New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. STATE OF NEW YORK, #2008-031-502, Claim No. 104607


Claimant demonstrated, at most, a difference in professional opinion as to the preferred method among acceptable choices of treatment. Claimant failed to prove a 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: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


William Rodriguez (“Claimant”) alleges that on May 9, 2000, while Claimant was incarcerated at Orleans Correctional Facility (“Orleans”), Defendant’s dentist negligently extracted his tooth causing permanent nerve damage and pain. Claimant’s case was dismissed on procedural grounds in 2002 and then later restored to the calendar (Ct Cl, January 14, 2004 [Claim No. 104607, Motion No. M-67405], Patti, J., UID No. 2004-013-004). I tried this matter on December 5, 2007 in Rochester, New York.

Claimant testified that he asked to see someone in the dental clinic at Orleans after he experienced pain in the lower right side of his mouth. He stated a piece of one of his teeth “chipped off” while he was eating. After Claimant “dropped a slip,”[1] the dentist came to Claimant’s cell in the Special Housing Unit (“S block”). Claimant stated the dentist looked in his mouth through the cell window and listened to Claimant’s explanation of the problem. The dentist stated he would arrange an appointment to have the tooth pulled. Approximately one week later, on May 9, 2000, Claimant was called down to the dental clinic to have his tooth pulled.

Claimant described his office visit. He stated the dentist looked at an x-ray which Claimant believed was taken when he first entered the penal system. The claimant showed the dentist the tooth that hurt, which happened to be in the lower right side of his jaw. He believed the dentist identified it as his wisdom tooth. Claimant stated that the dentist administered Novocain and told Claimant he was going to extract the tooth. Claimant described the actual extraction as the dentist using pliers and a mirror and that he “jiggled [the tooth] from left to right.” Claimant stated he then felt something snap and heard a “crack” which caused him to jump “out of the seat.” He testified that even the dentist jumped back at that point.

Claimant described the feeling in the right side of his jaw as a “cold rush” and “real painful.” He said the immediate pain he experienced subsided after a few seconds. The dentist then went back into Claimant’s mouth with the pliers and extracted the tooth. Claimant said the dentist showed Claimant his tooth and a piece of the tooth was missing. The dentist advised Claimant he would have to “cut me up and locate the piece of root.”

Claimant testified he was given another Novocain injection, then the dentist used a little knife and a mirror to locate the missing piece of root. After a time, the dentist could not find it so he called his assistant and asked her if she could see the root. She could not see the root, so the dentist kept looking. Claimant states that approximately 55 minutes later, the dentist located the root, extracted it and then stitched him up. Claimant was then sent back to his cell.

Claimant testified he told an officer the following day that he was “losing his tongue,” that he was numb and as a result, kept biting his tongue. He also kept “losing” food in his mouth. Claimant stated that he also had no feeling from the right side of his lip down to his chin. The officer contacted the dentist. The dentist visited claimant that day, heard his complaints, and told him the sensations would “go away.”

Claimant was transferred to Attica Correctional Facility (“Attica”) after the procedure. He testified that he dropped a slip to see the dentist at Attica so he could explain what happened with the tooth extraction at Orleans. The Attica dentist listened to Claimant’s explanation and then removed the remaining stitches but could not do anything for the numbness Claimant was still experiencing. The Attica dentist recommended Claimant see a specialist.

It appears that Claimant did not see a specialist until he was transferred to Auburn Correctional Facility (“Auburn”). At that time, Claimant learned that there was surgery available to address the numbness he was experiencing in his jaw, tongue and face. The surgery required the removal of a nerve from his ankle and the surgical insertion of that nerve into Claimant’s face. The specialist said there was a 50% chance that the surgery would succeed.

Dr. Frank Handler, DDS, testified twice at trial; once for Claimant and once for Defendant. On Claimant’s direct case, Dr. Handler testified that he had no personal recollection of treating claimant, but by referring to Claimant’s Dental Treatment Record (Exhibit J), Dr. Handler confirmed Claimant received dental treatment in May 2000 at Orleans. According to Exhibit J, Dr. Shivone, DDS, briefly examined Claimant on May 4, 2000 at his cell in S block. Dr. Shivone’s notes indicated that Claimant complained of pain and had mild swelling around tooth number 32. Dr. Shivone observed that the tooth was tilted and there was bone loss. He also noted that Claimant would need tooth number 32, the lower left wisdom tooth, extracted.

Dr. Handler saw Claimant on May 9, 2000 at the dental clinic. He reviewed Claimant’s panoramic x-ray (“panex”) in the file (Exhibit C) and also visually observed that tooth number 32 was “angled mesially,” that is, tilted towards the front of the mouth. Dr. Handler testified that he planned a simple forceps extraction that is accomplished by removing the fibers from the tooth, grasping the tooth with forceps and rocking the tooth back and forth, tongue to cheek. When the tooth was out, Dr. Handler examined it and noted that only the distal root was there and that the mesial root was missing.

Dr. Handler stated he then did a “flap procedure” to remove the bone and extract the root. He cut a flap on the outside of the gum to provide access to locate and remove the root. The root, once located, is removed by suction. Dr. Handler believes the whole procedure took approximately 45 minutes.

Dr. Handler checked on Claimant on May 10, 2000 and noted on his dental record that Claimant had pain and swelling. He testified that this was normal. He observed no bleeding. Dr. Handler noted that Claimant was being transferred to Attica and he would call and advise the dental clinic there that Claimant’s sutures would need to be removed.

Dr. Robert Corwin, DDS, is Claimant’s expert. The transcript of his deposition was stipulated into evidence (Exhibit P) and the video of that deposition was given to the Court, without objection, to review. It appears that Dr. Corwin was hired by Claimant’s counsel to review Claimant’s dental charts and the treatment Claimant received from Dr. Handler. Dr. Corwin reviewed Claimant’s and Dr. Handler’s depositions. Dr. Corwin also examined Claimant on May 10, 2002.

On May 10, 2002, Dr. Corwin took a dental history from Claimant during which he learned that his tooth was taken out while he was incarcerated, that the procedure took approximately one hour and that claimant’s right lower jaw remained numb afterwards. Dr. Corwin’s clinical exam revealed that the area around the extracted tooth had “healed fine” (Exhibit P, p. 12). Dr. Corwin reported that Claimant was numb from the lower right second bicuspid to the lower right lip, indicating the trigeminal nerve’s mandibular branch was impaired. He did an objective test to make sure it was numb by inserting a sharp instrument into the Claimant’s gums in that area. Claimant felt nothing.

Dr. Corwin opined that a 55-minute procedure in this case was too long; that had Dr. Handler used the proper procedure, the extraction would have taken approximately 5 minutes. He stated that wisdom teeth commonly have two roots and that they more than likely will be bent. Further, since Claimant is a male African American, his lower jawbone is “extremely dense.” Dr. Corwin opined that the tooth should have been sectioned.

Dr. Corwin described the sectioning procedure. He stated that a cut would have to be made through the gum to “lay a flap.” Then, either a high speed or low speed drill would be used to cut the tooth in half in such a way that each half would have its own root. The extraction can then be done by “an elevator” or by forceps.

Claimant has offered Dr. Corwin as an expert witness and, because Defendant has not stipulated to Dr. Corwin as being such an expert, I will discuss his qualifications and determine whether or not Dr. Corwin so qualifies.

Dr. Corwin has practiced general dentistry in Manhattan since 1970. He has had his own practice since 1975 and is licensed by the State of New York. He is a 1966 graduate of Columbia University Dental School in New York, New York. He also served as a dental intern in the U. S. Army for one year following his graduation, training for three months in each of the following specialities: operative dentistry, root canal, oral surgery and periodontal. After his internship, he served three years in Germany.

During the internship, Dr. Corwin trained “one-on-one” with a board certified oral surgeon. Together they extracted approximately a “couple hundred” wisdom teeth during the three-month rotation. Currently, “two or three percent” of Dr. Corwin’s practice involves oral surgery. He is a member of the American Dental Association, the New York State Dental Association, and the New York City Dental Association. He is not board certified in any specialty.

I find that Dr. Corwin is an expert witness (Beizer v Schwartz, 15 AD3d 433 [Court erred in restricting expert general dentist from testifying regarding periodontal issues. The fact that the expert was a general dentist and not a periodontist goes to the weight of his testimony]).

Dr. Handler testified on Defendant’s direct case that he graduated from dental school in 1982 and was in a private practice until 1988 when he became a New York State employee. He worked in the New York State Department of Correctional Services (“NYSDOCS”) from 1990 to 2000. He estimated that he had extracted approximately 4,000 to 5,000 teeth from 1982 until 2000, and that approximately 1000 of those were wisdom teeth. He stated he performed three extractions for Claimant in 2000. Dr. Handler removed two teeth, numbers 1 and 16, in February 2000. These teeth were upper molars, therefore, they had three roots. Dr. Handler then removed Claimant’s wisdom tooth on May 9, 2000.

