New York State Court of Claims

New York State Court of Claims

CHIUSANO v. THE STATE OF NEW YORK, #2008-033-584, Claim No. 108665


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):

James J. Lack
Claimant’s attorney:
The Jacob D. Fuchsberg Law Firm, LLPBy: Bradley S. Zimmerman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Mary Oleske, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 wife.

Nancy Halverson (hereinafter “Halverson”) was the first. She was claimant’s neighbor and a student at the Center.[1] 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 be treated.

Halverson who knew claimant as a neighbor was aware that claimant had diabetes when she solicited him as a patient.[2] 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.[3] 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 planing.[4] 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’s mouth.

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.[5] 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 Center.[6]

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 diabetes[7], 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.[8]

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 signing it.

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 102
. Rosenthal had asked claimant about any recent sinus infections or dental work.[9] 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 level.1[0] 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 line.1[1] 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 dentist’s office.

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 conditions.

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 planing.

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 claimant.1[2]

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 incident herein.

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 dentist.1[3] 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 spread1[4] occurs within the brain tissue.1[5] 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 distal1[6] tributary to the brain. In the alternative, this developed on the brain’s surface because it developed from venous plexus channels.1[7] The expert 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 2002.

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 claimant’s doctor.

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.
Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. (Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Digelormo v. Weil, 260 NY 192.) This does not mean that the plaintiff must eliminate every other possible cause. "The plaintiff was not required to offer evidence which positively excluded every other possible cause of the accident." (Rosenberg v. Schwartz, 260 NY 162, 166.) The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. (Stubbs v. City of Rochester, 226 N. Y. 516.)

Ingersoll v Liberty Bank of Buffalo
, 278 NY 1, 7.

According to the testimony of Halverson, McFadzen, Horowitz, Zappasodi and even claimant himself, the history taken of claimant in February 2002 was extensive. Before any dental work was done, claimant was interviewed for a couple of hours with no evidence presented that the interview was not done correctly. While claimant argues that defendant’s employees should have checked with his doctor concerning his medications and any need for premedication, the Court does not agree. All of the experts stated, at various times, that they rely on the medical history given to them by a patient, unless circumstances show that they should contact a doctor. In the instant matter, claimant gave a complete history of his illness and medications to defendant. There was no indication that he was not being truthful or that his knowledge of his condition was incomplete.

The Court finds defendant was justified in relying upon claimant in giving the status of his condition. A patient has a personal responsibility to honestly communicate his knowledge or lack of knowledge of his condition.

As to premedicating claimant, the Court finds the testimony of Farber to be controlling on this issue. Farber testified diabetics, as a group, have no need for premedication prior to dental treatment. In fact, claimant would be exposed to the other risks previously outlined in premedicating a diabetic.

Claimant offers no proof that Halverson performed the planing and root scaling in a negligent manner or in a way that deviated from good and accepted standard of care. Claimant’s only offer of proving this is the fact that the tooth abscess formed. The testimony of the various experts indicates that even if planing and root scaling is done correctly it can cause an abscess under certain circumstances. In addition, the experts testified as to other causes of dental abscesses. Given the state of claimant’s mouth and his lack of good dental hygiene, claimant has failed to meet the burden that the dental abscess was solely the direct result of the planing and root scaling.

Assuming arguendo defendant caused the dental abscess, claimant has failed to show that this was the proximate cause of the empyema or brain abscess. The experts testified the bacteria sits in the abscess walled off from the mouth. It cannot get into the bloodstream unless it is disturbed in some manner. The dental abscess did not exist when defendant did the planing and root scaling,1[8] thus defendant could not have disturbed the non-existent abscess. More likely, claimant disturbed the abscess in some manner. For instance, the experts testified that brushing, flossing, chewing, or swallowing could have disturbed the abscess enough to have a bacteremia carried in the bloodstream.

