This is a timely filed claim for damages by Anthony Chiusano (hereinafter
“claimant”) based upon the alleged dental malpractice of the
defendant. The claim of Mary Chiusano is derivative in nature.
Claimant alleges that as the result of scalings and cleanings of his teeth by
the State University of New York at Farmingdale Dental Hygiene Care Center
(hereinafter “defendant” or “Center”) which took place
on February 26, 2002 and March 5, 2002 he suffered an infection in his brain.
Eventually, claimant had a craniotomy performed to remove the infection. In
support of his case, he called ten witnesses besides himself and his
Nancy Halverson (hereinafter “Halverson”) was the first. She was
claimant’s neighbor and a student at the
As part of her school work, Halverson
had to instruct and provide dental hygiene to individuals who came to the
Center. Taking a patient’s history and making assessments of the patient
were part of the practice. Halverson also had to formulate a treatment plan for
the patient and was graded on her treatment and interaction with the patient.
Halverson testified that as part of a patient’s history she would inquire
as to whether a patient was a controlled or uncontrolled diabetic specifically
because protocols at the Center declared that an uncontrolled diabetic could not
Halverson who knew claimant as a neighbor was aware that claimant had diabetes
when she solicited him as a patient.
Halverson did not ask claimant to bring any prior dental x-rays or medical
clearance letters with him prior to his first appointment on February 26, 2002.
When students such as Halverson first see a new patient, they take a complete
history expecting to spend a couple of hours with the patient. A dentist is
always present at the Center to supervise students as well as licensed dental
hygienists. On the date of this incident, Halverson was supervised by
hygienists Arlene Zappasodi (hereinafter “Zappasodi”) and Beverly
McFadzen (hereinafter “McFadzen”), but during claimant’s first
visit he was not personally seen by a dentist. While taking claimant’s
history, Halverson noted that he was taking medication, specifically,
Glucophage, Avandia and Amaryl. It was Halverson’s understanding that the
medications were for claimant’s diabetes. Based upon her questioning of
claimant, Halverson indicated that he was a controlled diabetic. After
Halverson took claimant’s history, during which he refused to take x-rays,
Zappasodi reviewed the questionnaire and Halverson, Zappasodi and claimant
signed the forms. Halverson testified that Zappasodi, as well as other
instructors, would be walking around monitoring all of the students. As
Halverson finished each portion of her exam, Zappasodi would come over and check
what was done.
During direct testimony, Halverson stated that she measured the pockets in the
gumline of claimant. According to the measurements that she took, claimant had
a category 2 pocket in 4 areas of his mouth and a category 3 pocket in 2 areas
of his mouth.
Halverson stated that claimant
would be categorized as a “3" overall, indicating moderate periodontitis
because of the deeper pockets in 2 areas. The pockets could be an indication of
periodontal disease. However, the mere presence of the pockets are not
indicative of active periodontal disease. After probing claimant’s teeth
for pockets and examining the gumline, Halverson wrote in his chart the
conditions claimant was “at risk for”: slow healing, perio disease,
bacteremia and purulent conditions.
In regard to claimant’s treatment in the Center, Halverson determined
that all of claimant’s teeth should undergo scaling and root
Halverson’s course of
treatment was approved by Zappasodi. On February 26, 2002, it was determined to
scale and root plane only two teeth. The other teeth would be done at a
subsequent visit. The two teeth done in February 2002 were the lower left
canine and the lower left lateral incisor. After the scaling and root planing
were finished on February 26, 2002, claimant was checked by McFadzen.
Claimant’s entire visit on February 26, 2002, lasted three hours.
Halverson testified that claimant returned to the Center on March 5, 2002, to
complete the scaling and root planing. When claimant arrived she went over his
medical history with him again and asked if there were any changes to his
health. On March 5, 2002, Halverson’s work was checked by Dr. Hanna
Horowitz (hereinafter “Horowitz”), a dentist at the Center.
Horowitz also examined claimant prior to Halverson starting her work.
Claimant’s session on March 5, 2002, lasted 2 hours and 45 minutes.
During Halverson’s assessments and examination of claimant, she said she
never noted a sore or abscess in claimant’s mouth nor did claimant ever
complain of a sore or abscess in his mouth. After reviewing claimant’s
chart (defendant’s Exhibit A), Halverson testified that Zappasodi,
McFadzen, and Dr. Horowitz made no note as to seeing a sore or abscess in
Claimant also called Zappasodi to testify. As noted, Zappasodi is a licensed
dental hygienist and an instructor at the Center who, in 2002, had been employed
at the Center for seven years. As an instructor, it was her job to oversee the
various phases of work performed by students. In overseeing the students,
Zappasodi actually performed the same procedures the students did.
Zappasodi testified as to the Center’s practice on x-rays. When a
patient presented to the Center they would be asked about x-rays. If the
patient had their own dentist and had been x-rayed within the last 3 to 5 years,
then the Center would not take new x-rays.
The patient would be asked to bring in the x-rays from their dentist. If the
patient refused to bring the x-rays, then they would be asked to take new x-rays
at the Center. In the event the patient refused new x-rays and there was no
active disease, then the Center would just deplaque the patient’s teeth.
Zappasodi indicated that the forms the student filled out are a teaching tool.
For example, when a patient gives an indication of a medical condition
(e.g. diabetes) then the student would write down risks associated with
that condition (e.g. slow healing, bacteremia, etc.). Zappasodi
did not believe claimant was at risk for any of these conditions himself.
Rather, these were risks associated to his condition.
When Zappasodi testified about categorizing claimant’s level of
periodontitis, she categorized him as a level 2, as opposed to the level 3 that
Halverson categorized him. The lower level indicates light, as opposed to
moderate, periodontitis. Zappasodi stated that a patient that is level 2 or 3,
with no active disease, would not need a consult with the doctor before scaling
and root planing. Zappasodi testified that there are times periodontal disease
is treated by scaling and root planing. However, this was not the case with
claimant, because he had no active disease.
McFadzen was also called as a witness by claimant. She began working at the
Center in 1984 as an adjunct assistant professor. Her responsibilities included
overseeing the students present at the Center. As part of those duties she
would review the paperwork prepared by the students she was supervising. During
2002, it was usual for up to 20 students to be working during an evening shift
at the Center. McFadzen would be responsible for supervising 2 or 3 of those
students. The only connection McFadzen had with claimant was to check the two
teeth that had scaling and root planing done on February 26, 2002. McFadzen
checked the teeth, discussed the home care plan with Halverson and signed
claimant out that evening.
The last employee of the Center called was Horowitz. Horowitz testified that
all patients are periodontally involved to one degree or another. While
Horowitz admitted that the Center’s literature (claimant’s Exhibit
6) indicated that all periodontally involved patients required x-rays, she
indicated that was not the protocol employed. It depended upon the periodontal
condition. Horowitz also testified that the status of a patient with diabetes
would be important to her as a dentist. A patient with uncontrolled or poorly
controlled diabetes would not be treated at the
In examining the gingival assessment of claimant on February 26, 2002, Horowitz
testified that it could possibly indicate the presence of a mild disease
process. However, Horowitz also stated that the indicia as described did not
have to mean that disease was present.
Horowitz stated that a periodontal abscess was not caused by scaling and root
planing. The purpose of scaling and root planing is to remove bacteria. While
the goal is to remove all of the bacteria, it does not always happen. Root
planing and scaling could create a situation where gases that escape from a
patient’s mouth would not be able to escape. This situation could lead to
a periodontal abscess.
During cross-examination, Horowitz stated that it is not the practice of the
Center to call private doctors and dentists to check the answers that patients
provide. As to bacteremia, a dental cleaning - scaling and root planing - are
useful procedures in helping to prevent this condition. On March 5, 2002,
Horowitz examined claimant prior to signing him in for Halverson. This was done
by her doing an exam of the claimant’s mouth while reviewing the
assessments done by Halverson. Horowitz testified that if she had seen a sore
or abscess in claimant’s mouth, it would have been noted in his chart.
Her normal practice was that after her exam, she would allow the student, in
this case Halverson, to proceed with the scaling and root planing. At the end
of the procedure, Horowitz would recheck the patient.
Testifying on his own behalf, claimant stated he had Type II
, which was diagnosed sometime in the
early 1990's. For the five to seven years prior to 2002, claimant was treated
by Dr. Cusamano. As stated, in 2002, claimant was taking Glucophage, Avandia
and Amaryl. Claimant testified that during the two years prior to 2002 he was
testing himself approximately 3 to 4 times a day. He was getting readings
between 150 to 350. Claimant described himself as an uncontrolled diabetic.
