Ambrose v. Rock

Full title: ROSE AMBROSE, Plaintiff, v. DR. ALEXANDER ROCK, DR. ROBERT WINEGARDEN…

Court: Supreme Court, New York County

Date published: Apr 20, 2022

2022 N.Y. Slip Op. 31334 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 805324/2019

04-20-2022

ROSE AMBROSE, Plaintiff, v. DR. ALEXANDER ROCK, DR. ROBERT WINEGARDEN, ROBERT F. WINEGARDEN, D.D.S., P.C., and JERRY H. LYNN, DDS, Defendants.

HON. JOHN J. KELLEY PART JUSTICE

Unpublished Opinion

DECISION /ORDER AFTER INQUEST

HON. JOHN J. KELLEY PART JUSTICE

I. INTRODUCTION

This is an action to recover damages for dental malpractice. The plaintiff alleged that the defendants willfully and wantonly permitted unlicensed dentists and unlicensed assistants and technicians to diagnose and treat her. The plaintiff contended that, inter alia, the defendants negligently performed diagnostic procedures to determine the extent and nature of her dental problems, negligently prepared teeth for crowns and placed implants, failed to inform her of the risk and consequences of the prescribed treatment, and thereafter negligently abandoned her. By order dated September 9, 2021, the court, upon concluding that the plaintiff set forth sufficient proof of the facts underlying her cause of action to recover for negligence and lack of informed consent, granted her motion for leave to enter a default judgment against all of the defendants on the issue of liability, and set the matter down for an inquest on the issue of damages.

II. FINDINGS OF FACT

The facts underlying the issue of liability for dental malpractice are set forth in this court's September 9, 2021 order.

At the November 17, 2021 inquest on the issue of damages, the plaintiff testified on her own behalf and adduced the testimony of Herbert Rubin, a dentist having practiced for over 50 years in New York State. At the time of the inquest, the plaintiff was 74 years of age, and was retired.

The court finds that the plaintiff credibly testified that she went to see the defendants because she did not have any teeth and wanted implants. The plaintiff credibly testified that the defendant Jerry H. Lynn, DDS, an unlicensed dentist, examined her upon her initial visit with the defendants' practice. The court credits her testimony that, although she was originally told that it would cost her $15,000 for the necessary dental work, she instead paid $18,000, as the price changed upon each visit. The court credits her testimony that the defendant Dr. Alexander Rock placed her implants, but that some of the implants came out, and the remaining implants on her lower jaw had some, but not all, of the necessary crowns placed, while her upper implants had no crowns on them at all. The plaintiff also credibly testified that she needed crowns placed on her bottom teeth. The court credits her testimony that the defendants did not complete the necessary dental work and that, in fact, when she returned to the defendants' office, it was closed.

The plaintiff credibly testified that she was instructed to go to a New Jersey location and that, when she arrived, she was told that the New Jersey practice was not affiliated with the defendants, and they thus would have to charge her an additional fee to complete her dental work. The court finds that the plaintiff credibly testified that she subsequently went to a different dentist, where she had two crowns installed over her bottom teeth and received a denture for her upper jaw. The plaintiff further credibly testified that the denture that she received did not stay in place, despite her efforts to keep it secured, because of the amount of damage to her upper jaw, including loss of her top lip. The plaintiff credibly testified that she chews and eats terribly, she does not speak well and "sprinkles" saliva when she talks, she no longer goes out with her friends and family, and she has become lonely, anxious, and depressed so much so that she takes anxiety medication. The plaintiff also credibly testified that she has not fixed her teeth because she needs extensive work done and she cannot afford to do so.

Dr. Rubin credibly testified that, from his observations, that the plaintiff had only one good tooth remaining; however, he was uncertain of whether it was an original tooth, and he was uncertain of whether she had implants buried under her gums since there were no x-rays or other records available for his review. Dr. Rubin also credibly testified that, with only one tooth, it would be difficult for the plaintiff to chew on food, grin, and talk. The court credits his testimony that, to place implants on a patient without taking a computerized axial tomography (CAT) scan is a departure from good and accepted standard of care. The court also credits his testimony that the defendants' failure to provide follow-up treatment and complete her dental work constituted a total abandonment of a patient, and a departure from good and accepted standard of care.

III. CONCLUSIONS OF LAW

A defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability (see Amusement Bus. Underwriters v American Intl. Group, 66 N.Y.2d 878, 880 [1985]; Cole-Hatchard v Eggers, 132 A.D.3d 718, 720 [2d Dept 2015]; Gonzalez v Wu, 131 A.D.3d 1205, 1206 [2d Dept 2015]). The defaulting defendants are, however, "entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages" (Minicozzi v Gerbino, 301 A.D.2d 580, 581 [2d Dept 2003] [internal quotation marks omitted]; see Rudra v Friedman, 123 A.D.3d 1104, 1105 [2d Dept 2014]; Toure v Harrison, 6 A.D.3d 270, 272 [1st Dept 2004]). The defendants elected not to present such testimony or cross-examine witnesses at the inquest here, despite being provided with notice of the inquest.

