New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2008-029-039, Claim No. 113668


Liability found for dental malpractice at Bedford Hills Correctional Facility.

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: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for dental malpractice brought by Sonya Denise Thompson against the State of New York through the New York State Department of Correctional Services. Trial was held on September 8 and 9, 2008. The trial was not bifurcated and this decision deals with both liability and damages.

The great majority of the salient facts of this matter are not in dispute. At all times during the period between July and December 2006, claimant was an inmate in the custody of the New York State Department of Correctional Services. Her initial intake into DOCS was at Bedford Hills Correctional Facility where claimant reported no dental problems. She was subsequently transferred to Beacon Correctional Facility and her intake form again indicates that she reported no dental problems. Despite the lack of apparent symptoms, the dental exam record (Exhibit 1, p 17) and the panorax x-ray taken of claimant’s dentition in July 2006 (Exhibit 2) indicated various areas of advanced deterioration and moderate periodontal disease. The panorax x-ray was included in claimant’s dental chart which was maintained at the Fishkill Correctional Facility during her incarceration at Beacon. Dental services for inmates at Beacon are provided by the dental staff at Fishkill, which is approximately a half-mile away.

On August 17, 2006 claimant first submitted a form requesting to be seen by dental staff reporting her symptoms as pain, sensitivity to warm/hot and swelling on the left side of her mouth (Exhibit 1, page 18). This form was received by the dental clinic at Fishkill on August 22, 2006. The response was a chart review (presumably including the panorax x-ray) by Dr. Raja and the scheduling of an appointment for claimant on October 25, 2006. Other than this chart review and scheduling of an appointment some nine weeks hence, the dental staff took no action in regard to claimant’s request to be seen (Exhibit 1, p 16).

Claimant testified, corroborated by Barbara Furco, R.N., a nurse in the infirmary at Beacon, that over the next two months she periodically complained of oral pain and swelling. However, in response to her complaints she was merely instructed to wait for her name to appear on the dental call-out sheet. Thus for approximately two months, the treatment of claimant consisted of a chart review and instructions to wait for her appointment.

Claimant’s testimony as to the events of October 19, 2006 at Beacon’s infirmary was substantially corroborated by the testimony of Nurse Furco and claimant’s ambulatory health record for that date (Exhibit 1, p 42).

In her testimony, Nurse Furco identified the ambulatory health record notes for October 19, 2006 as hers. She noted that her examination of claimant on that day showed swelling and facial edema to the left side of her face approaching the left eye. She also noted that claimant complained of ear pain. On October 19, 2006, Nurse Furco called the Fishkill dental facility at 7:45 a.m. to report these findings. Her notes indicate that at 8:25 a.m. she spoke to Dr. Williams who indicated that she would not see claimant that day but would prescribe antibiotics by telephone. This telephone order resulted in claimant being dispensed Clindamycin to be taken in 300 milligram doses three times a day for ten days. The medication was dispensed at 3:10 p.m. on October 19. Nurse Furco also testified that the Beacon primary care physician, Dr. Dunbar, examined claimant and his impression was that claimant presented a “dental emergency” (Exhibit 1, p 42). The corresponding notation in claimant’s dental chart, apparently made by Dr. Williams, noted the report of symptomology by Beacon, the telephone prescription and an indication for follow-up at claimant’s originally scheduled appointment on October 25, 2006 (id. at 16).

The next day, October 20, 2006, Nurse Furco again saw claimant, this time under an emergency sick call (id. at 42). On that date, claimant complained of pain and swelling on the left side of her face and jaw and Nurse Furco observed an increase in facial edema from the day before. She contacted the Fishkill dental facility at approximately 8:45 a.m. and received a return call at approximately 1:00 p.m. from Dr. Williams. Dr. Williams directed that claimant be sent to the Fishkill dental clinic at 1:30 p.m. that day.

