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
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,”
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
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
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
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
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,
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
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
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
, 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 ). 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 ).
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 ; Gielskie v State of New York, 10 AD2d 471,
affd 9 NY2d 834 ; see also Darren v Safier, 207 AD2d 473 [2d
Dept 1994]; Ibguy v State of New York, 261 AD2d 510 [2d Dept
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 ;
Schrempf v State of New York, 66 NY2d 289, 295 ; 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.
LET JUDGMENT BE ENTERED ACCORDINGLY.