Opinion
Index No. 2414/12
02-02-2023
CHRISTINE SCHOENHARDT, Plaintiff v. WAGUIH A. SIDHOM, D.D.S., P.C., WAGUIH SIDHOM, D.D.S., RALPH THOMAS COSTAGLIOLA, D.D.S., P.C., Individually AND DOING BUSINESS AS TODT HILL ORAL AND MAXILLOFACIAL SURGERY, RALPH THOMAS COSTAGLIOLA, D.D.S., Individually and d/b/a TODT HILL ORAL AND MAXILLOFACIAL SURGERY, GELFMAN AND BIRNBAUM, ORAL SURGERY, P.C., Individually and d/b/a ORAL and MAXILLOFACIAL SURGERY OF OCEAN PARKWAY and/or as ORAL SURGERY AND IMPLANT CENTER OF OCEAN PARKWAY, NORMAN E. JOHNSON, D.D.S., Individually and d/b/a ORAL & MAXILLOFACIAL SURGERYOF OCEANPARKWAY AND/OR AS ORAL SURGERY AND IMPLANT CENTER OF OCEAN PARKWAY, Defendants.
Unpublished Opinion
PRESENT: HON. BERNARD J. GRAHAM,
Bernard J. Graham, Judge
The following e-filed papers read herein: NYSCEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed .......8-46. 47-75, 77-101. 132-141
Opposing Affidavits (Affirmations)..............................................................................................................108-115,116-123. 124-131, 142
Affidavits/Affirmations in Reply.....................................................................................................................143, 145-146, 147
Other Papers: ...............................................................................................................................................___
Upon the foregoing papers in this dental malpractice, action, defendants Gelfman and Birnbaum Oral Surgery, P.C. Individually and d/b/a Oral & Maxillofacial Surgery of Ocean Parkway and/or Oral Surgery and Implant Center of Ocean Parkway and Norman E. Johnson, D.D.S, (collectively. Dr. Johnson) move (in motion [mot.] sequence [seq.] number [no.] 7), pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff Christine Schoenhardt (plaintiff) as against them. Defendants Ralph Thomas Costagliola, D.D.S., P.C. s/h/a Ralph Thomas Costagliola D.D.S., P.O. Individually and d/b/a Todt Hill Oral and Maxillofacial Surgery and Ralph Thomas Costagliola, D.D.S., s/h/a Ralph Thomas Costagliola D.D.S., Individually and d/b/a Todt Hill Oral and Maxillofacial Surgery, (collectively, Dr. Costagliola) move (in mot. seq. no. 8) for summary judgment dismissing plaintiffs complaint in its entirety. Defendants Waguih A. Sidhom, Dentist, P.C. s/h/a Waguih A. Sidhom, D.D.S., P.C, and Waguih Sidhom, D.D.S. (collectively Dr. Sidhom), move (in mot, seq, no, 9), pursuant to CPLR 214-a, 3211 and 3212, dismissing all claims sounding in dental negligence, dental malpractice and lack of informed consent as to dental treatment provided prior to February 22, 2010, as being barred by the Statute of Limitations; and pursuant to CPLR 3211 and 3212, granting summary judgment on the issue of liability in favor of these defendants and dismissing plaintiffs' complaint in its entirety. Plaintiff cross-moves (in mot, seq. no. 10) for an order denying all of the defendants' motions.
Background
Plaintiff first presented to Dr. Sidhom for dental treatment on June 17, 1996, and treated him during multiple separate visits for dental cleanings and restorative dental treatment from June 17, 1996, through the initial date of alleged malpractice, July 7, 2008, and the last date of alleged malpractice, March 20, 2012, until her last presentation on August 2, 2012, Dr. Sidhom performed root canal therapy to tooth #15 on July 19, 1996, and the treatment was completed on August 2, 1996, A post and core were placed in tooth #15 on October 7, 1996, and a permanent crown was cemented on the tooth on October 28, 1996.
On December 12, 1997, plaintiff presented to Dr. Sidhom with a broken tooth #30 and was advised of the possibility of crownwork and/or root canal on this tooth. On December 9, 1998, Dr. Sidhom advised plaintiff of the possible need to replace a preexisting crown on tooth #14 due to food compaction. On May 22, 1999, pr, Sidhom initiated root canal therapy on tooth #30 which was completed on May 26, 1999, a permanent crown was cemented on July 6, 1999, and re-cemented on December 13, 1999. On: March 14, 2000, the crown on tooth #30 was sent for lab modification and the modified crown was re-cemented on March 28, 2000. On this date, Dr. Sidhom also determined that tooth #14 was hopeless due to decay under the existing crown and recommended its extraction.
On September 14, 2001, Dr. Sidhom observed deep decay in tooth #13 and recommended root canal therapy, which was performed on September 21, 2001. On November 26, 2001, tooth #14 was extracted and a post and core was also placed in tooth #13. On January 24, 2002, Dr. Sidhom placed a new post in tooth #13 and prepared teeth #13 through #15 for a three-unit bridge. The bridge was placed and cemented in plaintiffs mouth on February 7, 2002. On October 13, 2005, Dr. Sidhom again recomented the: previously placed crown on tooth #30. On October 25, 2008, the preexisting bridge spanning teeth #.13 to #15 was removed due to decay that had formed under the bridge. A new bridge was cemented by Dr. Sidhom on December 9, 2008.
On January 4, 2010, plaintiff presented to Dr. Sidhom with complaints of discomfort around her bridge spanning teeth #13 through #15. He took two periapical X-rays and observed tooth #13 to be infected but did not observe any periapical pathology in tooth #1.5. Dr. Sidhom testified that he reviewed his findings with plaintiff and advised her that she could see an endodontist to have the bridge and post removed in anticipation of root canal re-treatment, or visit an oral surgeon to cut out the infection through an apicoectomy so she could keep her existing post and bridge (NYSCEF Doc No. Dr. Sidhom tr at 96, lines 18-25; 97, lines 2-11). Dr. Sidhom gave plaintiff a prescription for 875 mg of Amoxicillin to treat the infection and provided her with a referral slip to oral surgeon, Ralph Costagliola, D.D.S., for a possible apicoectomy at tooth #13.
Periapical; of, relating to, occurring in, affecting, or being the tissues surrounding the apex of the root of a tooth (Periapical Definition & Meaning | Merriam-Webster Medical).
An apicoectomy is a common dental procedure where inflamed gum tissue and the end of the root of your tooth is removed while the top of your tooth is left in place. It's often called a root-end resection because it works on the end (or, tip) of the root called the apex . . . and is usually performed after a root canal to fix the root or the tissues around the tooth (https://www.webmd.com/oral-health/what-to-know-about-an-apicoectomy).
Plaintiff presented to Dr, Costagliola on March 3, 2010, with complaints of a painful tooth #13. He took a panoramic film and discussed performing an apicoectomy but informed her that there was only a 50/50 chance of saving the tooth. These teeth were also prepared for crowns. Plaintiff elected to have the apicoectomy performed by Dr. Costagliola and signed a written consent for the procedure, which contained the alternatives and risks to treatment. The apicoectomy of tooth #1.3 was performed on March 16, 2010, Plaintiff had a follow up with Dr. Costagliola on March 29, 2010, and he observed that tooth #13 was healing well. On August 24, 2010, Dr. Sidhom took a periapical film which revealed a pathology around the root of tooth #15, On August 30, 2010, Dr. Sidhom cut the pontic at tooth #14 and recommended an apicoectomy on tooth #15 and prescribed Amoxicillin and Motrin.
On September 23, 2010, plaintiff presented to Dr. Costagliola to discuss placement of an implant at tooth #14. He took a panoramic film and discussed placement of an implant at the site: of tooth #14 to replace the pontic for the bridge spanning teeth #13 through #15. Dr. Costagliola determined that plaintiff would need a bone graft, a sinus lift, and a two-month healing period before implant placement.
Plaintiff testified that she then sought a second opinion from Dr. Johnson on March 26, 2011, to find out if a bone graft and sinus lift were necessary. Dr. Johnson examined plaintiff and took periapical x-rays. He informed her that there were infections in teeth # 13 and #15 and that he would not put an implant at tooth #14 with the surrounding teeth infected. He further advised her that a bone graft and sinus lift were not needed as tooth #14 had enough bone. Dr. Johnson recommended apicoectomies to address the infections in teeth #'s 13 and 15. He testified that he informed plaintiff of all of her options including re-treatment of the root canal, apicoectomy or extraction, bone graft and implant, extraction or doing nothing (NYSCEF Doc No. 24, Dr. Johnson tr at 67, lines 5-16).
Plaintiff decided to proceed with apicoectomies on teeth #'s 13 and 15 which were performed by Dr. Johnson on April 15, 2011 under IV sedation. After plaintiff left Dr. Johnson's office that day, she began experiencing significant nasal bleeding. She called Dr. Johnson's office and was advised to either return to the office or go to Staten Island University Hospital (SIUH). Plaintiff presented to the emergency department at SIUH with complaints of oral bleeding around teeth#'s 13 and 15, gum soreness, blood pooling in the back of her throat and nasal bleeding. At SIUH, packing was placed to stop the bleeding and plaintiff was prescribed phenylephrine, labetalol, and oxycodone. She was examined by Dr. Rock, an oral and maxillofacial surgeon, who determined that the injury likely occurred during the apicoectomies, and that an artery had been cut. He was able to stop the bleeding through suturing the area and applying bone wax. Plaintiff was discharged that same day and returned for a follow up the next day where she was reexamined and was prescribed Augmentin. She returned to SIUH for another follow-up visit on April 20, 2011, where new nasal dressing was applied. Plaintiff returned to SIUH on April 26, 2011, with complaints of continued sensitivity and swelling. Her sutures were removed and teeth #13 and # 15were observed to exhibit Class I-II mobility. Plaintiff was prescribed Augmentin 875 mg and instructed to follow up with Dr. Johnson.
Plaintiff returned to see Dr. Johnson on April 26, 2011, and he noted that the healing was within normal limits and that there was mild mobility of tooth #13. He testified that he discussed the possible loss of the tooth with plaintiff at that time (NYSCEF Doc No. 24, Dr. Johnson's tr at 116, lines 3-5). He prescribed a Peridex rinse and Motrin. Plaintiff returned to see Dr. Johnson on May 7, 2011, and he noted that the area was granulating slowly and gave her a prescription for Penicillin and Flagyl. She returned on May 1.0, 2011, and Dr. Johnson noted that upon examination there was poor stability and inflammation at tooth #13, he recommended extraction which he performed that day.
Between October 4, 2010 and August 2, 2012, Dr. Sidhom treated plaintiff for issues related teeth #'s 28, 29 and 31, including root canals, the placement of crowns and the placement of a partial upper denture. Plaintiffs last visit with Dr. Sidhom occurred on August 2, 2012.
Plaintiff commenced this action on February 1, 2012, as against the Johnson and Costagliola defendants through the filing of a Summons and Verified Complaint containing causes of action sounding in medical/dental negligence and/or medical/dental malpractice: and lack of informed consent. Thereafter, plaintiff filed a Supplemental Summons and Amended Verified Complaint adding the Sidhom defendants to the caption on August 22, 2021, Dr. Johnson joined issue through service of a Verified Answer on March 23, 2012, and served a Verified Answer to the Amended Verified Complaint on September 10, 2012. Dr. Costagliola joined issue through service of a Verified Answer on March 5, 2012, and served a Verified Answer to the Amended Verified Complaint on September 21, 2021. Dr. Sidhom joined issue through service of a Verified Answer to the Amended Verified Complaint on October 3, 2012. Plaintiff served Verified Bills of Particulars as against Drs. Costagliola and Johnson on May 30, 2012,; as against Dr. Sidhom on January 15, 2013, and served Verified Amended Bills of Particulars as against all defendants on September 9, 2021.
Discussion
"In a dental malpractice action, the requisite elements of proof are a deviation or departure from accepted standards of dental practice, and that such departure was a proximate cause of the plaintiff's injuries" (Nelson v Lighter, 179 A.D.3d 933, 934 [2d Dept 2020], quoting Kozlowski v Oana, 102 A.D.3d 751, 752 [2d Dept 2013]; see Silyeri v Glaser, 166 A.D.3d 1044, 1045-1046 [2d Dept 2018]). "A defendant moving for summary judgment dismissing a cause of action alleging dental malpractice has the initial burden of establishing that he or she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiffs injuries" (Xiao Yan Ye v Din Lam, 191 A.D.3d 827, 828 [2d Dept]; see Nelson, 179 A.D.3d at 934). "In order to sustain this burden, the defendant is only required to address and rebut the specific allegations of malpractice set forth in the plaintiffs complaint and bill of particulars" (Schuck v Stony Brook Surgical Assoc, 140 A.D.3d 725, 726 [2d Dept 2016], citing Seiden v Sonstein, 127 A.D.3d 1158, 1160 [2d Dept 2015]; Bhim v Dourmashkin, 123 A.D.3d 862, 865 [2d Dept 2014]; Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045 [2d Dept 2010]). A defendant claiming that treatment did not depart from accepted standards, must provide an expert opinion that is detailed, specific and factual in nature (see Joyner-Pack v Sykes, 54 A.D.3d 727, 729 [2d Dept 2008]; see also Daniele v Pain Mgt Ctr. of Long Is., 168 A.D.3d 672, 674 [2d Dept 2019]). The opinion must he based on facts within the record or personally known to the expert (see Rogues v Noble, 73 A.D.3d 204, 207 [1st Dept 2010]). "In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party . . ., and 'all reasonable inferences must be resolved in favor of the nonmoving: party'" (Many v Lossef, 190 A.D.3d 721, 722-723 [2d Dept 2021], quoting Derise v Jaak 773, Inc., 127 A.D.3d 1011, 1011 [2d Dept 2015] (internal citations omitted).
To establish a cause of action for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to inform the patient of reasonably foreseeable risks and benefits associated with the treatment and the alternatives thereto, that a reasonable medical practitioner would have disclosed under similar 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 (see Public Health Law § 2805-d; Palagye v Loulmet 203 A.D.3d 724, 727 [2d Dept 2022]; Schussheim v Barazani, 136 A.D.3d 787, 789 [2d Dept 2016]). 'The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law' (Huichun Feng v Accord Physicians, 194 A.D.3d 795, 797 [2d Dept 2021], quoting Schussheim, 136 A.D.3d at 789).
