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.
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
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
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
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.
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
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
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”
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 ; Rivers v State of New York, 159 AD2d 788 [3d Dept 1990],
lv denied 76 NY2d 701 ) 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 ).
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
; Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682 ), 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]).