Opinion
# 2017-015-267 Claim No. 123990
10-16-2017
TIMOTHY WALLACE v. THE STATE OF NEW YORK
Franzblau Dratch, PC By: Brian Dratch, Esq. Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon, Esq. Assistant Attorney General
Synopsis
Dental malpractice claim arising from the extraction of a wisdom tooth and resulting nerve damage was dismissed following trial.
Case information
| UID: | 2017-015-267 |
| Claimant(s): | TIMOTHY WALLACE |
| Claimant short name: | WALLACE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123990 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Franzblau Dratch, PC By: Brian Dratch, Esq. |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 16, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant alleges he was injured as a result of the extraction of an impacted wisdom tooth while he was confined as an inmate at Mid-State Correctional Facility (Mid-State) on April 11, 2012. Trial of this matter was conducted on August 9, 2017.
The claimant did not appear and testify at trial. Instead, counsel offered claimant's examination before trial (claimant's Exhibit 2) taken at the Metropolitan Correctional Center in New York City on December 16, 2016. At his deposition, claimant testified that he was first received into the custody of the New York State Department of Corrections and Community Supervision (DOCCS) at Downstate Correctional Facility (Downstate) on August 30, 2010. While at Downstate, the claimant received both medical and dental examinations, and was thereafter transferred to Mid-State Correctional Facility in Marcy, New York.
According to the claimant, he was experiencing pain in a tooth during April 2012. He was seen by medical professionals at Mid-State and scheduled for surgical extraction of his lower left wisdom tooth. He acknowledged signing a Consent For Major Medical Treatment And/Or Surgical Procedures form on April 11, 2012 prior to his surgery (defendant's Exhibit D).
Claimant testified that the oral surgeon performing the surgery had advised him only "that it will be numb for a few hours, and that was it" (claimant's Exhibit 2, pp. 28-29).
Following extraction of his wisdom tooth, the claimant experienced numbness of the lower lip and inside of his mouth on the left side of his face. In an inmate grievance complaint dated May 11, 2012 (claimant's Exhibit 1), claimant complained with regard to his numbness and requested that he "be re-examined in the near future by an expert to see if there is any way to repair what was done to me". Claimant's grievance was accepted "to the extent that the grievant has a consult scheduled with the oral surgeon" (id. at p. 2). Claimant appealed the partial acceptance of his grievance stating "I was already seen by an oral surgeon on 5/8/12 who explained that the problem is possible nerve damage and that there's nothing an oral surgeon can do. Therefore, I am [requesting] to be seen by an [sic] neurologist to have the problem fixed" (id. at p. 3). The claimant testified at his deposition that following surgery he experienced both numbness and a painful "pins and needle feeling" in the area of his jaw on the left side of his face (claimant's Exhibit 2, pp. 39-40).
Following the surgical extraction of his wisdom tooth on April 11, 2012, the claimant was seen at the Mid-State infirmary two days later complaining of numbness in his lip and chin. Claimant was again seen at the infirmary on May 8, 2012 complaining of numbness. Again, on June 13, 2012, he was seen at the infirmary complaining of continued numbness in his left lip and chin. Claimant was prescribed prednisone to address the numbness in his lip and chin which was dispensed on July 2, 2012. Claimant was next seen in the infirmary on July 31, 2012, complaining of a prickly sensation in his lip area. He appeared again on October 23, 2012 requesting that he be seen by a medical professional who could address the continued numbness in the lower left portion of his jaw. An entry in claimant's dental treatment record dated November 14, 2012 states that the patient will be referred for "eval. of numbness" and that the claimant indicates "it feels a little better - no more pins + needles . . . only lip and chin feels different" (defendant's Exhibit C, p. 4). Claimant agreed at his deposition that during his November 2012 consultation he indicated that his condition felt improved "but I don't remember saying no more pins and needles because it is actually still numb. I mean, at that time, if I remember" (claimant's Exhibit 2, p. 50). At his next dental consultation on December 12, 2012, claimant again complained regarding numbness in his left lip and an evaluation by a neurologist or neurosurgeon was recommended. The final entry in claimant's dental treatment record indicates that he was seen on January 9, 2013, again complaining of numbness. In response to questions posed by his counsel, claimant denied that he was informed prior to surgery that extraction of his wisdom tooth could result in permanent nerve damage.