Dr. Johnson's Motion (Mot Sea. No. 7)
Dr. Johnson moves for summary judgment dismissing plaintiffs complaint which alleges that he committed dental malpractice during his treatment of plaintiff between March 26, 2011 and May 10, 2011, when he improperly recommended and performed apicoectomies on teeth # s 13 and 15 (which are located on the upper left quadrant of the mouth), thereby causing nasal bleeding and packing, the eventual loss of these teeth and the need for implants, as well as left sinus issues. Specifically, in her bill of particulars and in her opposition to Dr. Johnson's motion, plaintiff states that her negligence/dental malpractice claims against Dr. Johnson are based on: his failure to obtain her informed consent; the performance of unnecessary apicoectomies on teeth #'s 13 and 15; the failure to refer her to an endodontist; failure to educate her about retreatment; the performance of apicoectomies below the standard of care; and the extraction of tooth # 13 without her consent. Plaintiff alleges that these departures caused her to sustain the following injuries: unnecessary apicoectomies on teeth #'s 13 and .1.5; loss of teeth#'s 1.3 and 15; hemorrhaging from the left nostril; two implants in the upper left quadrant with bone grafting; damage: to the left Schneiderian membrane and left sinus; pain and suffering.
Dr. Johnson argues that he did not deviate from the relevant: standard of care in his care and treatment of plaintiff and that he discussed various treatment options with plaintiff and had her sign a consent form prior to performing the procedure. In addition, Dr. Johnson points to his deposition testimony in which he stated that he verbally informed plaintiff of all of her treatment options which included: retreatment, apicoectomy, extraction, bone graft and implant or to do nothing and see how it goes (NYSCEF Doc No., 24, Dr. Johnson's tr at 67, lines 5-16)
In support of his motion, Dr. Johnson submits an affirmation from Arthur C. Elias, D.M.D. (Dr. Elias), a Board Certified Oral and Maxillofacial surgeon, licensed to practice in New York. Dr. Elias affirms that he reviewed all of the relevant documents, including plaintiffs treatment records, x-rays and the pleadings related to this matter. He affirms that all of his opinions are based upon his review of these documents, and upon his knowledge, training, experience and expertise as a dentist specializing in oral and maxillofacial surgery and that his opinions are based upon a reasonable degree of dental and oral and maxillofacial surgical certainty.
Dr. Elias notes that at plaintiff s first appointment on March 26, 2011, Dr. Johnson thoroughly and appropriately examined her and took two periapical x-rays,, as well as:x-rays of tooth #13 and tooth #15, Dr. Elias opines that Dr. Johnson appropriately informed plaintiff that an implant could not be performed until her teeth were asymptomatic and infection free in accordance with accepted dental standards. Dr. Elias notes that based on plaintiffs complaints of pain and the area at which she was experiencing: said pain,, she had root-apex sensitivities. Thus, he opines that Dr. Johnson appropriately considered the possibility of a vertical fracture and checked the mobility of tooth #13, which was Class 1, and appropriately used a probe to check the margins of the tooth. He further opines that Dr. Johnson was correct in diagnosing that the apex was the source of plaintiffs pain in tooth #15 and that he appropriately checked its mobility, as well as the margins of the crown, in accordance with accepted dental standards.
Moreover, Dr. Elias states that Dr. Johnson appropriately informed plaintiff of her various treatment options which included retreatment of the root canal, which would involve removal of the post and could possibly cause a tooth fracture; an apicoectomy; extraction with a bone graft and implant or, an extraction. Dr. Elias opines that Dr. Johnson's recommendation for apicoectomies arid surgical explorations of each tooth was in accordance with good and accepted dental standards as tooth # 13 had apical pathology following a previous apicoectomy and tooth #15 also had apical pathology, following root canal treatment. Dr. Elias Further opines that it was in accord with good dental practice to perform these apicoectomies as the two teeth had small infections and: the apical pathology did not go below the previous surgery, thus this was an appropriate treatment Option, in light of plaintiff s desire to save her teeth.
With regard to the performance of the apicoectomies, Dr. Elias opines they were performed in accordance with accepted dental standard via the standard mucoperiosteal flap and that the sites were inspected for: any extension of the apical infection not evident on the x-rays and the presence, of a root fracture. Dr. Elias opines that Dr. Johnson appropriately replaced the amalgam filling: on tooth #13, placed an apical filling on tooth #15 and reclosed both teeth with irrigation using swabs to remove any residual materials and sutures were inserted, in accordance with good and accepted dental standards, Dr. Elias further opines that post operative bleeding is normal and not indicative of a departure from accepted standards. Additionally, he notes that it was controlled through the placement of bone Wax at the surgical site and did not recur. Dr. Elias opines that the bleeding could have been the result of the epinephrine in the injections she received wearing off and releasing the vasoconstriction. Dr. Elias further notes that the records he reviewed related to plaintiffs treatment at Paramount Dental demonstrate that she had sinus issues for years which, he opines, might have been significant with respect to her nosebleed. Dr. Elias maintains that although the apicoectomy performed on tooth #13 seemed successful at first, the subsequent inflammatory changes and poor stability that occurred necessitating the extraction of tooth #13; can happen without any departures from the accepted standards of dentistry. He further notes that implants were ultimately placed at teeth #'sl,3 and 14 without the need for bone grafting. Dr. Elias opines that the apicoectomies performed by Dr. Johnson were a viable option, as plaintiff desired to preserve her tooth and that the failure of the apicoectomies was not due to any departures from accepted standards of dental surgery. With regard to informed consent, Dr. Elias merely notes that a consent form detailing the possible risks of the treatment and sighed by plaintiff and is part of Dr. Johnson's records.
Dr. Johnson has met his prima facie burden of demonstrating his entitlement to judgment as a matter of law dismissing the,dental malpractice cause of action through the submission of Dr. Elias' affirmation, who, based on his review of the dental records and deposition testimony, opined it was appropriate for Dr. Johnson to recommend apicoectomies on teeth #13 and #15, and that they were properly performed, and thus that Dr. Johnson did not depart from good and accepted practice (see Xiao Tan Ye, 191 A.D.3d at 828; Silveri, 166 A.D.3d at 1046]). Thus, the burden shifts to plaintiff to raise a triable issue Of fact with regard to: her claims sounding in negligence/dental malpractice.
With regard to that branch of the motion seeking to dismiss plaintiff's claim sounding in lack of informed consent, the court notes that Dr. Johnson's submissions included the plaintiffs deposition transcript, in which she testified that Dr. Johnson never informed her regarding any alternatives to the apicoectomies. Accordingly, Dr. Johnson failed to establish, prima facie, that there were no triable issues of fact with respect to the lack of informed consent cause of action insofar as asserted against him (see Xiao Yan Ye, 191 A.D.3d at 829] [court found defendant failed to establish prima facie entitlement to summary judgment where although the injured plaintiff signed a consent form, the defendants: submitted in support of their motion, inter alia, a transcript of the injured plaintiffs deposition, during which she testified that the defendants never explained the risks of the tooth extraction or whether there were any alternatives]: Silveri, 166 AD3'd at 1046-1047; Godel v Benjy Goldstein and George Freud, D.D.S., PLLC, 155 A.D.3d 939, 942 [2d Dept 201:7]).