Prior to 2002, claimant’s dentist was Dr. DiTolla.
Halverson, as stated, was a neighbor of claimant. Sometime in early 2002,
claimant, his wife, Halverson, her husband and two other couples went away
together. During this time, Halverson asked claimant if he would like to be a
volunteer patient for her at the Center. Claimant appeared at the Center on
February 26, 2002. He indicated that Halverson did not ask for any medical
records or prior x-rays.
Claimant states that a short time after he arrived he was greeted by Halverson
and led back to her area. Claimant said that Halverson sat him down and told
him that they would have to go through his history and asked him about 50 or so
questions. He stated Halverson asked him if he had diabetes, but never asked
him if it was controlled or uncontrolled. Claimant did tell her about the
medications that he was taking. Claimant’s self-assessment as to his
diabetes at this time was that it was uncontrolled. Claimant admits that he
never told Halverson that his diabetes was not under control. He also was aware
that his diabetes could impact his well being in regard to a dental visit.
Claimant testified that Halverson did not explain any risks with going forward
with the treatment.
After disclosing his medical history, claimant signed the forms. Halverson
then went on to take vital signs from him. Claimant stated that Halverson never
asked him about past x-rays. In addition, claimant testified that he was never
asked to take x-rays at the Center, not that he ever refused x-rays. No one
from the Center asked claimant to obtain medical clearance prior to treatment.
When Halverson had finished with the paperwork and claimant’s vital
signs, she got a supervisor to come to this area for approval. According to
claimant, Halverson said to her supervisor “this is Mr. Chiusano . . .
he’s a 57 year old diabetic, with a thyroid condition, with periodontal
disease” (Transcript Vol. VI p. 103). Claimant testified Halverson gave
the supervisor the clipboard. The supervisor checked the paperwork, signed it
and left without a word.
After the supervisor left, Halverson told claimant she was going to measure his
pockets. Using a long instrument with a little hook with marking, Halverson
began probing his pockets. While she was probing his mouth, Halverson wrote
down results on a chart. When she finished this, Halverson said she had to get
her supervisor again. Claimant heard Halverson tell the supervisor that he had
pockets “4 to 8" (Transcript Vol. VI p. 107). The supervisor took a
mirror and looked in his mouth then looked at the charts and signed off.
Halverson subsequently worked on two of claimant’s teeth. After
completing two teeth, she told claimant that the session was over and they would
finish the following week. Claimant testified that he did not understand why
things were taking so long. He indicated that they did about three hours of
paperwork. During this visit, claimant testified that he did not experience any
pain. Claimant was scheduled to come back on March 5, 2002. Halverson did not
ask claimant to bring any x-rays, medical records or clearance forms with him.
On March 5, 2002, prior to his appointment at the Center, claimant testified he
tested his diabetes and the result was not in a normal blood range. Claimant
stated he did not tell Halverson about this and she did not ask him. Halverson
did not revisit any of the medical history questions and did not ask him to take
x-rays that day.
Before beginning, Halverson said that she needed a supervisor to sign off on
the procedure. Claimant stated that Halverson went looking for a supervisor and
did not find one. After looking in another direction, Halverson returned to
claimant and said that she got the okay to proceed. Claimant did not see anyone
besides Halverson that night before the cleaning started.
On cross-examination, claimant admitted that he had given prior deposition
testimony about Halverson’s supervision that differed from his direct
testimony. Claimant testified that Halverson had almost no supervision on
February 26, 2002, until after she checked the pockets. According to his
deposition testimony a supervisor was around frequently inspecting
Halverson’s work and giving instructions. However, claimant states that
he was confused at the deposition because the attorney kept switching back and
forth between the dates.
On March 5, 2002, after she got the okay to proceed, Halverson got right to
cleaning. Claimant could feel the scraping beginning at the base of each tooth
and then moving upward. There was no pain associated with this procedure.
During the cleaning, claimant stated that Halverson got a supervisor to come
inspect her work a couple of times. The supervisor looked in claimant’s
mouth and instructed Halverson to redo certain spots. Claimant testified that
he never had any conversation with the supervisor.
Claimant testified that he has had a lot of cleanings in the ten years prior to
the cleaning at the Center. Usually, he would just have a single quadrant of
his mouth cleaned at a time. During those procedures he knew he bled a lot. In
this instance, Halverson cleaned all four quadrants of his mouth at once. He
indicated that it took approximately two hours. He said that during the
procedure he knew he was bleeding because he could taste the blood at times and
had to ask to rinse.
