|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Wilfredo Gonzalez, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||November 16, 2010|
|See also (multicaptioned case)|
This decision follows the trial of the claim of Wilfredo Gonzalez. In his claim, Mr. Gonzalez alleges that during the extraction of one of his teeth on November 30, 2000, Sullivan Correctional Facility dentist Dr. M. Ahmed "recklessly [broke] and left in [his] gums" a "large thick piece of bone measuring .3 x .3 x .2 centimeters . . ." Claimant further alleges that on January 25, 2001, Dr. John Frattellone, an outside oral surgeon "had to come into the facility and perform surgery to extract the remaining thick piece of bone, only after Claimant made numerous complaints of severe pain and swelling, and filed a grievance . . ." Gonzalez also alleges that thereafter, he continued to have severe pain and swelling for several months, and he has a "permanent large bump" in the area of the removed tooth.
At trial, claimant introduced a copy of a grievance that he filed on January 5, 2001, which states that:
I have been experiencing on-going medical problems with my jaw, ears, and sinuses since the dentist improperly pulled one of my teeth (instead of pulling it down and out, he pulled it sideways, ripping the gum and causing infection - he has done this to another inmate that I'm aware of). Because of his malpractice, I now have a serious problem that has me in daily pain and suffering. Evidently, the dentist is not properly trained or licensed.
. . .
I would like to see another dentist, a specialist that can determine what the facility dentist did to cause these problems and fix it so that the pain and suffering stops.
See claimant's exhibit 2.
The response to the grievance was "Action Accepted: Grievant is scheduled to be seen by an oral surgeon on 1/25/01, to address his dental concerns." Id.
Gonzalez maintained that because of problems caused by Dr. Ahmed, he has had to "sacrifice more teeth," stating that three more teeth had to be extracted thereafter. Claimant also testified that to date, the Department of Correctional Services has not found the problem. In that regard, claimant was apparently ultimately dissatisfied with the procedure performed by outside surgeon Dr. Frattellone, as he introduced at trial a copy of a July 30, 2001 letter that he wrote to Dr. Ahmed, in which he states that during the surgery performed by Frattellone, "I do not think all pieces were removed and . . . when I eat [I] have a pain there, plus my left ear is always hurting. It feels like there are jagged pieces and uneven areas, I need surgery [to] remove any pieces and chip away the jagged ends." See claimant's exhibit 1.
As to his current condition, claimant testified that at times, the left side of his jaw is swollen and he is still in pain. He also testified that he began wearing a hearing aid in 2004, suggesting that this was related to the tooth extraction, although he did not elaborate.
On its case, defendant called Dr. Mary D'Silva, who is employed by the Department of Correctional Services as director of dental services. She testified that she oversees dental care for more than 60,000 inmates throughout the state, which involves reviewing and monitoring the duties of facility dentists, performing quality audits and ensuring that proper policy and procedures are carried out. She added that she also practices as a dentist in State correctional facilities, and has also practiced outside as a dentist, prior to which she was a surgeon.
Dr. D'Silva testified that she reviewed claimant's facility dental records, and they indicate that in 2000, during a dental exam, Dr. Ahmed found that claimant's tooth number 12 was broken. Claimant objected that the tooth had not broken, but rather that the filling had just come out. Dr. D'Silva explained that when the filling broke, 3/4 of the tooth also broke. She said that rather than immediately take out the tooth, Dr. Ahmed "tried hard" to save it. He did not just put in a filling, but rather built a substructure which involved the placement of two retention pins to effectively "create" an entire tooth, which was then covered with a filling. Dr. D'Silva explained that this procedure gave claimant a whole year with the tooth, which was preferable to removing it immediately, and she added that this was very good care in terms of a "community standard."
As to the ultimate extraction of tooth number 12 on November 30, 2000, Dr. D'Silva explained that when a tooth is removed, a bony socket is created where the tooth used to be, and the bone has to heal after the extraction. During this healing process, it is normal for small bone fragments to be expelled from the body. Dr. D'Silva also stated that the "piece" of bone Gonzalez refers to in his claim was actually very small.(1) Dr. D'Silva also said that claimant was ultimately seen by outside oral surgeon Dr. Frattellone because Dr. Ahmed felt that a medical, as opposed to dental, issue was involved. Dr. D'Silva stated that when claimant saw Dr. Frattellone, he removed a tip of bone which the body was expelling as part of the normal healing process following the extraction of the tooth.
Dr. D'Silva testified that in terms of dental treatment, the care that claimant has received during his incarceration has been "above and beyond community standards," noting that among other things, he has been treated in six different facilities, has had approximately three dozen x-rays, and has been seen by a board certified oral surgeon.
With regard to the extraction of additional teeth, contrary to claimant's contention that they had to be removed because of an improper extraction by Dr. Ahmed on November 30, 2000, Dr. D'Silva explained that when claimant first entered the Department of Correctional Services system in 1983, x-rays taken at that time showed that he had extensive bone loss and that a lot of his teeth did not have supporting bone structure, requiring their ultimate removal.* * *
It is settled law that the State owes a duty to its inmates to provide them with adequate medical and dental care. Kagan v State of New York, 221 AD2d 7 (2d Dept 1996). But in order to prevail here, claimant would be required to present testimony from an expert that there was a departure from accepted standards of dental or medical care in connection with the November 30, 2000 procedure, which proximately caused him injury. See, e.g., Lyons v McCauley, 252 AD2d 516 (2d Dept 1998), lv denied 92 NY2d 814 (1998). Claimant failed to present any such testimony.
Accordingly, claim no. 107039 is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.
November 16, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. She described it as not even half the size of a pencil lead, apparently referring to its diameter.