviewing the dental records at Wende, Dr. Dawson noted the updated dental examination of August 6, 1998, where in the professional judgment of that dentist ( M. Walker) Claimant needed fewer fillings than initially thought (Exhibit A - p. 21 side “b”). Thus, the number of cavities which Claimant had believed existed and which needed filling was not four.

He was scheduled for dental cleaning every six months, and was scheduled on January 15, 1999 for a February 5, 1999 cleaning. Claimant was a no-show. After being placed on the callout list for dental cleaning on October 19, 1999, Claimant refused dental cleaning, stating that he only wanted his fillings done (Exhibit A - pp. 5 and 22). On October 26, 1999 he refused a callout for dental treatment (Exhibit A - p. 4). When that signed refusal form was processed, Claimant was removed from the list for dental care (for his partial upper) because he was refusing the offered care (Exhibit A - p. 22). However, after Claimant wrote seeking reinstatement on April 18, 2000 (Exhibit A - p. 17), Dr. Mayes wrote to Claimant on April 25, 2000 to place him back on the dental treatment list (Exhibit A - p. 16). A dental appointment was scheduled for May 16, 2000. Unfortunately, as Claimant’s medical records report, on May 16, 2000 there was an electrical power failure at Wende, and the appointment was rescheduled for May 24, 2000. Another complication arose on May 24, as the facility was in a lockdown, and the appointment had to be rescheduled yet again.

On June 28, 2000, Claimant saw Dr. Mayes, again refused cleaning because he only wanted to have the cavities filled (Exhibit A - pp. 3 and 23). He signed a “refusal form,” which he allegedly did not realize, and also was not told, included a refusal for cavity treatment. He filed a grievance relating to this in July 2000. Nonetheless, on October 22, 2001, he wrote again seeking dental treatment after the alleged denial thereof for approximately two years. On November 13, 2001, he was advised by Dr. Mayes that he was on a waiting list for four to six weeks. One day prior to that date, Claimant asserts that he served a Notice of Intention to file a claim, which was then followed by the instant claim, sworn to on January 16, 2002.

There was a significant intervening change in Claimant’s circumstances which affects the chronology noted above. On June 13, 2001, he was administratively segregated in the Special Housing Unit (SHU) for disciplinary reasons, and, after he attempted to harm himself on June 14, 2001, he remained in SHU for 252 days, until his February 2002 transfer to Clinton Correctional Facility. As Dr. Dawson explained, without contradiction or dispute, because of the restrictive nature of SHU placements and time limitations for SHU inmates, there are different priorities for dental care for SHU inmates, and in the absence of specific complaints, Claimant’s dental needs did not necessitate a dental callout.

A review of Claimant’s ambulatory health records while in SHU reflects no complaints by Claimant on July 11 or 18; August 1, 8, 15, 22 or 29; September 5, 12 or 26; October 3, 10 or 17; November 7 or 20; December 5, 12, 19 or 26, 2001; January 2, 9,16, 23 or 30; February 6, 13 or 20, 2002, all of which preceded his outgoing transfer to Clinton on February 21, 2002 (Exhibit A - pp. 114-126). On all other weekly dates during this period, there are other handwritten notes by medical personnel, but there is no record of any complaints of dental pain or requests for dental treatment. To be sure, Claimant explained this by stating that he did not want to beat his head against the wall since he had had no success in obtaining the dental care that he thought he was entitled to. Nonetheless, the record is therefore devoid of any complaints of dental pain or discomfort for the entire period of Claimant’s SHU placement at Wende commencing on June 13, 2001 until the filing of this claim.

It might also be inferred that Claimant complains about the period of time until his cavities were filled and he received his partial upper (which it should be noted was ordered on May 22, 2003, and received on September 23, 2003 [Exhibit A - pp. 6-7], long after the filing of this claim). The medical records reflect that no fillings were completed at Wende, and that there were only two such fillings done at Clinton, one for Tooth # 15, and another for Tooth # 4, a tooth which had not been previously identified as having a cavity.

The only expert opinion before the Court was that of Dr. Dawson, who opined that Claimant's dental care and treatment was within the standards of care for patients being treated in DOCS facilities. He also opined that it was proper dental treatment, within the accepted standard of care, consistent with DOCS policy, not to have provided a partial upper denture to Claimant until all restorative work was completed. Thus, although a partial upper was requested by Claimant on June 26, 1998, it was not ordered until all of his restorative dental care had been completed.

Initially, it is necessary to determine whether Claimant's allegations were based on a theory of dental negligence or on a theory of dental malpractice. Claimant’s use of the term negligence is not determinative; rather, it is the nature of the allegations and proof. The theory of dental negligence is relegated to cases where the alleged negligent acts are readily determinable by the trier of fact based on common knowledge. However, when the propriety of the treatment received is called into issue, the more specialized theory of dental/medical malpractice is applicable (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).

In a medical/dental malpractice case, Claimant has the burden of proving that the medical provider did not possess or did not use reasonable care or best judgment (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804, supra). Moreover, the Claimant has the burden of proving a deviation from accepted standards of care and must produce evidence that the deviation was a proximate cause of the injury sustained. To meet this burden and to make a prima facie case of medical/dental malpractice, Claimant is required to present expert medical testimony (Macey v Hassam, 97 AD2d 919; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788). The only expert opinion expressed, albeit by Dr. Dawson who supervised Dr. Mayes, was that there were no deviations from good dental care. Since no contrary expert testimony on Claimant’s behalf was presented, Claimant failed to establish a prima facie case of medical/dental malpractice, and to the extent that his claim sounds in medical/dental malpractice, it is dismissed.

Finally, to the extent that this claim could be construed as containing allegations based upon medical/dental negligence, I find the proof lacking in this regard as well. Any alleged negligent omissions or commissions by State caregivers must be readily determined by the fact-finder using common knowledge without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d at 256, supra). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo Gen. Hosp., 239 NY 188), leaving an electric lightbulb under the sheets (Dillon v Rockaway Beach Hosp., 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, supra), and other similar circumstances.

There was nothing in the evidence to establish negligence on the part of the dental providers, or to establish that anything done or not done by such providers caused or contributed to any alleged injury sustained by Claimant. The essence of the claimed injuries is that Claimant sustained pain during this period of time, although Dr. Dawson’s review of Claimant’s medical records for the entire period in question shows no record of complaints of pain for which Motrin (ibuprofen) had been prescribed to Claimant.

Even assuming, arguendo, that this record can be read to support a finding that there was a delay in dental treatment, and of course it does not reflect any intentional or negligent delay by the Defendant, there is nothing in the record to establish that Claimant sustained any compensable injury or damages putatively resulting from such delay. “[E]ven assuming improper delay in providing treatment, it was incumbent upon claimant to show by competent expert evidence that the delay was a cause of his alleged ensuing medical problems (citations omitted)” (Trottie v State of New York, 39 AD3d 1094, 1095).

Claimant has presented no proof of any injury or damages which he sustained, and has failed to establish a prima facie case (Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941; Wells v State of New York, 228 AD2d 581; Quigley v Jabbur, 124 AD2d 398). Accordingly, the claim must be and hereby is dismissed.

All motions not heretofore ruled upon are now denied.


March 31, 2008
Rochester, New York

Judge of the Court of Claims