On renewal, defendant's motion for summary judgment was granted to the extent it sought dismissal of dental malpractice claim but denied to the extent it sought dismissal of cause of action for lack of informed consent.
|Claimant short name:||GRAYSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Anthony Grayson, Pro Se
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 24, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212.
Claimant, a pro se inmate, alleges causes of action for dental malpractice and lack of informed consent arising from the extraction of a tooth on April 22, 2008. By Decision and Order dated January 7, 2010, this Court denied defendant's motion for summary judgment with leave to renew upon a proper showing. In doing so, the Court found that defendant's expert's affidavit was devoid of probative value because her opinions were not based upon personal knowledge and the dental records upon which she relied in rendering her opinion were not submitted on the motion.
Claimant's first cause of action asserts that Robert Carpenter, D.D.S., negligently performed an endodontic procedure which caused the claimant to sustain "paraesthesia, dysesthesia, hypesthesia, sensitivity, to the lip, chin, and cheek, numbness and/or loss of sensation [to] the left side of the tongue, lip, chin, gum . . . [and] in causing the [claimant] to sustain permanent nerve damage" (claim, defendant's Exhibit A, ¶ 7). The second cause of action asserts lack of informed consent based upon the defendant's failure to "advise the [claimant] . . . of the alternatives to said professional treatment and . . . the reasonably foreseeable risks and complications . . ." (Id. at ¶ 11). Claimant also alleges that "had [he] been fully informed, [he], or a reasonably prudent person in [his] position, would not have undergone the treatment, procedure and surgery . . ." (Id. at ¶ 12).
In support of the instant renewal motion, defendant submits the affidavit of Mary J. D'Silva, a Board Certified dentist and Director of Correctional Dental Services for the Department of Correctional Services. While the affidavit is substantially similar to the affidavit previously submitted, it now addresses the cause of action for lack of informed consent and is supported by the claimant's dental records.
With respect to the first cause of action for malpractice, Dr. D'Silva sets forth in her affidavit the dental treatment provided to the claimant and renders the following opinion with respect thereto:
"13. Based upon my professional education, experience and expertise in the field of dental medicine, the numbness claimant complained of is part of the accepted or standard complication with any such extraction. In claimant's specific case, tooth #19 was infected and such infection was close to the nerve. After the extraction, the subsequent dental care and customary healing time resolved any numbness the claimant had experienced.
14. It is in my expert dental opinion, that there was no deviation from the standard of care during and following claimant's tooth extraction. I further state that the patient's treatment at the Great Meadow Correctional Facility and the Sullivan Correctional Facility conformed to all reasonable and acceptable standards of the dental profession."
With respect to the second cause of action alleging lack of informed consent, Dr. D'Silva states the following:
"15. As part of the standard operating procedure for tooth extractions the patient is provided with the risks, benefits and alternatives of the procedure by a health care provider. On March 17, 2008 this was done as evidenced by the signed 'consent' form. In addition, in April 2002 the patient was advised of the risks, benefits and alternatives for the extraction of tooth #4. The risks, benefits and alternatives for the extraction of tooth #4 is the same as the risks, benefits and alternatives for the extraction of tooth #18 and/or 19.
16. The patient was fully informed of such alternatives and reasonably foreseeable risks and benefits to the procedure that a reasonable dental practitioner would disclose in similar circumstances to permit a knowledgeable evaluation."
As this Court stated in its prior Decision and Order, on a motion for summary judgment in a dental malpractice action, the defendant must demonstrate, prima facie, that the dental services provided were performed consistent with good and accepted dental practice (Williams v Sahay, 12 AD3d 366, 368 ; Stancavage v Mirman, 309 AD2d 918, 919 ). Here, defendant established through the submission of Dr. D'Silva's affidavit and the claimant's dental records that the dental treatment afforded the claimant with respect to the extraction of tooth number 19 was accomplished in a manner consistent with good and accepted dental practice. As a result, defendant demonstrated its entitlement to judgment as a matter of law dismissing the claimant's first cause of action alleging medical malpractice. A contrary conclusion is reached, however, with respect to the claimant's second cause of action for lack of informed consent.
To establish a cause of action for lack of informed consent, claimant must prove that "(1) defendants failed to disclose alternatives and reasonably foreseeable risks and benefits to the treatment in question, such as a reasonable medical practitioner would have disclosed under the circumstances, (2) a reasonably prudent patient in [claimant's] position would not undergo the treatment if fully informed, and (3) the lack of informed consent is a proximate cause of the injury" (Schilling v Ellis Hosp., 75 AD3d 1044 ; Cole v Tischler, 68 AD3d 1595,1596 , citing Public Health Law § 2805-d , ). While Dr. D'Silva described the risk of numbness as "part of the accepted or standard complication with any such extraction", defendant offered no evidence that the treating dentist informed the claimant of this risk or any alternative treatments. Dr. D'Silva's statement that "[a]s part of the standard operating procedure for tooth extractions the patient is provided with the risks, benefits and alternatives of the procedure by a health care provider" is insufficient to establish informed consent for the procedure performed on the claimant. Dr. D'Silva was not the treating dentist and has no personal knowledge of the information provided to the claimant. Nor does the signed consent form dated March 17, 2008 establish informed consent. The form is a general consent for a procedure on tooth number 18, not tooth number 19 which was the tooth extracted in this case. Moreover, the form provides no indication of the nature of any risks disclosed or the name of the health care provider who purportedly conveyed the information. To the extent defendant relies upon a general consent form relating to the extraction of tooth number 4, it is insufficient to establish informed consent for the extraction of a different tooth six years later. Accordingly, defendant failed to establish that it disclosed the reasonably foreseeable risks associated with the extraction of tooth number 19 (see Wilson-Toby v Bushkin, 72 AD3d 810 ; Cromarty v Hammoud, 278 AD2d 691 ).
Based on the foregoing, defendant's motion for summary judgment is granted, without opposition, to the limited extent of dismissing the claimant's first cause of action and is otherwise denied.
August 24, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: