Jing Xu v Karpov

[*1] Jing Xu v Karpov 2008 NY Slip Op 52107(U) [21 Misc 3d 1120(A)] Decided on October 6, 2008 Supreme Court, New York County Lobis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2008
Supreme Court, New York County

Jing Xu, Plaintiff,

against

Maria A. Karpov, DMD, Daria Royzman, DDS, and D & D Periodontics, P.C., Defendants.



110048/07



Attorney for Plaintiff

LANCE EHRENBERG, ESQ.

122 EAST 42ND STREET STE.4500

NEW YORK, NEW YORK 10168

Attorneys for Defendant Karpov

AHMUTY DEMERS & MCMANUS

200 I. U. WILLETS ROAD

ALBERTSON, NEW YORK 11507

Joan B. Lobis, J.

Defendant Maria A. Karpov, D.M.D., moves, by order to show cause, pursuant to C.P.L.R. Rule 3212, for summary judgment in her favor dismissing the first and second causes of action against her, for negligence and lack of informed consent, respectively. She also seeks to dismiss all cross claims and complaints on the ground that plaintiff has failed to establish a prima facie case of dental malpractice.[FN1]

This is an action for dental malpractice which arises from the treatment of plaintiff, Jung Xu. Plaintiff saw Dr. Karpov, an orthodontist, for a consultation on March 13, 2007. Plaintiff completed a form and Dr. Karpov examined plaintiff's mouth. On March 17, 2007, plaintiff returned to the office, at which time photographs, x-rays, study models, a centric relation bite, a centric occlusion bite, and a face bow were taken. The treatment plan was reviewed and separators were placed in the areas of the upper and lower first molars. [*2]

Plaintiff was given an informed consent form. According to Dr. Karpov's deposition, the form was signed during an office visit on March 22, 2007, although the form bears the handwritten date of March 21; Dr. Karpov testified that March 21 was incorrect. Under the heading "Extractions," the form sets forth that "[s]ome cases will require the removal of deciduous (baby) teeth or permanent teeth. There are additional risks associated with the removal of teeth which you should discuss with your family dentist or oral surgeon prior to the procedure." In addition to the two pages of printed material, added under the "notes" section, it says "[d]iscussed extraction therapy to correct crowding and open bite." Dr. Karpov placed orthodontic bands on the upper and lower first molars and placed bonded brackets (braces) on the upper and lower central incisors, lateral incisors, canines, and second premolars. Upper and lower arch wires were also placed on plaintiff's teeth. Plaintiff testified at her deposition that Dr. Karpov recommended that four teeth be extracted. Dr. Karpov, who does not perform extractions, referred plaintiff to Dr. Royzman, a periodontist, for the extraction of the upper and lower first premolars (tooth numbers 5, 12, 21, and 28).

Dr. Karpov first met Dr. Royzman in 2001, when they were studying at the University of Pennsylvania. They lost touch over the years and became reacquainted in or about 2006, after Dr. Karpov opened her office in New York City. At the time they met in New York, Dr. Royzman stated that she specialized in periodontistry, and that she performed periodontic surgeries, bone grating surgeries, sinus lift surgeries, and extractions. Dr. Karpov began referring patients to Dr. Royzman; by March or April of 2007, she had referred four or five of her patients to Dr. Royzman without incident.

Plaintiff saw Dr. Royzman for a consultation on March 22, 2007, at which time Dr. Royzman reviewed the medical history and performed a periodontal evaluation, including a set of x-rays, to assess the feasability of the extractions. Plaintiff returned to Dr. Royzman on March 29. On that date, Dr. Royzman extracted the right first premolars (tooth numbers 5 and 28). The extractions were performed using Piezo equipment. This is a tool that has various attachments to extract teeth and which works under high vibration force. According to Dr. Royzman's deposition testimony, her office received the Piezo machine in late 2006 or early 2007; an invoice attached to the motion papers reflects that the machine was shipped on March 13, 2007. Dr. Royzman had a two-hour tutorial with the representative, in which she practiced on a bone and a raw egg. She was also given an instructional CD-ROM. Dr. Royzman testified that she had used the Piezo equipment to perform extractions on three patients prior to performing the extractions on plaintiff. She elected to use the machine because she believed that doing the extractions by hand would have been more traumatic, would have required more force, and would have taken more time.

Two days after the first extractions, on March 31, 2007, Dr. Karpov spoke with plaintiff over the telephone. Dr. Karpov's chart sets forth that plaintiff said that the "pain is slowly going away" from the extraction sites. Dr. Royzman extracted plaintiff's left first premolars (tooth numbers 12 and 21) on April 5, 2007, also using the Piezo equipment. On that visit, the sutures were removed from the first two extraction sites. Plaintiff saw Dr. Royzman again on April 12. Dr. Royzman's notes reflect that the sutures were removed from the second two extraction sites, and that the sites were healing well. Dr. Royzman saw plaintiff again on April 18, which would be plaintiff's last [*3]appointment with her. Plaintiff complained that the site at tooth number 12 felt "weird," but there was no pain. Dr. Royzman irrigated the socket of tooth number 12, and noted that there was food in the extraction site. She further testified at her deposition that the other extraction sites looked fine. Dr. Royzman said that plaintiff had disregarded some of the instructions concerning brushing her teeth right after the extractions and failed to follow a soft diet, but acknowledged that neither the brushing nor the failure to follow a soft diet resulted in any damage.

After the extraction of the second set of premolars, plaintiff next saw Dr. Karpov on May 8. Plaintiff complained of pain in the lower left side of her mouth, upon exposure both to hot and cold temperatures. The upper and lower left sides of plaintiff's mouth had "dry sockets," and Dr. Karpov observed exposed bone in both areas. Dr. Karpov observed inflammation in the area of the lower left first premolar (tooth number 21) and upper right first premolar (tooth number 5) extraction sites. There was also a "sharp boney edge" under gingival tissue at the lower right first premolar (tooth number 28) extraction site. Dr. Karpov re-tied the upper and lower teeth to the existing arch wire and the treatment plan was to continue leveling and aligning the teeth. Dr. Karpov referred plaintiff to Sherrill Fay, D.M.D., an oral and maxillofacial surgeon, for an evaluation.

Plaintiff saw Dr. Fay on May 9, 2007. Dr. Fay performed alveoloplasty, the surgical shaping and smoothing of the margins of the tooth socket after extraction. Dr. Fay reported to Dr. Karpov that there was necrotic bone within three of the four extraction sites. Dr. Fay debrided the sites to remove the necrotic bone. There is a notation that significant bone loss was present. Dr. Fay noted that plaintiff may need bone grafting.

Dr. Karpov saw plaintiff again on June 5 for an orthodontic visit. Passive coils were placed into the area of the four extraction sites, which would remain until the sites healed. The purpose of the passive coils is to maintain the position of the teeth, and cease movement of the teeth into the area of the extraction sites. Dr. Karpov also took x-rays and photographs of plaintiff's teeth. Dr. Karpov determined that any further treatment would depend on the prognosis of the extraction sites. Dr. Karpov and Dr. Fay communicated by e-mail concerning various treatment options. On June 22, 2007, plaintiff saw Dr. Fay, who performed a bone grafting procedure. At plaintiff's appointment on July 3, Dr. Karpov re-tied plaintiff's lower teeth. Plaintiff had an appointment with Dr. Karpov on July 19, which plaintiff canceled. In an e-mail dated July 20, 2007, plaintiff advised Dr. Karpov that plaintiff has decided to see another orthodontist.

Plaintiff testified at her deposition that after the extractions, plaintiff's mouth began bleeding, and approximately two weeks later, yellow pus oozed from the extraction site. After the extractions, plaintiff took Advil for a couple of days and took antibiotics. She complained that the extraction site smelled like "a dead fish." She lost her appetite, did not have solid food for two to three months, was "totally burned out" from seeing dentists virtually every week for months, missed work, and was depressed after she learned that the left side of her mouth had so much bone loss. Her orthodontic treatment essentially stopped for approximately six months. Plaintiff began seeing another orthodontist, Dr. Joseph Hung. He removed the springs that Dr. Karpov had placed on plaintiff's teeth. Like Dr. Karpov, Dr. Hung also told plaintiff that the treatment would take up to three years.

At Dr. Hung's request, plaintiff had a CAT scan performed on August 9, 2007. After the CAT scan, plaintiff saw a Dr. Kissel for a consultation on July 30, 2007. Plaintiff testified at her deposition that after her CAT scan, Dr. Hung told her that if her teeth were moved slowly, she would not have to worry about bone loss at the present time, but she would probably need another bone graft sometime later during the treatment.

Just prior to her deposition, plaintiff saw Dr. Hung again. He still believed it was possible to close up the four spaces where the extractions had been performed. As of the date of plaintiff's deposition, on January 3, 2008, plaintiff still had the braces on her teeth that Dr. Karpov had placed almost two years before.

Plaintiff alleges that Dr. Karpov was negligent and departed from good and accepted practice in the examination and treatment plan of plaintiff; failed to take note of the root structure of plaintiff's teeth in that she referred plaintiff to a periodontist, instead of an oral surgeon; ordered the extraction of the wrong teeth; and, failed to obtain plaintiff's informed consent. In her supplemental bill of particulars, plaintiff claims that Dr. Karpov failed to exercise due diligence prior to referring plaintiff to the co-defendant, Dr. Royzman. Plaintiff claims that she should not have been referred to Dr. Royzman for complex extractions, and that Dr. Karpov was negligent to allow the extractions to be performed by a person who was insufficiently trained and lacked experience in performing complex extractions. In supplemental motion papers, plaintiff further argues that an alternative treatment plan of extracting plaintiff's second premolars, as opposed to her first premolars, would have presented a lower risk for damage, and that by denying plaintiff the choice of procedures, there was no informed consent.

Plaintiff argues that Dr. Karpov bears "quasi-vicarious liability" for the acts and omissions of Dr. Royzman in having caused plaintiff's injuries. Dr. Karpov referred plaintiff to Dr. Royzman after determining that the four first premolars needed to be extracted. Dr. Royzman testified at her deposition that she agreed that these four teeth needed to be extracted. Moreover, plaintiff testified that none of her treaters ever said that these were the wrong teeth to be removed. Plaintiff's current provider, Dr. Hung, told plaintiff that he would have had a different treatment plan, but did not go into details. In any event, since there was an independent assessment made by Dr. Royzman that she believed it was appropriate to remove the same teeth, Dr. Karpov cannot be held liable for the decision to remove the four first premolars.

"It is generally true that the mere referral of a patient by one physician to another, without more, does not render the referring doctor vicariously liable for the negligence of the treating physician." Datiz v. Shoob, 71 NY2d 867, 868 (1988). Dr. Karpov was not present at and did not participate in the extractions. As a mere referring physician, she may not be held responsible for the alleged malpractice of Dr. Royzman, who actually performed the extractions and who had plaintiff return for post-operative appointments. Harrington v. Neurological Inst. of Columbia Presbyterian Med. Ctr., 254 AD2d 129, 131 (1st Dep't 1998). The specialist to whom the patient is referred is responsible for the procedures he or she performs. Markley v. Albany Med. Ctr. Hosp., 163 AD2d [*4]639, 641 (3d Dep't 1990) ("defendants' undertaking of the infant's general pediatric care did not create a further duty to supervise treatment of a specialized nature, where defendants neither assumed responsibility for such treatment nor exercised control over its prescription or administration."). This is true despite the fact that the surgery was performed based on Dr. Karpov's advice and despite the fact that she continued to see plaintiff after the surgery. Malki v. Krieger, 213 AD2d 331, 332-34 (1st Dep't 1995). Dr. Karpov, who did not discuss the x-rays with Dr. Royzman prior to Dr. Royzman's procedure, had no input into the methodology employed by Dr. Royzman in performing the extractions; she cannot be charged with malpractice for the resulting extractions themselves. Indeed, at her deposition, Dr. Karpov testified that she presumed the extractions would be performed with pliers; similarly, Dr. Royzman testified that Dr. Karpov did not know that Dr. Royzman had a Piezo machine. This is a case where the referring physician merely referred plaintiff to another physician, without any further involvement as to the procedure for which the patient was referred. Contrast with, Brown v. Speaker, 33 AD3d 446 (1st Dep't 2006) (affirming denial of referring physician's summary judgment motion, since referring physician was "extensively involved" in the decision that plaintiff was a suitable candidate for LASIK surgery and in the preparation for that surgery.)

Plaintiff also seeks to hold Dr. Karpov liable for the referral in the first instance, claiming that Dr. Karpov failed to exercise due diligence in making the referral, and noting that Dr. Karpov was unaware of how the procedure would be performed. Plaintiff argues that Dr. Karpov had no knowledge as to whether Dr. Royzman was performing "complex extractions," and had no knowledge that she was using a new Piezo machine, which she had only used a few times before she used it on plaintiff to perform the extractions. Plaintiff further contends that alternative extractions should have been proposed and discussed with plaintiff.

While a provider may be liable in negligence in the selection of a doctor to whom a patient is referred or who "covers" for the provider (Kavanaugh by Gonzales v. Nussbaum, 71 NY2d 535, 549 [1988]), there is no evidence that Dr. Karpov was negligent in making the referral to Dr. Royzman, to whom she had referred cases before, with no adverse consequence, and who performed extractions as part of her practice. Neither Dr. Karpov nor Dr. Royzman believed that these were "complex extractions."[FN2] Indeed, defendant's expert states that Dr. Karpov, as a licensed practitioner, is permitted to perform extractions, but she does not do so as part of her orthodontic practice. Dr. Royzman's expert notes that either a periodontist or an oral surgeon can perform extractions, including "complex extractions." Dr. Royzman's expert opines that it is not a departure to refer a patient to a periodontist for the removal of the four first premolar teeth. Having made an appropriate referral, Dr. Karpov is not responsible for Dr. Royzman's decision to use the Piezo machine rather [*5]than another method for the extractions.

Plaintiff's expert opines that a treating orthodontist who refers a patient to a periodontist and orders specific extractions has an obligation to the patient to apprise her of the risks and alternatives. Dr. Karpov has met her burden as the proponent of summary judgment with respect to plaintiff's claim of lack of informed consent by the submission of her affidavit and medical records establishing that she gave plaintiff the two-page form to sign, which contains plaintiff's signature. Plaintiff testified at her deposition that she read the document before she signed it, and that it was "probably" before the braces were placed on her teeth. Dr. Karpov's expert also opines that Dr. Karpov did not depart from good and accepted orthodontic practice when obtaining the informed consent. Having established a prima facie showing of entitlement to summary judgment, the burden shifts to plaintiff to rebut the prima facie showing by demonstrating the existence of a triable issue of fact.

Plaintiff cannot satisfy her burden because the cases establish that a referring physician does not have the obligation claimed by plaintiff's expert. Shkolnik v. Hosp. for Joint Diseases Orthopaedic Inst., 211 AD2d 347, 350-51 (1st Dep't 1995), on which Dr. Karpov relies, is precisely on point. There, the First Department held that a referring physician is not required to disclose the material risks, benefits, and alternatives to a procedure performed by another physician to which the patient was referred (see id. at 351); rather, it is the obligation of the subsequent treater to obtain the consent. Nieves v. Montefiore Med. Cen., 305 AD2d 161, 164 (1st Dep't 2003). Public Health Law § 2805-d(1) places the duty of obtaining informed consent on the individual who provides the professional treatment." Although plaintiff testified in her deposition that she was dissatisfied with Dr. Karpov because Dr. Karpov failed to inform plaintiff of the risks regarding tooth extraction, i.e., bone loss and other issues, even if it is true that Dr. Karpov failed to advise plaintiff of these risks, it was not her obligation to do so. Rather, it was Dr. Royzman who had the obligation to explain the risks of the procedure. Nisenholtz v. Mount Sinai Hosp., 126 Misc 2d 658, 663 (Sup. Ct. NY Co. 1984) ("it is the view of the court that a physician who merely refers a patient to another doctor does not become liable should that second doctor perform surgery without informed consent). Although not presently before the court, the court notes that plaintiff and Dr. Royzman differed sharply in their deposition testimony as to whether Dr. Royzman discussed fully with plaintiff the risks and alternatives. Plaintiff testified at her deposition that Dr. Royzman failed to discuss with plaintiff any of the risks associated with the extractions, nor did plaintiff recall having signed a consent form. Dr. Royzman testified at her deposition that she has a general patient consent form, which plaintiff signed on March 22, 2007. A copy of the signed form is included in the motion papers. The form, however, does not include the risks of extractions. Dr. Royzman testified that she went over the information verbally with plaintiff. Dr. Royzman testified at her deposition that on March 29, she discussed with plaintiff the fact that the extractions would be performed on the right side first; that anesthesia would be given; the risks of extractions; the risks of not having the extractions; the post-operative sequelae, etc. The risks would be post-operative swelling, bleeding, a small risk of infection, dry sockets, and bone loss. Dr. Royzman acknowledged that there was no writing reflecting that she had this conversation with plaintiff and that plaintiff understood the procedure and the known risks. The issue of whether Dr. Royzman obtained plaintiff's informed consent is an issue for trial. [*6]

For all of these reason, Dr. Karpov's motion for summary judgment is granted and the complaint is hereby severed and dismissed as against defendant Maria A. Karpov, D.M.D., and Dr. Karpov's cross claim against defendants Daria Royzman, D.D.S., and D & D Periodontics, P.C., is dismissed, and the Clerk is directed to enter judgment in favor of said defendant; and it is further

ORDERED that the remainder of the action shall continue. The remaining parties are directed to appear for the previously-scheduled pre-trial/settlement conference on December 16, 2008, at 9:30 a.m. According to the court's records, plaintiff made a demand of $425,000. If the remaining defendants have not yet responded to the demand, they are directed to do so at least three weeks before the conference.

This constitutes the decision and order of the court.

Dated: October, 2008

______________________________

JOAN B. LOBIS, J.S.C. Footnotes

Footnote 1: Defendant Daria Royzman, D.D.S., did not submit any papers in connection with the motion.

Footnote 2: Although Dr. Karpov testified originally at her deposition that certain types of extractions would be deemed complex extractions, she submitted a correction sheet, sworn to on March 17, 2008, in which she stated that the scenarios that she was asked at her deposition were not considered complex extractions. Plaintiff's expert erroneously relies on the uncorrected deposition when he states that Dr. Karpov agreed that at least some of the extractions were complex. Neither Dr. Karpov nor Dr. Royzman believed that the extractions were complex.