Opinion
Mot. Seq. 2
02-08-2022
Martha Elizabeth Folkes, Plaintiff, v. Brooklyn Oak Dental Care, P.C., Siama Ijaz Muhammad, D.M.D., and Sarah Johnson Taylor, D.M.D., Defendants. Index No. 509919/18
Unpublished Opinion
DECISION/ORDER/JUDGMENT
HON. ELLEN M. SPODEK, Justice.
The following e-filed papers read herein: NYSCEF Doc No.:
Notice of Motion, Affirmations, and Exhibits Annexed 49-60
Opposing Affidavits (Affirmations) and Exhibits Annexed 72-84
Affirmation in Reply and Exhibits Annexed 88-89
Stipulation of Dismissal as Against Remaining Defendants 91
Upon the, foregoing papers in this action to recover damages for dental malpractice and lack of. informed consent, defendant Sarah Johnson Taylor, 'D.M.D. ("Dr. Taylor"), moves for an order, pursuant to CPLR 3211 and 3212, for summary judgment dismissing this action. Plaintiff Martha Elizabeth Folkes ("plaintiff') opposes Dr. Taylor's motion.
The remaining defendants, Siama Ijaz Muhammad, D.M.D. ("Dr. Muhammad"), and her practice, Brooklyn Oak Dental Care, P.C. ("Brooklyn Oak"), were dismissed from this action by stipulation, "so ordered" on August 2, 2021 (NYSCEF Doc No. 91).
Background
On June 7, 2016, plaintiff, an established patient at Brooklyn Oak, sought dental treatment for cold/hot sensitivity to her right permanent mandibular (lower jaw) first molar, known as tooth #30 (the "tooth"). Dr. Taylor, then on duty (as the practice owner, Dr. Muhammad, was out of the office on that day), determined that the tooth needed root canal treatment, and, upon obtaining plaintiffs written consent, began performing the -treatment, but did not complete it, during that visit. Unexpected complications during the treatment session arose: a dental file broke off and became lodged in one of the canals under exploration, and there was some bleeding in the area under treatment. Because of these complications, Dr. Taylor decided to have plaintiff return to Brooklyn Oak at a later date to have the root canal treatment completed by the then-available dentist.
Three weeks elapsed between the commencement of plaintiffs initial root canal treatment with Dr. Taylor on June 7th and the conclusion of her treatment on June 28th which was performed by Dr. Muhammad. In the three-week interval, plaintiff experienced no pain or other discomfort in and around the tooth or in the surrounding areas (See Plaintiffs EBT tr at page 34, lines 13-14 ["I felt okay. When I left (on June 7th, ) I had some discomfort but nothing excruciating."]; page 83, lines 9-13 [testifying that she felt nothing unusual and no pain at all during Dr. Taylor's root canal treatment]; page 86, lines 10-20 [testifying that she experienced no numbness in the lower right area of her mouth and no pain at all between her visits to Dr. Taylor and Dr. Muhammad]).
While Dr. Muhammad was working on the already-anesthetized tooth, plaintiff suddenly "experienced[d] . . . a really sharp electric pain" (Plaintiffs EBT tr at page 35, lines 3-4). The' administration of additional anesthesia failed to meaningfully reduce the break-through pain. Plaintiff persevered, remaining in the dental chair until Dr. I Muhammad completed the treatment. Both at the conclusion of Dr. Muhammad's treatment, as well as on the following day, plaintiff was in pain and numb "[a] 11 across the lower right-hand side of [her] face" (Plaintiffs EBT tr at page 40, lines 14-18). On plaintiffs subsequent visits to Brooklyn Oak, Dr. Muhammad failed to ameliorate (what she verbally conceded to plaintiff) was plaintiffs nerve damage (Plaintiffs EBT tr at page 44, line 13 ["she (Dr. Muhammad) expressed (to me) that I had nerve damage"]).
Plaintiff subsequently had her tooth extracted elsewhere, albeit without relief of her pain and numbness. The alleged damage to plaintiffs right inferior (lower) alveolar nerve, as evinced by lack of sensation in (among other areas) her right lower lip, is claimed to be permanent (See Examination Report, dated January 30, 2021, performed by an oral surgeon h [name redacted] on December 16, 2020 at plaintiff s request [NYSCEF Doc No. 81]).
Discussion
Plaintiff advances dual claims sounding in dental malpractice and lack of informed consent. With respect to her dental malpractice claim, plaintiff must prove two elements to be entitled to recovery: first, that there was "a deviation or departure from accepted standards of dental practice" on Dr. Taylor's part, and second, that "such departure was a proximate cause of [plaintiff s] injuries" (Garcia v Richer, 132 A.D.3d 809, 810 [2d Dept 2015] [internal quotation marks omitted]). Where, as here, a defendant is moving for summary judgment, she "has the initial burden of establishing that. . . [either] she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiffs injuries" (id. [internal quotation marks omitted; emphasis added]).
Plaintiffs claim for lack of informed consent is "a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence" (Jolly v Russell, 203 A.D.2d 527, 528 [2d Dept 1994]). With respect to that claim, plaintiff must prove, among other things, that "the lack of informed consent is a proximate cause of the injury" (Friedberg v Rodeo, 193 A.D.3d 825, 826 [2d Dept 2021] [internal quotation marks omitted]; see also Foote v Rajadhyax, 268 A.D.2d 745, 745-746 [3d Dept 2000] ["Since, normally, - lack of informed consent does not itself cause the injury, the causation issue is whether the operation, treatment or procedure is a proximate cause of the injury or condition complained of."]).
"To defeat summary judgment [on either the dental malpractice claim or the informed consent claim, or both], [the plaintiff as] the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie snowing" (Silveri v Glaser, 166 A.D.3d 1044, 1046 [2d Dept 2018]). "However, mere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the claim at issue, are insufficient to defeat summary judgment" (id.).
Here, in moving for summary judgment on plaintiffs dental malpractice and f informed consent claims, Dr. Taylor submitted an affirmation from Howard Atlas, D.D.S. ("Dr. Atlas"), a New York State-licensed dentist with over thirty years of experience in the private practice of general dentistry (NYSCEF Doc No. 52). Dr. Atlas, in addressing the proximate cause element of both of plaintiffs claims, opines that her injuries were not causally related to Dr. Taylor's treatment of tooth #30 on June 7, 2016. In particular, Dr. Atlas opines (in ¶ 25 of his affirmation) that:
"A nerve injury is a very rare complication from a root canal procedure but unavoidable when it occurs, which is why it is included in the risk and benefits discussion and on informed consent forms. This known risk is a consequence of deviations in anatomical structure of nerves which are not visible on radiograph. In this case, the evidence is undisputed that [p]laintiff did not complain of any numbness or pain after the start of the root canal by Dr. Taylor, nor did she experience any numbness or pain before the visit on June 28, 2016 where the root canal was finished by Dr. Muhammad. Rather, [p]laintiff's paresthesia symptoms onset immediately after the completion of the root canal of tooth #30 on June 28, 2016. Accordingly, Dr. Taylor's root canal procedure on tooth #30 on June 7, 2016 could not have caused and/or contributed to the injury to the right inferior alveolar nerve [as] claimed. .. by [p]laintiff; rather, the injury to the right inferior alveolar nerve and the related symptoms and claims of injuries, such as numbness and pain, were caused and/or contributed by the treatment rendered during completion of the root canal by Dr. Muhammad on June 28, 2016. This was an accepted risk of the procedure that [p]laintiff acknowledged prior to performance of the treatment on that date. As such, it is my opinion with a reasonable degree of certainty that [p]laintiff s claimed injuries were not caused and/or contributed by the root canal procedure or any treatment performed by Dr. Taylor on June 7, 2016..." (emphasis added).
Based on Dr. Atlas's affirmation, plaintiffs deposition testimony, and her dental records, Dr. Taylor has demonstrated her prima facie entitlement to summary judgment dismissing the dental malpractice and informed consent claims, in each instance, based on the lack of proximate cause (see Silver i, 166 A.D.3d at 1046; Garcia v Richer, 132 A.D.3d 809, 811 [2d Dept 2015]). This prima facie showing shifts the burden to plaintiff to demonstrate the existence of a material issue of fact, on the subject of proximate cause, with respect to her care (or lack thereof) by Dr. Taylor.
In opposition, plaintiff submitted an affidavit from a New York State-licensed dentist (name redacted) with a specialization in endodontics (NYSCEF Doc No. 73). Plaintiffs expert's affidavit, however, is too curt to function as an adequate opinion on the r subject of proximate cause. In particular, plaintiffs expert opines (in the conclusion section of his/her affidavit) that:
"Dr. Taylor's departures from the standard of care were a substantial factor in causing permanent damage to [plaintiff's] right inferior alveolar nerve. In my opinion, considering that [plaintiff] has had consistent symptoms indicative of damage to her right inferior alveolar nerve from the date of Dr. Muhammad's attempted completion of the root canal therapy on tooth 30 [at the July 28th visit] until the date of the examination of [plaintiff] in December 2020 by an oral surgeon, [her] injury is permanent"(Plaintiffs Expert Affidavit, pages 16-17 [emphasis added]).
The conclusory assertion of plaintiff s expert, as reproduced in full above, fails to demonstrate the existence of a triable issue of fact with respect to causation (see Mosezhnik v Berenstein, 33 A.D.3d 895, 897 [2d Dept 2006]; see also Kelapire v Kale, 189 A.D.3d 1197, 1198 [2d Dept 2020]; Huffman v Linkow Inst, for Advanced Implantology, Reconstructive & Aesthetic Maxillo-Facial Surgery, 35 A.D.3d 214, 217 [1st Dept 2006]). Contrary to plaintiffs contention, the fact that Dr. Taylor's expert, Dr. Atlas, is licensed in New York as a general dentist does not preclude him from opining in the area of endodontics, including root canal therapy. Education Law § 6601 defines the practice of the profession. of dentistry "as diagnosing, treating, operating, or prescribing for any disease, pain, injury, deformity, or physical condition of the oral and maxillofacial area related to restoring and maintaining dental health." To be qualified for licensure in New York, a prospective dentist must complete, at his or her choice, a residency program in either general dentistry 4 or a specialty of dentistry (see 8 NYCRR § 61.18 [b]). To complete a residency program in general dentistry, a prospective dentist is required, among other things, to perform "independently, and to generally accepted professional standards for dentistry, two full crowns, two endodontically treated teeth, four restorations (two anterior, two posterior) and one periodontal case during the accredited residency program" (8 NYCRR § 61.18 [b] [3] [i] [b] [emphasis added]). Consequently, Dr. Taylor's expert, as a general dentist, is not precluded from opining in the area of endodontics. Conversely, the court notes that plaintiffs expert, notwithstanding his/her membership in the American Board of Endodontics, failed to offer more than a single sentence in his/her otherwise comprehensive 17-page affidavit on the subject of whether Dr. Taylor's alleged acts/omissions proximately caused plaintiffs injuries. Therefore, the Court finds that plaintiff has failed to sustain her burden of proof of a triable issue of fact on causation sufficient to defeat summary judgment.
Conclusion
Dr. Taylor's motion in Seq. No. 2 is granted, and the complaint is dismissed in its entirety as against her without- costs and disbursements. In light of the prior stipulated dismissal of Dr. Muhammad and Brooklyn Oak, the entire action is hereby dismissed.
Dr. Taylor's counsel is directed to electronically serve a copy of this decision, order, judgment on the other parties' respective counsel, and to electronically file an affidavit of service thereof with the Kings County Clerk.
This constitutes the decision, order, and judgment of the Court.