Dr. Handler’s routine procedure for a wisdom tooth extraction would be to seat the patient, review his dental chart and x-rays, inspect the tooth and then assess the tooth’s shape, bone support and previous chart notes on that tooth. Based on that information, Dr. Handler then would decide whether surgical or nonsurgical extraction was indicated.

Here, Dr. Handler concurred with Dr. Shivone’s assessment on the panex. He decided not to section the tooth as Dr. Corwin suggested because Claimant’s tooth had a “mesial tilt,” making the actual drilling of the tooth difficult. Further, Claimant had moderate bone loss indicating to Dr. Handler that the jawbone’s “hold” on Claimant’s tooth might not be very tight, making a non-surgical extraction by forceps the better, less invasive and recommended choice.

Dr. Handler then applied a topical anesthetic and injected Claimant with lidocaine. Once Dr. Handler was sure Claimant was numb, he used an elevator, a shoe horn-shaped tool with a bulbous handle, to loosen the fibers that attach the tooth to the jawbone. Then, he grasped the tooth with the forceps and, using a gradual buccal to lingual, “cheek to tongue,” rocking movement, used the tooth as a fulcrum to move the jawbone and enlarge the tooth socket.

Dr. Handler observed nothing unusual about the roots of this tooth. One did not appear more curved than the other. Further, they sat parallel, one behind the other from the back of the mouth to the front, on the panex.

Dr. William Dawson testified for Defendant. Dr. Dawson received his undergraduate degree from Western Michigan University, followed by his Doctorate of Dental Surgery from the State University of New York School of Dental Medicine in May 1978. He became a New York State licensed dentist in June 1978. He held the position of assistant Professor of Dentistry at that same institution from 1978 to 1985. He also maintained a part-time, private dental practice from 1978 until 1982, when he joined the NYSDOCS as a part-time “Dentist 1.” He became a full-time “Dentist 2" in 1985 when he stopped teaching. In 1990, NYSDOCS promoted Dr. Dawson to a “Dentist 3," responsible for dental services in Attica. Then, in 2004, Dr. Dawson was promoted to “Dentist 4" where he had supervisory responsibility for dental services in western New York. In late 2007, he became the Assistant Director of Correctional Services for the State of New York. Dr. Dawson stated that he also continues to practice dentistry and performs all phases of the work, including the removal of wisdom teeth. Dr. Dawson was given Dr. Handler’s and Claimant’s depositions to review, as well as Dr. Corwin’s deposition, the Claimant’s dental records and x-rays.

Dr. Dawson described the routine practice for treating a patient. He stated the patient is greeted, given a seat and asked to explain the problem. Next, the dentist examines the records and determines whether or not other information is needed, for example, x-rays. The dentist would then assess the situation and present a diagnosis to the patient with treatment options and risks. Before the dentist proceeds with an extraction, he would get agreement for the procedure from the patient. Next, the dentist would administer a local anesthetic, confirm numbness and extract the tooth. The dentist should then explain how the procedure went and give the patient instructions on aftercare, including prescriptions for medication, pain or otherwise, as indicated. The patient is not released until the bleeding is controlled. The dentist then notes a condensed version of the whole process in the patient’s chart. Defendant’s attorney had Dr. Dawson elaborate on several points in this process.

Dr. Dawson examined Claimant’s x-rays (Exhibits C, D, E, F, G and H). He testified that, as a treating dentist, he would examine the length, shape and curvature of the roots, as well as the tooth itself and the space the tooth sits in to determine the method of extraction. Here, on Exhibit C, tooth number 32 showed “typical” curvature of the roots. Dr. Dawson even commented that the tooth in front of the wisdom tooth, the Claimant’s first molar, had similar root curvature. The x-ray does not show the location of the inferior alveolar nerve, the nerve closet to the wisdom tooth.

Possible injury to the nerve would be a risk that needed to be explained before a tooth extraction. Anatomically, the nerve should be outside where the tooth sits. It runs through a nerve tunnel in the lower jaw on the buccal side of all the teeth until it gets to a hole near the second bicuspid where it sends out a nerve branch giving sensation to the lip and buccal section of the front gum (Exhibit B). Because everyone’s jaw is not anatomically correct and irregularities cannot be seen on the x-rays, nerve damage is a risk in this type of extraction. Here, Claimant had tooth number 31 removed prior to this extraction. As a result, tooth number 32 erupted in its place, which put tooth number 32 further away from the interior alveolar nerve.

Dr. Dawson stated that if he treated a patient that presented as Claimant did, periodontal disease and caries[2], he would have chosen to extract tooth number 32 with forceps; opting for the least invasive approach as they are trained to do. He would have elevated the tooth to remove the fibers that attach the tooth to the bone. He then would have used a “buccal/lingual movement” to enlarge the tooth’s socket to loosen the jawbone’s hold on the tooth. A dentist will know by feel whether or not the tooth can be pulled out of the socket. Or, he will feel the tooth fracture before he can pull it out.

Dr. Dawson opined that the sectioning procedure testified to by Dr. Corwin is a procedure commonly used by dentists, just as the forceps extraction is used. Here, Dr. Dawson stated with a reasonable degree of dental certainty that Dr. Handler’s approach was commonly accepted by the dental community and that Dr. Handler did not deviate from the accepted procedure.

The State has an obligation to provide ordinary and appropriate health care and treatment to inmates in its institutions (Gordon v City of New York, 120 AD2d 562 [2d Dept 1986], affd 70 NY2d 839 [1987]). To establish a prima facie case of liability in a malpractice action, a claimant must prove: (1) the standard for good and acceptable care in the locality where the treatment occurred , (2) that the defendant breached that standard of care, and (3) that such breach was the proximate cause of injury (Bracci v Hopper, 274 AD2d 865 [3d Dept 2000]). When the malpractice involves patient treatment, three component duties are owed by the practitioner to the patient: (1) the duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his best judgment in the application of this 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]).

Where the alleged wrongful act occurred when the practitioner was selecting among alternatives in developing a plan for treatment of the patient, expert testimony is almost always required to prove a claim of malpractice, because proving the negligence “necessitates a comparison to the standard of care customarily exercised” by other medical practitioners in the community (Zellar v Tompkins Community Hosp., 124 AD2d 287, 289 [3d Dept 1986]; Yamin v Baghel, 284 AD2d 778 [3d Dept 2001]; Miller v Albany Med. Ctr. Hosp., 95 AD2d 977 [3d Dept 1983]).

If such testimony establishes only that there is a difference of professional opinion between experts in the field as to the proper course of treatment, then there is no basis for finding Defendant liable (Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682 [1981]; Gielskie v State of New York, 10 AD2d 471, affd 9 NY2d 834 [1961]; see also Darren v Safier, 207 AD2d 473 [2d Dept 1994]; Ibguy v State of New York, 261 AD2d 510 [2d Dept 1999]).

Similarly, because success cannot be guaranteed in every case, a mere error in judgment cannot support the imposition of liability, as long as the practitioner exercised his or her judgment in choosing one of several medically acceptable alternatives (Oelsner v State of New York, 66 NY2d 636 [1985]; Schrempf v State of New York, 66 NY2d 289, 295 [1985]; Pike v Honsinger, supra; Sciarabba v State of New York, 182 AD2d 892 [3d Dept 1992]; Ibguy v State of New York, supra). Rather, the provider’s choice of treatment must be shown to be outside the range of acceptable treatment modalities (Ibguy v State of New York, supra; Weinreb v Rice, 266 AD2d 454 [2d Dept 1999]). On the other hand, decisions that are not based upon careful or intelligent examination cannot be considered to be an exercise of professional judgment (Clark v State of New York, 99 AD2d 616 [3d Dept 1984]; Bell v New York City Health & Hosps. Corp., 90 AD2d 270 [2d Dept 1982]).

I find that Claimant has failed to prove a prima facie case of liability in this dental malpractice action. I did not find persuasive Dr. Corwin’s testimony that the circumstances presented required Dr. Handler to section the tooth to extract it. I was persuaded by the fact that claimant’s tooth was at a mesial tilt that made nonsurgical extraction the favored choice. Dr. Corwin did not address the mesial tilt issue in his testimony. Dr. Corwin also did not review Claimant’s panex. Further, Dr. Corwin’s position relies on the assumption that African Americans have “heavier” bone density, making nonsurgical extraction more difficult. Here, the record reflects that Claimant had moderate bone loss, making the tooth easier to extract in the manner selected by Dr. Handler. Further, the facts of this case developed at trial establish only a difference of professional opinion as to the proper course of treatment and not a case where a professional deviated from the standard of care.

Based upon the foregoing, Claim No. 104607 is hereby DISMISSED.

Any motions upon which the Court previously reserved or which were not previously decided are hereby denied.


April 10, 2008
Rochester, New York

Judge of the Court of Claims

[1].How an inmate requests to see a dentist at the facility. The inmate puts his request in writing and gives it to a correctional officer.
[2].Caries is the name of a dental disease. Its symptom is tooth decay, that is, cavities.