Opinion
001024 TSN 2003.
Decided May 18, 2004.
Defendant Dr. Bruce Lederman moves for summary dismissing plaintiff's action. Alternatively, defendant seeks an immediate framed issue hearing relating to the statute of limitations defense and to strike plaintiff's supplemental Bill of Particulars. Plaintiff Howard Blumenau opposes the motion.
Mr. Blumenau began dental treatment with Dr. Lederman in 1991. In August 1997 Mr. Blumenau made an emergency visit to Dr. Lederman as he was bothered by pain in a molar (tooth # 30) in his lower jaw. Dr. Lederman determined that the tooth required root canal which was commenced on August 20, 1997 and continued on August 28, 1997. During the second day of treatment a file broke within plaintiff's mesial-buccal canal. Dr. Lederman stated in his deposition that his attempt at removing the file was not successful apparently because the file was wedged in too tightly. After reviewing an x-ray he concluded that the file was at the apex of the canal and decided to use the broken file as part of the fill. Dr. Lederman maintains that he advised Mr. Blumenau of this complication. He refers to a note in his chart: "completed RCT, broken file in MN canal. Advised patient that file should be adequate part of fill."
Mr. Blumenau denies being told that the file had broken while Dr. Lederman was performing the root canal procedure. Plaintiff testified at his deposition that he continued to feel pain after the root canal. He went back to defendant for further treatment on September 9, 1997.
Dr. Lederman testified that he took an x-ray of the tooth which was negative. Dr. Lederman stated that these x-rays were discarded in accordance with his office procedure at that time. Defendant opined that the pain felt by Mr. Blumenau was not abnormal after a root canal and could last from two day to six moths. Mr. Blumenau also complained of having a bad taste in his mouth. Dr. Lederman explained that this could be caused by a stomach problem or poor hygiene. On October 15, 1997 plaintiff made his final visit to Dr. Lederman with complaints of throbbing pain in tooth number 30. According to Dr. Lederman x-rays were taken (and again discarded) were negative for any pathology.
Mr. Blumenau testified that the tooth continued to give him difficulty over the ensuing years. He saw another dentist, Dr. Knee on occasion. Plaintiff stated that he would take ibuprofen for temporary relief. According to Mr. Blumenau some time in May, 2001 he awoke with severe pain. He called Dr. Rubenstein who agreed to see him the following day, May 23, 2001. Dr. Rubenstein took x-rays of his teeth. Plaintiff states that during the course of the examination Dr. Rubenstien showed him an x-ray and told him that there was a foreign object in tooth number 30. Dr. Rubenstien gave him an anesthetic and immediately sent him to an oral surgeon, Dr. Berg for surgery.
According to a report prepared by Dr. Berg dated May 26, 2001 a root canal instrument had broken in the root canal number 30 which did not allow the canal to completely seal. He performed a "window procedure". A flap was created which gave access to the infection within the bone. Puss was drained from the site. Thereafter, an apicectomy was performed and the canal was sealed. It appears that the file was not removed from the canal.
Plaintiff commenced this action over four years after he stopped treating with Dr. Lederman. At issue here is whether the decision to intentionally leave the broken file in the canal as part of the fill constitutes a foreign object tolling the statute of limitations.
Section 214-a of the CPLR provides that a medical, dental or podiatric malpractice action based on the discovery of a foreign object must be "commenced within one year of the date of such discovery or the date of discovery of facts which would reasonable lead to such discovery, whichever is earlier."
In Rockefeller v. Moront, 81 NY2d 560 (1993) a misplaced suture was found not to be a foreign object. The Court of Appeals held that in order to determine whether an object is a "foreign object" one must look at the nature of the materials and their intended function. The Court explained:
Objects such as surgical clamps, scalpels, and sponges are introduced into the patient's body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure's completion. Clearly, when such objects are left behind, no assessment of the medical professional's expert judgment or discretion in failing to remove them is necessary to establish negligence. By contrast, items are placed in the patient with the intention that they will remain to serve some continuing treatment purpose constitute "fixation devices ( Id. at p. 564).
In Polichetti v. Cohen, 268 AD2d 417 (2nd Dept. 2000) the Second Department found that a broken dental file left inside plaintiff's tooth was a foreign object. Defendant distinguishes this case on the ground that the dentist did not intend to use the broken file as fill. He urges that any other reading of the case can not be reconciled with a number of decisions by the Court of Appeals and First Department that have held a medical device intentionally left in a patient which serves a medical function is not a foreign object ( Newman v. Keuhnelian, 248 AD2d 258 (1st Dept. 1998) (broken piece of catheter is a fixation device as the catheter was intentionally inserted for the purpose of keeping a body passage open); ( LaBarbera v. New York Eye and Ear Infirmary, 230 AD2d 303 (1st Dept. 1997) aff'd 91 NY2d 207 (1998) (stent inadvertently left in nasal passage for six years when it should have been removed after ten days is a fixation device); ( Owen v. Mackinnon, 2004 WL 886063 (2nd Dept. 2004) (IUD intentionally placed in patient's body is a fixation device and not a foreign object); ( Provenzano v. Becall, 138 AD2d 585 (2nd Dept. 1998) (silver point wires permanently fixed in patient's mouth during root canal treatment is not a foreign object).
Defendant's argument is not supported by a recently decided case, LaSorsa v. Oelbaum, 2 Misc. 3rd 376 (Sup.Ct. Bronx Co. 2003) where a cleaning file being utilized by the defendant dentist broke during the course of root canal work. The broken file could not be removed and was utilized as a post upon which a crown was attached. The Supreme Court found that the broken file constituted a foreign object reasoning that the defendant did not intend to break the file in the patient's mouth. Therefore, there was no evidence that defendant intentionally implanted the broken file in plaintiff's mouth.
Here, the file utilized by Dr. Blumenau is more analogous to a scalpel and was to serve a temporary dental function for the duration of the root canal procedure. It was intended to be removed after the procedure was completed. The file unlike a catherer, stent, IUD was not intentionally placed in Mr. Blumenau's mouth. A piece of the file broke inadvertently and Dr. Blumenau was not able to remove it. It was at that point when Dr. Lederman made a decision to leave it in as part of the fill. On these facts the court finds that the broken file left in plaintiff's canal was a foreign object.
Based on the conflicting testimony of the parties an issue of fact is raised as to whether Mr. Blumenau was advised about the broken file in 1997. I decline to order a framed issue hearing pursuant to CPLR 3212) on the question of whether the action is time barred. Determination of the issue may result in the immediate disposition of the case, however, it would deprive plaintiff of his right to a jury trial on all the issues. It would also require two trial if the defense is resolved in favor of the plaintiff.
Next, defendant moves for summary judgment on the ground that malpractice was not committed. The motion is supported only by an affidavit of Dr. Lederman. He explains that root canal therapy requires the obliteration of the canal. The canals are widened with files and filled with a substance called gutta percha. Dr. Lederman states that it is not unusual for a file to break during root canal. If a file breaks close to the apex of the canal it is acceptable to use the file as part of the fill. Dr. Lederman asserts that an x-ray revealed that the file had broken at or near the apex of the mesial canal. He advised Mr. Blumenau of what occurred and explained that it would be part of the fill. The defendant urges that the decision to utilize the broken file as part of the root canal fill was based upon the exercise of appropriate dental judgment. Furthermore, the post-root canal complaints by plaintiff were not uncommon and could last up two six months.
Plaintiff submits an affirmation of Dr. Rubenstein opposing the motion. First, Dr. Rubenstein opines that it would be a departure for a dentist not to advise the patient of a broken file inside one of the mesial canals. Second, Dr. Rubenstien states that in order to properly complete root canal therapy a seal must be created at the tip of the root using gutta percha. However, since the file broke at mid-root half the root remained unfilled. As a result there was no adequate seal at the tip. Accordingly, Dr. Rubenstein maintains that it was departure not to remove the file or refer the patient to an endodontist for the purpose of extracting the file. Finally, Dr. Rubenstien states that Mr. Blumenau's complaints two months after the root canal treatment was an indication that the therapy was not working and it was a departure not to remedy the condition based on the patient's complaints.
These competing allegations raise genuine issues of fact as to whether Dr. Lederman departed from good and accepted standards of dental care by utilizing the file as part of the fill as well in his post root canal treatment of the plaintiff. The primary issue here is the location of the broken file within the mesial-buccal canal and whether a proper seal was achieved.
Finally, defendant seeks to strike the portion of plaintiff's supplemental bill of particulars that relates to post-root canal care. Defendant argues that plaintiff's claim was limited to the performance of root canal therapy and that plaintiff has amended his bill of particulars to assert a new theory of liability without leave of court. Alternatively, defendant contends that this claim is time barred as it is not related to the original claim of negligence.
The court disagrees. The plaintiff's claim here is that defendant committed malpractice in the manner in which he performed root canal treatment. The treatment was commenced on August 20, 1997 and completed on October 15, 1997. The supplemental bill of particulars merely specifies the alleged acts of malpractice. The post root canal therapy is part and parcel of the treatment.
Accordingly, the court declines to strike the plaintiff's November 25, 2003 bill of particulars.
The foregoing constitutes the decision and order of the court.