The claimant called Dr. Scott Goldstein as his expert witness. Dr. Goldstein is board certified in oral and maxillofacial surgery and has maintained a private practice as an oral surgeon for 37 years. The witness regularly removes wisdom teeth as part of his practice.
Dr. Goldstein testified that he reviewed claimant's medical records, hospitalization records and examination before trial testimony prior to testifying. He testified that claimant's dental treatment record, received as Exhibit C, indicates that the claimant was seen on April 5, 2012 with complaints regarding one of his wisdom teeth, tooth number 17. The note from that date indicates that the claimant was to be seen by an oral surgeon. Claimant's tooth number 17 was removed by an oral surgeon on April 11, 2012.
The witness first noted that the consent form signed by the claimant on the date of his surgery failed to specifically identify numbness and nerve damage as potential risks or complications of the surgery to extract claimant's wisdom tooth. According to Dr. Goldstein, the failure to specifically identify nerve damage as a risk or complication of the surgery deviated from accepted standards of care with regard to the removal of wisdom teeth. He also noted that the only X-ray available to the oral surgeon prior to surgery was one taken on August 31, 2010. Dr. Goldstein described claimant's medical condition prior to surgery as constituting a "full bony horizontal impaction" in which the crown of the tooth is fully or partially covered by either gum or bone. It was his opinion that prevailing standards of care required that a panoramic X-ray be taken of the impacted tooth in close proximity to the date of surgery. Although a panoramic X-ray of claimant's mouth was taken on August 31, 2010, that X-ray was too distant in time from the date of the surgery to comply with prevailing standards.
All quotes are taken from the trial recording unless otherwise indicated.
Reviewing Exhibit C, claimant's dental treatment record, the witness testified that an entry dated April 13, 2012 indicates the claimant appeared for treatment complaining of numbness in his lip and chin. The claimant was again seen regarding complaints of numbness on May 8, 2012, and was thereafter seen by an oral surgeon on June 13, 2012. Surgical intervention to repair claimant's nerve was discussed during his examination by the oral surgeon although he was never referred for surgery. According to Dr. Goldstein, approximately five percent of patients will experience some form of numbness following surgery to extract an impacted wisdom tooth. While numbness may be transient in nature, after approximately two months of persistent numbness the condition is likely permanent. According to Dr. Goldstein, surgery to repair nerve damage as a consequence of a wisdom-tooth extraction must be performed within six months of the date of surgery. Three to four months following surgery is an ideal period within which nerve repair surgery can be undertaken with the greatest likelihood of success.
The witness noted claimant's continued complaints of numbness in July and October 2012, and that the claimant was examined by the surgeon who performed the original oral surgery in November 2012, at which time it was recommended that claimant be seen by a neurologist or neurosurgeon to explore surgical repair of the affected nerve. Dr. Goldstein testified that surgery to repair the damage to claimant's nerve would be performed by an oral surgeon, and not a neurologist or neurosurgeon, and that, in any event, it was too late in November 2012 to surgically repair the damaged nerve. In concluding his direct testimony, the witness stated his opinion that the numbness in claimant's left lower lip and chin was the result of nerve damage caused by the failure to take a new panoramic X-ray at a point in time proximate to the date of surgery. In the absence of X-rays more current than those taken on August 31, 2010, the surgeon was unable to know the relative risks of the procedure, in particular with regard to the potential for injury to claimant's nerve. It was Dr. Goldstein's opinion that the numbness experienced by the claimant in June 2012, more than two months following removal of his wisdom tooth, was permanent in nature. In addition, Dr. Goldstein stated his opinion that the failure to refer the claimant to a surgeon for surgical repair of his damaged nerve was a deviation from prevailing medical standards.
On cross-examination, the witness recognized that DOCCS' Division of Health Services dental program guidelines provide for panoramic X-rays "as required" (claimant's Exhibit E). He then reviewed Exhibit B, a photocopy of a panoramic X-ray of the claimant taken in August 2010, which he testified does not depict claimant's nerve canal. He acknowledged that an entry dated April 11, 2012 contained in the claimant's dental treatment record indicates "risks + complications explained to PT", and that post-surgical complications of his surgery were explained to the claimant when he appeared on April 13, 2012 complaining of numbness in his lip and chin (defendant's Exhibit C, p. 1). He explained that the normal complications of a wisdom-tooth extraction include dry socket, infection, nerve injury, and bleeding. He described the use of the steroid-dose pack prescribed for claimant on June 13, 2012, and dispensed on July 2, 2012, as appropriate for addressing pain and swelling, and stated that the steroid-dose pack could have had some affect on claimant's numbness had it been temporary rather than permanent in nature. Finally, in response to a note contained in claimant's dental treatment record dated November 14, 2012, which states "PT referred for eval. of numbness (left) lip states it feels a little better - no more pins and needles" (id. at p. 4), Dr. Goldstein testified that sensation can change over time in cases of permanent or long term numbness due to nerve injury.
The defendant called Dr. Trevor Bechtel as its expert witness. Dr. Bechtel testified that he has been employed as a dentist since 2005 and currently practices as a partner at Lesch and Bechtel Family Dentistry. As indicated in his curriculum vitae, received as Exhibit G, Dr. Bechtel was associated with a practice which provided dental services at state juvenile detention facilities and county correctional facilities within the State of New York between 2008 and 2010.
The witness identified Exhibit A as a dental clinical record dated August 31, 2010 prepared as part of claimant's initial intake exam at Downstate Correctional Facility. He also identified Exhibit B as a panoramic X-ray of the claimant's mouth taken at Downstate on the morning of August 31, 2010. It was Dr. Bechtel's opinion that the surgeon performing the removal of claimant's wisdom tooth on April 11, 2012 could reasonably rely on the panoramic X-ray taken at Downstate in August 2010. He stated that the anatomy of a patient over age 25 as depicted in the panoramic X-ray does not change over time except in cases of trauma or infection. According to the witness, the X-ray "shows the entire tooth in question, as well as the entire dentition." He noted that not all correctional facilities are equipped to take panoramic X-rays and stated that, in his opinion, the 20-month time differential between the taking of the panoramic X-ray received as Exhibit B and the date of surgery does not render the X-ray unreliable for purposes of planning and performing the surgery under accepted standards of dental practice. It was his opinion that use of the August 31, 2010 X-ray in preparing for and performing claimant's wisdom tooth extraction in April 2012 did not constitute a departure from such standards.
With regard to claimant's informed consent, the witness first noted an entry in claimant's dental treatment record dated April 11, 2012 which states "risks + complications explained to PT" (defendant's Exhibit C, p. 1). He also reviewed Exhibit D, the consent form signed by the claimant on April 11, 2012 prior to surgery. The form states, in part, that "the nature and purpose of the treatment, operation or procedure along with possible alternative treatment methods, the risks involved, and possible complications have been fully explained to me by Dr. Lionel Bulford, Oral Surgeon D.D.S./M.D.". Dr. Bechtel testified to his opinion that the lack of specificity in the consent form with regard to the particular risks and complications of claimant's surgery does not constitute a deviation from accepted medical standards. According to the witness, it is impossible to list every potential risk of a surgical procedure. Rather, accepted medical standards are met through both the notation in claimant's clinical records indicating that the risks and complications had been explained, as well as claimant's signed acknowledgment in the consent to treatment form that the risks and potential complications of the surgery had been fully explained. In his opinion, DOCCS did not breach any standard of care in either performing the extraction or obtaining claimant's informed consent regarding the potential risks and complications of the procedure. Finally, from his review of the records, Dr. Bechtel testified that claimant's post-operative follow up treatment also met prevailing standards of post-surgical medical care.
On cross-examination, the witness testified that he has been engaged in the private practice of dentistry since 2005 and that his experience includes hospital, clinic and correctional settings. He estimated that he has extracted "hundreds" of wisdom teeth during his career, 25 of which involved fully or partially impacted wisdom teeth.
