Opinion
# 2019-044-001 Claim No. 124616
01-11-2019
JOSE ACOSTA v. THE STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. BY: Brian M. Dratch, Esq., of counsel HON. LETITIA JAMES, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Claimant's failure to introduce expert testimony in dental malpractice/negligence case resulted in dismissal after trial.
Case information
| UID: | 2019-044-001 |
| Claimant(s): | JOSE ACOSTA |
| Claimant short name: | ACOSTA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124616 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. BY: Brian M. Dratch, Esq., of counsel |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 11, 2019 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover damages for dental malpractice and/or dental negligence for failure to appropriately treat a dental condition while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Trial of the matter was bifurcated and held in the Binghamton District on November 15, 2018, and the parties thereafter eventually submitted post-trial memorandums of law. This decision addresses only the issue of liability.
At trial, claimant testified that he began experiencing severe pain in tooth number 31 (a right lower molar) in 2012, which would radiate from his jaw to the back of his head and neck. He said he cannot chew on the left side of his mouth because his face is numb, due to severe nerve damage resulting from removal of a brain tumor in 2003. Claimant said he was told by the dentist at Elmira, Dr. Lawson, that he had an abscess. Dr. Lawson prescribed amoxicillin, and also told claimant he needed a root canal and permanent crown for the tooth. Claimant said he was willing to have a root canal and crown. Lawson apparently requested approval to perform the procedure, but approval was denied, on the basis that root canal therapy and crowning a tooth were purportedly procedures that were not available at Elmira. Claimant was then given the opportunity to have the tooth extracted and a partial denture made to replace it and other teeth on that side. Claimant agreed to the extraction, but then later refused it when he was told that he was not eligible for a partial denture.
Claimant filed numerous grievances. The repeated response to the grievances by the Inmate Grievance Resolution Committee (IGRC) was that appropriate treatment would be root canal therapy and placement of a permanent crown, but neither of those treatments was available under the controlling section of the Health Services Policy Manual (HSPM), § 2.01 (C) and was therefore not performed at Elmira. The Superintendent repeatedly denied claimant's appeals (which were made on the basis that root canal therapy and placement of permanent crowns actually were services within the scope of HSPM 2.01 [C]), stating that these treatments were not within the scope of services. After repeated complaints, grievances and letters, claimant was examined on June 12, 2013 by Dr. Hartman, the Regional Director of Dental Services. Claimant said that Hartman said nothing was wrong with the tooth, and the only option to cure the pain would be extraction. Claimant said Hartman told him it would be four to six weeks until claimant would "get a fake tooth." Claimant said he refused the extraction because he could not go that long without eating.
Claimant's Exhibit 16 at 3, Exhibit 18 at 3, Exhibit 20 at 4.
Id.
Claimant's Exhibits 1-10.
All quotes herein are taken from the Court's notes of the proceedings, unless otherwise indicated.
Claimant said that his pain increased in 2014 and 2015. He said he was transferred to Green Haven Correctional Facility and Marcy Correctional Facility, but nothing was done at either facility to treat his pain. He stated that in November 2016, he was eating cookies and a piece of the tooth fell off. Two weeks later a piece of the filling in the tooth fell out as well. The dentist at Wyoming Correctional Facility said that the tooth was cracked and needed to be re-filled, which was done. Claimant said he has had no problems with the tooth since that time.
On cross-examination, claimant was asked whether it was conceivable that the prescribed antibiotics had cured the abscess, and his response was "I guess." Claimant further acknowledged that he was given the opportunity to have the root canal therapy and crown performed at his own expense. Claimant said he did not have the money for that, and defendant is supposed to provide him with the health services he needs.
Claimant admitted that he was advised by Hartman that Hartman saw no problems with the tooth, based upon X rays taken at the time. Claimant said he had X rays again in April 2014, which also showed no signs of a cracked tooth or other issues.
During claimant's cross-examination, counsel for defendant read a portion of a letter written by claimant and dated May 13, 2013. That letter stated in pertinent part: "Today . . . (May 13, 2013) I seen [sic] Dr. Lawson (dentist) and he informed me that Central Office refused to grant permission to have a partial dental plate to be cast once my last remaining tooth was pulled, after I finally agreed to have it pulled." Claimant acknowledged that this information was accurate. Counsel for defendant then asked claimant whether his initial Notice of Intention was returned to him, which claimant also acknowledged. Defendant's counsel indicated that he asked these questions because he intended to move to dismiss the claim on the ground that it was untimely. Claimant's counsel then objected (on the basis of general fairness) to defendant raising the affirmative defense of timeliness during trial, more than five years after the claim was filed. The Court reserved determination on the objection. Claimant then acknowledged that a second notice of intention shown to him by defendant's counsel was postmarked August 14, 2013, and stamped "Received" by the office of the Attorney General on August 16, 2013.
Claimant's Exhibit 8.
This document was marked as Defendant's Exhibit E. However, claimant's counsel indicated prior to trial that he would object to admission of this document, and defendant's counsel never requested that it be admitted into evidence.
Claimant rested his case at the close of his testimony. Defendant did not present any witnesses and rested its case as well. Defendant's counsel then moved to dismiss the claim on two grounds: first, that this is a case of medical malpractice, that the standard of care was not addressed by any expert for claimant, and that all the decisions at issue regarding claimant's treatment were discretionary determinations made by dental professionals. Counsel also moved to dismiss the claim on the basis that it was untimely. Claimant's counsel requested the opportunity for both parties to address the issues in a post-trial memorandum, which was granted. The Court reserved decision on both motions.
