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
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
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.