New York State Court of Claims

New York State Court of Claims

McCOY v. THE STATE OF NEW YORK, #2009-044-538, Claim No. 108517, Motion No. M-76349


Defendant’s motion to dismiss inmate’s claim for inadequate dental care denied; claimant sufficiently alleged a continuous course of treatment sufficient to withstand motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
ISAIAH McCOY, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 9, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, while an inmate,[1] served defendant State of New York (defendant) with a notice of intention to file a claim “for the continuous negligent failure of the staff at Elmira Correctional, Oneida Correctional and Marcy Correctional Facility [sic] to provide the claimant with proper and adequate medical/dental care”[2] while he was in the custody of DOCS. Claimant thereafter filed and served this claim. Defendant answered and asserted various affirmative defenses. Claimant subsequently filed and served an amended claim. Defendant filed and served an answer to the amended claim. Defendant now moves to dismiss the claim.[3] Claimant opposes the motion. Defendant argues that because claimant’s cause of action is for a failure to diagnose and prescribe a course of treatment, the continuous treatment doctrine does not apply, and thus both the notice of intention and claim are untimely. Defendant further contends that the treatment claimant received was for several distinct conditions such as: 1) removal of claimant’s four wisdom teeth, which was completed by May 24, 1999; 2) inflammation around teeth Nos. 30 and 31, for which treatment was completed on July 17, 2000; 3) a Flap Alveoplasty[4] in the area of tooth No. 31 which was completed November 1, 2000; and 4) a biopsy in the area of tooth No. 30, which was completed November 7, 2001. Accordingly, defendant asserts that claimant was required to either serve a notice of intention to file a claim, or to file and serve a claim within 90 days of those respective dates.

Conversely, claimant argues that he repeatedly complained of pain in the right side of his mouth, and in February 2000, underwent a consultation at Strong Memorial Hospital (the Hospital). Claimant argues that his cause of action concerns defendant’s failure to follow the course of treatment recommended by the Hospital, rather than a failure to establish a course of treatment.

In an action to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, such as a claim for dental malpractice, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). The 90-day period in which to file and serve the claim or to serve the notice of intention to file a claim is tolled pursuant to the continuous treatment doctrine in a situation where the claimant has received “continuous treatment for the same illness, injury or condition which gave rise to the [alleged act of malpractice]” (CPLR 214-a; see Ogle v State of New York, 142 AD2d 37, 39 [1988]; see also Matter of Robinson v State of New York, 35 AD3d 948 [2006]).

Claimant served defendant with a notice of intention on November 25, 2002, which purports to concern claimant’s dental care during the time period from August 1998 through November 19, 2002. On its face, the notice of intention appears to be untimely with respect to any treatment that occurred prior to August 27, 2002, i.e. 90 days prior to service of the notice. In order to recover for defendant’s allegedly negligent treatment that took place prior to August 27, 2002, it is claimant’s burden to establish that this claim is timely based upon the continuous treatment doctrine (Blythe v City of New York, 119 AD2d 615 [1986], lv denied 69 NY2d 604 [1987]).

In his amended claim, claimant alleges that he was taken to the Hospital in March 1999 for a consultation regarding pain on the right side of his mouth. Claimant states that as a result of that consultation, he had four teeth (teeth Nos. 1, 16, 17 and 32) extracted at the Hospital in April 1999. In May 1999, he reported complications from the extractions and continued to complain of pain in the right side of his mouth. He also complained of pain during the period from September 1999 through December 1999, and in February 2000, had another consultation at the Hospital. Claimant was diagnosed with irritation of the gingiva around tooth No. 31, and a pocket distal to tooth No. 31, which was accompanied by vertical bone loss. Claimant alleges that a dentist at the Hospital recommended a three-step treatment plan which included: 1) irrigation of the distal pocket, 2) medicated oral rinse, and 3) periodontal surgery for pocket reduction. Even though he repeatedly complained of the same pain in the general same area, from February 2000 through November 19, 2002, claimant alleges that defendant completely failed to offer him periodontal surgery as recommended by the Hospital.[5]