At the Fishkill dental clinic on October 20, 2006, claimant was first seen by Dr. Williams, who then relinquished claimant’s care to Dr. D’Silva. Dr. D’Silva performed an incision and drainage (“I&D”) on claimant’s left maxillary area. It is uncontroverted that at the time this I&D was performed no drain was placed at the site by Dr. D’Silva. Claimant was subsequently returned to Beacon with prescriptions for Motrin for pain, salt for a saltwater rinse and bed rest. Follow-up was scheduled for October 23, 2006. Permits for bed rest were issued to claimant for the period of October 20 through October 24, 2006 (Exhibit 1, pp137-138).

Despite the treatment and procedures received by claimant, her condition continued to deteriorate and she was seen again under emergency sick call in the early morning hours on October 22, 2006. At that time, the medical staff at Beacon evaluated claimant as having a swollen left check and left upper eyelid. Claimant also complained of increased pain at the site of the I&D and stated that saltwater rinses had not helped, nor had the Clindamycin that she had taken for the past three days. Upon examination, a finding was made that claimant’s left upper back molar area was inflamed (id. at 41). At approximately 3:15 a.m. the Beacon doctor considered it advisable to transfer claimant to the Putnam Hospital Center emergency room for further evaluation and/or treatment. She was then transferred.

As would be expected, claimant’s chart from Putnam Hospital Center is voluminous (Exhibit 4). The records demonstrate that claimant was admitted to Putnam Hospital Center from the emergency room early in the morning of October 22, 2006. Her admitting diagnoses were aggressive periodontitis, retained dental roots and facial cellulitis (Exhibit 4, pp1-2). She was further noted upon arrival as having a chief complaint of periorbital abscess, facial pain and swelling (id. at 9). She was prescribed Dilaudid for pain (an extremely potent medication), Clindamycin, 600 milligrams via intravenous and Benadryl, 600 milligrams also via intravenous (id. at 11).

On October 23, 2006 claimant underwent a surgical procedure in the operating room at Putnam Hospital Center. The operative report of the surgery, performed by Dr. Christopher Cuomo, indicates that he performed an additional I&D for a left facial abscess together with surgical extraction of two teeth and four retained roots (id. at 56-57). The operative indications show that claimant presented to Putnam Hospital Center subsequent to the initial I&D on October 19 with increased swelling. A CT Scan of claimant’s head demonstrated fluid collection in the maxillary left quadrant with swelling in the left periorbital region (id. at 56). Thus, it is clear that Nurse Furco’s evaluation of claimant was correct and the swelling and edema had now affected claimant’s eye region.

At the end of the surgical procedure, Dr. Cuomo sutured the surgical sites and placed a Penrose drain, which was sutured in place, into the area of the infection (id. at 57). This drain was removed several days later. All in all, claimant was an inpatient at Putnam Hospital Center for five days during which time she received intensive surgical and chemical therapy for the abscess and facial cellulitis.

Upon her discharge from Putnam Hospital Center, claimant was transferred to Bedford Hills’ infirmary and, several days later, was returned to Beacon. Claimant testified that during this time she continued to complain of black eyes, a knot in her face, a twisted mouth and a mechanical speech impediment which caused her to speak out of the right side of her mouth. Claimant introduced into evidence photographs taken of her on November 5, 2006 at Beacon (Exhibits 6 and 7). These complaints were confirmed by Nurse Furco and claimant’s ambulatory health record (Exhibit 1, pp 34-35) which demonstrate claimant’s continuing symptoms in this regard as late as December 19, 2006. In fact, when she returned to Beacon on October 31, 2006, Nurse Furco assessed her as having reduced but still present left side facial edema. Claimant was seen again on November 1, 2006, complaining of pain in her ear and shooting pains to her temple (id. at 37). The ambulatory health records indicate that, at a certain point, Dr. Dunbar was compelled to consider whether claimant had sustained nerve damage and, in fact, referred claimant to an oral surgeon for follow-up (id. at 34). Thus, it is clear that after five days as an inpatient, two separate surgical procedures and several weeks of medication, claimant still had residual pain and swelling to her facial area as late as November 2006.

All of the facts set forth above are essentially uncontested and are corroborated by either witness testimony, documentary evidence or both. [1]

The only material factual dispute presented concerns claimant’s compliance with the medication regimen ordered by Dr. Williams on October 19, 2006. All parties agree, and the documentary evidence reflects that Dr. Williams prescribed 300 milligrams of Clindamycin three times per day on October 19, 2006. The labels of the prescription bottles indicate that this medication was dispensed in the form of 150 milligram capsules (Exhibit 1, p 2). Therefore, the correct dosage required claimant to take two capsules three times per day. There was, and remains, some question as to whether claimant took one or two 150 milligram capsules per dose on October 19 and 20, 2006. Neither Nurse Furco nor claimant were able to shed any light whatsoever on this issue. However, as will be discussed, infra, given the circumstances which occurred in the succeeding five days it is clear that claimant’s full compliance with Dr. Williams’ order would have had no substantial impact on her condition.

Claimant called Denise Williams, D.D.S., one of claimant’s treating dentists. Dr. Williams is a licensed general dentist who has been employed by DOCS since September 2002. She is assigned to Fishkill, working Monday through Friday, 7:30 a.m. to 3:30 p.m. One day per week she attends at Beacon.

The Fishkill dental facility has three dentists, all of whom are general dentists and each of whom had a hand in the care of claimant. Dr. Raja performed the initial chart review in August 2006 when claimant requested dental attention (Exhibit 1, p 16). Dr. Williams was in attendance on October 19 and 20 when claimant’s condition worsened to the point of an emergency. On October 20, 2006 Dr. D’Silva, as senior resident physician, replaced Dr. Williams and performed the initial I&D procedure on claimant. The I&D site was closed without the placement of a drain or other means of drainage and that fact will become an issue in the testimony of the expert witnesses.

Dr. Williams’ testimony did not diverge in any substantial way from the facts set forth above. She defined dental cellulitis as a dangerous complication and indicated that a dental abscess is a serious matter. She testified that the symptoms noted in claimant’s August 17, 2006 request for dental treatment (throbbing pain with sensitivity to heat and swelling inside the mouth) can be indications of a possible abscess (id. at 18). Nevertheless, Dr. Williams did not feel that a two-month delay in seeing a patient complaining of these symptoms was a deviation from the generally accepted standard of care of dental practice in this area.

Dr. Williams further testified that on October 19, 2006 she was unaware of the August 17 request for dental treatment. She did not feel it necessary to see claimant on that date and considered it sufficient to order the Clindamycin with a follow-up at claimant’s scheduled appointment on October 25. According to Dr. Williams there was no need to see claimant since she was treating her with the antibiotics.

Conversely, Dr. Williams testified that she deemed it necessary to see claimant on October 20, 2006 because Nurse Furco had reported that the swelling was now impinging upon claimant’s left eye. She then testified that Dr. D’Silva relieved her of the care of claimant on October 20 and that Dr. D’Silva performed the I&D under local anesthesia.

Dr. Williams conceded that there is no indication that any drain was placed in claimant’s maxillary area subsequent to the initial I&D and she conceded that the lack of a drain could be cause for further problems. Dr. Williams was excused without cross-examination by the State.

Finally, there are individual items of testimony that the court has considered. Claimant testified in a forthright, non-evasive manner. She indicated that when she reentered DOCS in May 2006 she had no dental problems and reflected such in her intake form at that time (Exhibit 1, pp 26-27). When she was transferred to Beacon she further had no dental problems and once again filled out her intake form to this effect (id. at 28-29). Claimant also freely admitted that, due to monetary issues, she had neglected her own dental care for some time before entering prison. She testified that she was released in March 2007 and had seen dentists post-release. The court found claimant’s testimony credible since she candidly distinguished between times when she had no dental problems and the circumstances leading up to her two surgeries. As a result, the court finds it easy to believe that she was in some level of pain from August 17, 2006 through her two surgeries in October and further into November and December 2006 during her convalescence.

With the essential facts of the case established by testimony and documentary evidence, the court must now consider the testimony of the two expert witnesses who testified in this trial.

Claimant called Andrea Schrieber, D.D.S., a maxillofacial surgeon. After a review of the doctor’s credentials, the court accepted her as an expert in the fields of dentistry and maxillofacial surgery.

Dr. Schrieber reviewed the ambulatory health records (Exhibit 1), the Putnam Hospital Center chart (Exhibit 4), the panorax x-ray (Exhibit 2) and examinations before trial of Dr. Williams and claimant.

She testified that the panorax x-ray of claimant taken on July 19, 2006 (Exhibit 2) and the dental chart filled out on that date at Bedford Hills (Exhibit 1, p 26-27) indicated various problems, including residual roots, tooth decay and an impaction.

Turning to claimant’s request for dental treatment of August 17, Dr. Schrieber reviewed the dental symptoms noted together with the chart and the panorax x-ray and opined, to a reasonable degree of dental certainty, that the combination of these symptoms and observations indicated the presence of an abscess. She then offered her expert opinion that the nine-week delay between claimant’s request for treatment and her first scheduled visit to the dental facility represented a departure from the appropriate standard of care.

Next, Dr. Schrieber noted that claimant’s symptoms had worsened by October 19 (see Exhibit 1, p 42). Based upon this symptomatic change, together with claimant’s history, Dr. Schrieber was of the opinion that the refusal to see claimant immediately on October 19 represented a departure from the appropriate standard of care. She opined that a telephone order for Clindamycin without an actual examination of the patient represented a departure from the appropriate standard of care and further, that the 300 milligram dosage of Clindamycin three times per day was not the proper dosage for treating a suspected maxillofacial infection. Thus, she offered the opinion that the medication, as prescribed, was insufficient and a deviation from the appropriate standard of care. Dr. Schrieber explained that the appropriate dosage of antibiotic for a suspected maxillofacial infection is 2,000 milligrams per day. She also explained that the half-life of Clindamycin is such that the four times per day regime is necessary to maintain therapeutic blood levels.

As a final matter in regard to the actions of Dr. Williams on October 19, 2006, Dr. Schrieber noted that the report indicated increased facial edema, the prescription for Clindamycin and a follow-up scheduled for October 25. In Dr. Schrieber’s opinion, given these symptoms, a delay of five days for follow-up represents a deviation from an appropriate standard of care.

Dr. Schrieber next reviewed the notes concerning the I&D performed on claimant on October 20, 2006 (Exhibit 1, p 42) which do not indicate the placement of a drain at the surgical site. Dr. Schrieber explained the necessity and desirability of such a drain after a surgical procedure, particularly where an infection is involved, because it not only relieves the pressure of the accumulated dead material but also changes the environment by introducing oxygen to prevent anaerobic bacteria from refilling the vacated space. Dr. Schrieber then gave the opinion that the failure to place a drain after the October 20 I&D represented a departure from the appropriate standard of care. She further opined that the indicated follow-up delay until October 23 was an additional departure from the appropriate standard of care since, in her opinion, a surgical follow-up should be performed within 24 hours of the procedure.

Dr. Schrieber next reviewed the events of October 22, 2006. She read from the chart that claimant’s condition had materially worsened and that the infection was now impacting her left eye. Dr. Schrieber indicated that this circumstance is extremely dangerous, not only from the standpoint of claimant possibly losing vision in the eye but also with the possibility that the deep-space infection could enter the brain and cause a sinusial abscess which would be life-threatening.

It was Dr. Schrieber’s opinion that, while claimant may well have developed an abscess as a result of her poor dental condition prior to incarceration, the repeated departures from the appropriate standard of care by the Fishkill dental facility materially exacerbated claimant’s condition, causing it to deteriorate to the point of a medical and dental emergency. She testified that these departures were the proximate cause of claimant’s pain and suffering during the entire period from August to December 2006, including recovery from her five-day hospitalization.

She gave a final opinion that the scarring experienced by claimant is a result of the surgical procedures which might have been avoided had the Fishkill dental facility taken early and aggressive action in compliance with what Dr. Schrieber considered an appropriate standard of care for a maxillofacial abscess.

On cross-examination, Dr. Schrieber conceded the effect of cocaine abuse on dental health, conceded that the scarring experienced by claimant is on the inside of her cheek and not visible to the outside world and conceded that the six teeth and residual roots that were extracted would have been extracted in any event. However, Dr. Schrieber held fast to her opinions that the extensive surgery, five-day admission to Putnam Hospital Center and all the pain and suffering during the approximately four-month time period subsequent to August 17, 2006 were unnecessary and would not have happened absent the various departures from the appropriate standards of medical care by the Fishkill dental facility.

The State called William Dawson, D.D.S. as its’ expert witness. Dr. Dawson testified as to his educational background and practical experience and was qualified by the court as an expert without objection. Dr. Dawson also indicated that the documents he reviewed were substantially the same as Dr. Schrieber.

Dr. Dawson then proceeded to review the chronology of events occurring between August 17 and October 22, 2006. In his opinion, all actions taken by the Fishkill dental facility were correct and the decisions made by Drs. Raja, Williams and D’Silva were within the realm of appropriate medical judgment.

In reviewing the ambulatory health record of claimant, Dr. Dawson indicated that there were no further complaints by claimant concerning dental pain between August 17 and October 19, 2006. As a result, he concluded that the condition may have resolved spontaneously and was not a serious problem until October 19. However, both claimant and Nurse Furco testified that claimant did indeed complain of oral pain during this time period but did not fill out an additional request form because she had already been advised to wait for the call-out sheet.

Dr. Dawson next reviewed the medication ordered by Dr. Williams on October 19, 2006. In his opinion, 300 milligrams of Clindamycin taken three times per day was proper as to both medication and dosage. He did note that compliance is always an issue in medication and, if claimant took only one of the 150 milligram capsules, she would have received “the absolute minimum” therapeutic dosage.

Dr. Dawson disagreed with Dr. Schrieber’s opinion that the two-month delay in seeing claimant was a departure from accepted medical practice. It was also his opinion that the failure to see claimant on October 19, 2006 was not a deviation nor was the failure to place a drain at the I&D site on October 20. Dr. Dawson offered his professional opinion that a 24-hour follow-up after the October 20 I&D was not necessary and that the October 23 appointment for follow-up did not represent a deviation from the appropriate standard of care. He also disagreed with Dr. Schrieber and believed that the actions of the Fishkill dental professionals were not the proximate cause of the five-day hospital stay, the second I&D and the aggressive treatment afforded claimant at Putnam Hospital Center.

On cross-examination, Dr. Dawson indicated that he is an employee of DOCS and a supervisor with authority over the Fishkill dental clinic. As a result, all three doctors at the Fishkill dental clinic are under his supervision.

He offered the opinion that the proper dental standard of care is no different for an inmate in a DOCS facility than for a person in the general community. When asked to review the dental request form of August 17 (Exhibit 1, p 18), Dr. Dawson agreed that the symptoms reported indicated a possible abscess but stated that, based upon the claimant writing the phrase “needs fillings” on the top of the page, he believed that the Fishkill dental facility was justified in scheduling her on a non-urgent basis. However, he could not explain to the court’s satisfaction why the dental professionals at Fishkill would believe claimant’s assessment of her treatment needs while assuming that her self-reporting of symptoms was in error or exaggerated. To the court this seems reversed with the professionals ignoring the reported symptoms but relying on the non-expert claimant to prescribe her treatment.

