Opinion
14082/09
03-19-2012
Donna Przespo, Plaintiff, v. Michael J. Garvey, D.M.D., Defendant.
Gerald A. Strauss, Esq. Attorney for Plaintiff Feldman Kieffer, LLP Attorneys for Defendant Gordon D. Tresch, Esq., of Counsel Brian J. Bogner, Esq., of Counsel
Gerald A. Strauss, Esq. Attorney for Plaintiff
Feldman Kieffer, LLP Attorneys for Defendant
Gordon D. Tresch, Esq., of Counsel Brian J. Bogner, Esq., of Counsel
John M. Curran, J.
Plaintiff has cross-moved for similar relief and for an order striking the defendant's answer on the basis of spoliation of evidence.
Background
Plaintiff first saw the defendant dentist in June of 2007 at which time tooth 17 was extracted. Defendant took x-rays of plaintiff's teeth at that time.
Plaintiff returned to defendant's office on May 29, 2009 with complaints of excruciating pain in her lower right jaw. Defendant states that he reviewed the x-rays previously taken in June of 2007 which showed signs of infection at teeth 30 and 31. Defendant further asserts that the x-ray showed that tooth 31 was not repairable and tooth 30 showed a recurrent infection. Defendant did not take any x-rays on May 29, 2009.
Defendant claims that he visually observed plaintiff's teeth, including teeth 28, 29, 30 and 31, and the area around them. He also states that he "palpated the bony architecture surrounding the teeth and felt for nodes in the appropriate area that would be drained by an infection in the site." According to defendant, his examination revealed signs of infection, including red and swollen gums around teeth 30 and 31. His examination further revealed that teeth 30 and 31 were not improved since the x-rays taken in June of 2007. Based on this examination and his review of the x-rays, defendant concluded that teeth 30 and 31 were the cause of plaintiff's complaints and needed to be extracted.
Plaintiff states that she told defendant where the pain was coming from and that he said "he would take care of it." Plaintiff claims that defendant did not physically examine her teeth. Plaintiff was sedated and asleep during the extraction procedure.
Defendant states that his office obtained an executed consent form from plaintiff to extract teeth 30 and 31. He testified that this is the "normal practice" for his office and that he reviews the consent form immediately before performing any treatment.
Plaintiff recalls signing a consent form on May 29, 2009, but does not recall if it identified the teeth to be extracted. Plaintiff states that, had she known that the teeth defendant planned to extract were not the teeth which were the primary cause of her pain, she never would have given her consent for the procedure. The consent form has been misplaced by the defendant and is not part of the record.
Plaintiff's deposition testimony is somewhat confusing on this point (Strauss Aff., Ex. E, p. 25).
About a week after this procedure, plaintiff contacted defendant's office and asserted that defendant had extracted the wrong teeth. Plaintiff was still experiencing excruciating pain from her lower right jaw. Plaintiff returned to see defendant on June 11, 2009. Defendant proceeded to extract teeth 28 and 29 because he determined that these two teeth were the cause of plaintiff's pain. The extraction of teeth 28 and 29 eliminated plaintiff's pain. However, plaintiff claims that the extraction of teeth 30 and 31 was unnecessary and she is now left with "a large gap in the right side of (her) jaw which is causing pain and instability and making it difficult for (her) to chew and eat."
Plaintiff alleges two causes of action: (1) dental malpractice; and (2) lack of informed consent in violation of Public Health Law § 2805-d (1). Defendant moves for summary judgment dismissing both causes of action on the grounds that he is entitled to judgment as a matter of law based on the undisputed material facts. Defendant has submitted his own affidavit in support of the motion whereas plaintiff has not submitted an expert affidavit.
Motion Standards
On a motion for summary judgment, the movant must affirmatively demonstrate the merits of his position and cannot meet this burden by noting gaps in the non-movant's proof (Edwards v Arlington Mall Assocs., 6 AD3d 1136, 1137 [4th Dept 2004]). Until the movant establishes its entitlement to judgment as a matter of law, the burden does not shift to the opposing party to raise an issue of fact and the motion must be denied (see Loveless v Am. Ref-Fuel Co. of Niagara, LP, 299 AD2d 819, 820 [4th Dept 2002]).
In a medical malpractice action, a defendant doctor may meet this burden by submitting his or her own expert affidavit establishing that he or she did not deviate from accepted medical practice in plaintiff's care and treatment (Lake v Kaleida Health, 59 AD3d 966 [4th Dept 2009]; Maust v Arseneau, 116 AD2d 1012 [4th Dept 1986]; Cianfrocco v St. Luke's Mem. Hosp. Ctr., 265 AD2d 849 [4th Dept 1999]). The defendant doctor moving for summary judgment in a medical malpractice action must address the factual allegations set forth in the plaintiff's bill of particulars and the facts contained in the medical records (Gagnon v St. Joseph's Hosp., 90 AD3d 1605 [4th Dept 2011]; Larsen v Banwar, 70 AD3d 1337 [4th Dept 2010]).
Once the moving party establishes its entitlement to judgment through the tender of admissible evidence, the burden shifts to the non-moving party to raise a triable issue of material fact (see Gern v Basta, 26 AD3d 807, 808 [4th Dept 2006], lv denied 6 NY3d 715 [2006]). In a medical malpractice action, a plaintiff "must submit material or evidentiary facts to rebut the physician's prima facie showing that he or she was not negligent in treating the plaintiff" (DiMitri v Monsouri, 302 AD2d 420, 421 [2d Dept 2003]).
Analysis
Defendant has limited his proof on this motion to the issue of negligence which focuses the Court's attention on that issue (see Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). Defendant's affidavit addresses the allegations of negligence made by plaintiff in her complaint and bill of particulars. Defendant explains that he visually examined plaintiff's teeth and the area around them, palpated the bony architecture surrounding the teeth and felt for nodes in the appropriate area that would be drained by an infection at the site. He examined teeth 28, 29, 30 and 31 on May 29, 2009, and determined that teeth 28 and 29 were unremarkable but that teeth 30 and 31 revealed that the gums around them were red and swollen and were infected. Defendant opines that there were no reasonable alternatives to save teeth 30 and 31 and that the only option was to extract them. Defendant further opines, within a reasonable degree of dental certainty, that his care and treatment of the plaintiff was at all times within the applicable standard of care.
Defendant's motion papers reveal a significant difference in the facts: defendant asserts that he properly examined the affected area of plaintiff's mouth whereas plaintiff's verified bill of particulars states that defendant failed to do so. Because defendant's motion raises this triable issue of material fact, and because defendant's affidavit fails to analyze the issue of negligence based on the facts as stated by plaintiff, the motion must be denied (Fagan v Panchal, 77 AD3d 705 [2d Dept 2010]).
With respect to the second cause of action alleging lack of informed consent,
defendant has testified that he has been practicing dentistry since 1987 and that it is the "normal practice" in his office to obtain informed consent forms from his patients. Defendant also has testified that, before performing tooth extractions, he reviews the patient's file to ensure the consent form was "properly obtained" and that he "would not perform any treatment without proper consent from a patient."
In the absence of a properly completed consent form executed by plaintiff, defendant relies largely on the above-described habit evidence to establish what was done regarding procuring informed consent from the plaintiff on May 29, 2009. In Halloran v Virginia Chemicals, Inc. (41 NY2d 386 [1977]), the Court of Appeals authorized the use of habit evidence in negligence actions provided a proper foundation is established. The Court required that one offering habit evidence "prove a sufficient number of instances of the conduct in question" to establish "[p]roof of a deliberate repetitive practice by one in complete control of the circumstances" (41 NY2d at 392).
According to the Appellate Division, the analysis in Halloran is applicable to medical malpractice cases wherein the lack of informed consent is alleged (Rigie v Goldman, 148 AD2d 23 [2d Dept 1989]). In Rigie, the physician "had no independent recollection of specifically what he told the plaintiff regarding the risks associated with the removal of an impacted wisdom tooth" (148 AD2d at 25). The Appellate Division concluded that the physician was properly permitted to testify regarding his routine practice developed over nineteen years and that he followed in every instance during the thousands of extractions of wisdom teeth he had performed in his career. The Appellate Division further concluded that the dental assistant was properly permitted to testify concerning the dentist's routine practice with respect to the removal of wisdom teeth which she had witnessed hundreds of times during the eight years she worked for the dentist (148 AD2d at 25-26). The Appellate Division concluded that this testimony was a sufficient foundation to allow the habit evidence to support an inference by the jury that the practice was followed on the particular occasion in question (148 AD2d at 29-30).
There are numerous cases applying Halloran to medical malpractice actions, including in the Fourth Department (Gier v CGF Health System, Inc., 307 AD2d 729 [4th Dept 2003]; Biesiada v Suresh, 309 AD2d 1245 [4th Dept 2003]; Mancuso v Koch, 74 AD3d 1736 [4th Dept 2010]; see also PJI 1:71). However, before considering whether defendant's affidavit establishes a sufficient foundation to conclude that the habit evidence is admissible, the Court must first address whether such circumstantial evidence creating an inference for the jury is a sufficient basis upon which to grant judgment as a matter of law or, at a minimum, to shift the burden on a motion for summary judgment. The Appellate Division appears to have held that such circumstantial evidence creating an inference cannot be the basis for entering judgment as a matter of law but rather is merely a sufficient basis upon which to present the issue to a jury (Lindeman v Slavin, 184 AD2d 910 [3d Dept 1992]; Abramo v Pepsi-Cola Buffalo Bottling Co., 224 AD2d 980 [4th Dept 1996]; Cortale v Educational Testing Serv., 251 AD2d 528 [2d Dept 1998]; see also PJI 1:71, p. 109). Nevertheless, the Court of Appeals has held that habit evidence in a medical malpractice case, with a sufficient foundation, is not only admissible but also is a sufficient basis upon which to conclude that a movant has met its burden to establish entitlement to judgment as a matter of law on a summary judgment motion (Rivera v Anilesh, 8 NY3d 627 [2007]; cf. Vega v Restani Constr. Corp.,NY3d, 2012 NY Slip Op 1148 [2012]). Accordingly, this Court must conclude that admissible habit evidence is a sufficient basis to grant judgment as a matter of law on a summary judgment motion.
