Opinion
SCK 6681/10.
Decided June 10, 2011.
Anne Donofrio, claimant pro-se.
Fager Amsler, LLP, East Meadow, NY, for the defendant.
I. Introduction
In this Small Claims action, the claimant, Anne Donofrio, seeks to recover $4,420 for monies she paid to dental practitioners for services they performed after a piece of metal file lodged in her tooth during a root canal procedure performed by the defendant dentist, Dr. Robert Adler. At trial, the claimant testified in her own behalf and presented documentary evidence, but no expert testimony. The defendant testified both as a fact witness and expert witness and presented documentary evidence of his own. The primary issue presented is whether the doctrine of res ipsa loquitor applies so as to relieve the claimant of the requirement of presenting expert testimony to establish her dental malpractice claim. Upon the evidence presented at trial, and for the reasons set forth below, the court finds that the doctrine is inapplicable in this case, and that the claimant failed to meet her burden of proof, requiring dismissal of her claim.
II. Trial Evidence
The claimant testified that the defendant performed a root canal procedure on her tooth at his office on November 4, 2008, and she learned sometime later that during the procedure a piece of the metal file broke off and remained lodged in her tooth. According to the claimant, the defendant did not inform her of this on November 4, and that she was inexplicably in pain for months following the procedure. She further testified that she returned to the defendant after the procedure, complaining of this pain, but he still failed to inform her about the broken file, remove the file, or relieve the pain.
The claimant eventually saw another dentist on April 2, 2009, and that dentist also referred her to an endodontist, Dr. Farber. Dr. Farber saw her on April 6, 2009, but, he too, was unable to remove the file. The claimant then saw Dr. Pavlakos, who pulled the tooth at a cost of $1,800. The claimant explained that Dr. Pavlakos also installed half of the implant in her tooth, but she could not then afford the $2,450 cost to finish the procedure.
The claimant's bills from Drs. Farber and Pavlokos, as well as a photograph of her extracted tooth with a metal spiral file protruding from its root, were admitted into evidence. She testified that this photograph was taken by Dr. Pavlakos, after he removed the tooth.
The claimant testified that she was seeking reimbursement for her visits to Drs. Farber and Pavlokos, as well as the estimated cost to complete her tooth implant.
After the claimant rested, the defendant sought dismissal of this complaint based on her failure to establish a prima facie malpractice case with expert testimony. The court reserved decision on the motion.
The defendant testified as to his education, training and experience as a dentist, including the fact that he has performed some 22,000 root canal procedures. Upon his attorney's motion and without objection by the claimant, the court declared him an expert in general dentistry.
According to the defendant, prior to performing the root canal, he informed the claimant that her tooth was cracked on the inside, underneath the gumline, that it would require a root canal, a post and a crown for repair, and that the prognosis for complete repair was poor. He reviewed the informed consent form with her, which states in sum and substance that there is no guarantee that the root canal will save her tooth, that complications may occur, that occasionally metal objects are cemented in the tooth or extend through the root, which does not necessarily bear on the success of the treatment, that occasionally additional surgical procedures may be necessary following root canal treatment and that the patient understands that the tooth may require endodontic care. After the defendant reviewed the informed consent with her, the claimant agreed to go forward with the procedure.
The defendant further testified that during the procedure, he removed the broken piece of tooth and that while completing the procedure, a piece of the instrument he was using separated and became lodged in the claimant's tooth. He testified that this occurs in approximately 10-15% of root canal procedures he performs. According to the defendant, when an instrument separates during a procedure in this manner, he is usually able to retrieve and remove it. However, where, as here, he is unable to remove it, he refers the patient to an endodontist for removal. It was the defendant's opinion that the mere presence of metal poses no risk to the patient inasmuch as most fillings are metallic.
The defendant testified that he immediately informed the claimant about the breakage when it occurred, and provided her with a written referral to an endodontist. The written referral form was admitted into evidence, along with the claimant's dental records and an informed consent waiver signed by the claimant.
The defendant further testified that the claimant returned to see him on December 4, 2008, and reported that her tooth was comfortable but requested that he install a crown. He again advised her against a crown, and told her that she should first have the broken file removed by an endodontist. The claimant told him she did not visit an endodontist because her insurance carrier would not cover such a visit. The claimant visited the defendant again on December 11, 2008, and again reported to him that her tooth was comfortable and insisted that he install a crown on the tooth. The defendant reviewed the same informed consent form with the claimant. He testified that he did not promise any cure or definite result from the treatment. Rather, he explained to the claimant that he could not guarantee any particular result. The defendant then installed a crown on the tooth, as per the claimant's request. Her visits to the other dental practitioners ensued.
Testifying as an expert, the defendant opined that the treatment he provided to the claimant, including his use of the instrument for the root canal procedure was consistent with accepted standards of dental practice. He explained that the standard of care when an instrument breaks off in a tooth is to remove it and if that is not successful, to refer the patient to an endodontist, and that is precisely what he did in this case.
