Opinion
No. 3830/11.
10-03-2014
Jamie L. SUPPA, Plaintiff, v. BRIGHTER SMILES FAMILY DENTISTRY, P.C. and Christopher S. Lee, D.D .S., a/k/a Christopher Sun Lee, D.D.S., Defendants.
James L. Lufty, Esq., Lufty & Santora, Staten Island, for Plaintiff. Marc R. Leffler, Esq., Kolenovsky Spiegel, LLP, New York, for Defendants.
James L. Lufty, Esq., Lufty & Santora, Staten Island, for Plaintiff.
Marc R. Leffler, Esq., Kolenovsky Spiegel, LLP, New York, for Defendants.
Opinion
JAMES D. PAGONES, J.
Defendants move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff's complaint. In the alternative, defendants move for an order, pursuant to CPLR 3211(a)(7) and CPLR 3211(e), dismissing plaintiff's second cause of action sounding in lack of informed consent.
The following papers were read:
Notice of Motion–Affirmation–Affidavit of Service–1–11
Exhibits A–H
Affirmation in Opposition–Affidavit of Service–12–25
Exhibits A–L
Exhibit F (Unredacted) 26
Reply Affirmation–Affidavit of Service 27–28
Upon the foregoing pagers, the defendants' motion is decided as follows:
By way of background, the allegations of dental malpractice in this action arise out of a root canal treatment and dental care performed and provided by the defendant Christopher S. Lee, D.D.S. The plaintiff alleges that the defendants failed to obtain adequate informed consent and that the treatment failed to comport with the standards of good and accepted dental care. Plaintiff alleges that the procedure and care caused numbness, pain and the need for an implant.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
It is a familiar principle of New York law that, in order to establish the liability of a dentist for dental malpractice, a plaintiff must prove that the dentist deviated from good and accepted dental practice, and that the departure was a proximate cause of the plaintiff's injuries (see Cohen v. Kalman, 54 AD3d 307 [2nd Dept 2008] ). Consequently, on a motion for summary judgment in a dental malpractice action, the defendants must come forward with evidence in admissible form establishing prima facie, either that the dentist did not deviate from good and accepted medical practice; or that, if there was a departure, it was not the proximate cause of the plaintiff's injuries (see Starr v. Rogers, 44 AD3d 646 [2nd Dept 2007] ). The defendants establish their prima facie entitlement to judgment as a matter of law through the submission of the expert affidavit of defendant Christopher Lee, D.D.S., the affirmed report of Dr. Weintraub and the deposition testimony of plaintiff (id. ). Dr. Lee's affidavit indicates that all the dental work performed upon the plaintiff was completely within the standard of good and accepted dental care, and no treatment that he or his practice or he performed was a causative factor, to any degree, of any nerve injury that the plaintiff may have. Additionally, defendant Dr. Lee indicated that he went over the potential risks of root canal therapy on December 9, 2008. On December 19, 2008, prior to removal of tooth # 19, Dr. Lee again discussed the issues of risk, benefit and alternatives with the plaintiff. After being given the opportunity to read a written consent form and ask any questions, the plaintiff signed the consent form.
Since defendants have made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ), plaintiff must show that genuine triable issues of material fact exist in order to defeat defendants' motion (id. ).
In opposition, a plaintiff must submit the affidavit or affirmation of a dentist attesting to a departure from good and accepted practice, and stating that the dentist's opinion that the alleged departure was a competent producing cause of plaintiff's injuries (see Luu v. Paskowski, 57 AD3d 856 [2nd Dept 2008] ; Ross v. Braverman, 44 AD3d 923 [2nd Dept 2007] ; Thompson v. Orner, 36 AD3d 791 [2nd Dept 2007] ). Plaintiff submits the unredacted affidavit of her expert for in camera review. Upon review, the expert opines that the diagnosis and treatment of the plaintiff by defendant Dr. Lee as it related to teeth # 30 and # 19 were below the standard of care. Additionally, the expert states that the departures from the standard of care by Dr. Lee were the proximate cause of the nerve damage to plaintiff's left inferior alveolar nerve. Further, plaintiff's expert indicates that the injury is permanent in nature. Plaintiff's expert also states that Dr. Lee departed from the standard of care, in the method by which he presented the consent form to the plaintiff. Specifically, the expert states that the form failed to mention the option of a referral to an endodontist. Morever, the expert indicated that the manner in which defendant Dr. Lee presented the form to plaintiff was wholly inappropriate, i.e just prior to the procedure while sitting in the dental operatory. This Court notes that summary judgment is not appropriate in a dental malpractice action where the parties adduce conflicting medical expert opinions, as such credibility issues can only be resolved by the jury (see generally Deutsch v. Chaglassian, 71 AD3d 718 [2nd Dept 2010] ). Accordingly, the affidavit of defendant Dr. Lee and plaintiff's expert are sufficient to create an issue of fact as to plaintiff's causes of action.
Based upon the foregoing, defendants' motion for summary judgment is denied in its entirety.
The Court will next address defendants' motion to the extent it seeks alternative relief in the form of dismissal pursuant to CPLR 3211(a)(7). When a party moves to dismiss a complaint pursuant to CPLR 3211[a][7], the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268 [1977] ). In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 NY3d 825 [2007] ). Whether a plaintiff can ultimately establish her allegations is not part of the calculus (see EBC I v. Goldman, Sachs & Co., 5 NY3d 11 [2005] ).
In order to prevail on a theory of lack of informed consent, one must demonstrate that the dental professional failed to make a timely disclosure as to material elements of risks and alternatives available to the questioned procedure; that a reasonable person, in the exercise of prudence under the circumstances, would not have undergone the procedure had the withheld information been disclosed; and that the lack of meaningful disclosure or the unconsented to procedure was a proximate cause of the plaintiff's injuries (see 15 N.Y. Prac, New York Law of Torts § 13:18 ). Here, the second cause of action in the complaint sufficiently sets forth a cause of action sounding in lack of informed consent. Paragraph eighteen (18) of the complaint sets forth that the plaintiff was not informed of the risks and alternatives applicable to the procedure. Paragraphs nineteen (19) and (20) set forth that a reasonable person in plaintiff's position would not have undergone the procedure had she been fully informed. Lastly, paragraph twenty-one (21) clearly sets forth that the lack of meaningful disclosure was the cause of the injury (see Public Health Law § 2805–d[3] ). Accordingly, affording the complaint liberal construction, the branch of defendants' motion seeking dismissal must also be denied (see Rubino v. Albany Medical Center Hospital, 117 A.D.2d 909 [3rd Dept 1986] ).
Based upon the foregoing, defendants' motion is denied in its entirety. The unredacted expert opinion of plaintiff's expert, i.e. Exhibit “F”, has been destroyed. Counsel are directed to appear for jury selection on July 24, 2015 at 9:30 a.m. Adjournments are only granted with leave of the Court.
This constitutes the decision and order of the Court.