On March 30, 2002, claimant suffered a seizure. While working at home, he felt
his right arm move and he got weak in his leg. Claimant called his doctor who
instructed him to relax and take an aspirin. Later in the evening, while
bringing in bags from the car, claimant lost all feeling from the waist down.
He collapsed and was not aware of anything until the paramedics showed up at his
house. At the hospital, a doctor raised claimant’s right leg. When the
leg was raised, claimant lost consciousness.
On cross-examination, claimant testified that he tested his blood sugar before
going to the Center on February 26, 2002. Claimant stated that he had been
testing himself this way for at least eight years prior to the incident. Even
though claimant knew his readings were bad prior to going to the Center, he did
nothing for it. Claimant stated that he could not call the doctor every time he
got a bad reading. Some weeks were perfect and some days were bad. Claimant
would try to control the diabetes on his own. Then, when claimant had doctor
appointments, the doctor would review his readings and adjust his medications.
During cross-examination, claimant was asked about the consent forms that he
signed. He indicated that he never read them before signing. In regard to the
questionnaire, claimant admits that most of the information came from him.
Claimant disputes that he was asked any questions about taking new x-rays, or
that his diabetes was under control. Claimant admitted that he gave Halverson
the information he had dental x-rays in September 2001. Claimant states that he
did not review the form to make sure his medical history was accurate before
Claimant testified that the x-rays he had in September 2001 were not taken by
Dr. DiTolla. The x-rays were taken by Metropolitan Dental, a dental practice
near claimant’s office in New York City where claimant went for a cleaning
because he could not get to Dr. DiTolla.
According to claimant, he had about four or five abscesses over the four or
five years preceding his visits to the Center. He stated that he never tried to
drain an abscess on his own, except one time about 20 years ago. Claimant
denied that he had an abscess prior to his seizure. He noted that the last
abscess he had was in 1998 or 1999.
Mary Chiusano (hereinafter “Mrs. Chiusano”) also testified. Mrs.
Chiusano testified that her husband, as a diabetic, tested himself for his blood
levels at least 4 times a day.
Mrs. Chiusano said that they knew Halverson about ten years prior to 2002.
Halverson asked claimant and Mrs. Chiusano to come to the Center to be her
patients. While claimant agreed to go, Mrs. Chiusano declined because she did
not feel comfortable having a friend probe around in her mouth.
Mrs. Chiusano stated that she and claimant did not talk about the session or
anything related to the February 26, 2002 appointment before the next
appointment on March 5, 2002. After the March 5, 2002 visit, the only
conversation between them on the dental experience was that claimant told Mrs.
Chiusano that he had bled a lot. Sometime after March 5, 2002, and before March
30, 2002, claimant complained to his wife about an area on his lower left jaw
that was sensitive.
Mrs. Chiusano’s account of March 30, 2002, was identical to
claimant’s account. After claimant collapsed that night, Mrs. Chiusano
called 911 to get an ambulance. Claimant was taken to New Island Hospital where
he was admitted and eventually transferred to Winthrop Hospital (hereinafter
“Winthrop”) on April 2 or April 3, 2002.
At Winthrop, Dr. Rosenthal (hereinafter “Rosenthal”), a
neurologist, spoke to Mrs. Chiusano. He asked if claimant had had dental work
done recently. Mrs. Chiusano told Rosenthal that he had work done about a month
prior. Mrs. Chiusano also mentioned to Rosenthal that he might have used a pin
to lance an abscess in his mouth. She testified that she said this because he
had done this 20 years earlier and she assumed he may have done it again. Mrs.
Chiusano also mentioned to Rosenthal that claimant had recently hit his head.
She explained that she did not know that claimant had lanced an abscess with a
pin for sure, but she was desperate for an answer to claimant’s condition
and was saying anything she could think of. Mrs. Chiusano denied any
recollection of telling Rosenthal that claimant frequently lanced abscesses with
a pin or that he frequently picked his gums.
Claimant had brain surgery on April 4, 2002. After the surgery, Rosenthal
spoke to Mrs. Chiusano. According to Mrs. Chiusano, Rosenthal said that
claimant had a brain abscess but he believed he removed it all.