Further into cross-examination, Dr. Dawson gave the opinion that Dr. Raja was justified in his triage review of claimant’s chart on August 22, 2006 in response to her request for a dental appointment. However, he testified forthrightly that claimant may not have complained enough on August 17 and at subsequent times. He indicated that, as in life, “the squeaky wheel gets the grease” and further indicated that if he himself had received the dental request he would have “at least investigated further” based on the chart and the x-rays. While this acknowledgment may not fully concede a departure from accepted dental standard of care, it certainly calls into question the actions of Dr. Raja on that date.

With regard to the events of October 19, 2006 and the actions of Dr. Williams, Dr. Dawson testified that he would have done substantially the same as Dr. Williams, despite the fact that Dr. Dunbar (the primary care physician at Beacon) considered claimant’s symptoms to be a dental emergency. Dr. Dawson went on to discuss the causes, effects and dangers of facial swelling extending to the eye and testified substantially in accordance with Dr. Schrieber on these points. However, Dr. Dawson expressly disagreed with Dr. Schrieber in regard to the need for placement of drainage at the I&D site on October 20, 2006. He ended his cross-examination by stating that had he been faced with the same circumstances on October 19 and 20, 2006, he would have taken essentially the same actions as his staff.

It is settled that the State of New York has the duty to provide ordinary and appropriate medical and dental care to inmates in its correctional facilities (Gordon v City of New York, 120 AD2d 562 [2d Dept 1986 affd 70 NY2d 839 [1987]; Rivers v State of New York, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701 [1990]) and that “in order to prove a prima facie case of dental malpractice, a plaintiff must show that (1) there was a deviation or departure from the requisite standard of dental practice, and (2) the departure from the requisite standard of practice was a proximate cause of the complained of injury” (Knutson v Sand, 282 AD2d 42, 43 [2d Dept 2001]). A medical or dental practitioner owes his or her patient (1) the duty to posses the requisite knowledge and skill possessed by the average member of the profession; (2) the duty to exercise ordinary and reasonable care in the application of such knowledge and skill; and (3) the duty to use his or her best judgment in the application of such knowledge and skill (Littlejohn v State of New York, 87 AD2d 951, 952 [3d Dept 1982, citing Pike v Honsinger, 155 NY 201, 209-210 [1898]).

A mere difference of opinion as to whether a particular course of treatment was proper is not actionable (Schrempf v State of New York, 66 NY2d 289 [1985]; Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682 [1981]), and no liability can result where the practitioner exercised his or her professional judgment in choosing among several reasonable and acceptable alternatives (Ibguy v State of New York, 261 AD2d 510 [2d Dept 1999]). Nevertheless, “[a] decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment” (Bell v New York City Health and Hosps. Corp., 90 AD2d 270, 280-281 [2d Dept 1982]).
“Although liability may not be imputed from mere errors of professional medical judgment, it may be predicated upon an inadequate and careless medical examination. ‘Physicians are not liable for mistakes in professional judgment, provided that they do what they think best after careful examination ... However, liability can ensue if their judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment’ ”
(Larkin v State of New York, 84 AD2d 438, 446 [4th Dept 1982] quoting Pigno v Bunim, 43 AD2d 718 [2d Dept 1973).

Reduced to its essence, the analysis of this matter turns upon the divergent opinions of the two expert witnesses. Obviously where expert opinions diverge this court, as the finder of fact, is both entitled and obligated to determine which of the experts was more persuasive based upon the full record, the qualifications of the experts, and the court’s observations as they testified (Flaherty v Fromberg, 46 AD3d 743 [2d Dept 2007]; Texter v Middletown Dialysis Center, 22 AD3d 831 [2d Dept 2005]).

