Opinion
Index No. 805151/2021 Motion Seq. No. 001
11-27-2023
LYDIA CIMILLO, Plaintiff, v. WEST SIDE DENTAL ASSOCIATES, P.C., LEV TROSTYANETSKY, ALEXANDER AYZENBERG, and ADAM BRISMAN, Defendants.
Unpublished Opinion
MOTION DATE 08/08/2023
PRESENT: HON. JOHN J. KELLEY Justice
DECISION + ORDER ON MOTION
JOHN J. KELLEY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 87, 88, 89, 90, 91,92, 93, 96, 99, 105, 106 were read on this motion to/for JUDGMENT - SUMMARY.
I INTRODUCTION
In this action to recover damages for dental malpractice based on alleged departures from good and accepted dental practice in the course of tooth extractions and the placement of dentures and implants, and lack of informed consent, the defendant dentist Alexander Ayzenberg moves pursuant to CPLR 3212 for summary judgment dismissing the amended complaint insofar as asserted against him. The plaintiff opposes the motion. The motion is granted to the extent that Ayzenberg is awarded summary judgment dismissing the lack of informed consent cause of action and so much of the dental malpractice cause of action as was premised on Ayzenberg's allegedly improper delivery, placement, relining, modification, and post-placement management of a temporary denture. He is also awarded summary judgment dismissing claims that he departed from good and accepted practice by failing properly to examine or treat implants that had been installed by the defendant dentist Adam Brisman. The motion is otherwise denied, since there are triable issues of fact as to whether the standard of care obligated Ayzenberg to provide the plaintiff with post-placement instructions, whether any such instructions or information that he did provide were inadequate and, thus, whether he deviated from the applicable standard of care in that regard, and triable issues of fact as to whether that deviation caused the plaintiff's implants to fail.
II. FACTUAL BACKGROUND
The crux of the plaintiff's claims against Ayzenberg is that, after the defendant dentist Adam Brisman extracted all of her 12 extant upper teeth, and placed implants in 6 of those 12 tooth positions, Ayzenberg failed properly to prepare, install, and place temporary dentures in her upper gums and jaws in connection with the remaining 6 tooth positions, and failed properly to inform the plaintiff as to appropriate post-placement care. The plaintiff averred that, as a consequence of Ayzenberg's departures, all of the 6 implants failed, necessitating additional oral surgery to remove 5 of them, and relegating her to the use of permanent dentures in connection with her upper gums and jaw.
On September 24, 2019, the plaintiff presented to the defendant West Side Dental Associates, P.C. (West Side), at which time West Side's dental staff took a panorex x-ray of her teeth. On November 1,2019, dental staff at West Side placed an "immediate denture" in the plaintiff's mouth, although West Side records are unclear as to where in her mount that denture was installed. On November 19, 2019, after determining that the plaintiff's upper teeth were not salvageable, Brisman extracted all of the plaintiff's remaining 12 upper teeth (tooth positions 3 through 14), removed her existing dentures, and placed 6 implants, with 3 on the left side (tooth positions 10, 11, and 13) and 3 on the right side (tooth positions 4, 5, and 7). Immediately after the surgery, Ayzenberg "delivered" a temporary denture to cover the locations where her upper teeth had been extracted, but implants had not been installed. Specifically, he relined a denture with a soft, rubbery material so that it would fit snugly against otherwise exposed gum tissue, and to assure that that the denture would not move. Brisman conducted a post-operative examination on December 3, 2019, at which time he characterized the temporary upper denture as "stable." At that time, the plaintiff's post-surgical swelling had abated, and she had no major complaints of pain or swelling. The denture material was not relined at that visit. Brisman advised the plaintiff to follow up with West Side in 10 to 12 weeks so that the implants could be uncovered, healing abutments and crowns could be placed over the implants, and a permanent denture eventually could be placed with respect to the remaining tooth positions.
The plaintiff next returned to West Side on March 4, 2020, at which time Amit Dhar, D.D.S., examined her and checked the fit of the temporary denture, concluding that there was no need for further relining. Dr. Dhar, however, noted that the implant at tooth position 7 was missing. He uncovered the two remaining implants on the right side (tooth positions 4 and 5) and installed a crown and abutment on each of those implants. Dr. Dhar observed that the three implants on the left side already were uncovered. He left them exposed and installed a crown and abutment at tooth positions 10 and 11. With respect to tooth positions 6, 8, 9, and 12, he installed pontic porcelain prosthetic teeth with a "high noble metal" interior (i.e., a metallic mixture containing at least 25% silver, palladium, or platinum), employing the pontic teeth as implant bridges. He did not reline or adjust the temporary denture that previously had been placed. According to the plaintiff, Dr. Dhar explained to her that her x-rays revealed bone loss in her upper jaw. The parties dispute whether the plaintiff made any complaints of pain, discomfort, or improper fit at that time.
The plaintiff next visited West Side on June 29, 2020, and was seen by the defendant Lev Trostyanetksy, a restorative dentist, who, according to Ayzenberg, informed the plaintiff that her denture would be relined if she requested it. Trostyanetksy concluded that the three leftside implants were not stable, but instead were moving and, thus, had "failed." The plaintiff's final visit to West Side occurred on July 8, 2020. Ayzenberg did not examine the plaintiff on that date, and believed that she was actually seen at that time by Dr. Dhar, who noted at his deposition that Trostyanetksy would have performed any relining of the bridge should it have been necessary. On July 8, 2020, a dentist at West Side, apparently Dr. Dhar, removed the three implants on the plaintiff's upper left side, leaving only one implant in her upper mouth.
On March 24, 2021, the plaintiff was examined by Howard Perlmutter, D.M.D., who observed that only one of the six implants remained in the plaintiff's gums and jaw. He referred the plaintiff to Vincent Novelli, D.D.S., who removed the last remaining implant on March 25, 2021, and allegedly informed the plaintiff that she had insufficient bone to support implants, thus relegating her to the use of permanent dentures rather than individual crowns and abutments that could be placed over such implants.
III. THE PLAINTIFF'S ALLEGATIONS
In her amended complaint, the plaintiff asserted that all of the defendants rendered treatment, diagnosis, and radiologic evaluation from approximately September 24, 2019 through approximately July 8, 2020, that they were negligent in the treatment that they rendered to her, that they negligently caused injury to her, that they failed timely and accurately to diagnose and properly treat her, and that they deviated from accepted practice and the standard of care. She further alleged that the defendants failed to advise her of the risks, hazards, and dangers inherent in the treatment that they rendered to her, failed to advise her of the alternatives thereto, and failed to obtain her fully informed consent to the extraction, implant, and temporary denture placement that they performed. In this regard, the plaintiff averred that a reasonably prudent dental patient would not have undergone the treatment had he or she fully been informed of the risks and benefits thereof, and alternatives thereto.
In her amended bill of particulars as to Ayzenberg, the plaintiff initially asserted that the West Side dental records did not sufficiently memorialize which of its dentists undertook which particular procedure or dental task. Nonetheless, she claimed that Ayzenberg improperly created a temporary prosthetic denture, failed to obtain proper occlusion of the prosthesis, and permitted the temporary prosthetic denture to remain ill-fitting and mobile. The plaintiff also alleged that Ayzenberg failed to provide her with proper instructions as to the care and maintenance of the temporary prosthetic denture after it had been placed, failed to inform her that this prosthesis needed to be periodically checked for proper fit subsequent to its placement, and failed to advise her that she should return to West Side's office if she noticed anything unusual or uncomfortable while using the prostheses. In this regard, the plaintiff asserted that Ayzenberg failed timely to recall her to his office and advise her to return for examinations to evaluate her response to the temporary prosthesis and review her hygiene, examine the soft tissue, examine the implants, evaluate healing, and evaluate the performance of the temporary prosthesis. She also alleged that, in light of those failures, Ayzenberg failed timely and properly to reline and adjust, or otherwise modify, the temporary prosthesis.
The plaintiff further asserted that Ayzenberg failed properly to examine her in the first instance to determine if she was an appropriate candidate for implants, failed to evaluate her to determine how the implants should be installed, failed to evaluate the quality of her bone so as to determine both whether it would tolerate the type of implants and implant materials that were installed and whether the method employed was proper. She asserted that Ayzeberg failed properly to obtain a thorough and complete medical and dental history. The plaintiff also averred that Ayzenberg failed to take x-rays in a timely fashion or interpret radiological imaging.
In addition, she faulted Ayzenberg for the manner in which he allegedly performed the implant procedures. The plaintiff asserted that Ayzenberg failed properly to assure the integrity of the implants, failed properly to fit abutments, and improperly removed the abutments. Additionally, the plaintiff alleged that Ayzenberg was negligent in failing timely to diagnose and treat a dental infection. She also asserted that Ayzenberg failed to monitor her for bone loss, failed to recognize early bone loss and, thus, failed to prevent bone loss.
IV THE SUMMARY JUDGMENT MOTION
In support of his motion, Ayzenberg submitted his own affirmation, a statement of material facts, the parties' deposition transcripts, relevant dental records, an attorney's affirmation, a memorandum of law, and the expert affirmation of John E. Lagner, D.M.D. He also relied upon the pleadings and bills of particulars that already had been uploaded to the New York State Court Electronic Filing system. Ayzenberg contended that his only involvement in the plaintiff's treatment was the delivery, relining, and placement of the temporary prosthetic dentures immediately after Brisman's completion of the extractions and implant procedures, and that his work and responsibilities ended on the date of those procedures. He argued that he had no involvement in examining or assessing the plaintiff's jawbone prior to the procedures, had no involvement in determining whether extraction and installation of implants was appropriate, and had no other involvement in the preparation of the plaintiff for those procedures or the performance of those procedures. He argued that, after he relined and delivered the temporary prosthetic denture on November 19, 2019, his involvement with the plaintiff was at an end, and that all further responsibility for follow up examinations lay with Brisman, as the treating dentist and surgeon, Dr. Dhar, who also was tasked with performing those examinations, and Trostyanetksy, in his capacity as a restorative dentist.
In his expert affirmation, Dr. Lagner asserted that all of the treatment rendered by Ayzenberg on the one occasion he saw the patient, November 19, 2019, was in accordance with good and accepted dental practice, and that none of that treatment was a substantial factor in causing any of the plaintiffs alleged injuries. Dr. Lagner asserted that Ayzenberg appropriately "soft relined" the denture to account for changes in the plaintiff's anatomy subsequent to the extraction, and that those changes occurred because, at the time when the initial impression was made for the temporary denture, she had teeth in her mouth, while at the time the temporary denture was placed, she already had undergone multiple extractions and associated inflammation. Dr. Lagner explained that Ayzenberg also appropriately relined the denture to assure that the plaintiff was more comfortable, to improve the fit of the denture on the gums along with the occlusion, and to diminish pressure on the plaintiff's gums.
According to Dr. Lagner, post-extraction swelling usually decreases with time and, thus, in the event that a denture requires adjustment, it should be performed by the subsequent treating dentist at follow-up visits. Dr. Lagner, opined that Ayzenberg appropriately provided the plaintiff with instructions that the denture was removable and should be taken out after eating and thereupon cleaned, inasmuch as cleaning the denture is important to ensure that material does not adhere to the denture, which can cause both decay and a poor fit. He also concluded that Ayzenberg appropriately informed the plaintiff that, if the denture were causing her pain, she should not wear it and take it out, and that if the pain continued, to come to West Side's office for an adjustment. Dr. Lagner further asserted that Ayzenberg appropriately informed the plaintiff to keep the denture in at night to "retain" swelling, but that if there were too much pain, that she should remove the denture. According to Dr. Lagner, Ayzenberg also properly informed the plaintiff to eat a soft diet to avoid putting pressure on the surgery sites.
Dr. Lagner opined that, contrary to the plaintiff's contention, the implants did not fail due to Ayzenberg's placement of the temporary bridge on November 19, 2019. He noted, in this regard, that the plaintiff testified at her deposition that the denture fit at the time that it was placed. He further asserted that, on December 3, 2019, that is, several weeks subsequent to the placement, Brisman documented that denture still fit properly. As Dr. Lagner explained it, if the fit in fact became improper after December 3, 2019, Ayzenberg could not be held liable for the failure of the implants since had no role in adjusting the denture, a task that was supposed to be undertaken by Drs. Dhar and Trostyanetksy.
In opposition to Ayzenberg's motion, the plaintiff relied on the same documentation that Ayzenberg submitted and referred to, and also submitted her own affidavit, an affirmation of her attorney, dental records from Drs. Perlmutter and Novelli, a counter statement of material facts, and the expert affirmation of Charles Kaner, D.D.S.
In her own affidavit, the plaintiff asserted that, contrary to Ayzenberg's contention that he discussed post-placement care with her on November 19, 2019, and as set forth in her deposition, "once the denture was put in on November 19, 2019 I was not capable of speaking because my mouth, now, with [the] denture in it, was still numb from the surgery and swollen." She averred that, once the denture was placed, she was "not capable of speaking for the rest of the day" and, thus, "did not have a discussion with the dentist about how to care for the denture and was not told of 'relinings' and what that meant. I was told only to return for my follow up post surgery visit which I did on December 3, 2019." She further alleged that she did, in fact, have complaints about the denture itself at the time of its placement, and that her deposition testimony as to the absence of complaints only referred to the fact that she did not have complaints about pain and surgical swelling. The plaintiff also stated that, inasmuch as she was testifying from memory at her deposition, and had yet to review her West Side dental records, she mistakenly believed at that time that it was Trostyanetksy, rather than Ayzenberg, who had delivered and placed the denture.
In describing her follow-up examinations and treatment at West Side, the plaintiff asserted that,
"[w]ith reference to the denture which always irritated my mouth, which I testified to on pages 119 and 120 [of my deposition transcript], the attorneys did not follow up and ask me if I told the dentists at WSDA that the denture was not fitting well and was abrading my gums. On the first follow up with the Dr. Brisman on December 3, the swelling was mostly gone and the denture was put back in my mouth. No other dentist saw me that day and the denture was not adjusted in any way from what I could tell. My next visit was to be in about 12 weeks and so I returned when they told me to and that would be on March 4. I was never given any appointment nor told to return to the office before March 4 nor was I told to call the office to come in if the denture did not seem to be fitting very well or if it hurt. I assumed that the denture was not supposed to be feel perfect since it was temporary while the implants healed over those months. I assumed, and hoped, that the permanent denture, once I got it, would feel perfectly normal. I was never told that if the denture moved or did not feel comfortable that I should return to the office nor that it could ruin the implant."She stated that she received no instructions, verbal or written, as to the maintenance or fit of the denture, whether it might need to be relined, or that she was to return to West Side's offices periodically to have it examined or relined. Rather, she stated that the only instruction she received was a one-page document suggesting which foods she should eat after the oral surgery procedure.
In his expert affirmation, Dr. Kaner explained that, after an implant procedure that includes the extraction of all of the upper teeth, several things happen to the bone and gum tissue. According to Dr. Kaner,
"[f]irst the swelling of the gum tissue diminishes so that the denture will no longer fit properly. Second, the alveolar bone where the teeth were extracted and where the implants were placed resorbs which changes the contour of the bone and therefore the fit of the denture. Third, the gum tissue, once the swelling is gone, tends to shrink and this too alters the fit of the denture. Fourth, the relining material hardens which also prevents the denture from properly fitting. Fifth, bone resorption or gum shrinkage, or both, often exposes the implants or parts of the implants which also changes the proper fit the denture. For all of these reasons, a temporary denture in this circumstance must be relined every 4-6 weeks, or sooner if the patient experiences discomfort or movement of the denture. The relining of the temporary denture is not determined solely if the patient feels that it is painful. It must be relined regardless of how the denture feels to the patient."He further explained that a poorly fitting denture will move, which can interfere with bone regeneration and implant healing, and that the trauma of a poorly fitting denture "hitting" the tissue over the bone can cause implants to fail. Dr. Kaner opined that the changing conditions in the bone, tissue, and relining material are "why the standard of care requires that the denture be periodically relined in order to allow for the osteogeneration to take place," and why the standard of care "calls for relinings every 4-6 weeks, or sooner if the patient feels the denture is moving or is uncomfortable." He additionally opined that the applicable standard of care requires that the dentist delivering or placing a temporary denture inform a patient why relinings are necessary, what to expect from the temporary denture, and that the patient should contact the dental office if the temporary denture is not feeling comfortable, is moving, or is painful.
Importantly, Dr. Kaner concluded that the standard of care did not require Brisman, as the oral surgeon who surgically placed the implants, ultimately to be responsible for the management of the temporary denture or the placement of a permanent denture. Rather, he opined that the responsibility for those tasks lay with those general dentists at the West Side practice who were tasked with examining the plaintiff.
Dr. Kaner opined that the plaintiff's implants failed because the temporary denture was not stable, that it had moved, that it was not relined, and that the continuous movement interfered with osteogeneration and the healing of the implants. He averred that it was Ayzenberg's role to "deliver" the temporary denture on November 19, 2019, which included the responsibility to inform the plaintiff to return to the office if the temporary denture did not feel comfortable, was moving, or was painful, and to direct the plaintiff to return to the office to have the temporary denture relined every four to six weeks, regardless of how the denture felt. He further asserted that, in the absence of such instructions, it was "perfectly reasonable on the part of the patient to tolerate the poorly fitting denture until the next time she returned for a scheduled visit," which, in her case, was March 4, 2020, and thereafter on June 29, 2020. Based on the plaintiff's deposition testimony and affidavit, in which she asserted that Ayzenberg gave her no instructions whatsoever, let alone instructions or information as to the necessity of periodic relining of the temporary denture, the consequences to the integrity of the implants if the temporary denture were not periodically relined, or the importance of returning to the office periodically to assess whether the denture maintained a proper fit, Dr. Kaner concluded that Ayzenberg's departed from good and accepted dental practice. Dr. Kaner opined that Ayzenberg's failure to impart this information to the plaintiff proximately caused her to forego necessary examinations and concomitant relining that, in turn, directly caused implant failure.
Dr. Kaner expressed no opinion as to whether Ayzenberg's initial delivery and placement of the temporary denture was appropriately performed, or whether the initial fit was proper. Rather, he addressed only Ayzenberg's failure to provide the plaintiff with information and instructions necessary to assure that the fit of the temporary denture remained proper and to avoid failure of the implants by virtue of a moving, improperly fitting temporary denture. He also expressed no opinion as to whether Ayzenberg departed from good practice, or even had any obligations, in connection with the plaintiff's determination to undergo extractions and implants, the manner in which the extractions and implants were undertaken, or in monitoring or treating the implant sites.
In reply, Ayzenberg submitted an attorney's affirmation, in which his attorney challenged the plaintiff's recapitulation of certain facts, particularly with respect to the instructions given to her immediately after the oral surgery. Counsel pointed to the plaintiff's deposition testimony, in which she stated that she was, in fact, given instructions as to how to clean the temporary denture. Counsel further characterized Dr. Kaner's opinion as "conclusory, speculative and not supported by the record." He also argued that Ayzenberg did not owe a duty to the plaintiff beyond properly delivering and placing the denture in the first instance and, thus, had no obligation to inform the plaintiff that further periodic relining would be necessary, or that she should always request subsequent treating dentists at West Side to examine whether the fit of the temporary denture remained proper.
V. SUMMARY JUDGMENT STANDARDS
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his or her burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).
"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401,403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case. He or she must affirmatively demonstrate the merit of his or her defense (see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).
Although the plaintiff's affidavit attesting to the history of her physical complaints was executed in New Jersey, it was not accompanied by the certificate of conformity required by CPLR 2309. A certificate of conformity is a written instrument, pursuant to which a person qualified by the laws of the country or state in which an affidavit or affirmation is executed and notarized, or by the laws of New York, certifies that the out-of-state affidavit or affirmation has indeed been drafted, executed, and notarized in conformity with the laws of that country or state. The absence of the certificate of conformity, however, does not require the court to disregard the affidavit or reject the plaintiff's papers, as the failure to include a certificate of conformity is a mere irregularity that may be cured by the submission of the proper certificate nunc pro tunc (see Parra v Cardenas, 183 A.D.3d 462, 463 [1st Dept 2020]; Bank of New York v Singh, 139 A.D.3d 486, 487 [1st Dept 2016]; DaSilva v KS Realty, L.P, 138 A.D.3d 619, 620 [1st Dept 2016]; Diggs v Karen Manor Assoc., LLC, 117 A.D.3d 401,402-403 [1st Dept 2014]; Matapos Tech., Ltd. v Compania Andina de Comercio Ltda., 68 A.D.3d 672, 673 [1st Dept 2009]).
A. DENTAL MALPRACTICE BASED ON DEPARTURES FROM GOOD AND ACCEPTED DENTAL PRACTICE
"To sustain a cause of action for dental malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury" (Frye v Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]; see Roques v Noble, 73 A.D.3d 204, 206 [1st Dept 2010]; 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 failure to provide adequate discharge instructions, as alleged by the plaintiff here, constitutes a type of malpractice (see Almonte v Shaukat, 204 A.D.3d 402, 404 [1st Dept 2022]; see also Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853; Leonard v Kinney Sys., Inc., 199 A.D.2d 470, 473 [2d Dept 1993]).
A defendant dentist moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of dental practice (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Frye v Montefiore Med. Ctr., 70 A.D.3d at 24) or by establishing that the plaintiff was not injured by such treatment (see McGuigan v Centereach Mgt. Group, Inc., 94 A.D.3d 955 [2d Dept 2012]; Sharp v Weber, 77 A.D.3d 812 [2d Dept 2010]; see generally Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011]). To satisfy the burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 A.D.3d at 206; Joyner-Pack v. Sykes, 54 A.D.3d 727, 729 [2d Dept 2008]; Koi Hou Chan v Yeung, 66 A.D.3d 642 [2d Dept 2009]; Jones v Ricciardelli, 40 A.D.3d 935 [2d Dept 2007]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant's expert should specify "in what way" the patient's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v Lawrence Hospital, 69 A.D.3d 403, 404 [1st Dept 2010]). Stated another way, the defendant's expert's opinion must "explain 'what defendant did and why'" (id., quoting Wasserman v Carella, 307 A.D.2d 225, 226 [1st Dept 2003]). Moreover, as noted, to satisfy his or her burden on a motion for summary judgment, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043 [2d Dept 2010]; Grant v Hudson Vai. Hosp. Ctr., 55 A.D.3d 874 [2d Dept 2008]; Terranova v Finklea, 45 A.D.3d 572 [2d Dept 2007]).
Once satisfied by the defendant, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit or affirmation attesting to a departure from accepted dental practice and/or opining that the defendant's acts or omissions were a competent producing cause of the plaintiffs injuries (see Roques v Noble, 73 A.D.3d at 207; Landry v Jakubowitz, 68 A.D.3d 728 [2d Dept 2009]; Luu v Paskowski, 57 A.D.3d 856 [2d Dept 2008]). Thus, to defeat a defendant's prima facie showing of entitlement to judgment as a matter of law, a plaintiff must produce expert testimony regarding specific acts of malpractice, and not just testimony that contains "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical [or dental] malpractice" (Alvarez v Prospect Hosp., 68 N.Y.2d at 325; see Frye v Montefiore Med. Ctr., 70 A.D.3d at 24). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry, medical, or dental standards is sufficient to preclude an award of summary judgment in a defendant's favor (see Murphy v Conner, 84 N.Y.2d 969, 972 [1994]; Frye v Montefiore Med. Ctr., 70 A.D.3d at 24).
Ayzenberg established, prima facie, that he did not improperly deliver or place the temporary denture, and that, whether or not he owed the plaintiff a duty to provide her with adequate follow-up instructions, he nonetheless did so. Since Dr. Kaner did not address whether the initial delivery and placement was appropriately performed, Ayzenberg is entitled to summary judgment dismissing so much of the dental malpractice cause of action as alleged a departure from good care in the initial delivery and placement of the temporary denture. Moreover, Ayzenberg demonstrated that he had no involvement with the plaintiff subsequent to his placement of the dentures, and was not responsible either for discussing her initial treatment plan, recommending whether to proceed with extractions and implants, monitoring either her denture or the implants after November 19, 2019, or treating the gums or implant sites. In opposition to that showing, Dr. Kaner did not address those issues and, hence, the plaintiff failed to raise a triable issue of fact in connection therewith. Hence, Ayzenberg must be awarded summary judgment dismissing so much of the dental malpractice cause of action as was premised upon alleged departures in connection with the extractions and implant themselves, or in examining or treating the plaintiff with respect to the extractions and implants.
Nonetheless, in opposition to Ayzenberg's showing that he was not responsible for providing the plaintiff with follow-up instructions concerning the temporary dentures subsequent to their placement, the plaintiff raised a triable issue of fact, with Dr. Kaner's affirmation, as to whether the applicable standard of care required Ayzenberg, as the general dentist who placed the denture, to provide follow-up instructions and information concerning the need for additional examinations if the denture became uncomfortable, periodic relining regardless of the plaintiff's comfort level, and the consequences to the integrity of her implants if she did not assure that the temporary denture was periodically relined and, thus, stabilized. Dr. Kaner's affirmation also raised a triable issue of fact as to whether Ayzenberg departed from good dental practice in failing to provide any such instructions and information, or in failing to provide adequate followup instructions and information, whether this departure caused or contributed to the instability of the temporary denture, and whether that instability caused or contributed to the failure of the plaintiff's dental implants, necessitating further oral surgery and the plaintiff's relegation to the use of permanent dentures. Hence, that branch of Ayzenberg's motion seeking summary judgment dismissing so much of the dental malpractice cause of action as was premised on the failure to provide adequate follow-up instructions and information must be denied.
B. LACK OF INFORMED CONSENT
The elements of a cause of action to recover for lack of informed consent are
"(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury"(Spano v Bertocci, 299 A.D.2d 335, 337-338 [2d Dept 2002]; see Zapata v Buitriago, 107 A.D.3d 977, 979 [2d Dept 2013]; 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 ). For a statutory claim of lack of informed consent to be actionable, a defendant must have engaged in a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d[2]).
Ayzenberg established, prima facie, that the plaintiff's claim against him did not implicate a lack of informed consent to the extraction, implant, and denture placement procedures, but, rather, a claim based on the alleged failure to provide adequate follow-up instructions. In any event, he demonstrated that he and his colleagues provided the plaintiff with information as to the benefits of the procedure, the risks of the procedure, including implant failure and the necessity for additional oral surgery, and alternatives to the procedure, including the employment of permanent full dentures. In opposition that showing, the plaintiff's expert did not address the issue and, thus, the plaintiff failed to raise a triable issue of fact with respect thereto. Consequently, summary judgment must be awarded to Ayzenberg dismissing the lack of informed consent cause of action.
VI CONCLUSION
In light of the foregoing, it is
ORDERED that the motion is granted to the extent that summary judgment is awarded to the defendant Alexander Ayzenberg dismissing the lack of informed consent cause of action insofar as asserted against him, and so much of the dental malpractice cause of action insofar as asserted against him as alleged that he departed from good and accepted dental practice in (a) the manner in which he delivered, placed, relined, or modified a temporary denture or prosthetic device that he had placed in the plaintiff's mouth on November 19, 2019, (b) failing to manage the temporary denture or prosthetic device subsequent to its placement, and (c) failing properly to perform extractions or dental implants, or to monitor, examine, or provide treatment with respect to those dental implants, and the motion is otherwise denied.
This constitutes the Decision and Order of the court.