Giambrone v Farha

[*1] Giambrone v Farha 2011 NY Slip Op 52422(U) Decided on December 20, 2011 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2011
Supreme Court, Kings County

Betty Giambrone, Plaintiff,

against

Dr. Tony Farha, Defendant. Antoine Farha, D.D.S. s/h/a Dr. Tony Farha, Third-Party Plaintiff, 5TH Avenue Dental Associates, LLP, Dr. Glen Cosman, Joseph K. Ahlo, D.M.D. and "Dr. John Doe", being a fictitious name representing the dentist who extracted all of the plaintiff's teeth on or about 4/22/10 Third-Party Defendants.



24663/08



Plaintiff Attorney: Joel Kotick, 501 East 79th Street, New York, NY 10021

Defendant Attorney: Gordon and Silber PC, 355 Lexington Avenue, New York, NY 10017

David Schmidt, J.

The following papers numbered 1 to 21

read on this motion and these cross motions:Papers Numbered



Notice of Motion/Order to Show Cause/ [*2]

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 -3, 4-6,

Opposing Affidavits (Affirmations)7-8, 9-11, 12-13

Reply Affidavits (Affirmations)14, 15, 16, 17,

Sur-reply Affidavit (Affirmation)18, 19, 20, 21

Other Papers

Upon the foregoing papers, in this medical malpractice action by plaintiff Betty Giambrone (plaintiff), defendant/third-party defendant Dr. Joseph Manfredi (s/h/a/ Dr. John Doe) (hereinafter Dr. Manfredi) moves for an order, pursuant to CPLR 3212, granting him summary judgment dismissing plaintiff's complaint and the third-party complaint as against him, and dismissing plaintiff's claim for dental malpractice, lack of informed consent and punitive damages. Third-party defendant 5th Avenue Dental Associates, LLP, (5th Avenue Dental) also moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiff's complaint, as well as the third party complaint insofar as asserted against it.

Factual Background

Plaintiff Betty Giambrone (plaintiff) commenced this dental malpractice action alleging, among other things, that she suffered injuries after the defendants failed to properly treat her dental condition, and further failed to inform her of the risks of the procedure she underwent. The underlying facts are as follows: Plaintiff, an elderly woman over 80 years of age, was first seen by defendant/third-party plaintiff Dr. Antoine Farha (sued herein as Dr. Tony Farha) from June 19, 2007 through October 18, 2007. She presented to Dr. Farha with a pre-existing old lower bridge and requested a new one. Dr. Farha's treatment plan was for a new replacement fixed cantilevered lower bridge, as well as root canal therapies of teeth No. 27 and 28. Dr. Farha thereafter fabricated a new lower prosthesis with three cantilever teeth on the left side. Over the course of the subsequent months, the plaintiff underwent treatments by Dr. Farha which consisted of temporary lower bridge work and ultimately permanent lower bridge work.

Approximately three years after being treated by Dr. Farha, the plaintiff presented to defendant 5th Avenue Dental on January 27, 2010, and was first seen by periodontist, Dr. Joseph Ahlo. According to 5th Avenue Dental's records, the plaintiff presented with a history of pain in the jaw, and experiencing a burning sensation in her mouth and lips. Dr. Ahlo's treatment entry notes that the plaintiff had periodontitis and that her gingiva was red and inflamed with overgrowth due to poor oral hygiene. Dr. Ahlo further noted that ill fitting roundhouse upper and lower bridges were present and that they were not cemented in her mouth. Additionally, Dr. Ahlo noted that the plaintiff had expressed her wish to have all of her remaining teeth extracted and to have upper and lower dentures placed. The records further note that Dr. Ahlo referred the plaintiff to an oral pathologist regarding a possible link to her symptoms, and that he advised her that he would not continue with any dental treatment unless she saw an oral pathologist first. [*3]

On February 1, 2010, the plaintiff returned to 5th Avenue Dental and again on March 25, 2010, at which time she was seen by Dr. Manfredi, a dentist also employed by 5th Avenue Dental. During the latter visit, records indicate that the plaintiff presented with multiple complaints, the biggest of which being an irritation related to tooth #22. Specifically, the plaintiff had complained about pain resulting from a retained root tip of tooth #22. The plaintiff also expressed her desire to have her remaining teeth extracted in order to have removable dentures fabricated and immediately placed on her upper and lower arch. Dr. Manfredi thereafter made the treatment plan to extract the root tip of tooth # 22, and later to extract the plaintiff's remaining teeth. The root tip of tooth #22 was extracted on March 25, 2010.Two days later, on March 27, 2010, the plaintiff returned to the 5th Avenue Dental office where she saw Dr. Manfredi. During that appointment, the dental records indicate that an impression for immediate full upper and lower dentures was taken. Plaintiff was also given a referral for a neurology evaluation at Bellvue/New York University. Dr. Manfredi noted in the plaintiff's chart that the extraction site at tooth #22 was healing well. On April 6, 2010, plaintiff returned to see Dr. Manfredi at which point a final impression and bite registration for full upper and lower dentures were taken and a shade was selected. On April 13, 2010, plaintiff returned and the upper and lower dentures were tried on her. On April 22, 2010, Dr. Manfredi extracted all of plaintiff's remaining 15 teeth (teeth #s 4, 5, 6, 7, 8, 9, 10, 11, 12, 23, 24, 25, 26, 27 and 28), with the immediate placement of full upper and lower dentures.

Following the extractions, the plaintiff, complaining of post-operative discomfort, thereafter returned to 5th Avenue Dental on 8 separate occasions, 6 of which were with Dr. Manfredi. The visits with Dr. Manfredi were on April 27, 2010, April 29, 2010, May 6, 2010, May 18, 2010, May 20, 2010 and May 27, 2010. The plaintiff presented with various complaints, including but not limited to pain, soreness, bruising and discomfort in her gums, improperly fitted dentures, difficulty eating and chewing, and difficulty breathing through her left nostril.

Shortly thereafter, the plaintiff commenced this action alleging dental malpractice and lack of informed consent against Dr. Farha. In or about September 2010, Dr. Farha commenced a third-party action against third-party defendants 5th Avenue Dental, Dr. Glen Cosman, Dr. Ahlo and Dr. Manfredi (sued herein as Dr. John Doe). Plaintiff subsequently filed a "Further Amended Complaint,"dated October 19, 2010, against 5th Avenue Dental, Dr. Cosman, Dr. Ahlo, and Dr. Manfredi. In her "Further Amended Complaint," the plaintiff alleges that the defendants committed dental malpractice in the treatment that she underwent, and that defendants failed to properly inform her of the risks and alternatives to said dental treatment. Specifically, in her bill of particulars, the plaintiff alleges, among other things, that while she was under the care of 5th Avenue Dental, the defendants were negligent in improperly performing the extractions of her remaining teeth in plaintiff's upper and lower arches. She further alleges that the [*4]extractions were performed in an improper manner, and that Dr. Manfredi negligently failed to evaluate the condition of her teeth and extracted healthy teeth that should have been treated. He further failed to advise the plaintiff of the risks, alternatives and destructive nature of his treatment plan for her, and did not advise her against having teeth extracted. Additionally, the plaintiff is seeking punitive damages based upon her belief that Dr. Manfredi "willfully and wantonly negligently extracted teeth that should have been treated." She further alleges that the defendants failed to obtain her informed consent prior to performing the extractions. Presently, issue has been joined, discovery is completed and the case is on the trial calender. Dr. Manfredi and 5th Avenue Dental Associates are now separately moving for summary judgment seeking to dismiss the plaintiff's complaint and the third-party complaint insofar as asserted against them.

DiscussionDr. Manfredi moved for an order, pursuant to CPLR 3212, granting him summary judgment dismissing plaintiff's dental malpractice and lack of informed consent causes of action as well as plaintiff's claim for punitive damages. 5th Avenue Dental (Dr. Manfredi's employer) also moved for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the causes of action for dental malpractice, lack of informed consent and punitive damages. This court, by order dated July 13, 2011, denied those branches of the motions which sought summary judgment dismissing plaintiff's lack of informed consent claim, and reserved decision on the issues related to the dental malpractice claims against the defendants as well as punitive damages with respect to the extraction of all of the plaintiff's teeth. By order dated, July 21, 2011, this court held, inter alia, that the punitive damages claim remains viable on the lack of informed consent claim only. The decision set forth herein incorporates this court's prior orders.

It is well settled that "[o]n a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Sheppard—Mobley v King, 10 AD3d 70, 74 [2004], aff'd. as modified, 4 NY3d 627 [2005], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Sheppard—Mobley, 10 AD3d at 74). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (see Alvarez, 68 NY2d at 324). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference (see Demishick v Community Housing Management Corp., 34 AD3d 518 [2006]).

Dental MalpracticeClaim

"The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental [or medical] practice, and that such departure [*5]was a proximate cause of the plaintiff's injuries" (Sharp v Weber, 77 AD3d 812, 813 [2010]; see also Koi Hou Chan v Yeung, 66 AD3d 642, 642 [2009]; Cohen v Kalman, 54 AD3d 307, 307 [2008]; Terranova v Finklea, 45 AD3d 572, 572 [2007]; Posokhov v Oselkin, 44 AD3d 921, 921 [2007]; Keevan v Rifkin, 41 AD3d 661, 662 [2007]). "Consequently, on a motion for summary judgment, the defendant [dentist or doctor] has the initial burden of establishing that he or she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiff's injuries" (Sharp, 77 AD3d at 814; see also Myers v Ferrara, 56 AD3d 78, 83 [2008]; Larsen v Loychusuk, 55 AD3d 560, 561 [2008]; Terranova, 45 AD3d at 572). To satisfy the burden, a defendant in a dental malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars (see Roques v Nobel, 73 AD3d 204, 206 [2010]; Koi Hou Chan, 66 AD3d at 642; Larsen, 55 AD3d at 561; Ward v Engel, 33 AD3d 790, 791 [2006]; Johnson v Ladin, 18 AD3d 439 [2005]). Conclusory statements which do not address the allegations in the pleadings are insufficient to demonstrate entitlement to summary judgment (see Cregan v Sachs, 65 AD3d 101, 108 [2009]).

If the movant makes a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Specifically, in a dental malpractice action, a plaintiff opposing a summary judgment motion must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff's injuries. In order to meet the required burden, the plaintiff must submit an affidavit from an expert in dental care attesting that the defendant departed from accepted dental practice and that the departure was the proximate cause of the injuries alleged (see Roques, 73 AD3d at 207).

Dr. Manfredi contends that he is entitled to summary judgment dismissing plaintiff's dental malpractice claim because he did not deviate from accepted standards of dental practice, and did not proximately cause plaintiff's alleged dental injuries. 5th Avenue Dental, Dr. Manfredi's employer, additionally argues that neither the plaintiff nor Dr. Farha can demonstrate that any action or inaction on its part caused or contributed to the plaintiff's injuries. In support of their respective motions, Dr. Manfredi and 5th Avenue Dental (collectively, the defendants) both present the expert affidavit of Leslie Seldin, D.D.S. (Dr. Seldin), who states that he is duly licenced to practice dentistry in the State of New York. Dr. Seldin sets forth that his opinion is based on his knowledge and experience, and his review of the records of Dr. Farha, Dr. Zegarelli, Dr. DigReggorio, Dr. Tzaras and Dr. Teen, the pleadings, bills of particulars, and the parties' deposition testimony. Dr. Seldin opines, to a reasonable degree of dental certainty, that all of the care provided by Dr. Manfredi and 5th Avenue Dental during and after the extractions at issue were rendered within all accepted standards of dental care and treatment. Based [*6]upon his review of the record, he initially opines that the plaintiff was given all of the necessary information regarding the risks and complications during her pre-operative discussions with Dr. Manfredi in order to give informed consent for the extractions of the teeth at issue. In this regard, Dr. Seldin states that the verbal consent coupled with the signed consent form and the signed handwritten note in the plaintiff's chart was a proper and acceptable form of informed consent for the extraction procedure. He further opines that the treatment plan chosen, which involved the extraction of plaintiff's remaining teeth in order to provide immediate dentures, coupled with the plaintiff's expressed intentions, was a reasonable and acceptable treatment plan under the circumstances in which it was noted in the records that the plaintiff had mild to moderate bone loss, chronic periodontitis and decay. Dr. Seldin further opines that the records and testimony of the parties demonstrate that the extractions of the plaintiff's teeth at issue were "dentally necessary" in order to proceed with the reasonable treatment option which the plaintiff had knowingly selected after consulting with the defendants. Additionally, he opines that the extraction procedure itself was performed appropriately and properly by Dr. Manfredi. Dr. Seldin concludes, to a reasonable degree of dental certainty, that Dr. Manfredi did not depart from accepted standards of dental care in treating plaintiff and that the care and treatment rendered by Dr. Manfredi was not the proximate cause of plaintiff's purported injuries.

Here, as to the dental malpractice claim, the court finds that Dr. Manfredi has met his initial burden of establishing that there was no departure from accepted standards of practice or that plaintiff was not injured thereby (see Menard v Feinberg, 60 AD3d 1135, 1136—1137 [2009]; Amodio v Wolpert, 52 AD3d 1078, 1079—1080 [2008]), shifting the burden to plaintiff to submit competent proof of a departure from accepted dental practices resulting in plaintiff's injury (see Menard v Feinberg, 60 AD3d at 1137).

The plaintiff and Dr. Farha both oppose the motions by Dr. Manfredi and 5th Avenue Dental arguing that the defendants were negligent to extract plaintiff's remaining salvageable teeth. The plaintiff has proffered the expert affidavit of Dr. Howard Marshall, a dentist licenced to practice in the State of New York.[FN1] Dr. Marshall sets forth [*7]that his opinions are based upon his review of the x-rays of the plaintiff, photographs, subsequent x-rays and the treatment records rendered by Dr. Farha and Dr Manfredi. Dr. Marshall opines, with a reasonable degree of dental certainty, that Dr. Manfredi departed from accepted standards of practice when he extracted many of the plaintiff's teeth which could have been saved with conventional dentistry, root canal therapy and/or permanent bridges. According to Dr. Marshall, the appropriate standard of care, in his opinion, would have been to defer the extractions and make sure the elderly (80 plus year old) patient was accompanied by her daughter, and that they were both made aware of the consequences of the extractions and treatment thereafter.

Additionally, Dr. Farha has proffered the expert affidavit of Dr. Arnold Jutkowitz, D.D.S., the contents of which have been adopted by the plaintiff.[FN2] Dr. Jutkowitz states that he is a dentist licenced to practice in New York, triple Board certified in prosthodontics, periodontics and endodontics, and has been practicing dentistry over the past 40 years. Dr. Jutkowitz further states that his opinion is based upon his review of the pleadings, plaintiff's and third-party plaintiff's bills of particulars, the records, photos and x-rays of Dr. Farha, 5th Avenue Dental, Dr. Zegarelli, Dr. Koutrose, Dr. Tom Tzivas, Dr. DeBok, Dr. Efrim Rubinstein, Dr. John DiGregorio, Dr. Teen, and Dr. Rausch, the expert affidavits of Dr. Farha, Dr. Rubin, Dr. Seldin and Dr. Marshall, the plaintiff's affidavit and the parties' respective deposition transcripts. Dr. Jutkowitz opines that Dr. Manfredi's treatment plan as of April 22, 2011, to extract the plaintiff's remaining teeth and his [*8]execution of same, were departures from good and accepted standards of dental practice. In this regard, Dr. Jutkowitz opines that Dr. Manfredi should have discouraged the plaintiff from having her remaining teeth extracted because they were salvageable by other forms of treatment. He opines that the condition noted on the plaintiff's dental records (i.e., mild to moderate bone loss, mild generalized periodontitis, and various cavities) were insufficient indications to extract all of her teeth. Dr. Jutkowitz further opines that all of the teeth extracted by Dr. Manfredi (#4, 5, 6, 7, 8, 9, 10, 11, 12, 23, 24, 25, 26, 27, and 28) were all readily treatable especially since the plaintiff's bone level was 60-70/80% of bone present. Dr. Jutkowitz therefore opines that Dr. Manfredi departed from good and accepted standards of dental practice by failing to discourage extractions as the course of treatment. In his opinion, Dr. Manfredi should have removed any decay, performed any necessary root canal therapies, posts and crowns and placed the plaintiff in a series of acrylic temporaries.Dr. Jutkowitz further opines that Dr. Manfredi departed from good and acceptable standards of dental practice by not at least performing the extractions in phases. Had he performed the extractions n stages, Dr. Jutkowitz opines that some remaining teeth could have helped support temporary restorations instead of leaving the plaintiff with full upper and lower dentures which had poor retention in her mouth.

In addition, Dr. Jutkowitz opines, to a reasonable degree of dental certainty, that Dr. Manfredi departed from good and accepted standards of dental practice when he failed to follow up on Dr. Ahlo's January 27, 2010 order and referral that the plaintiff see an oral pathologist for a consultation regarding the extraction of her remaining teeth and placement of upper and lower complete dentures. Since Dr. Ahlo conditioned any future treatment on plaintiff appearing for an oral pathology report, Dr. Jutkowitz opines that by failing to follow up on the referral, Dr. Manfredi failed to rule out non-odontogenic causes of the plaintiff's underlying symptoms. Dr. Jutkowitz further opines that Dr. Manfredi failed to elicit a complete history and find out whether the plaintiff had any allergies to certain metals for bridgework especially since the plaintiff's desire for extracting her teeth appeared to revolve around these complaints. He continues that Dr. Manfredi should have referred the plaintiff to an allergist regarding her aversion and/or allergic reaction to metal, or should have advised her of all porcelain or acrylic options for crowns and bridgework.

Dr. Jutkowitz further states that Dr. Manfredi failed to adequately explain the procedures, risks and alternatives to the plaintiff to obtain from her an informed consent. Dr. Jutkowitz opines that a reasonable patient, under the plaintiff's circumstances, would not have consented to the treatment plan of extracting 15 of her remaining salvageable teeth, if they had been fully informed. Dr. Jutkowitz concludes, to a reasonable degree of dental certainty, that the foregoing departures of Dr. Manfredi proximately caused the plaintiff's injuries, which included the unnecessary extraction of all of her teeth that could have been salvaged, ill fitting and uncomfortable dentures that irritated her, inflamed and [*9]reddened gums, difficulty eating and chewing, and additional pain, discomfort and TMJ problems.

It is well settled thatconflict among experts raises issues of credibility which cannot be resolved on a motion for summary judgment since it is the fact finder and not the motion court that must resolve the credibility issues presented (see Roca v Perel, 51 AD3d 757, 759 [2008]; Feinberg v Feit, 23 AD3d 517, 519 [2005]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624 [2003]; Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650, 651 [2001]). Here, based upon the conflicting expert affidavits submitted by the parties, the court finds that issues of fact and credibility exist specifically in connection with whether Dr. Manfredi had deviated from good and accepted dental practice by failing to follow up on Dr. Ahlo's recommendation that the plaintiff consult with an oral pathologist to rule out non-odontogenic causes of her underlying oral discomfort/symptoms prior to proceeding with the extraction treatment plan (see Bradley v Soundview Healthcenter, 4 AD3d 194 [2004]; Morris v Lenox Hill Hosp., 232 AD2d 184 [1996]). Dr. Jutkowitz opines that the extraction treatment plan may not have been deemed necessary by Dr. Manfredi if he had followed up with Dr. Ahlo's recommendation to explore other possible causes for the plaintiff's symptoms. Thus, an issue of fact has been raised as to whether Dr. Manfredi possessed the requisite information to fully apprise the plaintiff of all of her options and alternatives to types of treatment, which, as set forth in detail below, is intertwined with plaintiff's lack of informed consent cause of action (see Manning v Brookhaven Memorial Hosp. Medical Center, 11 AD3d 518 [2004]; Foote v Rajadhyax, 268 AD2d 745 [2000] [court found issues of fact as to whether the patient should have been told that permanent paresthesia might result from root canal, that she could be referred to an endodontist to perform the procedure, and whether patient was informed concerning the alternative procedure]).

Additionally, the court finds that an issue of fact has also been raised as to whether the dentures that Dr. Manfredi placed on the plaintiff were fabricated and/or fitted properly. Accordingly, that branch of defendants' respective motions seeking to dismiss plaintiff's dental malpractice claim insofar as it is based upon the foregoing issues (Dr. Manfredi's failure to follow up with plaintiff's referral to oral pathologist and whether the dentures were fabricated/fitted properly) is denied.

Lack of Informed Consent Claim

That branch of the motions by Dr. Manfredi and 5th Avenue Dental (defendants) seeking summary judgment dismissing plaintiff's lack of informed consent claim are both denied. A defendant moving for summary judgment on a lack of informed consent claim must demonstrate that the plaintiff was indisputably informed of the foreseeable risks, benefits, and alternatives of the treatment rendered, and "that a reasonably prudent patient would not have declined to undergo the [procedure] if he or she had been informed of the potential complications[.]" (Koi Hou Chan, 66 AD3d 642, 643 [2009]; see also Public Health Law § 2805—d[1]). Public Health Law § 2805—d(1) defines lack of informed [*10]consent as "the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation."

Here, Dr. Manfredi contends that he is entitled to summary judgment because he fully informed the plaintiff of all foreseeable risks and the alternatives of the treatment rendered, which consisted of extracting all of her remaining teeth in order to place upper and lower dentures. In support, Dr. Manfredi relies upon his own deposition testimony, as well as the plaintiff's, the expert affirmation of Dr. Seldin, as well as the plaintiff's dental records. Dr. Manfredi refers to his own deposition testimony wherein he testified that, at the time of the plaintiff's initial visit and on the date of the extractions, he personally discussed the options (i.e., root canal therapy, fixed bridge work and implants as alternatives, and that he further disclosed the risks and benefits of the proposed work to be done in detail. He claimed, however, that the plaintiff declined to proceed with any alternative treatment options and insisted on having her teeth extracted. He claimed that she further told him that she did not want to have any metal in her mouth. In addition to having the plaintiff read and sign the standard "Informed Consent for Extraction of Teeth" form, which is submitted herein, Dr. Manfredi claims that he also had the plaintiff read and sign his handwritten notations in which the plaintiff acknowledged that she wanted her teeth removed and that she understood the risks and benefits of the procedure. Dr. Manfredi additionally refers to the plaintiff's own deposition testimony wherein she admitted to signing the consent form, and that she read and understood the form when she signed it. In further support, Dr. Manfredi relies upon the affidavit of his expert, Dr. Seldin, who opines that the plaintiff's verbal consent coupled with the signed consent form and the signed handwritten note in the plaintiff's chart was a proper and acceptable form of informed consent for the extraction procedure that she underwent.

Notwithstanding the plaintiff's signature on the consent form and in her chart, the court finds that the plaintiff's deposition testimony, which is submitted herein, raises a factual dispute between her and Dr. Manfredi on the issue of informed consent, precluding summary judgment on that claim (see Barnett v Fashakin, 85 AD3d 832 [2011]; June Wilson—Toby v Bushkin, 72 AD3d 810 [2010]); Anderson v Delaney, 269 AD2d 193[ 2000]). In this regard, the court notes that the plaintiff testified that Dr. Manfredi never advised her of any risks involved in having her remaining 15 teeth extracted or opined as to what other options/alternatives were available instead of extractions. Plaintiff testified that she was under the impression that her teeth were being extracted in order for her to receive dental implants. She further testified that Dr. Manfredi never even discussed the possibility of implants, or whether she had enough bone for the procedure. Plaintiff's deposition, testimony, which directly conflicts with the testimony of Dr. Manfredi, clearly raises a factual dispute as to the content of risks [*11]and/or information regarding other options of treatment Dr. Manfredi may have chosen for the plaintiff instead of performing the extractions.

In addition, the expert affidavit of Dr. Jutkowitz, upon which the plaintiff relies, has raised an issue of fact as to whether Dr. Manfredi negligently failed to explore other possible causes for the plaintiff's symptoms before performing the extractions. As set forth above, Dr Jutkowitz, opines that Dr. Manfredi departed from good and accepted standards of dental practice when he failed to follow up on Dr. Ahlo's recommendation and referral that the plaintiff consult with an oral pathologist regarding the extractions. Since Dr. Ahlo conditioned any future major treatment on plaintiff appearing for an oral pathology report, Dr. Jutkowitz opines that by failing to follow up on the referral, Dr. Manfredi failed to rule out non-odontogenic causes of the plaintiff's underlying symptoms, which were primarily the basis for her request to have her teeth extracted. Thus, an issue of fact has clearly been raised as to whether Dr. Manfredi explored all of the possible causes of the plaintiff's oral pain/discomfort and, therefore, whether he was able to fully apprise the plaintiff of all of her treatment options. Accordingly, the court finds that the foregoing issues of fact preclude summary judgment on plaintiff's lack of informed consent claim.. Thus, those branches of the defendants' respective motions seeking to dismiss said claim are denied.

In the event a jury finds that there was informed consent, to the extent that plaintiff's dental malpractice claim is based upon the allegation that Dr. Manfredi's extraction of plaintiff's remaining teeth was a deviation from good and accepted dental practice, that portion of the claim is dismissed (see Kaplan v Simmons, 5 AD3d 321 [2004]). In this regard, the court is mindful that the principles of patient autonomy (the right of the individual to control the course of his or her own medical treatment) that are the basis of our society and our health care system are not to be taken lightly. It has been the law of New York that a competent adult has the right to control or refuse his or her own medical treatment (see Grace Plaza of Great Neck, Inc. v. Elbaum, 82 NY2d 10, 15 [1993] citing Schloendorff v Society of NY Hosp., 211 NY 125 [1914]; see generally Delio v Westchester County Med. Ctr., 129 AD2d 1 [1987]).

In Schloendorff v Society of NY Hosp. (211 NY 125), the New York Court of Appeals held that a surgeon who performed an operation without a patient's consent committed an assault and battery. In so holding, Justice Cardozo stated that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body." (Id. at 129). This right has been consistently upheld, although today, the concept is embodied in the statutory law of this State and characterized as a lack of informed consent, more closely akin to malpractice, than battery (see Public Health Law, §§ 2504, 2805—d; CPLR 4401—a; see also Matter of Storar, 52 NY2d 363 [1981]; Murriello v Crapotta, 51 AD2d 381 [1976]). Indeed, the transition from battery to lack of informed consent is grounded in a patient's right to self determination and the complementary duty of a physician to disclose the risks, choices [*12]and potential dangers of a given medical procedure (see Lipsius v White, 91 AD2d 271 [1983]). Moreover, this fundamental right is coextensive with the patient's liberty interest protected by the due process clause of the State Constitution (see Rivers v Katz, 67 NY2d 485, 493 [1986], citing Schloendorff v Society of NY Hosp., 211 NY 125).

In Rivers v Katz (67 NY2d 485), the court addressed the issue of under what circumstances a hospital may administer antipsychotic medication to an involuntarily committed mental patient against his or her will. In analyzing that issue, the Court recognized that

"In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of [individual] desires" (citations omitted) (Rivers v Katz, 67 NY2d at 493).

Thus, in light of the foregoing principles of patient autonomy, in the event it is determined that Dr. Manfredi sufficiently disclosed to the plaintiff the potential risks and alternatives of the extraction procedure, the plaintiff's decision to undergo said procedure should be afforded great deference.

Punitive Damages

Lastly, the court turns to plaintiff's request to recover punitive damages. Dr. Manfredi and 5th Avenue Dental (defendants) argue that the plaintiff is not entitled to an award of punitive damages in this dental malpractice case since there is no proof that the defendants' conduct in treating the plaintiff was intentional, wanton or reckless towards the public as a whole. Defendants further contend that there is nothing in the record to even suggest that they were morally culpable or performed dental treatment with anything other than using a good faith effort to correct the condition of the plaintiff's mouth. In addition, defendants rely upon the expert affidavit of Dr. Seldin wherein he opines that, based upon his review of the record, the treatment was not rendered to the plaintiff in a wanton or reckless manner or with disregard to the plaintiff's health and safety.

Case law has established that for punitive damages to be upheld in medical/dental malpractice actions, the defendant's conduct must be wantonly dishonest, grossly indifferent to patient care, or malicious and/or reckless (see Schiffer v Speaker, 36 AD3d 520 [2007]; Brown v LaFontaine—Rish Med Assocs., 33 AD3d 470 [2006]); Sultan v Kings Highway Hosp. Ctr, Inc., 167 AD2d 534 [1990] [abortions performed by clinic in violation of various city and state regulations]; Graham v Columbia—Presbyterian Med Ctr., 185 AD2d 753 [1992] [abandonment of medically unstable patient]; see also Randi A.J. v LI Surgi—Center, 46 AD3d 74 [2007] [wrongful disclosure of confidential medical information — disclosed abortion to deeply religious parents]).

As to the plaintiff's dental malpractice claim, although the quality of dental [*13]treatment rendered by Dr. Manfredi has been questioned, there is no evidence of any egregious or morally reprehensible conduct in his actual treatment (performing the extractions), or any of the other extreme aggravating factors, which would warrant such relief (Haughton v Merrill Lynch, Pierce, Fenner & Smith, 278 AD2d 29, 30 [2000]; see generally Walker v Sheldon, 10 NY2d 401 [1961]). Thus, plaintiff's claim for punitive damages as it relates to her dental malpractice claim is hereby dismissed.

With respect to plaintiff's lack of informed consent claim, however, the court finds that an issue of fact exists which precludes summary judgment dismissing punitive damages as to this claim. While punitive damages in a medical/dental malpractice case are limited to where there is gross negligence, wanton or malicious conduct, or conduct activated by evil or reprehensible motives (Luby v St. John's Episcopal Hospital, 220 AD2d 390 [1995]), in the event that the defendants did not obtain the plaintiff's informed consent as to the extractions, by extracting 15 of the plaintiff's remaining teeth, a majority of which may have been salvageable, Dr. Manfredi may have engaged in exactly the sort of willful or wanton negligence or recklessness that evinces a gross indifference to patient care, warranting deterrence, and supporting submission of the issue of punitive damages to the jury (see Randi A.J. v Long Is. Surgi—Ctr., 46 AD3d 74 [2007]; Brown v LaFontaine—Rish Med. Assoc., 33 AD3d 470 [2006]). Thus, in the event, informed consent was lacking, the court holds that the question — whether Dr. Manfredi's treatment for the plaintiff in this case was merely careless or instead rose to the level of recklessness or gross negligence sufficient to support an award of punitive damages — presents a genuine issue of fact for the jury to resolve.

Conclusion

In conclusion, those branches of the motions by Dr. Manfredi and 5th Avenue Dental (defendants) seeking to dismiss plaintiff's dental malpractice claim is denied except that the issues at trial are limited to (1) whether Dr. Manfredi deviated from good and accepted dental practice by failing to follow up on Dr. Ahlo's recommendation that the plaintiff consult with an oral pathologist prior to formulating an extraction treatment plan and (2) whether the dentures were fabricated and/or fitted properly for the plaintiff.

Those branches of Dr. Manfredi's and 5th Avenue Dental's respective motions seeking to dismiss plaintiff's lack of informed consent claim are both denied.

Those branches of Dr. Manfredi's and 5th Avenue Dental's motions seeking to dismiss the punitive damages claim as it relates to the dental malpractice claim are hereby granted, and, for the reasons set forth above, the punitive damages claim only remains viable as to plaintiff's lack of informed consent claim.

The foregoing constitutes the decision and order of the court.

E N T E R, [*14]

J. S. C.

Footnotes

Footnote 1: The court rejects the defendants' argument that the expert affidavit of Dr. Marshall should not be considered by the court because the plaintiff failed to provide expert disclosure information pertaining to Dr. Marshall prior to service of defendants' summary judgment motion. In so holding, the court follows the reasoning set forth in Browne v Smith, 65 AD3d 996 [2009], wherein the Second Department upheld the Supreme Court's consideration of an expert's opinion submitted in opposition to a motion for summary judgment. The court reasoned:

" CPLR 3101(d)(1)(I) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,' unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (Hernandez—Vega v Zwanger—Pesiri Radiology Group, 39 AD3d 710, 710—711 [2007], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993]). Here, the Supreme Court did not improvidently exercise its discretion in considering the expert materials submitted by the plaintiffs in opposition to the defendants' summary judgment motion since there was no evidence that the failure to disclose was intentional or willful, and there was no showing of prejudice to the defendants (see Hernandez—Vega v Zwanger—Pesiri Radiology Group, 39 AD3d at 710; Simpson v Tenore & Guglielmo, 287 AD2d 613 [2001]). Moreover, the defendants had sufficient time to respond to the plaintiffs' submissions. (Browne v Smith, 65 AD3d at 997).

Similarly, as in Brown, there is no showing that plaintiff's failure to disclose Mr. Marshall's expert opinion was intentional or willful, and the court is satisfied that neither Dr. Manfredi nor 5th Avenue Dental was prejudiced as a result. Additionally, the defendants had ample time to respond.

Footnote 2: For the reasons set fort above, the court additionally rejects defendants' argument that Dr. Jutkowitz's expert opinion should not be considered herein (see Browne v Smith, 65 AD3d at 997).