In this matter there are several factors which tend to make Dr. Schrieber somewhat more persuasive than Dr. Dawson. At the outset, Dr. Schrieber is a maxillofacial surgical specialist in addition to being a general dentist. While such qualifications might not be dispositive in a case involving general dentistry principles, this matter involves a deep-space abscess with involvement of the periorbital area. Deep-space abscess is a surgical matter as much as a medical/dental one, and the expertise of a surgeon is certainly of value to the court in this respect. While the court has no issue with Dr. Dawson’s expertise as a general dentist, he simply does not have the same level of experience in dealing with the surgical implications of claimant’s condition.

In addition, it is noted that Dr. Dawson is employed by the defendant and supervises the three dentists practicing at Fishkill. While I do not find him to be a hostile witness as a matter of law, the fact remains that his testimony must be measured against the laudable goal of supporting his staff. However, this circumstance calls into question Dr. Dawson’s objectivity and, in several instances, apparently led Dr. Dawson into opinions which are less persuasive then those of Dr. Schrieber. For example, Dr. Dawson’s initial opinion that a two-month delay in scheduling an appointment for claimant did not violate the applicable standard of care simply strains the court’s credulity. In fact, Dr. Dawson himself later admitted that he would have treated the matter differently and “at least investigated further”. In addition, Dr. Dawson was totally unable to reconcile why Dr. Raja would give credence to claimant’s statement that she “needs fillings” while totally disregarding her statement of the symptomology she was experiencing.

Despite the above, it appears to the court that certain of the matters where the experts differed are not causal factors in this case. Much was made over claimant’s compliance with Dr. Williams’ prescription of 300 milligrams of Clindamycin three times per day. In addition, in Dr. Schrieber’s opinion, 300 milligrams was a totally insufficient dosage for claimant’s symptoms. However, the court notes that claimant’s severely deteriorating trajectory essentially took place within 48 hours from October 19 to October 22, 2006. As a result, the court seriously questions whether the dosage prescribed or compliance by claimant would have materially altered the course of claimant’s disease process. Likewise, while it may have been better practice for Dr. Williams to have seen claimant immediately upon receiving the telephone call from Nurse Furco on October 19, it is impossible to say that the 24-hour delay before claimant was actually seen at Fishkill has a sufficient causal nexus to claimant’s eventual serious dental problems. Thus, while the court finds Dr. Schrieber’s testimony somewhat more persuasive as an expert for this particular set of facts, I do not hold each of her opinions to be controlling.

Based upon the entire record the court finds that the failure to examine claimant during the period from her first dental request form on August 17 until she developed a full-blown emergency on October 19 and 20 represents a departure from the accepted dental standard of care. In addition, based upon the persuasive expert testimony, I find that the failure to install a drain (whether Penrose or otherwise) after the October 20, 2006 I&D procedure was a departure from the accepted standard of dental care. Finally, I find that the failure to follow-up with claimant in a more expeditious manner than simply scheduling an additional appointment for October 23, 2006 represents a departure from accepted standard of dental care.

In making the findings as set forth above, I also find that these departures were a proximate cause of the pain and suffering that I believe claimant endured during the period from August through December 2006. I further find that timely and appropriate treatment in accordance with accepted dental standards would have obviated the need for her to endure two surgeries, five days as an inpatient and the subsequent convalescence. I specifically do not find that claimant would have avoided the loss of her teeth or residual roots and in fact, based upon the evidence in the record, it appears that those events would have occurred regardless of defendant’s dental care. As a result, I disregard the estimates submitted by claimant (Exhibit 8).

Based upon the above, I award claimant the sum of $125,000 representing compensation for pain and suffering caused by the departures from accepted standards of dental care during the period August to December 2006 plus the return of her filing fee. The Clerk of the Court is directed to enter judgment accordingly.

October 6, 2008
White Plains, New York

Judge of the Court of Claims

[1].It is noted that claimant also submitted into evidence: (1) a set of periapical x-rays (Exhibit 3), which were never the subject of any expert testimony and are hereby disregarded and (2) an estimate from “Vital Dent” (Exhibit 8) concerning the potential implants for the teeth that she lost during the course of the procedures. For reasons to be discussed, infra, the court disregards this exhibit also.