Opinion
Index 805361/2019
02-18-2022
HELEN SILLER, Plaintiff, v. ADAM HARWOOD, D.M.D. and ADAM SCOT HARWOOD DMD, PC, Defendants. Motion Seq. No. 002
ERIKA M. EDWARDS JUDGE
Unpublished Opinion
MOTION DATE 08/20/2021
DECISION + ORDER ON MOTION
ERIKA M. EDWARDS JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the court grants in part Defendants Adam Harwood, D.M.D.'s ("Dr. Harwood") and Adam Scot Harwood DMD, PC's (collectively, "Defendants") motion for summary judgment dismissal of Plaintiff Helen Siller's ("Plaintiff) complaint to the extent that the court grants the portion of the motion seeking dismissal of Plaintiff s second cause of action for lack of informed consent; grants dismissal of the portions of Plaintiff s claims in support of her first cause of action for dental malpractice/negligence which are based on whether Dr. Harwood properly performed the root canal procedure on tooth #30, except what was set forth in Plaintiffs expert's affirmation; whether Dr. Harwood was negligent in recommending that tooth #18 required a root canal procedure for the sole purpose of generating income; and whether Dr. Harwood was negligent in referring Plaintiff to an oral surgeon on October 17, 2018. However, the court denies dismissal of Plaintiff s remaining claims in support of her first cause of action for dental malpractice/negligence against Defendants and denies Defendants' request for an order striking Plaintiffs claims of recklessness.
Plaintiff brought this dental malpractice action against Defendants seeking damages she allegedly suffered caused by Defendants' negligence beginning on October 8, 2018 regarding their dental and endodontic care and treatment of Plaintiff and for lack of informed consent. Plaintiff further argues in substance that Dr. Harwood negligently performed a root canal of Plaintiffs tooth which caused Plaintiff to have an infection which spread down to her bone, caused severe pain, swelling, nerve damage and numbness, requiring the extraction of the tooth, replacement with an implant, and required additional treatment and procedures to reduce the swelling which resulted in a permanent scar.
Defendants now move for summary judgment dismissal of Plaintiff s complaint and submit the expert affirmation of Dr. Harry Dym in support of their motion. Defendants argue in substance that they are entitled to judgment in their favor as a matter of law and in the alternative, should the court decline to dismiss Plaintiffs complaint, then the court should strike all claims of recklessness as such language is scandalous, prejudicial and unnecessary to Plaintiffs claims. Defendants further argue in substance that Dr. Dym opined that Dr. Harwood committed no deviations from accepted dental care, that his treatment was appropriate and within the standard of care, that he did not commit a negligent act or omission which was a substantial factor in causing any of Plaintiff s alleged damages and that he appropriately and properly obtained proper consent from Plaintiff. Defendants further argue in substance that Plaintiff developed the infection prior to being treated by Defendants, Dr. Harwood did not depart from accepted practice when he ordered an x-ray, properly performed the root canal, did not initially order antibiotics, used a foam rubber drain to evacuate toxic gas and when he prescribed azithromycin instead of amoxicillin as the preferred antibiotic. Additionally, Plaintiff had previously undergone a root canal procedure with Dr. Harwood in the past, so Defendants argue that she should have been familiar with the risks. Also, they argue that Dr. Harwood properly and adequately informed her of the risks and she had no questions for him.
Plaintiff opposes Defendants' motion and offered the affirmation of her own expert dental physician who opined that Defendants committed numerous departures from good and accepted dental practice in their care and treatment of Plaintiff. These departures include Defendants' failure to timely treat Plaintiffs infection, their failure to utilize cone beam imaging prior to performing the root canal which would have identified a fourth canal, their use of an improper antibiotic when they belatedly prescribed the medication, their failure to obtain Plaintiffs proper informed consent, their failure to treat the infection with local measures, and their failure to recommend hot compresses and warm soaks on October 15, 2018 when Plaintiff appeared and had severe swelling. Additionally, Plaintiff argues that Plaintiff was not adequately informed of the risks, benefits and alternatives to the root canal and she did not read the consent form before she signed it.
A. Plaintiffs Dental Malpractice/Negligence Claim
To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (see CPLR 3212[b]; Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The movant's initial burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 N.Y.3d at 833; William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013]).