III. Discussion
To establish a prima facie case of dental malpractice, a plaintiff must show that (1) there was a deviation or departure from the requisite standard of dental practice and (2) the departure from the requisite standard of practice was a proximate cause of the complained of injury. See Perricone-Bernovich v Gentle Dental , 60 AD3d 744 (2nd Dept. 2009); Steginsky v Gross , 46 AD3d 671 (2nd Dept. 2007). It is well settled that, in order to establish such a departure, a plaintiff must present expert medical testimony. See McGinn v Sellitti, 150 AD2d 967 (3rd Dept. 1989); Cosme v Bauer, 27 Misc 3d 130(A) (App Term, 9th and 10th Jud Dists 2010); Cava v Fox, 22 Misc 3d 132(A) (App Term, 9th and 10th Jud Dists 2008); Awkar v Zegarelli, 15 Misc 3d 137(A) (App Term 9th and 10th Jud Dists 2007). Furthermore, the requirement of expert testimony is not dispensed with merely because the plaintiff chooses to litigate in Small Claims Part of the court. See Cosme v Bauer, supra; Cava v Fox, supra; Awkar v Zegarelli, supra. Thus, in Crennan v Omnicare Dental , 9 Misc 3d 127 (A) (App Term 1st Dept. 2005), the Appellate Term ruled that a plaintiff proceeding in Small Claims court against a defendant dentist who she claimed departed from accepted dental procedure by installing a dental implant "too close to the tongue" was required to present expert medical evidence in order to meet her burden of proof. Since she did not, the claim was found to have been properly dismissed after trial.
Likewise, in the instant case, the claimant failed to present any expert testimony to show that the defendant departed from accepted dental practice. This precluded any finding that the defendant was liable under such a theory. Moreover, the defendant, who was deemed an expert in general dentistry, gave credible testimony that there was no departure from requisite standards of dental practice. In this regard, the court notes that a party may testify as an expert witness notwithstanding a personal interest in the event. See CPLR 4512; Thoma v Thoma , 21 AD3d 1080 (2nd Dept. 2005); Zinn v Jefferson Towers, Inc. , 14 AD3d 398 (1st Dept. 2005); Vega v LaPalorcia, 281 AD2d 623 (2nd Dept. 2001).
As stated above, the defendant testified that he informed the claimant prior to the procedure, when she read and signed the informed consent form, that there was a risk that the file could break or separate, and that when that did in fact occur, he immediately informed her about the separated instrument, and referred her to an endodontist who could remove it, as per his standard procedure. In that regard, the court does not credit the claimant's testimony that she remained unaware of the file in her tooth for months, particularly in light of her testimony that she experienced periods of substantial pain after November 4, 2008.
Nor is this claimant relieved of the requirement of presenting expert testimony by invocation of the doctrine of res ipsa loquitor.
"In a medical malpractice action, the theory of res ipsa loquitor permits an inference of negligence to be drawn by the fact finder from the very circumstances of the occurrence, despite the absence of expert testimony regarding the proper standards of practice." Delaney v Champlain Valley Physicians Hosp. Med. Ctr, 232 AD2d 840, 841 (3rd Dept. 1996); see States v Lourdes Hosp., 100 NY2d 208 (2003), rearg denied 100 NY2d 577 (2003). However, "[t]he first prerequisite for invocation of the doctrine of res ipsa loquitor, and the inference of negligence it permits, is that the injury-causing event be of a kind that ordinarily does not occur in the absence of negligence." States v Lourdes Hosp., supra at 210. The plaintiff asserting such a theory must also establish that the event was "caused by an agency or instrumentality within the exclusive control of the defendant" and was not "due to any voluntary action or contribution on the part of the plaintiff." Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 (1986). This theory is applicable only in "a narrow category of factually simple medical malpractice cases." Kambat v Saint Francis Hosp., 89 NY2d 489, 496 (1997).
Applying these principles in Kambat v Saint Francis Hosp., supra, the Court of Appeals held that the principle of res ipsa loquitor was properly applied where an 18" x 18" laparotamy pad, used by the defendant during a hysterectomy, was left inside the patient's abdomen. The pad was not discovered until three months later when the patient experienced stomach pain and underwent an x-ray which showed the object left in her abdomen. Although the pad was removed by further surgery, the patient died the following month from acute infection. Subsequently, in Escobar v Allen , 5 AD3d 242 (1st Dept. 2004), the plaintiff patient alleged that during the course of a bunionectomy performed by the defendant physicians two guide wire pins broke, leaving metal fragments in her foot, and that she suffered extreme pain, a deformity and a severe limitation of the motion and function to her toes, requiring further surgeries. While not deciding the merits of the plaintiff's res ipsa loquitor claim, the Appellate Division held that, in light of the allegations in the pleadings, the claim was improperly dismissed prior to trial. Similarly, in Dengler v Posnick , 83 AD3d 1385 (4th Dept. 2011), the Appellate Division held that a motion to dismiss a res ipsa loquitor claim was properly denied where the plaintiff patient suffered a burn injury during the course of arthroscopic surgery, the defendant conceded that the likely cause of the burn was an overheated surgical instrument, and the plaintiff established, prima facie, the three requisite elements of res ipsa loquitor.
The court notes that the instant case was not before it on a motion to dismiss but went to trial, with both parties testifying. Thus, more on point is the case of Streeter v Ackerman, 2003 WL 21960351 (NY Sup App Term), 2003 Slip Op. 51199(U), where the Appellate Term held that res ipsa loquitor was improperly invoked against an opthamologist who poked the plaintiff's eye and caused a corneal abrasion during a glaucoma examination. In so holding, the court noted that "the defendant doctor's trial testimony here established without refutation that a corneal abrasion was a possible, albeit remote risk of the glaucoma examination involved." Streeter v Ackerman, supra. Res ipsa loquitor was also found inapplicable in George v City of New York, 22 AD2d 70 (1st Dept. 1964), affd 17 NY2d 561 (1966), where the Appellate Division held that a plaintiff was not entitled to summary judgment on that theory even though the allegations were that a doctor perforated the wall of the patient's bowel while performing a barium enema, causing barium and bowel content to leak into his peritoneal cavity, resulting in his death. In reaching that conclusion, the Court observed that the plaintiff presented no proof at trial to establish either that the barium enema was contraindicated or performed negligently. The Court stated, "[a]s regards the human body, its capacities and tolerances, it is a rare case where common knowledge is sufficient to show that an accident would not have happened without negligence. Clearly, this is not one of those rare cases." George v City of New York, supra at 70. Nor is the instant case one of those "rare cases." ( Id.) inasmuch as the claimant has failed to make a showing that the injury would not normally have occurred in the absence of negligence. See Streeter v Ackerman, supra, citing Kambat v St. Francis Hosp., supra. Since the average layperson is not familiar with root canal procedures and its attendant risks, this is not a case where it could be readily determined whether the breakage of the dental instrument would not have occurred without negligence on the part of the defendant dentist. See George v City of New York, supra; Streeter v Ackerman, supra. The facts of this case do not rise to the level of those where a foreign object, such as a laparotomy pad is left, unknowingly, inside of a patient following surgery ( Kambat v Saint Francis Hosp., supra), or where it was alleged that an unspecified number of wire fragments remain lodged in a patient's foot after a bunionectomy and that the surgery was otherwise performed in a negligent manner, causing a deformity and other consequential injuries. See Escobar v Allen, supra. For these reasons, the instant case falls outside the "narrow category of factually simple medical malpractice cases" ( Kambat v Saint Francis Hosp., supra at 496) in which the doctrine can be applied. Thus, even if the other two requisite elements for res ipsa loquitor are established — that the breakage was caused by an instrumentality within the exclusive control of the defendant and was not due to any voluntary action or contribution on the claimant's part ( see Dermatossian v New York City Tr. Auth., supra), her failure to establish the first prerequisite by showing that the breakage was the type of event "that ordinarily does not occur in the absence of negligence" ( States v Lourdes Hosp., supra at 210) precludes application of the doctrine here.
In any event, even assuming that the doctrine of res ipsa loquitor were applicable in this case, this alone would not establish negligence but, as stated above, would merely allow for an inference to be drawn by the finder of fact. See States v Lourdes Hosp., supra; Delaney v Champlain Valley Physicians Hosp. Med. Ctr., supra. Here, the court finds that the inference was rebutted by the defendant dentist's unrefuted opinion that he was not negligent and his testimony that a broken file was a common risk of a root canal procedure, occurring in 10-15% of cases, that he informed the claimant of this prior to the procedure, and that when this occurred, he immediately informed the claimant and referred her to an endodontist to have it removed. See Streeter v Ackerman, supra.
While the result of the claimant's root canal was "truly unfortunate, a bad result does not, ipso facto, support a claim for medical malpractice." Schloch v Dougherty, 122 AD2d 467, 468 (3rd Dept. 1986) lv denied 69 NY2d 605 (1987). Similarly, res ipsa loquitor has been found inapplicable even in cases of much greater consequence to the patient than the pain alleged to have been suffered by the claimant here. See e.g. George v City of New York, supra. Consequently, she may not recover under those theories.
Finally, the claimant may not recover under a breach of contract theory since she failed to come forward with any proof that the defendant made an "express special promise to effect a cure or accomplish some definite result." Clarke v Mikail, 238 AD2d at 538-539 (2nd Dept. 1997). Indeed, the credible evidence adduced at trial establishes just the opposite. The defendant credibly testified that he fully informed the claimant of the inherent risks associated with this procedure and she signed a consent form which detailed the possible risks, including the one that was realized during the procedure.
IV. Conclusion
For the reasons stated above, the claimant failed to meet her burden of proof and the claim is dismissed. Accordingly, it is,
ORDERED that judgment is granted in favor of the defendant and the claim is dismissed.
This constitutes the Decision and Order of the court.