Dr. Bechtel acknowledged that the panoramic dental X-rays of claimant's mouth taken on August 31, 2010 occurred approximately 20 months prior to the date of his surgery. He further acknowledged that DOCCS policy and standards state that dental services provided inmates should "[m]eet the same standards of quality that can be reasonably provided to other persons similarly situated in the general community" (defendant's Exhibit E, p. 1). He testified that inmates are provided a comprehensive dental examination at intake facilities which are equipped with panoramic X-ray machines. In this regard, he estimated that in the area where he practices only half of the dental practices are equipped to produce panoramic X-rays. In his opinion, utilizing the August 31, 2010 panoramic X-ray in preparing for and undertaking the April 11, 2012 surgery was well within prevailing medical standards. According to the witness, once an individual reaches age 25 his or her wisdom teeth will shift "very minimally" over time.
With regard to the consent form signed by the claimant prior to surgery, while he agreed that the form does not specifically identify each risk or complication of the surgery, it states that the risks and complications had been explained to the claimant and thereby complied with accepted standards of medical care.
Reviewing claimant's history of complaints regarding numbness in his lip and chin following surgery, Dr. Bechtel testified that in his opinion neither surgery nor an MRI was required when claimant's complaints of numbness continued two months following surgery. He testified that many cases of numbness following extraction of a wisdom tooth resolve on their own without surgical intervention. In this regard, he noted that testing conducted between May 2012 and January 2013 demonstrated claimant's gradual improvement over time in the form of a consistent decrease in the area of his lip and chin affected by numbness. In his view, the test results indicate that the "wait and see" approach adopted by DOCCS dental personnel was working.
The State has the fundamental duty to provide reasonable and adequate medical care to inmates in its prisons without undue delay (Andrews v County of Cayuga, 96 AD3d 1477 [4th Dept 2012]; Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). To succeed on a medical or dental malpractice claim, it must be demonstrated that the treating dentist or physician deviated from the accepted standard of dental care and that such departure was the proximate cause of the claimed injuries (Dien v Seltzer, 116 AD3d 910 [2d Dept 2014]; Bennett v State of New York, 31 AD3d 1069 [3d Dept 2006]). A physician providing medical services on behalf of DOCCS, like any private physician, is "charged with the duty to exercise due care, as measured against the conduct of his or her own peers - the reasonably prudent doctor standard" (Nestorowich v Ricotta, 97 NY2d 393, 398 [2002]; Schrempf v State of New York, 66 NY2d 289, 294 [1985] [state is held to the same duty of care as private individuals and institutions engaged in the provision of medical and psychiatric care]; Andrews v County of Cayuga, 96 AD3d 1477, 1477-1478 [4th Dept 2012]; ["when the medical care provided by the State includes the provision of psychiatric services, the State will be held to the same duty of care as a private institution engaged in such activity"]). "[A] doctor may be liable only if the doctor's treatment decisions do not reflect his or her own best judgment or fall short of the generally accepted standard of care" (Nestorowich, 97 NY2d at 399; Malebranche v Sunnyview Rehabilitation Hosp., 46 AD3d 959, 960 [2007] ).
In Nestorowich v Ricotta (supra) the Court of Appeals recognized the current articulation of the "best judgment rule" as follows:
" 'A doctor must use his or her best judgment and whatever superior knowledge and skill (he, she) possesses, even if the knowledge and skill exceeds that possessed by the (average doctor, average specialist) in the medical community where the doctor practices' " (97 NY2d at 398 n 4, quoting PJI 2:150).
Where improper or delayed medical treatment is alleged, it is incumbent on the claimant to come forth with evidence of a deviation from the appropriate standard of medical care or other evidence of a breach in a facility's protocols (Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]). Under either theory, liability does not attach absent expert evidence that the treatment or lack thereof was a proximate cause of the inmate's ensuing medical problems (id.; see also McFadden v State of New York, 138 AD3d 1167 [3d Dept 2016], appeal dismissed 28 NY3d 947 [3d Dept 2016]; Lowe v State of New York, 35 AD3d 1281 [4th Dept 2006]). Here, the Court concludes that claimant failed to establish by a preponderance of the credible evidence that claimant's injuries were proximately caused by defendant's malpractice or negligence.