The Court did not discuss whether circumstantial evidence creating an inference for a jury is a sufficient basis upon which to conclude that a movant is entitled to judgment as a matter of law.
Nevertheless, defendant here has not offered any testimony as to the number of extractions he has performed or as to the frequency with which such procedures, including procurement of consent, are repeated within his practice. Thus, the Court is compelled on this record to conclude that defendant has failed to establish a sufficient foundation for the habit evidence he has offered with respect to procuring the informed consent form (see Rivera, 8 NY3d at 635; Gier, 307 AD2d at 730; Rigie, 148 AD2d at 23). Furthermore, the testimony offered in defendant's affidavit as to his conversation with his assistant who obtained the consent from plaintiff (Def. Aff. ¶ 10) is inadmissible hearsay on a substantial issue and cannot be considered even when plaintiff has not objected to it in her answering papers (see, e.g., Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 277 [1st Dept 2006]; Wulbrecht v Jehle, 28 Misc 3d 808, 813-814 [Sup Ct, Erie County 2010], affd 89 AD3d 1470 [4th Dept 2011]). The foundational evidence submitted here falls considerably short of what was furnished in Rigie.
Defendant also has not offered any testimony that he described to plaintiff what procedure he would be performing or that he discussed with her any alternatives to extraction or any other possible causes of her pain (see Johnson v Staten Is. Med. Group, 82 AD3d 708 [2d Dept 2011]). Further, the sample consent form from June 11, 2009, is generic and nonspecific to plaintiff's situation (see Barnett v Fashakin, 85 AD3d 832, 836 [2d Dept 2011]); Colon v Klindt, 302 AD2d 551, 553 [2d Dept 2003]). Defendant also has not proffered any testimony regarding whether a reasonably prudent person in plaintiff's position would have undergone the procedure if she had been fully informed (Orphan v Pilnik, 66 AD3d 543 [1st Dept 2009], affd 15 NY3d 907 [2010]; Johnson v Jacobowitz, 65 AD3d 610, 613 [2d Dept 2009], lv denied 14 NY3d 710 [2010]; Evans v Holleran, 198 AD2d 472 [2d Dept 1993]; Hylick v Halweil, 112 AD2d 400, 401-402 [2d Dept 1985]; Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199, 207 [2d Dept 1975]). For all of these reasons, there is no need to consider the sufficiency of plaintiff's opposition papers on this issue and the motion for summary judgment on the informed consent cause of action also is denied.
With respect to plaintiff's cross-motion, the motion for summary judgment as to the first cause of action on dental malpractice is denied because plaintiff has not offered any medical testimony in support thereof (Koehler v Schwartz, 48 NY2d 807 [1979]; McGinn v Sellitti, 150 AD2d 967 [3d Dept 1989]). The cross-motion with respect to the second cause of action alleging a lack of informed consent is similarly denied as plaintiff has failed to support her motion with expert testimony (Johnson v Jacobowitz, 65 AD3d at 613; CPLR § 4401-a).
In connection with the relief sought pertaining to the unavailability of the consent form and any alleged spoliation thereof, the motion is denied without prejudice subject to renewal at the time of trial when plaintiff, depending on the evidence, may seek a missing document charge (PJI 1:77). As there is no evidence of any willful destruction of the consent form or gross negligence in connection therewith, the greatest sanction the Court would consider in any event is an adverse inference instruction to the jury (see, e.g., Walczak v Corto Bros., II, Inc., 13 Misc 3d 1241[A] [Sup Ct, Erie County 2006], affd 45 AD3d 1360 [4th Dept 2007]; County of Erie v Abbott Labs, Inc., 30 Misc 3d 837 [Sup Ct, Erie County 2010]).
Based on the foregoing, defendant's motion for summary judgment is denied. The plaintiff's cross-motion for summary judgment also is denied but the motion seeking a spoliation sanction is denied without prejudice subject to renewal at the time of trial.
Settle Order.
Dated:March 19, 2012
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HON. JOHN M. CURRAN, J.S.C.