During claimant’s recovery, he was transferred to Saint Charles’
Rehabilitation Center. While he was there, Mrs. Chiusano testified that she
asked claimant several times if he picked an abscess with a pin. Claimant
responded “no” to her inquiries.
On cross-examination, Mrs. Chiusano acknowledged that Rosenthal’s
operative reports indicated that she told him claimant frequently picked
abscesses in the past. However, Mrs. Chiusano stated she told Rosenthal that he
“might” have done that. To explain the word
“frequently”, Mrs. Chiusano testified that since claimant had woken
up on a Sunday and picked an abscess 20 years earlier (Transcript Vol. VI p.
46), she assumed he did it a lot. This was also based on the fact that she saw
a pin on the toilet tank in their bathroom in the middle of March. Mrs.
Chiusano was not sure if claimant had an abscess at the time but he was
complaining about tenderness. She was also not sure if he was doing anything
for it. Mrs. Chiusano was also not sure why Rosenthal did not have anything in
his notes that she had told him about the dental cleaning. Also on
cross-examination, Mrs. Chiusano acknowledged telling some neighbors that
claimant had pricked an abscess with a pin, explaining this as her relating to
the neighbors everything that had transpired at the hospital each day. This
conversation was her recounting the things she told Rosenthal.
Rosenthal testified that claimant had a preoperative diagnosis of an epidural
abscess. The diagnosis was based upon a CAT scan showing a frontal lesion on
the brain over the motor strip. In addition, claimant spiked a fever of
. Rosenthal had asked claimant about any recent sinus infections or dental
Claimant denied a sinus infection and
recent dental work to Rosenthal. However, Rosenthal testified that
claimant’s communication was very limited at the time the two spoke. The
information from Mrs. Chiusano that claimant had used a pin to puncture an
abscess indicated to Rosenthal the source of the infection.
In performing the operation and observing the brain abscess, Rosenthal made a
determination that it would have been present anywhere from 10 to 40 days. A
culture was taken of claimant’s lower left jaw area. Rosenthal also took
a culture of the brain abscess. Rosenthal determined that the source of the
infection was claimant’s gums.
Claimant called Dr. Robert Holzman (hereinafter “Holzman”) as his
infectious disease expert. Holzman reviewed claimant’s medical records.
One aspect of the records reviewed was claimant’s hemoglobin A1C
According to Holzman, the normal
range is 4.2 to 5.9 and a level above 7.5 is considered to be poorly controlled
diabetes. In looking at claimant’s Winthrop records, claimant had an A1C
level of 12.1 on April 3, 2002 and 11.5 on April 16, 2002. Claimant’s
medical records indicate a comparable A1C level in June 2001. Based upon these
numbers, Holzman opined claimant was a poorly controlled diabetic on February
26, 2002 and March 5, 2002.
Holzman testified that an abscess is a collection of fluid which forms as a
response to an infection. The fluid, surrounded by what is called granulation
tissue, consists largely of water and the breakdown of bacteria and white blood
cells. An abscess along the gums or gingival line can have consequences near
and far from the abscess, depending on whether the bacteria gains access to the
bloodstream. According to Holzman, dental scaling and root planing can cause an
abscess. The cleaning and scaling procedure breaks the barrier of the mucus
membrane that lines the mouth and adheres tightly to the tooth and gum to get
the bacteria along the gingival line.
Holzman noted that the Winthrop records showed that the bacteria that was
cultured from the infection in claimant’s brain and his mouth matched.
Further, Holzman noted that the infection in claimant’s mouth contained an
anaerobic organism which is not normally found in most of the mouth but in the
gingival crevice. Holzman opined that the dental scaling and root planing
claimant received on February 26 2002 and on March 5, 2002 was a substantial
factor in causing an abscess to form in claimant’s mouth.
Holzman testified on direct that the infection from the abscess gained access
to the blood stream and traveled to the parietal lobe of the brain. The
bacteria entered the brain by March 28, 2002, according to Holzman. The expert
testified that lancing the abscess with a pin does not significantly increase
the risks of the abscess fluid entering the bloodstream.
On cross-examination, Holzman stated that a number of activities can cause
bacteremia, which can lead to a brain abscess. Among those activities would be
brushing, flossing, picking at an abscess and self-draining an abscess. Holzman
admitted that he would not recommend against dental scaling and root planing.
