Opinion
Index No. 26273/19
06-08-2023
Nancy Pereira Torres and STEVEN J. TORRES, Plaintiffs, v. Otto Gonzalez, D.D.S., MARLON K. MOORE, D.M.D., and PARKCHESTER ORAL AND MAXILLOFACIAL SURGERY ASSOCIATES, P.C., Defendants.
Plaintiffs' Attorney Michael A. Chinitz, Esq. Coiro & Chinitz Dr. Gonzalez's Attorney Ian I. Glick, Esq. Catalano Gallardo & Petropoulos, LLP
Unpublished Opinion
Plaintiffs' Attorney
Michael A. Chinitz, Esq.
Coiro & Chinitz
Dr. Gonzalez's Attorney
Ian I. Glick, Esq.
Catalano Gallardo & Petropoulos, LLP
Hon. Joseph E. Capella, J.S.C.
The following papers numbered 1 to 3 read on this motion dated January19, 2023.
PAPERS/NUMBERED
NOTICE OF MOTION & AFFIRMATION 1
ANSWERING AFFIRMATION 2
REPLY AFFIRMATION 3
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Motion by defendant, Otto Gonzalez, D.D.S., for summary judgment (CPLR 3212) and dismissal of plaintiffs' complaint, which alleges dental malpractice, lack of informed consent and loss of consortium, is granted in part and denied in part. In summary, plaintiffs allege that Dr. Gonzalez failed to properly fabricate and place a 3-unit bridge (teeth numbers 3, 4 and 5) and crown (tooth number 8) on plaintiff, Nancy Pereira Torres (Nancy), and failed to ensure that co-defendant, Dr. Moore, properly provided the treatment he was responsible for. According to plaintiffs, as a result of Dr. Gonzalez's malpractice, Nancy suffered, inter alia, infection, disfiguring appearance of mouth, difficulties chewing/eating and pain. The initial burden is on Dr. Gonzalez to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 N.Y.2d 320 [1986].) If he does, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 N.Y.2d 320), and denial of summary judgment.
In support of the motion is a detailed and thorough expert affirmation by Dr. Frank J. Tuminelli, who is board certified in prosthodontics, and opines that Dr. Gonzalez did not depart from good and accepted standards of prosthodontic care. According to Dr. Tuminelli, in a prosthetic restoration plan, such as the one performed here, the treating surgeon is ultimately responsible for selecting the final locations for the implant placement at the time of surgery that would allow for restoration with the planned prosthetics based on Nancy's existing anatomy. The reason for this is because the oral surgeon is in a better position to determine where they can be placed, what size and type of implant to place, and the appropriate surgical technique to use in placing them. According to Dr. Tuminelli, Dr. Gonzalez acted in accordance with the standard of care when he appropriately deferred to Dr. Moore's determination as to the best locations to place the two implants in the areas of teeth numbers 3, 4 and 5.
Dr. Tuminelli opines that Dr. Gonzalez complied with the standard of care in fabricating and placing a 3-unit bridge, the location of which is dependent on where the implants are placed. And he saw no clinical evidence to suggest the bridge was inadequately supported. Dr. Tuminelli notes that Nancy did complain that food was getting trapped underneath the free pontic, but attributed this to a need for proper oral hygiene. He also notes that the color and aesthetics of the 3-unit bridge were Nancy's choice, as she worked directly with the laboratory in making her selections. Dr. Tuminelli opines that Dr. Gonzalez's use of cement is an accepted method to permanently retain a prosthetic device to an implant, and the decision to do so instead of screwing the device is not a deviation from the standard of care. He states that both are effective fixation methods, and the choice of either is an accepted clinical judgment.
Dr. Gonzalez also argues that plaintiffs' lack of informed consent claim must be dismissed because his treatment did not involve any surgical procedures, injections or invasive diagnostic tests. (Etkin v Marcus, 74 A.D.2d 633 [2d Dept 1980].) Lastly, Dr. Gonzalez argues that plaintiffs' derivative claim for loss of consortium must be dismissed once the primary claim for malpractice fails. (Maddox v City of New York, 108 A.D.2d 42 [2d Dept 1985].) Based the aforementioned, the Court is satisfied that Dr. Gonzalez has met his burden for summary judgment, (Zuckerman v City of NY, 49 N.Y.2d 557 [1980]; Kaffka v NY Hospital, 228 A.D.2d 332 [1st Dept 1996]), which now shifts to plaintiffs to demonstrate that issues of fact exist to warrant a trial. In other words, plaintiffs must provide an expert who opines to a reasonable degree of medical certainty that Dr. Gonzalez departed from the standard of care, and that such departure was a proximate cause of Nancy's injuries. (Mortensen v Memorial, 105 A.D.2d 151 [1st Dept 1984].) In opposition, plaintiffs provide an expert affirmation from a dentist who is licensed to practice in New York, and has "advanced training in various aspects of dentistry with an emphasis on implants and cosmetic dentistry." The affirmation does not elaborate on the type of advanced training, nor does it provide any foundation as to this expert's knowledge on the standard of care in prosthodontics, and how such knowledge was obtained (Greenspan v Stand-Up, 206 A.D.3d 588 [1st Dept 2022]).
The name of the expert is redacted pursuant to CPLR § 3101(d)(1)(i).
There is no dispute that Dr. Gonzalez's treatment plan placed the two implants in teeth positions number 3 and 5; however, it appears that Dr. Moore placed them in number 4 and 5 based on bone adequacy. According to this expert, "if the restorative dentist (emphasis added) felt the implants were not placed in a position he felt was good for him to provide the patient with good restorative results, he should not have restored the case in the first place and sent the patient back to the oral surgeon to remove the implants and then have them replaced in a position that he could have provided a good restorative outcome." It is unclear what evidence plaintiffs' expert relies upon to suggest that the implants were not placed in a good position, or that Dr. Gonzalez shared this belief. This expert then goes on to use the hypothetical "restorative dentist" to suggest that Dr. Gonzalez departed from the standard of care in not referring Nancy back to Dr. Moore when he noticed the placement of the implants. However, this entire opinion appears to be based on facts that are not in evidence.
Plaintiffs' expert opines that the wrong type of restoration was fabricated and placed. According to this expert, Dr. Gonzalez should have fabricated a restoration which was a screw down to avoid discomfort, and that this was a departure from good and accepted dental practice. The expert also opines that Dr. Gonzalez should have had the lab use pink porcelain under the pontic of tooth number 5 to make it more esthetically pleasing to Nancy. However, this does not address the fact that the color and aesthetics were Nancy's choice, as she worked directly with the laboratory in making her selections. The expert also opines that an I-Cat exam was never performed, and a surgical/study guide was not used when the implants were placed. However, Dr. Gonzalez was not involved with the surgical aspects of Nancy's care, and his involvement was limited to post-surgical restorative efforts. (Huffman v The Linkow, 35 A.D.3d 214 [1st Dept 2006].) In addition, as these opinions relate to the surgical aspect of the treatment, this expert failed to establish the requisite qualifications to render such an opinion (Nguyen v Dorce, 125 A.D.3d 571 [1st Dept 2015]).
Viewing the evidence in a light most favorable to plaintiffs, (O'Sullivan v Presbyterian, 217 A.D.2d 98 [1st Dept 1995]), there is only one opinion rendered by plaintiffs' expert in the area of general dentistry that creates an issue of fact, and that is whether Dr. Gonzalez should have fabricated a restoration which was a screw down to avoid discomfort to Nancy. As for the other opinions rendered by plaintiffs' expert, they are beyond his area of expertise, speculative and conclusory, and it is well settled that mere surmise, suspicion and accusations are insufficient to defeat summary judgment. (Oates v Marino, 106 A.D.2d 289 [1st Dept 1984].) Therefore, that portion of the motion by Dr. Gonzalez which seeks dismissal of Nancy's claim that Dr. Gonzalez should have fabricated a restoration which was a screw down to avoid discomfort, and co-plaintiff's loss of consortium claim, is denied. The balance of the motion is granted, and all other claims are dismissed accordingly. Dr. Gonzalez is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.