Opinion
C-114-20SC
02-10-2021
Margaret LUBMAN, Plaintiff, v. Dr. Bruce CUTTLER, Defendant.
Plaintiff is suing defendant for $1,300.00, plus costs, claiming that defendant dentist placed a crown on the wrong tooth, and would not refund the fee that he charged plaintiff. A trial was held on January 21, 2021. Both parties appeared pro se.
Facts of the Case
Plaintiff testified that a crown (an artificial tooth covering) was installed on tooth number 29 in her mouth in 2008 by a dentist by the name of Dr. Whalen.
Teeth in the human mouth are numbered in a standard configuration so that all dentists know what has been done in a patient's mouth by other practitioners.
After experiencing some discomfort in March of 2019, plaintiff consulted an endodontist, Dr. Denise Assogna. Several written reports by Dr. Assogna were introduced into evidence. On March 27, 2019, Dr. Assogna reported to Dr. Cuttler that she treated teeth numbered 2, 3 and 30. On April 16, 2019, Dr. Assogna reported to Dr. Cuttler that the endodontic treatment was completed for tooth number 3. On May 14, 2019, Dr. Assogna reported to Dr. Whalen that the endodontic treatment was completed for tooth number 30. On June 13, 2019, Dr. Assogna reported to Dr. Whalen that plaintiff was having discomfort in tooth 30 and that tooth 29 was sensitive to percussion. On December 4. 2019, Dr. Assogna reported to Dr. Cuttler that tooth 30 was healed. On January 27, 2020, Dr. Assogna reported to Dr. Mozer that tooth 30 would take some time (perhaps years) to fully heal. At no point in her treatment reports did Dr. Assogna indicate that a cap had been installed on the wrong tooth.
An endodontist performs root canals; a root canal is a dental procedure involving the removal of the soft center of the tooth, the pulp. The pulp is made up of nerves, connective tissue, and blood vessels.
All documents referred to in this decision were admitted into evidence without objection.
Dr. Mozer is an associate of Dr. Cuttler.
Plaintiff testified that she thought Dr. Cuttler was putting a crown on tooth 30. She claims that Dr. Cuttler told her that he was putting the crown on tooth 30. In point of fact, he put the crown on tooth 29. Plaintiff further testified that she did not recall any dentist telling her that she needed a crown on tooth 29.
Plaintiff testified that Dr. Cuttler's front office staff told her that the wrong tooth had been treated. In response to questioning by the Court, plaintiff could not recall the names of Dr. Cuttler's staff who told her that. Plaintiff also testified that Dr. Cuttler may also have told her that the wrong tooth had been treated.
Plaintiff then stopped seeing Dr. Cuttler. Dr. Whelan installed a crown on tooth 30 at a cost of $1,300.00. Plaintiff testified that Dr. Assogna told her that the cap on tooth 29 was "short" and did not reach the gum line, which could cause problems in plaintiff's dental health. This statement by Dr. Assogna is not recorded in any of the written reports in evidence.
Neither Dr. Whelan, Dr. Assogna, Dr. Mozer, nor members of Dr. Cuttler's staff, were called as witnesses by Plaintiff.
Dr. Cuttler asked no questions on cross-examination.
Dr Cuttler then testified. He introduced his clinical notes on plaintiff. He testified that these notes could not be altered after the fact once entered into the office computer system.
According to these notes, Dr. Cuttler advised plaintiff on January 14, 2019, that tooth 29 needed a new crown because it was damaged, by missing a lingual cusp. According to defendant's testimony, an appointment was scheduled at that time to replace the damaged cap on tooth 29. The chart goes on to note the plaintiff's visits to the endodontist.
A lingual cusp is an elevation of the crown of a tooth located toward the tongue.
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Defendant testified that plaintiff was again advised on July 24, 2019, that tooth 29 had a lingual fracture and needed replacement. This is noted in the patient's chart. The cap on tooth 29 was replaced by Dr. Cuttler on August 26, 2019.
Ms. Lubman elicited no new information during cross-examination that would contradict defendant's direct testimony.
The Court's Analysis and Decision
The Court has no doubt that Ms. Lubman is sincere in her belief that she was not told that tooth 29 needed a cap. The Court has no doubt that Dr. Cuttler is sincere in his belief that he did tell Ms. Lubman that tooth 29 needed a cap. Beliefs however, no matter how sincerely held, are not proof.
Even though the rules of evidence are relaxed in small claims cases, they are not dead. A court judgement, even in so humble a forum as small claims court, can not be supported solely on the fragile pillars of pure hearsay, Davis v Town of Babylon 2013 NY Slip Op (Appellate Term, 2d Dept., 2013). Plaintiff's testimony of what others said to her is classic hearsay. It is incumbent upon plaintiff to prove her case by a preponderance of the evidence. Clark v Brownell, 2018 NY Slip Op 51247, (City Court Of Glens Falls, 2018). This she has failed to do.
As noted above, there is no corroborating testimony from Dr. Whalen, Dr. Assogna, Dr. Mozer or anyone else that defendant treated the wrong tooth. Dr. Cuttler's treatment record in evidence, and his sworn testimony, is contrary to that. Plaintiff's testimony alone, with no records, testimony by the other treating dentists or any other evidence of what would essentially be malpractice on the part of Dr. Cuttler, does not meet the burden of proof.
Therefore, the claim is dismissed.
This decision also constitutes the order of this Court.
SO ORDERED.