In a medical or dental malpractice action, a defendant doctor or provider moving for summary judgment must establish that in treating the plaintiff there was no departure from good and accepted medical or dental practice or that any departure was not the proximate cause of the injuries alleged (Roques v. Noble, 73 A.D.3d 204, 206 [1st Dept 2010]; Scalisi v Oberlander, 96 A.D.3d 106, 120 [1st Dept 2012]; Thurston v Interfaith Med. Or., 66 A.D.3d 999, 1001 [2d Dept 2009]; Rebozo v Wilen, 41 A.D.3d 457, 458 [2d Dept 2007]. It is well settled that expert opinion must be detailed, specific, based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by the record (see Roques, 73 A.D.3d at 207; Cassano v Hagstrom, 5 N.Y.2d 643, 646 [1959]; Gomez v New York City Hous. Auth., 217 A.D.2d 110, 117 [1st Dept 1995]; Aetna Casualty & Surety Co. v Barile, 86 A.D.2d 362, 364-365 [1st Dept 1982]; Joyner-Pack v Sykes, 54 A.D.3d 727, 729 [2d Dept 2008]). If a defendant's expert affidavit contains "[b]are conclusory denials of negligence without any factual relationship to the alleged injuries" and "fails to address the essential factual allegations set forth in the complaint" or bill of particulars, then it is insufficient to establish defendant's entitlement to summary judgment as a matter of law (Wasserman v Carella, 307 A.D.2d 225, 226 [1st Dept 2003] [internal quotations omitted]; see Cregan v Sachs, 65 A.D.3d 101, 108 [1st Dept 2009]).
If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his or her failure to do so (Zuckerman, 49 N.Y.2d at 560; Jacobsen, 22 N.Y.3d at 833; Vega v Restani Constr. Corp., 18 N.Y.3d499, 503 [2012]).
In medical and dental malpractice actions, to defeat the motion, a plaintiff must rebut the defendant's prima facie showing by submitting an affidavit from a physician attesting that the defendant departed from accepted medical or dental practice and that the departure was the proximate cause of the injuries alleged (Roques, 73 A.D.3d at 207). An expert affidavit which sets forth general allegations of malpractice or conclusions, misstatements of evidence or assertions unsupported by competent evidence is insufficient to demonstrate that defendants failed to comport with accepted medical practice or that any such failure was the proximate cause of a plaintiffs injuries (Coronel v. New York City Health & Hosps. Corp., 47 A.D.3d 456, 457 [1st Dept 2008]; Alvarez, 68 N.Y.2d at 325).
Competing expert affidavits alone are insufficient to avert summary judgment since experts almost always disagree, but the question is whether plaintiffs expert's opinion is based upon facts sufficiently supported in the record to raise an issue for the trier of fact (De Jesus v Mishra, 93 A.D.3d 135, 138 [1st Dept 2012]). "Ordinarily, the opinion of a qualified expert that a plaintiff s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants" (Diaz v New York Downtown Hospital, 99 N.Y.2d 542, 544 [2002] [internal quotations omitted]). However, "[w]here the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation ... the opinion should be given no probative force and is insufficient to withstand summary judgment" (id.).
Summary judgment is "often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue" (Siegel, NY Prac § 278 at 476 [5th ed 2011], citing Moskowitz v Garlock, 23 A.D.2d 943, 944 [3d Dept 1965]). Summary judgment should be awarded when a party cannot raise a factual issue for trial (Sun Yan Ko v Lincoln Sav. Bank, 99 A.D.2d 943, 943 [1st Dept 1984]; CPLR 3212[b]).
Here, the court finds that Defendants established their prima facie entitlement to summary judgment as a matter of law based on their expert affirmation which contained opinions which were detailed, specific and factual in nature and which indicated with a reasonable degree of dental certainty that Defendants' treatment of Plaintiff did not depart from good and accepted dental practice. However, in opposition to the motion, the court finds that Plaintiffs expert was qualified to render his opinion based upon a reasonable degree of dental certainty that Defendants departed from good and accepted dental practice. The court finds that Plaintiffs expert's opinions were not speculative as they were supported by a favorable view of the evidence and thus, are sufficient to raise triable issues of fact set forth below.
Plaintiffs expert raised several disputed material issues of fact to be resolved at trial, including, but not necessarily limited to, whether Dr. Harwood was negligent in failing to diagnose and properly treat Plaintiffs infection when he examined her during her first and second visits; in failing to properly and timely treat it when the infection continued and spread; in failing to obtain a three-dimensional/cone beam imaging of her tooth prior to performing the root canal procedure; in failing to identify and properly open the fourth canal on Plaintiffs initial visit; in failing to prescribe a proper antibiotic in a timely manner; and whether Dr. Harwood's alleged negligence was the proximate cause of Plaintiff s alleged injuries.
However, the court agrees with defendants and finds that Plaintiffs expert failed to rebut whether Dr. Harwood properly performed the root canal procedure, except for the issues raised in Plaintiffs expert's affirmation regarding the failure to identify the fourth canal, the failure to identify and treat the infection in a timely manner and failure to prescribe the correct antibiotic medication. Additionally, Plaintiffs expert failed to rebut Plaintiffs allegation that Dr. Harwood was negligent in suggesting that tooth #18 required a root canal for the sole purpose of generating income and whether he was negligent in referring Plaintiff to an oral surgeon on October 17, 2018. Therefore, the court dismisses these portions of Plaintiff s claims, but denies dismissal of the remainder of Plaintiff s dental malpractice/negligence claims.
As such, the court grants in part Defendants' summary judgment motion regarding Plaintiffs first cause of action for dental malpractice/negligence to the extent that the court dismisses Plaintiffs claims based on whether Dr. Harwood properly performed the root canal procedure, except what was set forth in Plaintiff s expert's affirmation, whether Dr. Harwood was negligent in suggesting that tooth #18 required a root canal for the sole purpose of generating income and whether he was negligent in referring Plaintiff to an oral surgeon on October 17, 2018. The court denies dismissal of Plaintiff s remaining claims of dental malpractice/negligence against Defendants.
B. Plaintiffs Lack of Informed Consent Claim
For a plaintiff to prevail on a lack of informed consent claim, "a plaintiff must establish, via expert medical evidence, that defendant failed to disclose material risks, benefits and alternatives to the medical procedure, that a reasonably prudent person in plaintiffs circumstances, having been so informed, would not have undergone such procedure, and that lack of informed consent was the proximate cause of (plaintiff s) injuries" (see Public Health Law § 2805-d; Balzola v Giese, 107 A.D.3d 587, 588 [1st Dept 2013]; Shkolnik v Hospital for Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 350 [1st Dept 1995).
Here, the court finds that Defendants made a prima facie showing that Plaintiffs informed consent was properly obtained prior to beginning the root canal procedure and Plaintiff failed to raise a triable issue of fact by offering expert medical evidence establishing that Plaintiff was not properly and adequately advised of the reasonably foreseeable risks and benefits of the procedure or the alternatives to performing the procedure. Although Plaintiff alleges that she signed the consent form without reading it, she should have been aware of the risks, benefits and alternatives of a root canal procedure, since Dr. Harwood previously performed one on her in 2016. Also, in her deposition, she stated in substance that Dr. Harwood did not guarantee her that there would be no complications or problems if she got the root canal procedure, so she was aware of potential complications. Additionally, Defendants' consent form included numerous potential complications which could occur, which included infection, swelling, pain and numbness, all of which Plaintiff alleges to have suffered as part of her damages.
Furthermore, the opinions asserted in Plaintiffs expert's affirmation regarding the adequacy of the consent form are conclusory and Plaintiff failed to demonstrate that a reasonably prudent person in Plaintiffs position would not have undergone the treatment if he or she had been fully informed or that the lack of informed consent was a proximate cause of Plaintiff s alleged injuries.
Therefore, the court dismisses Plaintiffs second cause of action for lack of informed consent.
C. Plaintiffs Claims of Recklessness
The court denies the portion of Defendants' motion requesting the court to strike Plaintiffs claims of recklessness and finds that although Plaintiff failed to oppose this portion of Defendants' motion, Defendants failed to establish that Plaintiffs allegations of Defendants' reckless conduct rose to the level of being inflammatory, scandalous, prejudicial and unnecessary to support Plaintiffs dental malpractice/negligence claim as contemplated by CPLR 3024(b).
The court has considered all additional arguments raised by the parties which are not discussed herein and denies all additional requests for relief not expressly granted herein.
As such, it is hereby
ORDERED that the court grants in part Defendants Adam Harwood, D.M.D.'s and Adam Scot Harwood DMD, PC's motion for summary judgment dismissal of Plaintiff Helen Siller's complaint to the extent that:
1) the court grants dismissal Plaintiffs claims in support of her first cause of action for dental malpractice/negligence which are based on whether Dr. Harwood properly performed the root canal procedure on tooth #30, except what was set forth in Plaintiff s expert's affirmation, whether Dr. Harwood was negligent in recommending that tooth #18 required a root canal procedure for the sole purpose of generating income and whether Dr. Harwood was negligent in referring Plaintiff to an oral surgeon on October 17, 2018;
2) the court denies dismissal of Plaintiff s remaining claims in support of her first cause of action for dental malpractice/negligence against Defendants;
3) the court denies Defendants' request for an order striking Plaintiffs claims of recklessness; and
4) the court grants dismissal of Plaintiff s second cause of action for lack of informed consent; and it is further
ORDERED that the court dismisses Plaintiff Helen Siller's second cause of action in her complaint for lack of informed consent, only, and the remaining cause of action is severed and continues to the extent set forth herein.
This constitutes the decision and order of the court.