This court already has determined that the plaintiff has a cause of action to recover for medical malpractice against all of the defendants, inasmuch as a deviation or departure from accepted practice, and evidence that such departure was a proximate case of the plaintiff's injury, constitute medical malpractice (see Roques v Noble, 73 A.D.3d 204, 206 [1st Dept 2010]; Frye v Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]; Elias v Bash, 54 A.D.3d 354, 357 [2d Dept 2008]; DeFilippo v New York Downtown Hosp., 10 A.D.3d 521, 522 [1st Dept 2004]).

"The 'reasonableness' of compensation must be measured against relevant precedent of comparable cases" (Kayes v Liberati, 104 A.D.3d 739, 741 [2d Dept 2013]; see Urbina v 26 Ct. St. Assoc., LLC, 46 A.D.3d 268, 275 [1st Dept 2007]; Reed v City of New York, 304 A.D.2d 1, 7 [1st Dept 2003]; Halsey v New York City Tr. Auth., 114 A.D.3d 726, 727 [2d Dept 2014]). "Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation" (Miller v Weisel, 15 A.D.3d 458, 459 [2d Dept 2005]; see Garcia v CPS 1 Realty, L.P., 164 A.D.3d at 659 [2d Dept 2018]; Vainer v DiSalvo, 107 A.D.3d 697, 698-699 [2d Dept 2013]; Reed v City of New York, 304 A.D.2d at 7). What constitutes "reasonable compensation" must be assessed with due regard to the "circumstances presented" (Luna v New York City Tr. Auth., 116 A.D.3d 438, 438 [1st Dept 2014]).

The court concludes that the plaintiff is entitled to an award of $80,000 for past pain and suffering (see Altman-Fider v Gershon, 2002 NY Slip Op 30122[U], *5 [Sup Ct, NY County 2002] [holding that an award of $40,000 for past pain and suffering was consistent with several other tooth injury cases]; Classen v Ashkinazy, 258 A.D.2d 863, 865 [3d Dept 1999] [affirming past pain and suffering award of $40,000 to plaintiff with failed lower dental implant]; Teller v Anzano, 263 A.D.2d 647, 650 [3d Dept 1999] [modifying judgment to allow $35,000 past pain and suffering award in personal injury action involving damage to two front teeth]; Kushner v Mollin, 181 A.D.2d 866, 867 [2d Dept 1992] [affirming $40,000 for past pain and suffering where plaintiff lost six upper teeth]). The court notes that these representative cases were decided between 20 and 30 years ago, so that a reasonable award in 2022 would take inflation and other economic factors into account.

The court also concludes that the plaintiff is entitled to an award of $18,000 for her past expenses, in accordance with the testimony adduced by the plaintiff. Inasmuch as the plaintiff did not adduce evidence of the specific cost of future expenses to correct the improper implants, she did not establish a basis for the court to make an award for that item of damages.

New York does not recognize an independent cause of action for punitive damages; however, a demand or request for punitive damages is viable when attached to a substantive cause of action (see Randi A. J. v Long Is. Surgi-Center, 46 A.D.3d 74, 80 [2d Dept 2007]). While a demand for punitive damages is often raised in terms of conduct that is intentional, malicious, and done in bad faith, conduct warranting an award of punitive damages "need not be intentionally harmful but may consist of actions which constitute willful or wanton negligence or recklessness" (id. at 80-81; see Home Ins. Co. v Am. Home Prods. Corp., 75 N.Y.2d 196, 204 [1990]). Moreover, punitive damages are proper where there is sufficient evidence of reprehensible conduct evincing a gross indifference to patient care (see Brown v LaFontaine-Rish Med. Assoc., 33 A.D.3d 470, 471 [1st Dept 2006]; Graham v Columbia Presbyt. Med. Ctr., 185 A.D.2d 753, 754 [1st Dept 1992]).

The court concludes that the defendants' behavior and practices engaged in are sufficient to warrant an award of punitive damages. Moreover, the unlicensed practice of dentistry is a crime, and as such the court concludes that the plaintiff is entitled to an award of punitive damages in the amount of $100,000 (see Garber v Lynn, 79 A.D.3d 401, 403 [1st Dept 2010]). Such an award is appropriate to deter future reprehensible conduct by the defendants and others similarly situated (see Randi A. J. v Long Is. Surgi-Center, 46 A.D.3d 74, 81 [2d Dept 2007]).

IV. CONCLUSION

In light of the foregoing, it is

ORDERED that the Clerk of the court shall enter judgment in favor of the plaintiff, Rose Ambrose, 94 East 1st Street, Apartment 18-A, New York, New York 10009, and against the defendants Dr. Alexander Rock, 5 Commack Road, Commack, New York 11725, Dr. Robert Winegarden, 401 East 34th Street, New York, New York 10016, Robert F. Winegarden, D.D.S., P.C, 57 West 57th Street, Suite 610, New York, New York 10019, and Jerry H. Lynn, DDS, 41 West 58th Street, New York, New York 10019, jointly and severally, the in the sum of $198,000.

This constitutes the Decision and Order After Inquest of the court.