It is well-settled that the 90-day period within which to serve a notice of intention to file a claim for dental malpractice or to file and serve the claim may be tolled pursuant to the continuous treatment doctrine in a situation where the claimant has received "continuous treatment for the same illness, injury or condition which gave rise to the [alleged act of malpractice]" (CPLR 214-a; see Ogle v State of New York, 142 AD2d 37, 39 [3d Dept 1988]; see also Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]). However, "the initiation of legal process by the [service] of a notice of intention to file a claim clearly sever[s] any continuing relationship of trust in the physician-patient relationship and end[s] any continuous treatment tolling at that point" (O'Connor v State of New York, 15 AD3d 827, 828 [3d Dept 2005], lv denied 5 NY3d 702 [2005] [internal quotation marks omitted]; see also Toxey v State of New York, 279 AD2d 927 [3d Dept 2001], lv denied 96 NY2d 711 [2001]).
Defendant's argument at trial that the claim accrued on May 13, 2013 when claimant was advised that Lawson's request for permission for a root canal and crown was initially rejected is disingenuous at best. It is obvious that the continuous treatment doctrine applies in this instance. As claimant testified at trial, and as claimant's dental records submitted into evidence show, Hartman (the Regional Dental Director) examined claimant on June 12, 2013 due to his ongoing complaints of pain in the same tooth. At that time, Hartman advised claimant that root canal therapy and placement of a crown were not covered services, and that "extraction [was] indicated." Claimant's allegation is that offering to extract the tooth rather than providing root canal therapy to treat his tooth pain was medical malpractice. Clearly, defendant provided claimant with continuing treatment for this same condition, i.e. ongoing tooth pain, as late as June 12, 2013 (that apparently being the last treatment prior to claimant's service of a Notice of Intention, which ended the continuous treatment tolling). Although claimant's first Notice of Intention served in early August 2013 was rejected, his second Notice of Intention was timely served on August 16, 2013, well within 90 days of Hartman's examination. Accordingly, defendant's motion to dismiss the claim on the basis of untimeliness is denied.
See Claimant's Exhibit 15 at 3.
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]. When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler, 65 NY2d at 73).
In addition to claimant's dental records, his grievances, and his letters to various prison officials complaining about his treatment, claimant submitted into evidence the deposition transcript of Dr. Mary D'Silva, the Director of Correctional Dental Services for DOCCS. D'Silva reviewed claimant's dental record, and stated that X rays taken in 2008 when claimant was incarcerated on his most recent conviction indicated that claimant did not have a filling in tooth number 31. X rays taken in 2014 indicated that claimant did have a filling in tooth number 31. D'Silva admitted that claimant's dental records contained no indication when the tooth was filled, even though he had been incarcerated the entire time. D'Silva said that Lawson took three different X rays of claimant's tooth number 31: on February 6, 2012, March 6, 2013 and April 14, 2014. D'Silva further noted that claimant's dental record not only contains no reference to any abscess in tooth number 31, but that all three X rays show that there was no pathology in that tooth. D'Silva explained that this meant that the tooth was structurally sound, with no cracking, involvement of the root pulp, or cavity. She said that the existence of the filling and how it got there was irrelevant because there was nothing wrong with the tooth at any point during the time period that claimant was complaining of pain, and thus no root canal was warranted. D'Silva stated that root canal therapy and crown placement were procedures that were performed at Elmira, and there was no reason, "to the best of [her] knowledge" why Lawson would have written that those procedures were not available. She noted that when Hartman examined claimant on June 12, 2013 he specifically stated that there was no swelling, no inflammation and no cavities. Accordingly, root canal therapy and placement of a crown were not warranted, but extraction would have relieved the sensitivity. ,
Claimant's Exhibit 22.
Id. at 55-58.
Id. at 68.
Id. at 65.
Id. at 69, 83, 95.
Id.
Id. D'Silva later stated that "Dr. Lawson . . . before he left our department . . . was a little confused about what . . . services were provided" (id. at 88).
Id. at 70.
Id.
D'Silva explained that when a patient experiences pain due to pressure or cold, and there is nothing wrong with the tooth, such as a cavity or abscess, the appropriate term is sensitivity. She said that dentists cannot fix sensitivity except through extraction (id. at 82).
D'Silva also testified that in any event, DOCCS scope of services is identical to Medicaid guidelines. Medicaid (and DOCCS scope of services) would not have covered a root canal (and thus also not the placement of a crown on one of those teeth), or a partial denture in claimant's specific situation.
Id. at 101.
id. at 66-67, 101. D'Silva noted that Medicaid covered root canals for front teeth, but not for back teeth (id. at 66-67).
Id. at 85-86. --------
Most of claimant's testimony was confirmed by his dental record. There was certainly a great deal of confusion generated by Lawson's apparently inaccurate statement that root canals were not performed at Elmira. However, all of that is a "red herring," so to speak. The gravamen of the claim is whether the treatment claimant did receive (prophylactic cleanings, three X rays, and then the offer of extraction) comported with the appropriate standard of care given the specifics of his condition. Defendant's expert, the Director of Dental Services for the entirety of DOCCS, stated in her EBT that it did comport with the standard of care, because there was no indication in any of the X rays that the tooth had any pathology at any point during the time claimant was complaining about pain.
To recover for dental malpractice, claimant must "prove that [DOCCS] deviated from the accepted standard of dental care and that such departure was the proximate cause of his injuries" (Bennett v State of New York, 31 AD3d 1069, 1070 [3d Dept 2006]). "[W]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007] [internal quotation marks omitted]). Claimant's failure to introduce expert testimony that his treatment deviated from the appropriate standard of care and that such deviation contributed to his injuries is fatal to his claim.
In conclusion, claimant has not established a prima facie case for dental malpractice and/or dental negligence. Defendant's motion to dismiss the claim is granted. Any motions not previously determined are denied. Let judgment be entered accordingly.
January 11, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims