Koss v Bach

[*1] Koss v Bach 2009 NY Slip Op 52772(U) [27 Misc 3d 1237(A)] Decided on October 15, 2009 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2009
Supreme Court, Bronx County

Freya Koss and DAVID KOSS, Plaintiffs,

against

Hadley Bach, D.D.S., Defendant.



22218/2000



APPEARANCES:

For Plaintiff

Kenneth McCallion Esq.

McCallion & Associates LLP

100 Park Avenue, New York, NY 10017

For Defendant

Thomas Rhatigan Esq.

Costello, Shea & Gaffney, LLP

44 Wall Street, New York, NY 10005

Lucy Billings, J.

I.BACKGROUND

Plaintiffs sue to recover for personal injuries and loss of services sustained in March 1998 from defendant's dental malpractice. Plaintiffs claim that mercury from dental amalgam that defendant used to fill cavities in plaintiff Freya Koss' teeth caused her a neurological disorder affecting her vision. Defendant moves for summary judgment, C.P.L.R. § 3212(b), dismissing all claims against him, or to dismiss the complaint on the ground that plaintiffs spoliated evidence. C.P.L.R. § 3126(3). For the reasons explained below, the court denies defendant's motion.

II.PLAINTIFFS' DENTAL MALPRACTICE CLAIMS

To support dental malpractice, plaintiffs must demonstrate that defendant departed from accepted dental practice and that the departure proximately caused plaintiffs' injuries. Alvarado v. Miles, 32 AD3d 255, 257 (1st Dep't 2006), aff'd, 9 NY3d 902 (2007). Defendant, however, to prevail on his summary judgment motion, bears the burden to demonstrate that the dental treatment he provided to Freya Koss comported with accepted dental practice or that, if his treatment departed from accepted practice, the departure did not cause her any injury. Connecticut Indem. Co. v. David L. Hoexter, D.M.D.P.C., 45 AD3d 282 (1st Dep't 2007); DeFilippo v. New York Downtown Hosp., 10 AD3d 521, 523 (1st Dep't [*2]2004); Dombrow v. Rosenstein, 239 AD2d 203, 204 (1st Dep't 1997). See Rivera v. Anilesh, 32 AD3d 202, 204 (1st Dep't 2006), aff'd, 8 NY3d 627 (2007); Huffman v. Linkow Inst. for Advanced Implantology, Reconstructive & Aesthetic Maxillo-Facial Surgery, 35 AD3d 214, 217 (1st Dep't 2006).

A.Defendant's Evidence

Defendant testified at his deposition that upon Freya Koss' first visit to him in March 1998 her teeth numbers 4 and 14 both contained amalgam fillings, but were decayed. Defendant replaced the filling in tooth number 14. A letter dated March 19, 2001, from Freya Koss' current treating dentist Blanche Grube D.D.S., stipulated as admissible, reports that she did not observe any nerve exposure in her patient's mouth, to provide an avenue for mercury to travel up to the ocular nerve and cause ocular neuropathic symptoms.

Mario Catalano D.D.S., based on his review of depositions in this action, Freya Koss' dental records, and plaintiffs' bill of particulars, attests that defendant's method of filling the cavities in her teeth, including his use and mixture of the mercury-based dental amalgam for the replacement filling in tooth number 14, did not deviate from accepted dental practices. Dr. Catalano also points out that Freya Koss' neuro-ophthalmologist, Grant Liu M.D., and her neurologist, Arthur K. Asbury M.D., concluded that her symptoms were not caused by mercury poisoning. Dr. Catalano himself concludes that mercury poisoning does not cause myasthenia gravis or any autoimmune disorder. Insofar as Dr. Catalano recites the findings by various dental organizations that mercury-based dental amalgam is safe, however, those findings are hearsay. People v. Joseph, 86 NY2d 565, 570 (1995); Schozer v. William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 (1994); NW Liquidating Corp. v. Helmsley-Spear, Inc., 248 AD2d 304, 305 (1st Dep't 1998); Beal Bank v. Melville Magnetic Resonance Imaging, 294 AD2d 320, 321 (2d Dep't 2002). Nevertheless, Dr. Catalano's own findings regarding the absence of any departure by defendant or of his causation of Freya Koss' claimed injuries meet defendant's burden.

The court also need not consider the unsworn letter by defendant's engineer, Richard C. Otterbein P.E., that his testing of defendant's amalgamator showed it produced the energy necessary to mix dental amalgam adequately. Mr. Otterbein's inadmissible opinion does not warrant consideration in any event, because the engineer does not establish the functioning of defendant's amalgamator or its production of mixed amalgam when defendant treated Freya Koss. Neither Mr. Otterbein nor any other evidence indicates that, when he tested the machine, it functioned in all material respects the same as in 1998. Gilson v. Metropolitan Opera, 15 AD3d 55, 59 (1st Dep't 2005), aff'd, 5 NY3d 574 (2005); Machado v. Clinton Hous. Dev. Co., Inc., 20 AD3d 307 (1st Dep't 2005); Budd v. Gotham House Owners Corp., 17 AD3d 122, 123 (1st Dep't 2005); Santiago v. United Artists Communications, 263 AD2d 407, 408 (1st Dep't 1999).

B.Plaintiff's Rebuttal [*3]

Dr. Grube began treating Freya Koss April 9, 1998, for complaints of swelling in her mouth and double vision. Dr. Grube removed amalgam and decay from several of Freya Koss' teeth, including teeth 4 and 14, and refilled them. In Dr. Grube's letter of March 19, 2001, where Dr. Grube states she did not observe any nerve exposure, she did find the filling in tooth 14 unusually gritty. Dr. Grube eventually replaced all Freya Koss' amalgam fillings with composite fillings, but made no further finding regarding the consistency of the amalgam defendant had used in tooth number 4 or the amalgam in any other teeth.

Despite the absence of nerve exposure, in a subsequent letter dated April 4, 2001, and in her affidavit dated January 6, 2009, Dr. Grube nevertheless states that "it is possible for mercury from a dental amalgam filling to travel along the nerve from an upper tooth pulp through the trigeminal nerve and ocular branches causing neuro-muscular diseases such as Myasthenia Gravis." Aff. of Thomas A. Rhatigan, Ex. M; Aff. of Kenneth F. McCallion, Ex. B, ¶ 12. Harold Buttram M.D., Freya Koss' treating physician from May 1998 to February 2000, based on Dr. Grube's findings of mercury vapor from the gritty dental amalgam, concludes that his patient's development of ocular neuropathies like myasthenia after exposure to mercury vapors suggested these conditions were caused by mercury toxicity through inhalation of the vapors. While neither Dr. Grube's opinion of possible exposure to mercury via the nerves, nor Dr. Buttram's opinion that exposure via inhalation merited consideration, may express the confidence required for admissibility, Dr. Grube's further conclusion of Freya Koss' exposure through inhalation of the high mercury vapor levels in her mouth expresses the requisite certainty. Matott v. Ward, 48 NY2d 455, 459, 461 (1979); Browder v. New York City Health & Hosps. Corp., 37 AD3d 375 (1st Dep't 2007); Hellert v. Town of Hamburg, 50 AD3d 1481, 1482 (4th Dep't 2008); Moody v. Sorokina, 40 AD3d 14, 20 (4th Dep't 2007).

Jack Levine D.D.S., based on his examination of defendant's amalgamator, attests that the self-mixed amalgam defendant used was not recommended for the amalgamator he used and left dangerous unmixed mercury. Based on a review of Freya Koss' dental and medical records, Dr. Levine found that Freya Koss exhibited typical signs of mercury exposure. Drs. Grube and Levine attest that pre-mixed, not self-mixed, amalgam was the accepted standard of dental practice when plaintiffs claim injury.

Plaintiffs' experts, by causally connecting their findings regarding defendant's departure to Freya Koss' mercury exposure and that exposure to her ocular neuropathies like myasthenia, support their conclusion that defendant's treatment of her tooth number 14 caused her exposure to mercury through inhalation, if not through the nerves, and her resulting symptoms. This conclusion is more than speculation and raises a factual issue that his departure caused her condition. See Feliz v. Beth Israel Med. Ctr., 38 AD3d 396, 397 (1st Dep't 2007); Rodriguez v. Montefiore Med. Ctr., 28 AD3d 357 (1st Dep't 2006); Bullard v. [*4]St. Barnabas Hosp., 27 AD3d 206 (1st Dep't 2006); DeFilippo v. New York Downtown Hosp., 10 AD3d at 523.

III.LACK OF INFORMED CONSENT CLAIM

Given the dispute in the parties' deposition testimony regarding the information defendant provided Freya Koss before he used the amalgam in her teeth, whether he advised her of the potential adverse effects from the procedure, what those adverse effects were, and whether they discussed any alternatives, factual issues remain regarding her lack of informed consent. Prigorac v. Park, 20 AD3d 363, 364 (1st Dep't 2005). Defendant still might obtain dismissal of that claim, however, if he established (1) that, had he fully informed her, a reasonably prudent person in her circumstances nonetheless would have undergone the procedure or (2) that his failure to secure her informed consent did not proximately cause her condition. Pub. Health Law § 2805-d(3); Heckstall v. Pincus, 19 AD3d 203, 204 (1st Dep't 2005); Shkolnik v. Hospital for Joint Diseases Orthopaedic Inst., 211 AD2d 347, 350 (1st Dep't 1995). Regardless of any evidence from defendant on those points, the affidavit by Freya Koss demonstrates that she reasonably would have refused the mercury fillings had she been informed of the adverse effects her experts conclude the mercury amalgam caused. Similarly, assuming she underwent the procedure without being informed of the risks attendant to using the amalgam, again her experts show that the procedure caused her condition. See id.

IV.DISMISSAL DUE TO SPOLIATION

Defendant also moves to dismiss plaintiffs' claims due to their spoliation of evidence. While defendant initially claimed lost x-rays, he withdrew his motion regarding that evidence and claims only that Dr. Grube spoliated evidence by disposing of the dental amalgam from tooth number 14, depriving him of the ability to show that the amalgam was mixed adequately. Defendant maintains that Dr. Grube's letter, indicating problems with the dental amalgam and Freya Koss' claimed adverse reactions from the mercury in her dental fillings, demonstrates plaintiffs' awareness of the need to preserve the amalgam. Defendant undisputedly did nothing to contribute to its loss.

In opposition, Dr. Grube's letter dated August 5, 2004, also stipulated as admissible, reports that Dr. Grube removed defendant's fillings, sucked them with water from her drill into a filtration system, and discarded the water containing the particles as waste. She adds that "for no reason would we ever save any of our discarded waste, particularly toxic mercury." Aff. of Thomas R. Rhatigan, Ex. U. Dr. Levine attests that standard dental procedures required disposal of the removed amalgam.

Although dismissal is among the remedies available for spoliation of evidence, Ortega v. City of New York, 9 NY3d 69, 76 (2007), the record does not support Dr. Grube's intentional or even negligent destruction of the amalgam, but shows she discarded it in her regular dental routine. Diaz v. Rose, 40 AD3d 429 (1st Dep't 2007). Moreover, defendant is not deprived [*5]of all means to show that the amalgam was mixed adequately, but may do so through means similar to the type of evidence presented by plaintiffs, who also could not inspect the actual amalgam he used. Therefore dismissal is not necessary to assure "elementary fairness." Id. See Metropolitan NY Coordinating Council on Jewish Poverty v. FGP Bush Term., 1 AD3d 168 (1st Dep't 2003); Tommy Hilfiger, USA v. Commonwealth Trucking, 300 AD2d 58, 60 (1st Dep't 2002); Ifraimov v. Phoenix Indus. Gas, 4 AD3d 332, 333-34 (2d Dep't 2004); Mylonas v. Town of Brookhaven, 305 AD2d 561, 563 (2d Dep't 2003). Absent any other requested relief, neither does the court conceive of another necessary penalty at this stage of the litigation. Tawedros v. St. Vincent's Hosp. of NY, 281 AD2d 184 (1st Dep't 2001); Gerber v. Rosenfeld, 18 AD3d 812 (2d Dep't 2005); Deveau v. CF Galleria at White Plains, LP, 18 AD3d 695, 696 (2d Dep't 2005); Klein v. Ford Motor Co., 303 AD2d 376, 377-78 (2d Dep't 2003).

V.CONCLUSION

For the above reasons, the court denies defendant's motion for summary judgment in its entirety, C.P.L.R. § 3212(b), and denies defendant's motion to dismiss the complaint due to spoliation of evidence. C.P.L.R. § 3126(3).

DATED: October 15, 2009

_____________________________

LUCY BILLINGS, J.S.C.