Claimant posits three theories of liability: First, that the treating oral surgeon, Dr. Bulford, improperly relied upon a panoramic X-ray that was taken on August 31, 2010 (defendant's Exhibit B), almost two years before tooth number 17 was extracted; second, that the defendant failed to timely refer claimant for corrective surgery to rectify the numbness and, third, that the procedure was performed without claimant's informed consent because he was not informed of the risk of nerve damage or available alternatives.
First, with respect to the panoramic X-ray, there is no disagreement that such an X-ray was taken at Downstate on August 31, 2010. The only question is whether a new, more recent panoramic X-ray was required by prevailing standards prior to claimant's surgery. The Court resolves that question in favor of the defendant.
Defendant's expert testified that use of the claimant's panoramic X-ray from August 2010 in performing the April 2012 extraction was appropriate because the anatomical structures depicted in the X-ray change only "very minimally" after a patient reaches 25 years of age. Claimant was 30 years of age at the time the panoramic X-ray was taken at Downstate, and nothing in the trial record contradicts the statement of defendant's expert. Although his expert clearly testified that claimant's numbness was the result of the surgical extraction of tooth 17 on April 11, 2012, there was no proof regarding the precise mechanism of injury, or the extent of injury to the claimant's Inferior Alveolar Nerve or IAN. In fact, claimant failed to put forth any facts related to fault or negligence with regard to the manner in which the extraction was accomplished. More importantly here, claimant's expert failed to establish the way in which use of a panoramic X-ray taken 20 months prior to surgery caused or contributed to the injury to claimant's nerve which, in turn, was the direct cause of his resultant paresthesia. Not only did claimant's expert not examine the original panoramic X-ray, he failed to identify any physical changes in the claimant's teeth or mouth as depicted in the X-ray, or any other event such as trauma or infection during the twenty months preceding surgery, which rendered use of the August 2010 X-ray inappropriate and necessitated the taking of a new panoramic X-ray prior to claimant's surgery in April 2012. In this regard, the expert acknowledged he had only had the opportunity to review a photocopy of the panoramic X-ray of the claimant (defendant's Exhibit B), which he described as of poor quality. He did, therefore "not know the quality of the X-ray that was visualized by the doctor" at the time of surgery. Under the facts adduced at trial, the Court finds that the claimant failed to establish by a preponderance of the evidence that use of the panoramic X-ray of the claimant taken at Downstate Correctional Facility on August 31, 2010 in preparing for and performing the extraction of his wisdom tooth in April 2012 contravened prevailing dental practice standards, that a new panoramic X-ray was required as a result of physical changes to the claimant occurring subsequent to August 31, 2010 or that utilizing the panoramic X-ray in any way caused or contributed to claimant's injuries.
Nor does the proof support a finding of liability for failing to refer claimant for corrective surgery. While Dr. Goldstein testified that any transient paresthesia would likely resolve within a period of two months, Dr. Bechtel disagreed and testified by reference to claimant's dental treatment record that he experienced consistent improvement throughout the period addressed in the record, and that the area of claimant's lip and chin affected by paresthesia continued to diminish through and until claimant's final physical examination on January 9, 2013 (defendant's Exhibit C; cf. Black v State of New York, 125 AD3d 1523 [4th Dept 2015] [increasing symptomology should have alerted defendant to the need for an urgent referral]; Larkin v State of New York, 84 AD2d 438 [4th Dept 1982] [accelerating nature of symptoms indicated that condition was more than transitory and a referral to a neurologist or neurosurgeon was immediately required]).
Although his expert testified that the numbness experienced by claimant was permanent two months following surgery, the dental treatment records (Exhibit C) indicate consistent improvement in claimant's condition over time. The notes from June 13, 2012, the date claimant was prescribed a steroid dose pack, indicate "a little improvement since extraction" (defendant's Exhibit C, p. 2). The same note sets forth the results of initial testing conducted on the claimant to determine his sensitivity levels with regard to, for example, pressure, direction and light touch. Notes relating the results of subsequent sensitivity testing conducted on November 14, 2012 identifies "improvement with steroid dose pack" and records that claimant "states it feels a little better - no more pins & needles . . . sensation to gums & teeth . . . only lip & chin feels different" (defendant's Exhibit C, p. 4). The note dated December 12, 2012 relates the results of sensitivity tests conducted on that date and states "area is smaller than last exam" (defendant's Exhibit C, p. 4). Sensitivity tests were again conducted on January 9, 2013, nearly nine months following surgery. The note for that date, the last entry in claimant's dental history record, indicates "area of paresthesia is smaller" (defendant's Exhibit C, p. 5).
The consistent improvement in claimant's symptoms and the steady reduction in the area of claimant's lip and chin affected by paresthesia between June 2012 and January 2013, as related in the testing results, leads the Court to conclude that the claimant failed to prove by a preponderance of the evidence that surgical intervention was the only proper course of treatment. The Court accepts the contention of defendant's expert that DOCCS' "wait and see" approach to the claimant's complaints of numbness "was working", and was an equally appropriate method of treatment under prevailing standards.
Finally, the claim alleges the defendant was negligent "in failing to send claimant to a neurologist immediately following the nerve damage suffered by claimant" and, in fact, claimant's dental treatment records reflect numerous recommendations that claimant be referred to a neurologist or neurosurgeon. Claimant's expert, however, clearly stated that the referral claimant's condition required was not to a neurologist or neurosurgeon but, rather, to an oral surgeon. In this regard, Dr. Goldstein testified that once a nerve injury such as that suffered by the claimant is determined to be permanent in nature, "The treatment is microsurgery. It's a surgical intervention done by a specialist in oral surgery . . .". He was then referred to a note from November 14, 2012 in which Dr. Bulford, the oral surgeon who performed claimant's extraction, recommends "evaluation by neurologist/neurosurgeon for possible surgical intervention" (defendant's Exhibit C, p. 4). When asked by counsel whether claimant was ever seen by a neurologist or neurosurgeon for surgical repair of his nerve injury, Dr. Goldstein responded "No. They wouldn't be doing it anyway . . . this surgery is done by an oral surgeon".
Thus, although the recommendations that claimant be seen by a neurologist or neurosurgeon were never effectuated, there is no expert proof that the failure to refer claimant to a neurologist or neurosurgeon caused, contributed to, or exacerbated his alleged injuries. The central premise of claimant's expert's testimony was that claimant required a referral to an oral surgeon who would undertake surgical repair of the nerve. Claimant was seen by Dr. Bulford, an oral surgeon, in June, November and December 2012, and on January 9, 2013. There is no negligence alleged with regard to the recommendation by Dr. Bulford that claimant be seen by a neurologist or neurosurgeon and the possible reasons for the referral are left unaddressed in the proof. What is clear is that claimant's expert testified claimant required a referral to an oral surgeon, and that claimant was consistently treated and examined by an oral surgeon, Dr. Bulford, throughout his post-surgical course of treatment.
Lastly, claimant failed to establish his cause of action for lack of informed consent by a preponderance of the credible evidence.
"To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff's position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3] ). Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff (CPLR 4401-a)" Orphan v Pilnik, 15 NY3d 907, 908 [2010]).
While the claimant testified that he was not informed that permanent nerve damage was one of the risks associated with the extraction of tooth number 17, a note by Dr. Bulford in the dental treatment record indicates that "risks and complications explained pt. agrees to tx plan" (id. at p. 1). Moreover, claimant signed a formal consent form in which he acknowledged the following:
"The nature and purpose of the treatment, operation or procedure along with possible alternative treatment methods, the risks involved, and possible complications have been fully explained to me by Dr. Lionel Bulford, Oral Surgeon, D.D.S/M.D. I acknowledge that no guarantee or assurance has been made as to the obtained results" (defendant's Exhibit D).
While neither Dr. Bulford's entry in the dental chart nor the consent form signed by the claimant specifically refer to the risk of permanent nerve damage, the Court finds the evidence sufficient to conclude that this risk was conveyed to the claimant. Moreover, even if this was not the case, the Court finds that a reasonable person in the claimant's position, fully informed, would have elected to undergo the procedure.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
October 16, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims