Opinion
109676/2008.
August 27, 2010.
Decision and Order
Defendants Dr. George E. Anastassov and Maxillofacial Surgery Services, LLC., move, pursuant to C.P.L.R. Rule 3212, for an order granting them summary judgment dismissing this matter in its entirety. Plaintiff cross-moves to amend and supplement her bill of particulars. For the reasons discussed below, the cross motion is granted and the motion for summary judgment is denied.
This action, sounding in dental malpractice, concerns a tooth extraction and replacement as well as a bone graft procedure performed on plaintiff on July 20, 2005. On July 15, 2005, plaintiff filled out a form provided to her by Dr. Anastassov's office, complaining that her gums in the front of her mouth were receding and that her "teeth bone [was] destroyed." Plaintiff presented to Dr. Anastassov's office on July 20. According to Dr. Anastassov's testimony at his examination before trial ("EBT"), plaintiff was missing tooth number 7 and tooth number 6 was failing. He further acknowledged that plaintiff's teeth looked "pretty bad." The gum in the area of tooth 6 was inflamed and infected and there was bone deficiency in the areas of teeth 6 and 7. Dr. Anastassov recommended that tooth 6 be extracted and replaced with a prosthetic implant and that a bone graft and implant be placed in the area of tooth 7. Dr. Anastassov presented plaintiff with the option of doing the extraction and replacement of tooth 6 and the bone graft in one procedure or doing the bone graft first followed by a four to six month waiting period after which implants would be placed. According to Dr. Anastassov's EBT testimony, he informed plaintiff that the safest option was the latter, but he ultimately felt that both options were correct. Plaintiff decided to have the entire procedure done simultaneously. According to plaintiff's EBT testimony, she recalled being told that doing both procedures at once would save time and money. Dr. Anastassov did not go into detail about the potential complications of doing the bone graft and the implant at the same time. According to plaintiff, "it was not clear to [her] that it would have been a terrible thing to do both surgeries at once," and that it was a subsequent treater who informed her of the danger of doing the bone graft and implant contemporaneously. Plaintiff testified that she would have done the procedures separately had she known of such danger. On July 20, she signed a consent form for the procedure which, informed her that infection and rejection of the bone graft were risks, among others. Dr. Anastassov completed the procedure that day and placed a "15 or 16 millimeter implant" at site of tooth 6.
On July 25, 2005, plaintiff presented to Dr. Anastassov's office. He noted that postoperative pain and swelling had subsided and that overall she was doing well. Plaintiff continued to heal well through July 27, 2005. On August 1, 2005, plaintiff presented to Dr. Anastassov with a two millimeter dehiscence on the roof of her mouth that exposed the bone graft. According to Dr. Anastassov's EBT testimony, he believed that the dehiscence was "not a big deal" given its small size. Plaintiff continued to take antibiotics and use antiseptic mouthwash. On August 5, 2005, plaintiff still had the dehiscence, but it was not infected. Dr. Anastassov discontinued the antibiotics. On August 24, 2005, plaintiff presented to Dr. Anastassov with receded gums near the site of the bone graft. At subsequent visits on October 1 and October 19, Dr. Anastassov noted that there was gingival dehiscence with exposure of the bone graft. He further noted that her implant at tooth 6 was stable. On November 4, Dr. Anastassov grafted gum tissue to the site of the dehiscence in order to cover it. He noted that tooth 6 had excellent stability. At an appointment on December 8, 2005, Dr. Anastassov noted granulation tissue at the site of teeth 6 and 7. He noted that tooth 6 was normal, but that the bone graft remained exposed. According to Dr. Anastassov's EBT testimony, the exposure meant that the bone graft had little chance of surviving and had to be removed. The next day Dr. Anastassov removed the granulation tissue and submitted it for a histopathology and culture. According to the microbiology report from Mount Sinai Hospital, dated December 14, 2005, the tissue revealed the presence of enterobacter cloacae and enterococcus faecalis. The report lists plaintiff as the patient; however, it lists the source of the specimen as an abdominal wound. Dr. Anastassov, in his EBT testimony, admitted that the results of the report were "quite peculiar," because the microorganisms found are from the lower intestinal tract. He could not explain how these microorganisms reached plaintiff's mouth.
On December 14, plaintiff was healing well, but, on December 21 and 28, there was a new, noticeable dehiscence above the site of tooth 7 in the front of her mouth. The bone graft was visible through the dehiscence as were the threads of the implant on tooth 6. On January 11, 2006, Dr. Anastassov removed the bone graft and covered the threads of the implant with another bone graft The implant remained stable. At subsequent visits on January 19 and 25, plaintiff was healing normally. On February 16, plaintiff presented with a "significant dehiscence" in her upper gums, but no active infection. On February 24, Dr. Anastassov performed a gingival tissue graft in the areas of teeth 6 and 7. On February 28, Dr. Anastassov noted that the site was healing well. Plaintiff's condition improved through the month of March. Plaintiff did not return to Dr. Anastassov's office again until February 17, 2007. At that visit, Dr. Anastassov recommended two procedures to rehabilitate the bone in plaintiff's mouth, both requiring the removal of the implant at tooth 6.
Plaintiff commenced this action with the filing of a summons with notice on or about July 15, 2008; she served her complaint on or about December 9, 2008. The note of issue was filed on or about December 29, 2009. In her original bill of particulars, plaintiff alleges, inter alia, that Dr. Anastassov improperly placed the implant at tooth 6; did too much surgery at once; and failed to obtain her informed consent to the implant and bone graft procedure. Plaintiff alleges that Dr. Anastassov's malpractice and failure to obtain her informed consent caused her injury and necessitated further dental procedures. Plaintiff now moves to amend her bill of particulars and attaches a proposed amended bill that includes allegations that Dr. Anastassov failed to diagnose an infection in tooth 6; improperly performed the bone graft; and failed to identify an error in the microbiology report. The proposed amended bill also pleads with more specificity her original allegations of malpractice and adds failure of the bone graft and the necessity of undergoing multiple failed procedures to her alleged injuries.
Under C.P.L.R. Rule 3042(b), a plaintiff has an absolute right to "amend the bill of particulars once as of course prior to the filing of a note of issue." Once the note of issue is filed, a plaintiff must seek leave of the court, but such "leave should be freely given in the absence of prejudice or surprise to the opposing party." Romanello v. Jason, 303 A.D.2d 670 (2d Dep't 2003) (citations omitted'): see also Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365 (1st Dep't 2007). Defendants do not oppose plaintiff's cross-motion and, with no prejudice or surprise alleged, plaintiff's cross motion is granted. Amaro ex rel. Almazan v. Gani Realty Corp., 60 A.D.3d 491, 493 (1st Dep't 2009). The proposed bill of particulars attached to plaintiff's cross-motion is deemed served on defendants.
A defendant moving for summary judgment in a dental malpractice action must make A prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted [dental] practice or that any departure was not the proximate cause of the injuries alleged." Roques v. Nobel, 73 A.D.3d 204, 206 (1st Dep't 2010) (citations omitted). To satisfy the burden, a defendant in a dental malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Id. If the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) (citation omitted). Specifically, in a dental malpractice action, a plaintiff opposing a summary judgment motion
must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff's injuries. . . . In order to meet the required burden, the plaintiff must submit an affidavit from [an expert in dental care] attesting that the defendant departed from accepted [dental] practice and that the departure was the proximate cause of the injuries alleged.Roques, 73 A.D.3d at 207 (internal citations omitted).
"Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable . . . dental . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation." Public Health Law § 2805-d(1). A defendant moving for summary judgment on a lack of informed consent claim must demonstrate that the plaintiff was indisputably informed of the foreseeable risks, benefits, or alternatives of the treatment rendered.Koi Hou Chan v. Yeung, 66 A.D.3d 642, 643 (2d Dep't 2009).
Defendants rely on the affirmation of Andrea Schreiber, D.M.D., a dentist and oral and maxillofacial surgeon. Dr. Schreiber opines that Dr. Anastassov did not deviate from the standard of care. Dr. Schreiber maintains that the consent form signed by plaintiff properly laid out the risks associated with the procedures performed on July 20, 2005. The form specifically identified infection, pain, rejection of the bone graft, and the need for more procedures as risks. Dr. Schreiber sets forth that Dr. Anastassov informed plaintiff of the relative safety of the option of doing the bone graft and the implant separately and that it was plaintiff who chose to do the procedures together. Dr. Schreiber opines that Dr. Anastassov appropriately prescribed pain medication and prophylactic antibiotics after the July 20, 2005 procedure. Dr. Schreiber maintains that antibiotics were appropriately discontinued, even after the dehiscence was discovered, because there was no sign of active infection. Dr. Schreiber notes that the bone graft at the site of tooth 7 failed in December 2005. She contends that the failure was due to an infection caused by the microorganisms found in plaintiff's mouth as identified in the microbiology report. Since these microorganisms are from the lower intestine, Dr. Schreiber maintains that Dr. Anastassov did not cause the infection. Dr. Schreiber maintains that, ultimately, infection was a risk of the procedure and opines that "infection sometimes happens, and is not the result of anything the defendants did or did not do." As to the treatment related to the implant, Dr. Schreiber maintains that the implant at tooth 6 remained integrated and stable throughout Dr. Anastassov's treatment of plaintiff.
In opposition, plaintiff relies on the affirmation of a dentist, whose name has been redacted. The expert maintains that plaintiffs informed consent was not obtained, because Dr. Anastassov should have conveyed to plaintiff, but did not, that the bone graft and the implant should probably not be performed at the same time. His failure to convey that information caused plaintiff to undergo "a more risky procedure which ultimately failed." The expert maintains that this failure was a deviation from the standard of appropriate dental care. The expert also maintains that performing the two procedures at once was a deviation from the standard of care. The expert notes that plaintiff had signs of infection on July 20, 2005, and therefore maintains that performing the bone graft and implant contemporaneously presented "an unacceptable risk of failure." The expert asserts that Dr. Anastassov should have used regenerative membranes over the bone graft and the failure to do so was a deviation from the standard of appropriate dental care. The expert maintains it is widely known that such membranes increase the chances of success.
The expert further maintains that Dr. Anastassov failed to properly diagnose plaintiff's infection in December 2005. The expert notes that the microbiology report identifies the source of the specimen as being from plaintiff's abdomen. The expert opines that the report was the result of "some kind of specimen mix-up" that Dr. Anastassov did not notice. The expert maintains that Dr. Anastassov's failure to recognize the report's error resulted in prolonging correct treatment for the infection and was a deviation from the standard of appropriate dental care. As to the implant at tooth 6, the expert opines that the implant was 17 millimeters and too long. The expert maintains that an implant of that length is not cosmetically ideal and necessitates that it be placed at unacceptable angle. The expert opines that as a result of being too long, the implant's threads became exposed, requiring a grafting and causing the ultimate failure of the implant. The expert maintains that the placement of the implant was a deviation from the standard of appropriate dental care. Plantiff's expert asserts that all of Dr. Anastassov's deviations caused plaintiff to undergo "multiple fruitless and unnecessary procedures" and personal injury.
Defendants have met their prima facie burden. Their expert blames plaintiff's allege injuries on an infection that was a known risk of surgery and not indicative of malpractice. Nevertheless, the affirmation of plaintiff's expert adequately disputes this opinion, contending that the bone graft and the implant were almost certain to fail and that Dr. Anastassov failed to act accordingly. In light of the conflicting expert opinions, summary judgment is unwarranted See Boston v. Weissbart, 62 A.D.3d 517, 518 (1st Dep't 2009); Cruz v. St. Barnabas Hosp., 50 A.D.3d 382 (1st Dep't 2008). Additionally, notwithstanding the consent form, plaintiffs EBT testimony raises a factual dispute between she and defendants on the issue of informed consent, precluding summary judgment on that claim. Wilson-Toby v. Bushkin, 72 A.D.3d 810 (2d Dep't 2010); Anderson v. Delanev, 269 A.D.2d 193 (1st Dep't 2000). As for defendants' arguments in their reply about the expertise of plaintiff's expert and the facts on which the expert relies, "[r]esolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury." Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 25 (1st Dep't 2009); see also Ferrante v. American Lung Ass'n., 90 N.Y.2d 623, 631 (1997) (citations omitted). Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is denied; and it is further
ORDERED that plaintiff's cross-motion to amend her bill of particulars is granted and the proposed amended bill attached to her motion papers is deemed served on defendants; and it is further
ORDERED that the parties shall appear for a pre-trial conference on September 21, 2010 at 9:30 a.m.