New York State Court of Claims

New York State Court of Claims
YANG v. THE STATE OF NEW YORK, # 2010-009-107, Claim No. 106513


In this inmate case, the State was found 100% liable for dental malpractice.

Case information

UID: 2010-009-107
Claimant(s): SANG NENG YANG
Claimant short name: YANG
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106513
Motion number(s):
Cross-motion number(s):
Claimant's attorney: SUE H.R. ADLER, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: December 29, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


In this claim, claimant seeks damages based upon allegations of dental malpractice occurring during the time when he was an inmate incarcerated under the supervision and control of the New York State Department of Correctional Services (DOCS). The trial of this claim was bifurcated, and this decision addresses solely the issue of liability.

Certain basic and undisputed facts can be established through claimant's dental records maintained while he was in DOCS custody, which were received into evidence at trial (Exhibit 7). Shortly after claimant was admitted into the custody of DOCS, a dental intake examination was performed, and dental x-rays were taken on or about June 2, 1999 (Exhibit 9). As of that date, the condition of claimant's mouth and his teeth were listed as "II" according to DOCS classifications. On February 24, 2000, claimant put in a written request requesting dental treatment, indicating that he had pain in one tooth which he wanted pulled (Exhibit 10). On March 2, 2000, pursuant to this request, claimant was seen and treated by Dr. Robert Hoehn. On that date, claimant's tooth # 3 was extracted, and Dr. Hoehn noted that an adjacent tooth (tooth #2) required treatment. A notation was made on claimant's dental records to "resch for op #2" (Exhibit 7).

This second treatment was never rescheduled, and on April 30, 2000 claimant made another written request for dental treatment because of pain in his teeth (Exhibit 10). Pursuant to this request, claimant saw Dr. Hoehn on May 23, 2000. On this date, Dr. Hoehn determined that claimant's ten remaining upper teeth were to be extracted. Four of those teeth were extracted by Dr. Hoehn on that date.

On July 31, 2000 claimant was again seen by Dr. Hoehn, at which point claimant's remaining upper teeth were extracted.

Claimant was fitted for an upper denture by Dr. Hoehn, but soon after he received his denture claimant began to make continuous complaints that it did not fit properly and that it was causing him extreme pain. Eventually, in response to these complaints and a grievance filed by claimant, he was reassigned to another DOCS dentist, Dr. James Marks.

Dr. Marks provided extensive dental treatment to claimant over a prolonged period of time. He first attempted to adjust the upper denture by making inserts, with padding, in an attempt to alleviate claimant's complaints about pain and the ill fitting denture. Claimant, however, continued to voice complaints regarding the poor fit of his denture, and Dr. Marks subsequently performed recontouring surgery of claimant's gums and mouth to remove pronounced "tori" (undercuts). Even following this surgery, however, claimant continued to complain about his denture, and a second set was approved and made by a third dentist employed by DOCS. Claimant has continued to use this second set, and as of the date of the trial of this claim, was still using this second set.

Claimant testified, through an interpreter(1) , that he did not seek dental treatment on a regular basis, but only went to the dentist when he was experiencing a toothache or pain. He confirmed, as established by the dental records, that he was seen by Dr. Hoehn on March 2, 2000, following his request for treatment, at which time one tooth was extracted. He testified that at that time, Dr. Hoehn did not have any discussions whatsoever about possible or future treatment for his other teeth. Claimant testified that when he experienced further pain, he made another request for treatment and was next seen by Dr. Hoehn on May 23, 2000. Claimant testified that at this appointment, Dr. Hoehn advised him that all his teeth were bad, and that they had to be pulled. He testified that no alternative treatment plans were discussed.

Dr. David Levine was qualified as an expert in dentistry, and testified on behalf of the claimant. The basis of Dr. Levine's testimony was his examination of claimant's dental records and x-rays maintained by DOCS, as well as his review of the deposition testimony taken of Dr. Hoehn prior to this trial. Based on his review and examination, Dr. Levine determined that when claimant was received into custody, he was missing six teeth from his top set of teeth and he was missing two molars on his bottom set. He confirmed that at the time of entry, claimant's teeth were classified as a level "II" condition, and it appeared that some of claimant's teeth were in better shape than others. Based upon his review of claimant's dental records, Dr. Levine offered testimony with regard to the various dental surgeries and procedures performed on claimant during his incarceration, primarily by Dr. Hoehn and Dr. Marks, as previously described herein.

Dr. Levine testified that standards of good dentistry require that a dentist perform a full examination prior to any tooth extraction, and that such examination should include a clinical assessment of each tooth and the surrounding tissue to determine whether an extraction is warranted. In this particular matter, based upon his review of the dental records and Dr. Hoehn's deposition testimony, Dr. Levine found no evidence or record that such a prior examination was made by Dr. Hoehn. Specifically, Dr. Levine testified that there was no record of any prior examination, that there was no evidence that current x-rays were taken, that there were no records setting forth any physical findings as to the condition of the teeth prior to the extractions, and that there was no record as to the "degree of mobility of each tooth"(2) .

Furthermore, Dr. Levine testified that he could not determine, based upon his examination of the original x-rays taken on June 2, 1999, whether extractions of the upper teeth were warranted, or whether restorative work could have been performed to save the teeth.

In sum, Dr. Levine concluded that it was a deviation from accepted dental practice for Dr. Hoehn to extract ten relatively healthy teeth, and putting in a full upper denture, without performing any physical exam, taking current x-rays, or pursuing alternative (restorative) work prior to the extractions.

Dr. Levine further testified that claimant's dental records established that when Dr. Hoehn removed claimant's upper teeth, he failed to remove all of the roots, and did not advise claimant that some of the roots remained. Dr. Levine opined that Dr. Hoehn's failure to remove all of the roots was also a deviation from accepted dental practice, and, at a minimum, claimant should have been so advised, and/or claimant's dental records should have been noted that roots had been left in.

Finally, Dr. Levine testified with regard to what he considered to be "severe undercuts" in claimant's mouth that affected the fit and comfort of the initial denture which was made by Dr. Hoehn. Dr. Levine found no evidence that Dr. Hoehn had discussed these severe undercuts with claimant, that he did not take any steps to remove these undercuts before making the full upper denture, and that he did not advise claimant that additional surgery would likely be required to remove these undercuts in order to ensure a proper fit of the denture. He concluded that these failures by Dr. Hoehn also represented a deviation from accepted dental practice.

Dr. Hoehn did not testify at trial, but a transcript of his deposition testimony was received into evidence (Exhibit B). In this testimony, Dr. Hoehn confirmed that on March 2, 2000, he extracted Tooth No. 3, based upon the complaints of pain from claimant and his examination of a current x-ray of this tooth. He testified that he also arrived at his decision to extract the tooth based upon the periodontal appearance of the tooth, although he had no specific recollection as to what condition he found.

Dr. Hoehn also confirmed that on May 23, 2000, at claimant's next appearance, he decided that claimant's remaining upper teeth had to be extracted, and that he extracted four of those teeth that day. He testified that claimant's remaining upper teeth were later extracted on July 31, 2000.

Dr. Hoehn testified that although the upper teeth were not all in the same condition, and that some were in better shape than others, he determined that it was necessary to extract all of the teeth. He acknowledged that no additional x-rays were taken that day, and he did not recall any specific discussions with claimant prior to the extractions.

Dr. Hoehn testified that based upon the panorex x-ray taken on claimant's admission to DOCS custody, claimant's upper teeth showed some level of decay. He acknowledged that it was difficult, if not impossible, to determine the actual level of decay of each tooth from that panorex. Dr. Hoehn testified that he had little recollection of the condition of claimant's teeth with regard to either the level of decay or the degree of mobility prior to the extractions.

With regard to the undercuts, Dr. Hoehn had no recollection of any discussions with claimant as to whether claimant in fact had such undercuts, or that the undercuts might have to be surgically corrected in the future in order for the denture to fit properly. Dr. Hoehn did acknowledge, however, that he normally would not specifically discuss undercuts with a patient prior to any extractions, since he considered that part of the same procedure.

Finally, Dr. Hoehn was adamant that he did not leave any root tips in during these extractions.

Sandy Canell, a registered dental assistant with DOCS, worked with Dr. Hoehn during the various procedures and surgeries performed on claimant. Ms. Canell testified that a Chinese interpreter was always present during claimant's appointments with Dr. Hoehn. She further testified that at the time of his first visit with Dr. Hoehn, claimant indicated, through his interpreter, that he wanted his teeth pulled and dentures inserted. She further indicated that written consents were not used except for complicated procedures, and that written consent was not obtained in this matter since extractions were relatively routine and were not considered complicated.

Elizabeth Rippe, a dental hygienist with DOCS, confirmed that any dental work would not be performed on an inmate unless an interpreter was present to ensure proper communication. She testified that when she worked on claimant, his teeth were "black", and that she did engage in discussions with claimant regarding proper dental hygiene during his appointment.

Dr. James Marks, a dentist employed by DOCS, also testified on behalf of the defendant. Dr. Marks testified that he first treated claimant in December 2000 at a point when all of claimant's top teeth had already been extracted by Dr. Hoehn. Dr. Marks acknowledged that he took over claimant's treatment following complaints made by claimant over the treatment that he had received from Dr. Hoehn. Dr. Marks confirmed that he first attempted to adjust claimant's upper denture (that had been constructed by Dr. Hoehn) in order to relieve claimant's pain and discomfort, but was unsuccessful in doing so despite several attempts. Dr. Marks testified that he then made arrangements to perform the recontouring surgery on claimant's undercuts, and following this surgery, requested and obtained approval for a second upper denture for claimant. During his treatment of claimant, Dr. Marks also removed bone spicules and root tips left from the original extractions.

Dr. Marks testified that prior to performing any major dental work, he performs a full examination of a patient's teeth, listing each tooth and the specific treatment to be done on that tooth. He also testified that if a patient has severe undercuts, he will discuss that with the patient prior to any extractions, to ensure that the patient has full knowledge of the risks and procedures involved. He testified, however, that it was not unreasonable for Dr. Hoehn to wait approximately six weeks following the extractions to perform recontouring surgery on those undercuts.

Timothy P. Fallon, an oral surgeon and dentist, was qualified as an expert in dentistry and testified on behalf of the defendant. Dr. Fallon testified based upon his review of claimant's x-rays and dental records.

Based upon his examination of the x-rays, Dr. Fallon opined that claimant had received poor dental care prior to his entry into DOCS custody, and that he was already missing several teeth at that time.

Dr. Fallon testified that proper dental treatment requires that teeth be actually examined and manipulated by a dentist in order to definitively determine whether they are too decayed to be saved. He testified that although the x-rays he examined indicated that all of claimant's upper teeth had some level of decay, it was impossible to determine the level of such decay without a complete physical examination of those teeth.

Furthermore, based upon the evidence of shifting and movement of claimant's remaining teeth, Dr. Fallon was of the opinion that it appeared likely to a degree of medical and dental certainty, that claimant's remaining upper teeth were too mobile to support a partial denture. Accordingly, he found that the decision of Dr. Hoehn to extract all of claimant's upper teeth and to fit him with a full upper denture was proper.

Finally, Dr. Fallon testified that the shape of a patient's mouth may change radically during the healing process following tooth extraction, due to swelling, inflammation, and the subsequent shrinkage of gums following an extraction. As a result, Dr. Fallon was of the opinion that Dr. Hoehn's determination to wait six weeks before fitting claimant for his upper denture was reasonable and within the scope of accepted dental procedures.


In his claim, claimant alleges acts of dental malpractice throughout the time that he was incarcerated under the care and custody of DOCS. It is noted that this claim is not based upon a denial of dental care, or even a delay in the treatment of claimant. Claimant's dental records provide ample evidence that his requests for treatment were not ignored, and claimant was the recipient of substantial dental treatment during his time in DOCS custody.

This case instead raises issues as to the quality of the dental work that was received by claimant. It is readily apparent, however, both from the trial testimony as well as the post-trial memoranda of law submitted by the parties herein, that the allegations of dental malpractice are based solely upon the dental treatment provided by Dr. Hoehn. The expert dental testimony presented by Dr. Levine in support of this claim was critical only of the dental work performed by Dr. Hoehn. Dr. Marks, the DOCS dentist who assumed treatment of claimant following Dr. Hoehn, testified at trial with regard to the dental work that he performed on claimant. The Court found no evidence, either through the cross-examination of Dr. Marks, or through the expert dental testimony presented by Dr. Levine, to support any cause of action for dental malpractice based upon the actions taken and dental work performed by Dr. Marks. Furthermore, there was no other expert dental testimony presented by claimant to support any cause of action for dental malpractice other than the treatment provided by Dr. Hoehn. Accordingly, any cause of action asserting dental malpractice, other than those based upon actions taken by Dr. Hoehn, are unsupported by any evidence whatsoever, and are therefore dismissed. This decision, therefore, is limited to the issue of whether the decisions and treatment provided by Dr. Hoehn constitute dental malpractice.