Additionally, even if the court had found that Dr. Johnson established his prima facie entitlement to summary judgment dismissing this claim, plaintiffs' submissions in opposition, including her affirmation and deposition testimony, raise a question of fact sufficient to defeat this branch of Dr.: Johnson's motion.
In an affirmation submitted in opposition to Dr. Johnson's motion, plaintiff affirms that Dr. Johnson did not inform her of the risks and alternatives to the apicoectomies on teeth #'s 13 and 15 and that if she had known about root canal retreatment and the option to see an endodontist, she would not have consented to the apicoectomies on teeth #'s 13 and 15, Which ultimately led to: the extraction of both teeth; the placement of two implants in the upper left quadrant; hemorrhaging from her nose, treatment at SIUH and sinus problems (NYSCEF Doe No. 112, Plaintiffs aff). Moreover, plaintiff further affirms that, in relation to the extraction of tooth #13, there was no information about extraction when she signed the consent form provided by Dr. Johnson, and she believed he was only going to clean tooth # 13 (Id.).
In further support of her opposition to Dr. Johnson's motion, plaintiff submits a redacted affidavit from an endodontist, who states that he has been board certified for forty-five (45) years and has been licensed to practice dentistry in New York and Nevada for over 50 years. Plaintiffs expert states that his New York license ended in 2007 when he moved to Nevada and that his Nevada license status is currently "inactive." However, he: states that said license is current through 2023, and that he can convert it back to active status at any time. Plaintiffs expert affirms that he was a clinical professor of dentistry at Nova Southeastern University College of Dental Medicine for four years. Specifically, the expert affirms that he has
performed approximately sixty thousand . . . root canal therapies and retreatments of root canal therapies and approximately six thousand (6,000) apicoectomies ... am familiar with the standards of care relating to endodontics, treatment planning, apicoectomies, retreatment of root canal therapy, treating pathology and lesions, educating patients, reading x-rays, determining the viability of teeth, the adequacy of clinical notes, monitoring conditions, informed consent, and determining when to refer a patient to a specialist. These standards of care are national and applicable to New York State'7 (NYSCEF Doc No. 113, Plaintiffs expert aff).
Plaintiffs expert opines that Dr. Johnson's consent form was below the standard of care because it did not list retreatment as an option, and failed to present plaintiff with the option to see an endodontist. He further opines that the failure to obtain plaintiffs informed consent for the extraction of tooth was a departure from the standard Of care pointing to plaintiff s affidavit in which she states that the consent: form did not list the extraction prior to her signing it and she thought Dr. Johnson was only going to clean the infection in that tooth. Plaintiffs expert further opines that the failure to educate plaintiff about apicoectomies and retreatment regarding teeth .#'s 13 and 15, and to inform her of the risks and available alternative treatment, was a departure from the standard of care, which required him to inform plaintiff about retreatment and the option to see an endodontist.
Plaintiffs expert notes that Dr. Johnson testified that he informed plaintiff about retreatment although he did not believe retreatment was a reasonable option because tooth #15 had a post. In this regard, the expert opines that Dr. Johnson departed from the standard of care by not knowing that endodontists had the skill to successfully remove the post from tooth #15. He also opines that Dr. Johnson departed from the standard of care when he decided to perform an apicoectomy in the treatment of tooth #15, given its proximity to the maxillary sinus, as "placing an amalgam retro filling on the palatal canal almost certainly would pierce the Schneiderian membrane, which is the inferior border of the maxillary sinus" (id.)* He opines that the apicoectomy resulted in the perforation of plaintiffs left sinus causing hemorrhaging and chronic sinus problems. Additionally, he opines that Dr. Johnson departed from the standard of care by performing an apicoectomy on tooth #13, as plaintiff did not have any complaints of pain with regard to this tooth and he should have allowed this tooth time to heal following the apicoectomy previously performed by Dr. Costagliola.
Additionally, the expert opines that Dr. Johnson departed from the standard Of care in the technique he used when performing the apicoectomies on teeth #'s 13 and 15, opining that the procedure should have been performed using ultrasonic tips. He further opines that Dr. Johnson departed from the standard of care by using amalgam as a retro fill material as the standard of care for retro Fill material during an apicoectomy in 2010 and 2011 was MTA, Super EBA, or bio ceramic material. In support of this opinion, he points to a study performed by an authority on endodontics which found that “amalgam used as retro fill material has a significant failure rate due to expansion of the amalgam and its inability to seal the canal apices" (id.)
Plaintiffs expert further opines that Dr, Johnson departed from the standard of care in his treatment of tooth #15 by not referring plaintiff to an endodontist for retreatment Of the root canal that had been performed by Dr. Sidhom. Plaintiffs expert opines that Dr. Elias' opinion that retreatment was contraindicated because tooth #15 had a post is incorrect and demonstrates his lack of knowledge regarding the field of endodontics. Moreover, he states that endodontists are trained to remove posts from teeth and there was a high probability that an endodontist would have successfully removed the post and that retreatment should have been performed as the original root canal therapy on this tooth was performed improperly. Specifically, he opines that "there was a 90% chance of successful retreatment on teeth 13 and 15 if an endodontist had performed the retreatment" (id.). The expert opines that these departures in the standard of care were a substantial factor in causing the following: the loss of teeth # 13 and 15 and the unnecessary apicoectomies on these teeth, the hemorrhaging from plaintiffs nose and mouth, her treatment at SIUH, the need for bone grafting and implants; the intermittent pressure On her left sinus and the mucous draining down her throat and the resulting pain and suffering she experienced.
In reply to plaintiffs opposition, and in opposition to plaintiffs cross motion, Dr. Johnson objects to the competence of plaintiff s expert, specifically, he takes issue with the feet that the expert is not currently licensed to practice in any state; fails to identify where he attended dental school; and states that he taught at NSU Dental School, which Dr. Johnson contends is the subject of a federal lawsuit. With regard to Dr. Johnson's objections in this regard, in his affidavit, plaintiff s expert states that he was board certified for 45 years, was licensed to practice dentistry for over 50 years and has performed the type of work that is in dispute. In addition, it appears that lie was licensed to practice during the time period that plaintiff treated with the defendants in this action. Accordingly, the court finds this is sufficient, at this juncture, to establish his ability to submit an affidavit.
Here; plaintiffs expert disagrees with the opinions of Dr. Johnson's expert, and has raised factual issues regarding whether Dr. Johnson's care and treatment of plaintiff with regard to teeth #'s 13 and 15, including the performance of apicoectomies, was a departure from the standard of care and whether such departures were a proximate cause of plaintiffs injuries. Accordingly, the conflicting opinions of plaintiffs expert and defendants' experts present triable factual issues which cannot be resolved on this summary judgment motion (see: Schmidt v Bangiyev,___A.D.3d___, 2022 NY Slip Op 06510 [2d Dept 2022]; Many, 190 A.D.3d 721; 723 [2d Dept 2021]; Kiernan v Arevalo-Valencia, 184 A.D.3d 727,728 [2d Dept 2020]; Joyner v Middletown Med., P;C, 183 A.D.3d 593, 594 [2d Dept 2020]). Based upon the foregoing, Dr. Johnson's motion for summary judgment dismissing plaintiff's claims as asserted against him is denied in its entirety.
Dr. Costagliola's Motion (Mot. Seq. No. 8)
Dr. Costagliola moves for summary judgment dismissing plaintiffs complaint in its entirety. In her Bills of Particulars, plaintiff alleges that Dr. Costagliola committed malpractice during the treatment rendered to her between March 3, 2010 and April 12, 2011, which included: the negligent performance of an apicoectomy on tooth #13 on March 16, 2010; the failure to consider root canal therapy on this tooth as an alternative; and the failure to refer her to an endodontist. Plaintiff alleges that this led to the loss of tooth #13 and the need for an implant, as well as injuries to her sinus subsequent to the two apicoectomies performed by Dr. Johnson on teeth #13 and #15, approximately one year later on April 15, 2011. Additionally, plaintiff alleges that Dr. Costagliola tailed to; test the crown on tooth #13; properly read x-rays; to use a micro-surgical technique during the apicoectomy of tooth #13; and find the canal or canals of tooth #13 calcified. She further alleges that Dr. Costagliola was negligent in using a burr during the apicoectomy; by removing too much of the root of tooth #13; by using retrograde amalgam as an inadequate retrograde sealer; and by abandoning the plaintiff' and failing to obtain an informed consent.
In support of his motion, Dr. Costagliola submits art affirmation from Mitchell Brookstone, a dentist licensed to practice in New York, who states that he specializes in oral and maxillofacial surgery. Dr. Brookstone affirms that he is familiar with the applicable standards of dental and oral surgical practice regarding the: performance of apicoectomies and foot canal therapy as they exist today, and as they existed in March of 2010, when Dr. Costagliola treated plaintiff Dr. Brookstone affirms that he reviewed all of the relevant records and films, as well as all of the legal papers and deposition transcripts of all of the parties and that all of his opinions, which are made to a reasonable degree of medical certainty, are based on the review of these records and his: knowledge, training, and expertise as an oral and maxillofacial surgeon.
Dr. Brookstone notes that on January 4, 2010, Dr. Sidhom diagnosed plaintiff with an infection at tooth #13 and referred her to Dr. Costagliola for an apicoectomy. Plaintiff first saw Dr. Costagliola on March 3, 2010, and Dr. Brookstone opines that he properly examined her and obtained radiographs, which were adequate and of diagnostic quality. He states that the radiograph shows "rarefacation (dark circle at the apex which is an indication of bone: resorption due to infection). Therefore, this is a clear indication for the apicoectomy procedure" (NYSCEF Doc No. 50, Dr. Brookstone aff at ¶14). Dr. Brookstone opines that Dr. Costagliola performed a proper physical examination to identify the source of plaintiff s pain and confirmed it by the findings on the panorex which showed "a circular periapical radiolucency (PAR) at the root tip of the tooth. The PAR at the root tip does not spread up the root of the tooth and stays local to the most apical third of the tooth, There is a clear indication for an apicoectomy" (id., at ¶ 16). Dr. Brookstone notes there was already a post, core and crown from the prior root canal, as well as a bridge that spanned from teeth #'s 13 to 15, thus, he opines that endodontic treatment to tooth #13 was risky, invasive, and contraindicated, compared to apicoectomy. Specifically, he contends that endodontic retreatment would have required the removal of a large post which could have destroyed tooth #13 due to its weakened condition from the prior root canal and may have required replacement of the bridge. Dr. Brookstone opines that Dr. Costagliola had no obligation to refer plaintiff to an endodontist as it was contraindicated and was not a viable option under the circumstances. Moreover, he states that referral to an endodontist prior to apicoectomy is not the standard of care.
Dr. Brookstone further opines that Dr.: Costagliola performed the apicoectomy within the accepted standards of oral surgical care, with no intraoperative complications. Moreover, he opines that it was within Dr. Costagliola's discretion to use a burr to perform the apicoectomy as it is within the standard of care. Dr. Brookstone opines that Dr. Costagliola removed an appropriate amount of the root of tooth #13 based upon the level of infection that was present. In addition, he opines that microsurgical instruments are not required, nor are they the standard of care in performing apicoectomies, and there is no merit to any claim that Dr. Costagliola lacked proper visualization. Dr. Brookstone notes that plaintiffs chart indicates that she was healing well at her follow-up on March 29, 2010. He opines that Dr. Costagliola was not required to test the crown on tooth #13, as it was present for 10 years and could have been checked by Dr. Sidhom the referring dentist. Dr. Brookstone: further opines that Dr. Costagliola was well within the standard of care in choosing amalgam, as it has been a material of choice in apicoectomies for decades, and is still widely used today.
Dr. Brookstone also notes that "tooth #13 and the area that would encompass the surgery involving the apicoectomy is sufficiently tar enough away from the sinus in that region to certainly assure that post-operative sinus sequella would not be directly involved in the actual apicoectomy of tooth #13 or its healing or riot healing . . . [as it] is not in close proximity to the maxillary sinus . . . [t]he sinus simply does not come into play with tooth #13 in this patient" (id. at ¶24). Thus, he opines that plaintiff s alleged sinus problems and damage to the Schneiderman membrane was not causally connected to Dr. Costagliola-s performance of an apicoectomy on tooth #13. in March 2010. Moreover, Dr. Brookstone opines that Dr. Costagliola is not responsible for the subsequent apicoectomy performed on tooth # 13 by Dr. Johnson
In addition, Dr. Brookstone states that the radiographic finding regarding tooth #13 by Dr. Johnson is representative of scarring and not an infection. He maintains that plaintiff s complaints actually occurred after the apicoectomy on tooth #15, performed by Dr. Johnson, and that is the actual etiology of any injury or sinus issue plaintiff suffered. Dr. Brookstone further opines that there is no merit to plaintiffs contention that Dr. Costagliola performed a procedure he was not trained to perform as the record is clear that he is licensed by New York State and is well qualified to practice all aspects of oral and maxillofacial surgery, including apicoectomies. He further notes that Dr. Costagliola did not abandon plaintiff, rather she chose not to continue treating with him.
With regard to plaintiffs claim alleging a lack of informed consent, Dr, Brookstone opines that Dr. Costagliola obtained a valid and extensive written informed consent for the apicoectomy. He points out that the informed consent form, dated March 3, 2010, and signed by the plaintiff, specifically articulates failure as a risk. He notes that Dr. Costagliola documented in his chart that he specifically discussed with plaintiff that her prognosis was questionable and that there was a 50/50 chance that, the apicoectomy would be successful and that "future extraction of the tooth may be needed” (Id. at ¶ 19). He further points to plaintiff s testimony wherein she acknowledged signing the form.
Accordingly, Dr. Brookstone opines that all of the care and treatment provided by Dr. Costagliola conformed with standards of oral surgery and dental practice and that there were no deviations from accepted practice and that the informed consent obtained was more than sufficient based upon the informed consent document plaintiff signed. He further opines that nothing Dr. Costagliola or his practice did, or failed to do, caused any injury that is outside the realm of accepted risks and complications of dental apicoectomy surgery.
Dr. Costagliola has met his prima facie burden of demonstrating his entitlement to judgment as a matter of law dismissing plaintiffs dental malpractice cause of action through the submission of Dr. Brookstone's affirmation, who, based on his review of the dental records and deposition testimony, opined that Dr. Costagliola appropriately performed the apicoectomy on tooth #13 within the accepted standard of care.. In this regard, he states that Dr. Costagliola utilized the appropriate instruments and materials and that: nothing he did, or failed to do, was the proximate cause of plaintiffs injuries. Dr. Brookstone further states that it was appropriate for Dr. Johnson to recommend apicoectomies On teeth #13 and #15, and thus Dr. Costagliola did not depart from good and accepted dental practice (see Xiao Yan Ye, 191 A.D.3d at 828; Silveri, 166 A.D.3d at 1046 [2d Dept 2018]). Therefore, the burden shifts' to plaintiff to raise a triable issue of fact with regard to her claims sounding in negligence/dental malpractice.
With regard to that branch of the motion seeking to: dismiss plaintiffs claim sounding in lack of informed consent, the court notes that Dr. Costagliola's submissions, including his deposition testimony and chart notes which indicate that he specifically discussed the chances that the apicoectomy could be unsuccessful and that the tooth might need to be extracted, as well as the signed consent form, establish his prima facie entitlement to summary judgment dismissing plaintiffs informed consent claim as asserted against him (see Williams v Light, 196 A.D.3d 668, 670 [2d Dept 2021];; Larcy v Kamler, 185 A.D.3d 564, 566 [2d Dept 2020]). Accordingly, the burden shifts to plaintiff to raise a triable issue of fact with regard to plaintiffs claim alleging a lack of informed consent.
In opposition, and in support of her cross motion, plaintiff submits the same redacted expert affidavit in opposition to all three motions. Plaintiffs expert opines that Dr. Costagliola had limited knowledge regarding apicoectomies and retreatment as these procedures applied to plaintiff as apicoectomies are only a small part of the practice of an oral surgeon. Additionally, he notes that Dr. Brookstone is an oral surgeon and opines that "oral surgeons, because endodontics is not part of their practices and their continuing dental education and because they do not read the Journal of Endodontics, are unfamiliar with the advancements in root canal therapy, retreatment, apicoectomies, and the surgical retro fillings over the past thirty years" (NYSCEF Doc No. 137, plaintiff s expert aft). Plaintiffs expert opines that the failure of both Dr. Costagliola and Dr. Johnson to refer plaintiff to an endodontist for the evaluation of teeth #*s 13 and 15, was a departure from the standard of care, as a dentist is required to inform a patient of the best options available. In this regard, the expert opines that the best options available regarding teeth #'s 13 and 15 were referral to an endodontist for: retreatment of both teeth; and, if needed, apicoectomies using the most advanced techniques, training, and equipment. including utilizing the microsurgical method for apicoectomies; He further opines that the use of filling material, such as MTA, Super EBA, or bio ceramics would have produced a better result as amalgam does not allow complete healing and the use of ultrasonic tips, typically used by endodontists, would have resulted in less root removal and less tooth mobility.
Specifically, plaintiffs expert opines that Dr. Costagliola departed from the standard of care in the performance of the apicoectomy on tooth # 13 in several respects: he failed to use proper lighting; he used amalgam filling rather that MTA, Super EBA or bio ceramic as a retro fill; and he used a burr and removed too much tooth structure, which resulted in the destabilization of this tooth. Next, he opines that Dr. Costagliola departed from the standard of care by telling plaintiff that there was only a 50 percent chance that the apicoectomy would succeed. The expert opines that the success rate for an apicoectomy performed by an endodontist, using a microscope and ultrasonic equipment with MTA, Super EBA or bio ceramic retro fill would have been closer to 90 percent (id.). Additionally, the expert opines that it was a departure for Dr. Costagliola to fail to check the crown margin of tooth #13, as root canals often fail due to leakage of the crown which allows bacteria to infect the prepared tooth structure. Moreover, plaintiffs expert notes that according to Dr. Johnson, the apicoectomy done by Dr. Costagliola was so inadequate that he needed to perform another apicoectomy on tooth #13. The expert opines that: if retreatment had been done on tooth #13, .Dr. Johnson would not have performed an apicoectomy on tooth 13:, and ultimately extract the tooth resulting in the heed for ah implant.
With respect to the issue of informed consent, plaintiffs expert opines that Dr. Costagliola departed from the standard of care by tailing to inform plaintiff regarding the option of retreatment and by failing to give her the option to treat with an endodontist He opines that all of the aforementioned departures from the standard Of care by Dr. Costagliola were a substantial factor in causing the loss of tooth #13, as he removed too much tooth.
Here, plaintiffs expert disagrees with the opinions of Dr. Costagliola's expert, and has raised factual issues regarding: whether Dr. Costagliola should have performed retreatment on tooth #13 or referred plaintiff to an endodontist for said course of treatment; and whether the performance of the apicoectomy by Dr. Costagliola on tooth #13 was departure from the standard of care which proximately caused her injuries. Accordingly, the conflicting opinions of plaintiffs expert and defendants' experts present triable factual issues which cannot be resolved on this summary judgment motion (see Schmidt, ___ A.D.3d___, 2022 NY Slip Op 06510; Many, 190 A.D.3d at 723; Kiernan, 184 A.D.3d at 728; Joyner, 183 A.D.3d at 594). The court finds that plaintiff has failed to raise an issue of fact regarding her claim alleging a lack of informed consent based upon Dr. Costagliola's failure to refer her to an endodontist and/or inform her about the option of retreatment.
Based: upon the foregoing, that branch of Dr. Costagliola's motion seeking summary judgment dismissing plaintiffs dental malpractice claim is denied, while that branch of the motion seeking dismissal of plaintiffs claim sounding in lack of informed consent is granted, and said claim is dismissed as against Dr. Costagliola.
Dr. Sidhom's Motion (Mot. Seq. No. 9)
Dr. Sidhom moves for an order, pursuant to CPLR 214-a, dismissing all claims sounding in dental negligence, dental malpractice and lack of informed consent as to dental treatment provided prior to February 22, 2010, as being barred by the Statute of Limitations. Additionally, he seeks summary judgment on the issue of liability and dismissal of plaintiffs' complaint in its entirety.
Dr. Sidhom argues that although plaintiff treated with him from 1996 through August 2012, the majority of her claims as against him relate to treatment rendered before February 22, 2010, which was more than two and a half years prior to the commencement of the lawsuit, and thus those claims are barred by the statute of limitations. In opposition, plaintiff argues that her treatment with Dr. Sidhom was continuous, specifically with regard to his treatment of teeth #rs 13 and 1.5. including the root canals that were performed and the placement, and replacement, of a bridge in this area. Plaintiff states that she had problems with the bridge starting when it was originally placed in 2002, continuing when it was replaced in 2008. She further contends that she continued to express her concerns to Dr. Sidhom regarding the discomfort she felt in that area and that every time she visited him, he checked the area and was monitoring it. Plaintiff notes that it was in response to her continued complaints in this regard, that in 2010, Dr. Sidhom referred her to Dr. Costagliola for an apicoectomy upon finding evidence of "infection in tooth #13.
Discussion
Statute of Limitations
A dental malpractice action must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same-illness,, injury or condition which gave rise to the said act, omission or failure (CPLR 214-a). '"Under the continuous treatment: doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiffs medical malpractice claim; and (3) the treatment is continuous"' (Weinstein v Gewirtz, 208 A.D.3d 717, 719 [2d Dept 2022], quoting Wright v Southampton Hosp., 187 A.D.3d 1242, 1244 [2d Dept 2020]; see Lohnas v Luzi, 30 N.Y.3d 752 755-756 [2018]; Cohen v. Gold, 165 A.D.3d 879, 882 [2d Dept 2018][holding that "[essential to the application of the doctrine is that there has been a course of treatment established with respect to the relevant condition, so that a mere continuing relation between physician and patient or the continuing nature of a diagnosis is insufficient to invoke the doctrine"]). The court in Cohen further held that ''[i]ncluded within the scope of continuous treatment is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment . . . [e]ven the monitoring of an abnormal condition may be sufficient to support the application of the continuous treatment toll" (internal citations-omitted). Here, the court finds based upon plaintiffs affidavit, the affidavit of her expert and the deposition testimony, there are triable issues of fact regarding whether Dr. Sidhom was continuously treating plaintiff with regard to teeth #'s 13 and 15. Accordingly, that branch of Dr. Sidhom's motion for an order dismissing all claims in relation to teeth #13 and #15, that accrued prior to February 22, 2010, as barred by the statute of limitations is denied. However, any claims with regard to teeth #'s: 19 and 30 that accrued prior to February 22, 2010, are barred by the statute of limitations, as plaintiff has failed to demonstrate a continuous course of treatment with regard to these teeth.
Denial Malpractice/Informed Consent
Plaintiffs Amended Verified Bill of Particulars against Dr. Sidhom alleges that from July 7, 2008 to March 20, 2012, he failed to: properly perform root canal therapy on teeth #'s 13, 15 and 19; render proper/adequate diagnosis, have proper access, debridement, disinfection, filing, shaping, obturation, visualization and isolation during root canal therapy on teeth #13, #15, #19 and #30; use a rubber dam; consider that the root canals on teeth #13 and #15 were inadequate; consider, inform or recommend root canal retreatment to teeth #13 and #15 as an alternative to apicoectomies; refer plaintiff to an endodontist or seek an endodontic consultation; have proper measurements of root canal lengths, and unnecessarily removed the upper left bridge. Plaintiff also alleges that Dr. Sidhom improperly placed posts in teeth #1.3 and #15, perforated tooth #19 and failed to inform plaintiff that he had done so, and that he improperly recommended apicoectomies on teeth #13 and #15.
Dr. Sidhom's records do not indicate: that he performed a root canal on plaintiffs tooth #19, solely that he extracted this tooth on May 19, 2007.
In support of his motion. Dr. Sidhom submits an affidavit from Kenneth Allen, a dentist licensed to practice in the State of New York, who has been practicing since 1975 and teaches at the New York University College of Dentistry. Dr. Allen states that he is familiar with the standard of care owed by dentists and that he reviewed all of the relevant records and films, as Well as alt of the legal papers and deposition transcripts of all of the parties, prior to rendering his opinions, all of which are made with a reasonable degree of dental certainty.
Dr. Allen opines that following the root canal therapies performed by Dr. Sidhom on teeth #15, #30 and #13 in 1996, 1999 and 2001, respectively, and the subsequent placement of crowns and a bridge spanning teeth #13 to #15 (as tooth #14 had been extracted in the interim) on February 7, 2002, no further treatment was required related to said root canals. He further states that Dr. Sidhom did not perform a root canal on tooth #19, as the record, including his certified records, and deposition testimony, fail to support any assertion that a root canal was performed on this tooth at any point from July 17, 1996 to August 2, 2012, but indicate that tooth #19 was extracted on May 19, 2007 (NYSCEF Doc No, 81, Dr. Allen's aff at ¶26).
Dr. Allen opines that Dr. Sidhom was within good and accepted dental practice in recommending replacement of the bridge spanning teeth #13 and #15 in 2008, with new crowns on teeth #13 and #15, a prefabricated post and core in tooth #15 and a pontic at tooth #14, as his records indicate that he observed decay underneath the pre-existing bridge. He further opines that Dr. Sidhom properly removed the pre-existing bridge on October 25, 2008, and appropriately cemented a new bridge on December 9, 2008. Dr. Allen contends; that the new bridge conformed with the standard of care based on Dr-Sidhom's testimony that the crowns on the new bridge exhibited no open margins. He further opines that once this new bridge was placed on December 9, 2008, no further treatment was required for these teeth in connection with the placement of the bridge (id. at ¶27).
Dr. Allen further opines that the evaluation and examination performed by Dr. Sidhom when plaintiff presented on January 4, 2010, with complaints of discomfort around her bridge spanning teeth #13 through #15, was proper in that he took two periapical X-rays which showed that tooth #13 was infected with a periapical pathology present. Thus, he opines that it was appropriate for Dr. Sidhom to advise plaintiff "that she could present to an endodontist to have the bridge and post removed in anticipation of root canal re-treatment, or visit an oral surgeon to cut out the infection through an apicoectomy so Plaintiff could keep her existing post and bridge" (id. at ¶28). He further opines that Dr. Sidhom appropriately prescribed Amoxicillin 875 mg, to treat the infection he observed in tooth # 13. Dr. Allen opines that based upon the large size of the periapical pathology that Dr. Sidhom observed, it was appropriate and within the standard of care, to refer plaintiff to; Dr. Costagliola, a properly trained and experienced oral surgeon, for a possible apicoectomy for tooth #13. In this regard, he notes that there was a pre-existing post in the tooth that would require removal to perform retreatment of the root canal, and there was a risk that removal of the post could fracture the tooth, He further opines that on August 24, 2010, Dr. Sidhom properly evaluated and examined plaintiff in that he took a periapical Film, and upon observation of a pathology around the root of tooth #15, he properly referred her to an oral surgeon for an apicoectomy for that tooth. In this regard, he notes that the size of periapical pathology was large, and there was a pre-existing post in the tooth that would require removal to perform retreatment of the root canal, and a risk that removal of the post could fracture the tooth, thus the recommendation of an apicoectomy was within the standard of care. Dr. Allen also opines that Dr. Sidhom appropriately prescribed Amoxicillin and Motrin at that visit to treat the observed infection. He further opines that on June 27, 2011, Dr. Sidhom appropriately placed a flipper in the upper left quadrant of plaintiff s mouth as a temporary measure following the extraction of tooth #13 by Dr. Johnson oh May 10, 2011.
Dr. Allen states that Dr. Sidhom was Within good and accepted dental practice and did not depart from the standard of care in not providing any other treatment to teeth #13, #15, #19 or #30, in the absence of symptoms, other than the documented dental treatment that he did provide. Moreover, he opines that Dr. Sidhom properly ended the doctor-patient relationship, and advised plaintiff in this regard, after this lawsuit was commenced against him on August 22, 2012. Specifically, Dr. Allen opines that the injuries plaintiff sustained related to the bridgework she had placed in 2008 and the flipper placed in 2011, were due to her long history of dental problems and were not causally related to any treatment rendered by Dr. Sidhom. Dr. Allen further opines that the treatment and injuries that plaintiff sustained following procedures performed by Drs. Costagliola and Johnson are not casually related to Dr. Sidhom or his referral to oral surgeons for treatment.
With regard to plaintiffs lack of informed consent claim. Dr. Allen opines, with a reasonable degree: of dental certainty
that informed consent was implied for the restorative treatment that Plaintiff received from Dr. Sidhom, namely the placement of the new bridge spanning teeth #13 to #15 in 2008 and placement of a flipper spanning teeth #13 to #15 in 2011, which were non-invasive procedures performed to remedy previously existing dental work, and did not require informing Plaintiff' of any new risks involved. It is also my opinion with a reasonable degree of dental certainty that Dr. Sidhom was within good and accepted practice when he treated Plaintiff for prior existing dental work, and thus, did hot need to inform Plaintiff of any new risks associated with the non-invasive dental work (id: at ¶ 34).
Dr. Sidhom has met his prima facie burden of demonstrating his entitlement to judgment as a matter of law dismissing the dental malpractice cause of. action through the submission of Dr. Allen's: affirmation, who, based on his review of the dental records and deposition testimony, opined that Dr. Sidhom; appropriately performed root canals on teeth #s 13, 15 and 30; appropriately placed crowns and a bridge and replaced said bridge when needed; appropriately diagnosed and treated her dental infections; did not perform a root canal on tooth #19, and; properly referred plaintiff to an oral surgeon for possible apicoectomy. Dr. Sidhom has established that he did not depart from good and accepted practice and that nothing he did or failed to do proximately caused plaintiffs injuries (see Xiao Yan Ye v Din Lam, 191 A.D.3d 827, 828 [2d Dept 2021]; Silveri v Glaser, 166 A.D.3d 1044, 1046 [2d Dept 2018]). Thus, the burden shifts to plaintiff to raise a triable issue of fact with regard to her claims sounding in negligence/dental malpractice.
The record does not indicate any further treatment by Dr. Sidhom with regard to tooth #30, following the root canal therapy in 1999, and crown modification in 2000, Accordingly, any claims With regard to this tooth are barred by the statute of limitations.
The court finds that Dr. Sidhom has failed to demonstrate his prima facie entitlement to dismissal of plaintiffs lack of informed consent claim. In this regard, the court notes that although Dr. Sidhom testified that he presented plaintiff with the options available with regard to teeth #'s 13 and 15 and informed her of the risks and benefits of each option, his expert merely opines that consent was implied with: regard to the restorative treatment he performed. The expert fails to address whether a reasonably prudent person in plaintiffs position would have chosen an apicoectomy over retreatment had she been fully informed of all of the risks and benefits and whether the failure to refer plaintiff to an endodontist, rather than to an oral surgeon, proximately caused her injuries (see Mirshah v. Obedian, 200 A.D.3d 868, 874 [2d Dept 2021]).
In opposition to Dr. Sidhom's motion and in support of plaintiff s cross motion, plaintiffs expert opines that Dr. Sidhom departed from the standard of care when performing root canals on teeth #'s 28 and 29 during 2010 and 2011 by failing to use a rubber dam during the root canal therapy and by failing to adequately fill the canals.
The court; notes that there are no allegations related to tooth #28 or tooth #29 contained in plaintiffs Bill of Particulars. Accordingly, the court declines to consider this alternative theory of liability raised for the first time in opposition to Dr. Sidhom's motion (see Garcia v Richter, 132 A.D.3d 809, 810 [2d Dept 2015]).
Plaintiffs expert opines that the upper left bridge (teeth #13-15) installed by Dr. Sidhom in 2002, and reinstalled in 2008, were below the standard of care because the crowns did not fit the prepared teeth. Moreover, he opines that Dr. Sidhom departed from the standard of care by negligently performing root canal therapy on teeth #5s 13 and 15 in many respects, including; failing to use a rubber (dental) dam when he performed root canal therapies on these teeth, as there are significant benefits associated with its use, including that it increases the likelihood of success of root canal therapy. The expert opines that the failure to use a dam contributed to the failure of the root canals on teeth #'s 13, 15, and 30. Additionally, he opines that Dr. Sidhom's root canal procedures were below the standard of care because he placed posts in canals in teeth #'s 13 and 15 when the canals were inadequately filled with gutta percha, and that the failure to refer plaintiff to an endodontist to properly complete root canal therapies on these teeth and the failure to inform her of the option of retreatment before recommending apicoectomies, was a departure from the standard of care. Plaintiffs expert Further opines that this departure caused her to require treatment by Dr. Costagliola, Dr. Johnson, SIUH, and resulted in the loss of teeth #'s 13 and 15 which necessitated the placement of implants in the upper left quadrant, as well as pain, suffering, bleeding, and sinus difficulties.
With regard to plaintiffs informed consent claim, her expert opines that a "reasonably prudent person in the patient's situation would have selected retreatment over apicoectomy on. teeth .1.3. and 15 if she had been reasonably informed. A reasonably prudent person, if she had known about Dr. Sidhom's lack of skill, training, and knowledge regarding root canal therapy, would not have permitted Dr. Sidhom to perform root canal therapy on her teeth" (NYSCEF Doe No, 129, Plaintiffs expert aff).
Here, plaintiffs expert disagrees with the opinions of Dr. Sidhom's expert, and has raised factual issues regarding whether Dr, Sidhom negligently performed root canals on teeth #'s 13 and 15, whether he was negligent in placing the bridge related to teeth #'s 13-15, and whether this was a departure from the standard of care which proximately caused her injuries. Accordingly, the conflicting opinions of plaintiffs expert and defendant's expert present triable factual issues which cannot be resolved on this summary judgment motion (see Schmidt v Bangiyev, ___A.D.3d___, 2022 NY Slip Op 06510 [2d Dept 2022]; Many v Lossef, 190 A.D.3d 721; 723 [2d Dept 2021]; Kiernan v Arevalo-Valencia, 184 A.D.3d 727,728 [2d Dept 2020]; Joyner v Middletown Med., P.C., 183 A.D.3d 593, 594 [2d Dept 2020]). Based upon the foregoing, Dr. Sidhom's motion seeking summary judgment dismissing plaintiff s claims is denied in its entirety.
Plaintiff's Cross Motion (Mot. Seq. No 10)
Plaintiff cross-moves (in mot. seq. no. 10) for an order denying all of the defendants' motions. For the reasons discussed in detail above, plaintiff's cross motion is granted in all respects with regard to Dr. Johnson and Dr. Sidhom's motions and is granted as relates to that branch of Dr. Costagliola's motion seeking summary judgment dismissing plaintiffs dental malpractice claim. Plaintiffs cross motion with regard to that branch of Costagliola's motion seeking dismissal of plaintiffs lack of informed consent claim is denied.
The: court, haying considered the parties remaining: contentions, finds them unavailing.
Conclusion
Accordingly, it is
ORDERED that Dr. Johnson's motion (mot. seq. no. 7) is denied in its entirety; and it is further
ORDERED that branch of Dr. Costagliola's motion (mot. seq. no. 8) seeking summary judgment dismissing plaintiffs dental malpractice claims is denied and that branch seeking dismissal of plaintiffs informed consent claim as asserted against Dr, Costagliola is granted; and it is further
ORDERED that Dr. Sidhom's motion (mot. seq. no. 9) is denied in its entirety; and it is further
ORDERED that plaintiffs cross motion (mot. seq. no. 10) is granted with the exception of that branch which seeks denial of that branch of Dr. Costagliola's motion seeking dismissal of plaintiff s informed consent claim.
All relief not specifically granted herein has been considered and is denied.
The foregoing constitutes the decision and order of the court.