In fact, Holzman stated that a diabetic should keep as clean a mouth as
possible. Holzman acknowledged that he has no way of knowing if the planing and
scaling done on February 26, 2002 and March 5, 2002, were done inappropriately
or not. This expert further testified, on cross, that the presence of bacteria
in the blood is not a rare event. Most people have bacteremia but their
bodies’ defenses are able to protect them.
Claimant called Dr. David Hoexter, DDS (hereinafter “Hoexter”) to
testify as an expert witness. Hoexter testified that planing and scaling are
two techniques effective in the treatment of periodontal disease. However, the
presence of bacteremia increases during planing and scaling. Hoexter also
testified that it is possible for scaling and planing to cause an abscess. In
reviewing the records from the Center, Hoexter indicated that a flag was raised
when claimant indicated he was a diabetic and indicated that the Center should
have reviewed the medications claimant was taking with a doctor. He indicated
that another flag should have been raised by the pocket probing of
claimant’s teeth indicating depths of 2 to 7 millimeters. However, he
said these depths are measured by the gingival line that was actually present in
claimant’s mouth and not the “ideal” gingival
If the “ideal” gingival
line were used to measure, than the pockets would be significantly deeper,
indicating advanced periodontal disease. Hoexter stated that planing and
scaling on someone with advanced periodontal disease should have been done in a
In examining claimant’s dental records from Dr. DiTolla, Hoexter noted
that claimant was told in 1999 to see a periodontist but he refused to go.
Hoexter also noted that in 2000 claimant was prescribed antibiotics before a
scaling and planing procedure. During cross-examination, Hoexter retreated
from saying that claimant was premedicated and said claimant was given a
prescription without any indication if it was before or after the procedure.
On direct, Hoexter testified that a history of medications before planing and
scaling would be important. This history is not noted in the Center’s
records. According to Hoexter, the Center departed from good and accepted
hygiene standards by: not getting claimant’s past medical records; not
getting claimant’s prior history of antibiotics; not treating claimant
with antibiotics before or after scaling and planing; not having claimant bring
his prior x-rays; and not having new x-rays done. In addition, Hoexter opined
that it was the scaling and planing that caused claimant’s periodontal
abscess. On cross-examination, Hoexter agreed that all planing and scaling,
brushing and flossing release bacteria in the mouth and cause bacteremia. In
addition, every time a person chews they get a slight bacteremia. The expert
also agreed that a hygienic cleaning would reduce the amount of bacteria in a
person’s mouth and be recommended for someone at risk for purulent
Hoexter testified that he relies on a patient for their medical history and he
has no hesitation in believing what a patient tells him. As to claimant’s
bleeding, the expert stated that the gingiva usually bleeds during scaling and
During the defendant’s direct case, Dr. James Nemeth (hereinafter
“Nemeth”) testified as a dental expert. Nemeth examined Dr.
DiTolla’s records for claimant from December 1995 to May 2002
(claimant’s Exhibit 5). Nemeth indicated that claimant was not a
compliant patient because of a number of cancellations and a broken appointment
throughout his history with Dr. DiTolla. From December 1995 until December
1998, Nemeth noted five cancellations and one broken appointment. During the
thirteen months from January 1999 until February 2000, Nemeth noted three
cancellations. In October 1999, Nemeth testified that DiTolla made notes
indicating that a consultation with a periodontist was recommended but that
claimant refused to see one. At this time, PerioGuard was prescribed for
Nemeth also testified about claimant’s January 2000 cleaning. Contrary
to Hoexter’s direct testimony, Nemeth opined that there was no
premedication. He based his opinion on the amount of medication prescribed for
claimant. According to Nemeth, premedication normally entails four tablets one
hour prior to the appointment. However, claimant was prescribed a tablet four
times a day for a week which indicates that the medication was done
post-cleaning. From the record, the witness testified that the cleaning was
done and then the notes for the medication were made.
Referring next to February 12, 2000, the expert noted a prescription for 40
tablets of Amoxicillin to be taken 4 times a day. Again, Nemeth opined that
this was not given prior to claimant’s visit to premedicate him because
the amount of medicine prescribed is far too much for premedication purposes.
Claimant was next seen in DiTolla’s office in March 2000.
Claimant’s record is unclear if there was an appointment in April 2000.
However, claimant had an appointment scheduled for May 2000. Claimant cancelled
the May appointment and was not seen by DiTolla again until May 2002, after the
Nemeth testified that a type II diabetic that is medicated is under control and
therefore no premedication by a dentist is necessary. Nemeth also stated that
he relies on his patients to give him an accurate medical history. According to
this expert, the standard of care for taking a panoramic x-ray or full mouth
series x-ray is every three to five years. Nemeth recommends that his diabetic
patients get a full mouth cleaning every three months. Planing and scaling help
diabetics because they reduce the amount of bacteria in the mouth.
Defendant also called Dr. Bruce Farber (hereinafter “Farber”), an
expert in the area of infectious disease. Farber defined streptococcus viridans
as bacteria that lives in the mouth, the gastrointestinal tract, the colon, the
esophagus and other similar areas within the body. For the most part, the
bacteria lives in a symbiotic relationship with the body. However, there are
times when the bacteria is disturbed and it enters the bloodstream. Examples of
things that might disturb the bacteria are brushing, flossing, using a
toothpick, chewing and swallowing. When the bacteria enters the bloodstream,
the body is usually able to fight the bacteria quickly and keep the bloodstream
pure. There are times when the body is not able to fight the bacteria and if it
persists in the bloodstream it is called a bacteremia. According to Farber,
this could cause a life threatening illness.
Farber testified that there are two groups of people that should be treated
with antibiotics before being treated by a
The first are those people that
have damaged heart valves or have had surgery for new heart valves. The second
are those that have prosthetic joints. The risks for both groups has been
determined to be endocarditis and joint infection. A brain abscess is an
extremely rare risk and there is no recommendation to premedicate for this risk.
Farber stated that premedicating a diabetic could expose him to certain risks
and, therefore, diabetics are not a group which require premedication. Risks
include an allergic reaction to the antibiotics, C diffi-colitis, and reduced
effectiveness of antibiotics in treating complications such as a brain abscess
or endocarditis. Farber opined that not premedicating claimant was not a
departure from good and accepted medical practice.
He further testified that a true brain abscess is located within the brain
tissue itself. In claimant’s case, the abscess was on the brain surface
up against the dura. This condition is called an empyema. After reviewing
claimant’s records, Farber stated that the location of the empyema was
unusual. Normally a brain abscess from metastatic
occurs within the brain
The fact that this occurred on the
surface of the brain meant it happened in one of two ways to this expert.
First, that this location was the most
tributary to the brain. In the
alternative, this developed on the brain’s surface because it developed
from venous plexus channels.1
opined that the latter alternative was the more likely of the two possibilities
as to why this event occurred on the surface of the brain. In addition, the
expert testified that the infection was likely to have been a recent occurrence.
When asked which would be the more likely event to cause the brain abscess
between the dental cleaning and claimant self-draining the abscess in his mouth,
Farber opined that the self-draining would have been the likely cause of the
brain abscess, basing his opinion on the incubation period of a metastatic
infection. He testified that an infection as in this case, has an incubation
period of approximately two weeks. According to the records examined, no tooth
abscess was present at the time of the dental cleaning in February and March
On cross-examination, Farber testified that manipulation of the gums could
disturb the symbiotic relationship of the strep viridans bacteria with the
mouth. This disturbance could result in an abscess. However, Farber stated
that an abscess itself cannot metastasize to the brain. It is bacteremias that
can metastasize through the bloodstream.
It is claimant’s contention that the root planing and scaling by
defendant was the proximate cause of claimant’s brain abscess. Through
his direct case, claimant contends that defendant’s dental practice
deviated from an accepted standard of care by: not premedicating claimant; by
inadequately performing the scaling and planing; and by not consulting
There is no doubt in this case that claimant suffered an empyema or brain
abscess. The Court finds that the hospital records indicate that the bacteria
that was found in the brain was consistent with the bacteria found in the tooth
abscess in claimant’s mouth. The parties’ experts all agree that
the likely source of the bacteremia in the brain abscess was the tooth abscess.
However, such a finding does not automatically inure to the claimant’s
benefit. The mere occurrence of an injury does not create liability on behalf
of defendant (Russell v Meat Farms, Inc., 160 AD2d 987).
To prove a prima facie case of dental malpractice claimant “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). In a case such as this, involving patient treatment, the
medical care provider owes three component duties 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).
However, if there is more than one possible cause of claimant’s injury
and one of the causes is not proven to be more probable than the others,
defendant cannot then be held liable.