A review of claimant’s dental records indicates a substantial history of dental problems and complaints. On November 2, 1998, he was examined by Grant Houghton, a dentist, who observed periodontal inflammation, and prescribed warm saline rinses. Dr. Houghton noted that pursuant to an outside consultation at the Hospital, claimant would be having teeth Nos. 1, 16, 17 and 32 extracted. In January 1999, claimant experienced sensitivity during his scheduled “Prophy” (which appears to be an abbreviation for prophylaxis, or cleaning). On March 1, 1999, claimant complained of swelling in the area of tooth No. 32, and it was noted that his paperwork was “in the works” for his trip to the Hospital for the extractions. He was also given a prescription for Pen VK (presumably Penicillin, an antibiotic) and Motrin (a pain reliever), and advised to use warm saline rinses. On April 12, 1999, claimant again complained of pain in the area of tooth No. 32. Shortly thereafter, claimant had four teeth removed at the Hospital.

Claimant’s post-operative examination on May 3, 1999 revealed that he was both uncomfortable, and “out of” pain medication. Claimant was advised to increase the number of warm saline rinses, and to “followup as needed.” At his next exam on August 31, 1999, he complained that he could not chew on the right side of his jaw because of the pain. He also stated that it “[felt] like food [was] going in there and [swelling] up.” Dr. Houghton noted that although there was some swelling in claimant’s cheek, there was not any pathology. Claimant was given a prescription for Amoxicillin (another antibiotic) and Motrin. In September 1999, claimant returned with continued pain on the right side of his mouth, and sensitivity distal to tooth No. 31. An X ray was taken and claimant was given Keflex (yet another antibiotic) and Motrin. On September 28, 1999, claimant again complained of pain. He also stated that the warm water rinses stung, but they got the “stuff” out, and seemed to lessen the swelling. An examination revealed a cavity in tooth No. 18, but again there did not appear to be any pathology. On October 15, 1999, claimant refused to have a restoration filling placed in tooth No. 18, stating that he was in too much pain. John Gibson, another dentist, noted that he found “no pathology with any of [claimant’s] teeth,” and that the gingiva looked healthy even though claimant complained of pus, blood, and seepage. Dr. Gibson opined that the pain might be a lingering effect of the extractions. Dr. Gibson examined claimant again on October 26, 1999, and claimant complained of pain radiating to the entire right side of his face. Although claimant gave Gibson a cup which allegedly contained saliva and pus, Gibson noted only normal saliva. Gibson further indicated that both extraction sites on that side (former teeth Nos. 1 and 32) had healed normally, and there was no evidence of any infection. On December 20, 1999, claimant complained of discomfort in the right cheek and mucosa distal to tooth No. 31. Dr. Houghton did not see any drainage, but noted that claimant was extremely uncomfortable when the area was palpated. Claimant was referred to the Hospital for an evaluation of “this chronic condition.”[6] On January 12, 2000, claimant indicated that the lower right side of his mouth had been swollen and painful during the prior week, but that the swelling had dissipated on its own.

In February 2000, claimant had a consultation at the Hospital for evaluation of inflammation in the area of tooth No. 31. Approximately one week later, Dr. Houghton noted that the area remained inflamed even though it had been irrigated by a facility nurse, and prescribed irrigation for an additional week. Based upon the Report of Consultation from the Hospital, claimant’s examination revealed an “irritation of gingiva around [tooth No. ] 31. [No] drainage. Probing shows deep pocket > 6 mm distal to [tooth No.] 31. Panorex: no bone pathology, no . . . dental pathosis.”[7] The consulting dentist opined that it appeared to be “a periodontal problem associated with deep pocket distal to [tooth No.] 31,”[8] and suggested a treatment as follows: 1) irrigate distal pocket of tooth No. 31; 2) use pendex oral rinse; and 3) if problem persists, claimant might need “perio surgery for pocket reduction by periodontist.”[9]

Claimant’s next dental visit was a scheduled “Prophy” on May 22, 2000. Claimant still complained of drainage at tooth No. 31 and pain. Gibson noted that the gingiva around tooth Nos. 30 and 31 was inflamed, and he “emphasized need of careful cleansing + irrigation of [tooth No.] 31”.1[0] On June 7, 2000, claimant had a periodontal consultation and told the dentist that “pus works out of this area.” Dr. Houghton noted that claimant had plaque on both the lateral aspect of tooth No. 31 and the gingival margin. However, Dr. Houghton did not see any pus or infection, and advised claimant to strictly “[adhere] to oral hygiene.”1[1] On July 17, 2000, Dr. Houghton noted that claimant wanted to have tooth No. 31 extracted, but he advised claimant that such action “might not solve [the] problem.” However, on August 8, 2000, it appears that tooth No. 31 was extracted. Thereafter, on August 29, 2000, claimant complained of “ ‘pus’ in the morning that feels like its [sic] running down his throat and makes him nauseous.”1[2] Dr. Houghton questioned whether this could be postnasal drainage.

Apparently, claimant was transferred to Oneida Correctional Facility on September 5, 2000, and saw dental services on September 6, 2000, when he again complained of pain in the area of tooth No. 31. Dr. Quamrulahsan noted that there was no sign of infection, but advised claimant to use warm salt water rinses. Shortly thereafter, claimant was transferred to Marcy Correctional Facility, and a treatment plan was established which included, among other things, a Flap Alveoplasty1[3] which was performed on October 25, 2000. When claimant was examined five days later, Dr. Sweeney noted that claimant was “healing WNL sutures intact,”1[4] and he also advised claimant to use salt water rinses. Claimant’s sutures were removed on November 1, 2000, and he was noted as still healing “WNL.” Claimant did not receive any further dental treatment until August 2001.1[5]

At his August 31, 2001 “Prophy,” claimant again complained that he had been experiencing pain and swelling in the lower right quadrant of his mouth. Dr. Sweeney noted that there was “(-) appearance sequestrum (+) drainage.1[6] Will schedule with oral surgeon for eval.”1[7] Claimant apparently had the evaluation and a panograph, and was prescribed Pen VK. The note dated September 19, 2001 indicates that the panograph was “WNL.” On October 10, 2001, claimant had a biopsy of a lesion on the buccal mesial area of tooth No. 31 which revealed a “fibrous hyperplasia with focal melanosis and amalgam tattoo, distal to tooth # 30.”1[8] On claimant’s November 7, 2001 visit, Dr. Spring noted that the area was tender but healing, and that it looked normal.

Claimant’s next exam was June 13, 2002, when he complained of pain and bleeding in the lower right quadrant. Dr. Sweeney noted that the site appeared normal without either bleeding or drainage. On June 26, 2002, Dr. Spring stated that he did not “know [any] reason for [claimant’s complaints] of the same type of pain from the same area,”1[9] and suggested that a second opinion be obtained to rule out temporomandibular joint syndrome. In July 2002, claimant was fitted for and received a soft clear nightguard. The next notation dated November 19, 2002 was a follow-up examination concerning the nightguard, which Dr. Sweeney noted that claimant wore for several weeks but then stopped because it allegedly caused pain in his teeth and gums. Claimant also continued to complain of headaches, and pain radiating from his ear to jaw. Dr. Sweeney noted that the area of tooth No. 31 had healed “WNL,” that the tissue around tooth No. 30 was also “WNL,” and that claimant’s “pain [did] not appear [to be] odontogenic.”2[0]

Based upon notations in his dental records, claimant consistently complained of pain in the right side of his mouth from 1998 through November 19, 2002, often exhibiting inflammation. It also appears that defendant may have provided various treatments in response to these recurring complaints, including X rays, prescriptions for antibiotics and pain relievers, advising claimant to use of warm saline and medicated rinses, as well as stressing the importance of practicing good oral hygiene. While claimant did undergo a Flap Alveoplasty, without expert opinion the Court cannot determine whether this procedure would constitute periodontal surgery consistent with the third step of the Hospital’s recommended plan. Accepting the truth of the allegations, as the Court must on this motion to dismiss, and giving this pro se claimant the benefit of every favorable inference at this stage in the litigation (see Doe v Community Health Plan, 23 AD3d 778 [2005], appeal dismissed and lv dismissed and denied 6 NY3d 802 [2006], cert denied 549 US 841 [2006]; Mejia v State of New York, Ct Cl, July 24, 2007, Collins, J., Claim No. 110969, Motion No. M-73247 [UID # 2007-015-216]), there are clearly questions concerning whether the treatment claimant received was related to the same original condition. The Court finds that claimant has sufficiently alleged a continuous course of treatment by several dentists employed in defendant’s correctional facilities2[1] that is sufficient to withstand this motion to dismiss (see Maddox v State of New York, Ct Cl, Sept 5, 2007, Scuccimarra, J., Claim No. 113533, Motion No. M-73369 [UID # 2007-030-557]; Mejia v State of New York, supra; Davis v State of New York, Ct Cl, Sept. 10, 2004, Patti, J., Claim No. 107517, Motion No.

tclM-67116, Cross Motion No. CM-67371 [UID # 2004-013-046]; Berkowitz v State of New York, Ct Cl, Lack, J., June 25, 2004, Claim No. 108296, Motion No. M-68065 [UID # 2004-033-064]).

Accordingly, defendant’s Motion No. M-76349 is denied.

July 9, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on March 2, 2009; Affirmation of James E. Shoemaker, AAG, dated February 25, 2009, and attached Exhibits A through L.

2) Claimant’s “Declaration in Opposition to Motion,” dated April 6, 2009.

3) Supplemental Affirmation of James E. Shoemaker, AAG, filed on April 8, 2009.

Filed papers: Claim filed on November 12, 2003; Verified Answer filed on December 15, 2003; Amended Claim filed on January 5, 2004; Amended Verified Answer filed on February 13, 2004.

[1]. Claimant is no longer in the custody of the Department of Correctional Services (DOCS).
[2]. Defendant’s Motion to Dismiss, Exhibit A.
[3]. Copies of claimant’s dental records were attached to defendant’s motion papers. Assistant Attorney General (AAG) James E. Shoemaker, Esq. discovered that the records were not certified and submitted a Supplemental Affirmation containing the properly certified dental records. However, for ease of reference, the Court will refer to the motion papers, where the dental records are divided into several exhibits.

[4]. Although the Court has not been provided with an explanation of this procedure from an expert, an alveoplasty is apparently a surgical procedure to shape and smooth the margins of a tooth socket, usually at the time a tooth is extracted, and generally in preparation for denture construction or placement of a prosthesis (see The Free Dictionary, [accessed July 9, 2009]). The Court notes that alveoplasty is also known as alveoloplasty.

[5]. Claimant states that he also underwent Flap Alveoplasty surgery in October 2000, had a biopsy of a lesion in the mesial area of tooth No. 31 in October 2001, and obtained a soft night guard in July 2002. However, claimant asserts that none of the prescribed treatments alleviated his pain.
[6]. Defendant’s Motion to Dismiss, Exhibit H.
[7]. Defendant’s Motion to Dismiss, Exhibit F.
[8]. Id.
[9]. Id.
1[0]. Defendant’s Motion to Dismiss, Exhibit H.
[1]1. Id.
1[2]. Id.
1[3]. The treatment plan also included a “Prophy” as well as a third item which the Court cannot decipher.
1[4]. Defendant’s Motion to Dismiss, Exhibit I. WNL appears to be an abbreviation for “within normal limits.”
1[5]. The Court notes that in his opposition papers, claimant asserts that although he requested dental services on numerous occasions, defendant failed to provide them.
1[6]. It is unclear whether this means there was no sequestrum and no drainage or that there was no sequestrum, but there was drainage.
1[7]. Defendant’s Motion to Dismiss, Exhibit I.
1[8]. Defendant’s Motion to Dismiss, Exhibit J. Notably, there is no expert explanation of this biopsy result.
1[9]. Defendant’s Motion to Dismiss, Exhibit J.
2[0]. Defendant’s Motion to Dismiss, Exhibit K.
2[1].Defendant’s common ownership of various facilities in which health care is provided is not necessarily sufficient to trigger the continuous treatment doctrine (Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 340 [1997]). However, claimant has alleged that all facility dentists had read his entire chart, including the three-step treatment plan recommended by the Hospital. This allegation is sufficient to support an inference of a relevant relationship between those providers (see Meath v Mishrick, 68 NY2d 992, 994 [1986]; McDermott v Torre, 56 NY2d 399, 403 [1982]; Jones v State of New York, Ct Cl, Oct. 21, 2002, Sise, J., Claim No. 100743, Motion No. M-65344 [UID # 2002-028-058]).