In addition to the normal manner in which the abscess could be disturbed, there is an issue as to whether or not claimant pierced it with a pin. The hospital records indicate Mrs. Chiusano told the doctor that her husband had punctured the abscess with the pin as he had done many times in the past. After the litigation began, Mrs. Chiusano stated that this was her assumption and she did not know this as a fact. The assumption that claimant did this was based on the fact that she saw a pin on top of the toilet tank in the bathroom and she recalled that approximately twenty years earlier claimant popped an abscess with a pin.

The Court finds Mrs. Chiusano and claimant incredible on this point. The Court just does not believe that Mrs. Chiusano would take something claimant did once 20 years prior to this incident and then make up that he did this “all the time.” Mrs. Chiusano was at her most honest moment in the hospital at the time claimant urgently needed treatment. She did not appear to this Court to be a woman given to flights of fancy when her husband’s life was at stake. Rather, the Court finds that it was at that time that Mrs. Chiusano was most candid about her husband’s habits. The Court finds claimant incredible on this point because he denies that he had a dental abscess at the time of the empyema. Claimant testified the last dental abscess he had was in 1998 or 1999. However, the Winthrop Hospital records indicate that the dental abscess was present. It is not plausible that the dental abscess appeared after claimant’s seizure and its bacteria was consistent with the empyema.

Claimant’s experts opined that it was the planing and root scaling that caused the dental abscess and the brain abscess. On cross-examination, the same experts admitted that planing and root scaling were an appropriate treatment for a diabetic and would help reduce the bacteria in the mouth. The experts also agreed with defendant that bacteremia could be the result of brushing, flossing and from claimant using a pin.

Farber testified that the empyema’s incubation period at most was approximately two weeks, meaning that the bacteremia would have entered the bloodstream about two weeks prior to March 30, 2002, when claimant suffered his seizure.1[9]

It is clear to this Court that claimant has failed to meet his burden of proof. First, there is no proof that defendant deviated from good and accepted dental practice. Even if claimant could show defendant deviated from good and accepted dental practice, claimant cannot exclude the multitude of other possible causes of the bacteremia which led to the empyema.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

January 22, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].Halverson was in her fourth semester at the time of the incident.
[2].Each student had to complete a quota of 50 patients to graduate or it would lessen his/her grade.
[3].The category number was based upon the depth of the pocket.
[4].Scaling and root planing are the processes in which the teeth up to and just below the gumline are scraped. This scraping is done to remove debris on the teeth and below the gumline. Part of the debris being freed is bacteria.
[5].Zappasodi stated this procedure was within the guidelines established by the American Dental Association and the American Medical Association.
[6].Horowitz defined a diabetic that is “uncontrolled” as one that is not receiving treatment of any kind. She described a “poorly controlled” diabetic as one that identifies himself as a diabetic, is not under the care of a physician, and tries to treat the condition on his own through diet.
[7].Type II diabetes indicates that it developed when claimant was an adult.
[8].Claimant indicated that he had never heard of bacteremia or a purulent condition up to this point. However, he had known that diabetics were slow healers.
[9].Rosenthal stated that he was trying to determine the source of the foreign body of the infection since claimant had no history of this type. Sinus infections and dental work are the most common source of a subdural abscess.
1[0].This level is an indication of a person’s blood glucose level.
[1]1.The “ideal” line would be the perfect gum line without any recision.
1[2].PerioGuard is a rinse to be used in conjunction with other dental home care such as brushing and flossing.
1[3].Farber based this portion of his testimony on a national committee’s recommendation after years of study and narrowed their recommendation to these two groups.
1[4].Metastatic refers to the shifting of disease from one location in the body to another.
1[5].Farber testified that this is the case for any metastatic spread of the bacteria, not just causes related to dentistry.
1[6].Distal means furthest from the point of origin.
1[7].This would be channels along which blood could spread back into the brain.
1[8].If the abscess had existed it would have been noted in claimant’s chart. In addition, it is claimant’s contention that defendant caused the dental abscess.
1[9].Farber reluctantly agreed the incubation period could have been as long as four weeks, but that given the position of the empyema, he was sure that the incubation was more likely two weeks.