The Court notes that in her post-trial memorandum of law, claimant's counsel submitted for the Court's review documentary evidence pertaining to other grievances purportedly filed against Dr. Hoehn. Since these documents were not received into evidence during the trial, they are not properly before the Court and therefore the Court has neither read nor considered these documents in arriving at its decision herein.

It is settled law that the State has the duty to provide ordinary and appropriate health care and treatment to inmates in its correctional facilities (Gordon v City of New York, 120 AD2d 562, affd 70 NY2d 839; Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). In receiving such care, however, an inmate is entitled to "essential, not optimal care" (Matter of Jarvis v Pullman, 297 AD2d 842).

It is further settled law that in order to establish a prima facie case of dental malpractice, a claimant must establish (1) a deviation or departure from the requisite standard of dental practice, and (2) that the departure from the requisite standard of practice was a proximate cause of the injury sustained (Knutson v Sand, 282 AD2d 42). When the alleged malpractice involves patient treatment, a practitioner owes his patient (1) the duty to possess the requisite knowledge and skill such as is possessed by the average member of the 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 or her best judgment in the application of this knowledge and skill (Littlejohn v State of New York, 87 AD2d 951, citing Pike v Honsinger, 155 NY 201). A difference of professional opinion as to the proper course of treatment does not provide a basis for finding the defendant liable (Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682), and therefore no liability can be assessed against a defendant when the practitioner exercised his or her professional judgment in choosing among several reasonable and acceptable alternatives (Ibguy v State of New York, 261 AD2d 510). However, "[a] decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment" (Bell v New York City Health and Hosps. Corp., 90 AD2d 270). Therefore, although liability cannot be found based upon mere errors in professional medical judgment, made after careful examination, liability can be assessed for decisions made upon inadequate or careless medical examinations (Larkin v State of New York, 84 AD2d 438).

In this particular matter, and as set forth above, Dr. Levine, claimant's expert, concluded that it was a departure from proper dental care for Dr. Hoehn to pull all of claimant's upper teeth in this case. It was his opinion that the upper teeth were not unsalvageable, and that the amount of bone density loss, as evidenced at intake, was insufficient to warrant full extractions. Dr. Levine also concluded that Dr. Hoehn failed to discuss the risks and effects of a full denture with claimant prior to the extractions, nor did he discuss any alternatives, such as restorative work, with claimant prior to those extractions.

Furthermore, Dr. Levine opined that Dr. Hoehn also committed dental malpractice by failing to remove all of the root tips during the extractions, or at a minimum, to advise claimant that some root tips had been left that would eventually have to be removed.

Finally, Dr. Levine also was of the opinion that Dr. Hoehn committed dental malpractice by failing to account for claimant's severe undercuts when he decided to do full extractions and fit claimant with upper dentures. Specifically, Dr. Levine was of the opinion that proper dental practice required Dr. Hoehn to advise claimant that his severe undercuts could affect the fit and comfort of his denture, and that additional surgery would in all likelihood be required to ensure a proper fit. He was of the further opinion that Dr. Hoehn should have surgically removed those undercuts either at the time of the extractions, or at least prior to making the full denture for claimant.

On the other hand, Dr. Fallon, defendant's expert, was of the opinion that claimant's upper teeth showed too much mobility and therefore could not support a partial denture. As a result, Dr. Fallon opined that full extractions were warranted under the circumstances. Dr. Fallon (as concurred with by Dr. Marks) was of the further opinion that a six week period between extractions and addressing the tori or undercuts was reasonable, since the shape and contour of a patient's mouth could drastically change following oral surgery.

The State's defense of this claim was substantially impeded by the dental records, or lack thereof, made by Dr. Hoehn during the time that he treated claimant, and was further hindered by what this Court considers to be Dr. Hoehn's less than forthright deposition testimony. Dr. Hoehn testified to a lack of recollection for much of what transpired, and his limited testimony was of little assistance to the Court in determining what was in fact discussed with claimant prior to the extractions. The Court, therefore, must rely on the evidence before it, consisting of the dental records containing scant information, as well as the conflicting expert testimony before it.

Claimant's dental records establish that when he was admitted into DOCS custody, his teeth were considered to be in a level "II" condition. As explained by Dr. Marks, level "II" means that some regular care is required, such as restorations (fillings) or cleaning. Partial prosthetics could also be included in this category, evidenced by the fact that claimant was missing several upper teeth at the time of his incarceration. Claimant's level "II" condition is corroborated by the panorex x-ray also taken at the time of admission, which evidenced some degree of decay. All of the experts agree that the particular level of decay for each tooth could only be determined upon a full and complete dental examination.

However, there is no evidence in claimant's dental records, nor was such evidence provided by Dr. Hoehn in his deposition testimony, to support Dr. Hoehn's decision to pull all of claimant's upper teeth. The dental records do not reflect that Dr. Hoehn performed any complete physical examination of claimant's upper teeth prior to the extractions which took place on May 23, 2000, and subsequently on July 31, 2000. There was no testimony from Dr. Hoehn that his decision to extract these teeth was based upon any periodontal findings, x-ray examinations establishing the level of decay, any degree of mobility, or any physical findings whatsoever. The only testimony from Dr. Hoehn to supplement the dental records was to the effect that claimant's teeth were not all in the same condition, and that some were in fact in better condition than others. Such testimony simply does not justify his decision to fully extract all of claimant's remaining upper teeth.

Furthermore, there is no evidence that any comprehensive treatment plan was discussed with claimant, nor was there any evidence to suggest that his teeth could not be saved through restorative work.(3)

In fact, both experts agreed that a comprehensive physical exam was required before extractions, and that reasons for the extractions should have been noted on claimant's dental records. In this particular matter, there is no evidence that any physical exam was performed by Dr. Hoehn prior to the tooth extractions. To the contrary, the Court finds that Dr. Hoehn's decision to pull all of claimant's upper teeth was made without the benefit of current x-rays, periodontal examination, or dental examination. Claimant's dental records, as maintained by Dr. Hoehn, failed to justify the extractions, and Dr. Hoehn's own deposition testimony fails to satisfy this Court that any comprehensive examination was made prior to those extractions. The Court therefore finds that at best, the decision to pull all of claimant's remaining upper teeth was made in haste, at worst, it was predetermined. In any event, the decision was made without the benefit of any comprehensive dental or periodontal examination, or even current x-rays.

Dr. Levine, claimant's expert, established the standards that a dentist should adhere to prior to extractions, consisting of a full exam and full discussions with the patient of the ramifications of and alternatives to extractions. Dr. Hoehn's own deposition testimony admittedly confirmed that no such discussions were had with the claimant. The Court concludes, therefore, that this decision and the extractions constituted a deviation from accepted dental practice.

Furthermore, although Dr. Hoehn was adamant that he did not leave any root tips in during these extractions, the dental records clearly established that root tips were removed by Dr. Marks at different times following the extractions. The Court accepts Dr. Levine's opinion that leaving the root tips in during an extraction, or at a minimum failing to note that the root tips were left in, constitutes a deviation from accepted dental practice.

The Court, however, finds that the decision to delay evaluation and treatment of claimant's undercuts, or tori, until after claimant's mouth had healed, was not a deviation from accepted dental standards. Although the potential problems of undercuts were admittedly not discussed by Dr. Hoehn with claimant prior to the extractions, the Court finds that the decision to delay treatment was reasonable, especially in a prison setting where options for pain relief medication are severely limited.

In sum, this Court finds that Dr. Hoehn's decision to extract claimant's ten remaining upper teeth, without fully discussing options with the claimant, and without first conducting a thorough and complete dental examination, was not within the standards of appropriate dental care. Additionally, Dr. Hoehn's failure to remove all of the root tips during his extractions must also be considered a deviation from accepted standards. The State's liability is limited to these circumstances, and the Court makes no finding of dental malpractice with regard to any other dental treatment provided to claimant during the course of his incarceration, with particular reference to the comprehensive dental work performed by Dr. Marks. The Court makes these findings with knowledge that any damages suffered by claimant must be moderated by the fact that claimant did not initially present with a full set of completely healthy teeth, and that no damages will be awarded for any pain and suffering endured by claimant during subsequent recontouring surgery necessitated by his severe undercuts.

This Court further finds, based on the testimony at trial, that there is no basis to assign any comparative fault to claimant. Therefore, the State is 100% liable for the damages suffered by him, and must respond in damages for the departures from acceptable dental standards of care as set forth herein.

Any motions not heretofore ruled upon are hereby denied.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.


December 29, 2010

Syracuse, New York


Judge of the Court of Claims

1. The Court acknowledges the services of Robert Y. Young, who served as claimant's interpreter throughout this trial, and wishes to extend its appreciation to him for his excellent work.

2. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.

3. Incidentally, the Court notes that Dr. Marks, when he succeeded Dr. Hoehn in his dental treatment of claimant, performed substantial restorative work on claimant's bottom teeth.