Khiterer v Bell

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[*1] Khiterer v Bell 2005 NY Slip Op 50048(U) Decided on January 28, 2005 Civil Court Of The City Of New York, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2005
Civil Court of the City of New York, Kings County



MINA BELL, Defendant.

7247 / 04

Jack M. Battaglia, J.

A patient who proves breach of a contract for professional dental services, but does not also prove personal or economic harm, may recover only nominal damages for the breach.

Inna Khiterer began treating with Dr. Mina Bell in October 2001. The treatment included root canal therapy on two teeth and the fabrication and fitting of crowns for those teeth, as well as the fabrication and fitting of a replacement crown for a third tooth. The crowns were fitted in June 2002, and, after several broken appointments, Ms. Khiterer last saw Dr. Bell in December 2002. Ms. Khiterer treated with another dentist the following summer, and, according to her testimony at trial, learned that the crowns with which she was fitted by Dr. Bell were not fabricated in accordance with their agreement. Specifically, the crowns were made totally of porcelain, rather than of porcelain on gold as they, allegedly, should have been.

Ms. Khiterer's complaint in this Small Claims Part action alleges "defective services rendered and breach of contract". Advised prior to trial that any claim in the nature of dental malpractice required expert proof (see Mevorah v King, 303 AD2d 657, 657-58 [2d Dept 2003]; Davis v Levine, 4 Misc 3d 143[A], 2004 NY Slip Op 51101[U], *2 [App Term 2d and 11th Jud Dists]; Tyler v Krones, 2 Misc 3d 129[A], 2003 NY Slip Op 51709[U], *1 [App Term, 9th and 10th Jud Dists]), Ms. Khiterer elected to proceed on her breach of contract claim only.

"A breach of contract claim in relation to the rendition of medical or dental services by a physician or dentist will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or accomplish some definite result." (Clarke v Mikail, 238 AD2d 538, 538 [2d Dept 1997]; see also Robins v Finestone, 308 NY 543, 546 [1955].) A contract cause of action might be based upon a "specific promise to deliver [a] baby without administration of blood" (see Nicoleau v Brookhaven Memorial Hospital Center, 201 AD2d 544, 545 [2d Dept 1994]; a "special contract" by a dentist "to remove every part of [extracted] teeth from every part of the [patient's] body" (see Keating v Perkins, 250 AD 9, 10 [1st Dept 1937]; a "promise" by a dentist to return the fee paid for "bridge and crown work" if the patient was [*2]"dissatisfied" (see Aymar v Bloomingdale, 157 NYS 837, 837 [App Term, 1st Dept 1916]); and a "special agreement" by a plastic surgeon "to employ a different method than plastic surgeons use" (see Paciocco v Acker, 121 Misc 2d 342, 342 [Sup Ct, Nassau County 1983]).

The agreement alleged here, for dental services including root canal therapy and the fabrication and fitting of crowns made of porcelain on gold, had as its predominant purpose the furnishing of services, and is, therefore, governed by the general law of contracts and not by Article 2 of the Uniform Commercial Code. (See Perlmutter v Beth David Hospital, 308 NY 100, 106 [1954]; Betro v GAC Intern., Inc., 158 AD2d 498, 499 [2d Dept 1990]; Goldfarb v Teitelbaum, 149 AD2d 566, 567 [2d Dept 1989].) As will appear, however, the result would be the same in any event.

Ms. Khiterer testified that, because she had previously been fitted with crowns made of porcelain on gold (actually an 86% gold alloy, as Dr. Bell explained), she requested that the three crowns that she would receive from Dr. Bell also be made of porcelain on gold. Ms. Khiterer also offered the testimony of a friend, Sergei Leontev, who said that he was present during a conversation between Ms. Khiterer and Dr. Bell, and heard Dr. Bell assure Ms. Khiterer that she would be receiving three "golden-based crowns". Mr. Leontev also testified that he made a similar agreement with Dr. Bell that was later changed to all-porcelain crowns.

Dr. Bell testified that she had no independent recollection of any conversation with Ms. Khiterer about the composite material for the crowns. She testified further that an all-porcelain crown was therapeutically superior to a crown containing any metal, including the gold alloy, because the presence of metal created a risk of patient reaction. The cost to her, she said, of an all-porcelain crown and a porcelain-on-metal crown is the same, but the cement that binds the all-porcelain crown is more expensive.

Dr. Bell presented a copy of Ms. Khiterer's chart, showing an entry for the first visit on October 21, 2001 of "crowns metal-free". Impressions for the crowns, however, were apparently taken seven months later on May 30, 2002. Ms. Khiterer presented a summary of all treatment she received from Dr. Bell, handwritten by Dr. Bell, showing the notations for two teeth "rct / post / crown / pfm" and for one additional tooth "pfm". Dr. Bell explained that "rct" stood for "root canal therapy" and that "pfm" stood for "porcelain fused metal". She maintained that "pfm" was shorthand for any crown no matter the composition, but did not satisfactorily explain the then-redundant notation "crown/pfm".

The Court finds that the contract between Ms. Khiterer and Dr. Bell called for crowns made of porcelain on gold, but that the crowns with which Ms. Khiterer was fitted were made of all porcelain. There is no evidence that Dr. Bell intentionally substituted all porcelain for porcelain on gold. Intent is not required, of course, for a breach of contract, but, as will appear, it may affect the remedy for the breach. Dr. Bell pointed to an entry in Ms. Khiterer's chart for June 5, 2002, the date the crowns were fitted, that reads, "Patient satisfied w/ esthetic (sic) cementation", as evidence that Ms. Khiterer was satisfied with the all-porcelain crowns. But the entry cannot bear that weight, particularly in light of the evidence that Ms. Khiterer could not and [*3]did not know that the crowns were all porcelain until her teeth were x-rayed by her successor dentist.

The damages recoverable in a contract action against a doctor or dentist "are restricted to payments made and to the expenditures for nurses or medicines or other damages that flow from the breach." (Robins v Finestone, 308 NY at 546 [quoting Colvin v Smith, 276 AD 9, 10 [3d Dept 1949].) The precise scope of this damage formula is not entirely clear. (See Sullivan v O'Connor, 363 Mass 579, 584-85, 296 NE2d 183, 187 [1973].) It would include the amount of the fee paid or due to the doctor or dentist, but, as the decisions make clear, would not include "pain and suffering." (See Semel v Culliford, 120 AD2d 901, 902-03 [3d Dept 1986]; Mitchell v Spataro, 89 AD2d 599, 599 [2d Dept 1982]["pain and suffering and other noneconomic loss"]; Paciocco v Acker, 121 Misc 2d at 344 ["actual economic loss damage"].) It would be seem, therefore, that Ms. Khiterer would be entitled to recover as damages at least the fee she paid to Dr. Bell for the fabrication and fitting of the three crowns. The opinions, however, appear to assume that there had not been substantial performance of the contract by the doctor.

Developed in the context of construction contracts, the substantial performance doctrine allows the contractor to recover or retain the contract price for the work, with a deduction for the cost of completion or correction to contract requirements. (See James E. McMurray Enterprises, Inc. v Frohlich, 309 AD2d 836, 837 [2d Dept 2003]; Teramo & Co., Inc. v. O'Brien-Sheipe Funeral Home, Inc., 283 AD2d 635, 637 [2d Dept 2001].) The doctrine is applicable to employment contracts (see Hadden v Consolidated Edison Co. of New York, Inc., 34 NY2d 88, 96 [1974), real estate brokerage agreements (see Kaye v Greenspan, 118 AD2d 831, 832 [2d Dept 1986]), and leases (see Vanguard Diversified, Inc. v Review Co., 35 AD2d 102, 105 [2d Dept 1970]), and no reason suggests itself for not applying the doctrine as well to contracts for medical or dental services.

As articulated by Judge Cardozo in his seminal opinion in Jacob & Youngs v Kent (230 NY 239 [1921]), "The courts never say that one who makes a contract fills the measure of his duty by less than full performance. They do say, however, that an omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture" (id., at 241). The doctrine is required by justice, so as not "to visit venial faults with oppressive retribution" (see id., at 242), and "[t]he transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong" (id., at 244). But "[t]he willful transgressor must accept the penalty of his transgression." (Id.) "The interrupted work may have been better than called for in the plans. Even so, there can be no recovery if the contractor willfully and without excuse has substituted something else." (Buccini v Paterno Construction Co., 253 NY 256, 258-59 [1930]; see also Hadden v Consolidated Edison Co. of New York, Inc., 34 NY2d at 98 n 9 ["treating one of several factors to be considered in determining whether...performance is substantial" when subject contract is "divisible"].)

"[C]onveying a benefit upon a party does not ipso facto constitute substantial [*4]performance." (Joson Iron Works, Inc. v Staten Island Majors Realty Corp, 1998 US App LEXIS 22043, *7 [2d Cir][applying New York law].) "A contractor is not entitled to compensation from an owner even for improvements which benefit the owner unless that is a benefit for which an owner agreed to pay." (Nieman-Irving & Co. v Lazenby, 263 NY 91, 94 [1933].)

"Substitution of equivalents may not have the same significance in fields of art on the one side and in those of mere utility on the other." (Jacob & Youngs v Kent, 230 NY at 243; see also Lyon v Belosky Construction Inc., 247 AD2d 730, 732 [3d Dept 1998]["the aesthetic appearance of the home, both inside and out, was of utmost importance to the plaintiffs"]; Ferrari v Barleo Homes, Inc., 112 AD2d 137, 138 [2d Dept 1985]["the small difference in the thickness of the floors created by the substitution was not noticeable"].) "Nowhere will change be tolerated, however, if it is so dominant or pervasive as in any real or substantial measure to frustrate the purpose of the contract...There is no general license to install whatever, in the builder's judgment, may be regarded as 'just as good'... We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence." (Jacob & Youngs v Kent, 230 NY at 243 [quoting Easthampton Lumber & Coal Co. v Worthington, 186 NY 407, 412 [1906].)

Where substantial performance has been rendered, the remedy is the cost of completion or correction, unless that cost "is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value." (Id., at 244; see also Ferrari v Barleo Homes, Inc., 112 AD2d at 137-38 [awarding "difference in value between the contract materials and the substituted materials actually utilized"].) The "difference in value rule" is applied to avoid "economic waste". (See Bellizzi v Huntley Estates, Inc., 3 NY2d 112, 115 [1957]; Lyon v Belosky Construction Inc., 247 AD2d at 731.) But where the defect in performance is substantial, the cost of completion or correction will be awarded "notwithstanding the relatively small fee...charged for services rendered." (See id., at 732.)

Here, as already noted, there is no evidence that Dr. Bell intentionally substituted all porcelain for porcelain on gold as the material from which Ms. Khiterer's crowns were to be fabricated. The all-porcelain crowns were clearly suitable functionally for the intended purpose; indeed, there is no evidence to contradict Dr. Bell's opinion that they were better. Nor was there evidence to contradict her testimony of economic equivalence, and Ms. Khiterer testified that the fee she was charged by Dr. Bell was significantly less than the fee she had been quoted by other dentists. There is no evidence of physical harm to Ms. Khiterer from the all-porcelain crowns; although she testified that two of the crowns have been replaced by porcelain-on-gold crowns, there was no evidence that the replacement was necessitated by the composition of the all-porcelain crowns. And Ms. Khiterer was satisfied with the all-porcelain crowns from an aesthetic perspective.

If, therefore, there is to be a determination that Dr. Bell did not substantially perform her contract with Ms. Khiterer — or, to put it differently, that her performance was substantially [*5]defective it must rest on recognition of a patient's right to control, without qualification, any material that would become part of her body. The only decision of which this Court is aware that seems relevant to the issue suggests that the contract action against a doctor or dentist does not extend that far.

In Semel v Culliford (120 AD2d 901), the patient alleged that the doctor "fail[ed] to accomplish what he specifically undertook and agreed to do, take out all of the wire sutures" that had been implanted in the patient during previous open-heart surgery (see id., at 902). The court held that, "[a]s drafted", the patient's contract cause of action could not withstand the doctor's motion for summary judgment. (See id.) Although the court saw "an issue of fact concerning the extent of the surgery [the doctor] actually contracted to perform", the only damage said to have been sustained is...pain and suffering items of injury not obtainable in a contract action." (See id.)

Tort cases concerning lack of consent to medical treatment address a somewhat similar issue. "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable for damages." (Schloendorff v Society of New York Hospital, 211 NY 125, 129-30 [1914].) But, if the patient "fail[s] to prove any damages causally related to her lack of consent", she may recover only nominal damages. (See Garzione v Vassar Brothers Hospital, 36 AD2d 390, 393 [1st Dept 1971], aff'd 30 NY2d 857 [1972]; Barnette v Potenza, 79 Misc 2d 51, 56-57 [Sup Ct, Nassau County 1974].)

And so, when a patient sued her dentist because "the wrong tooth had been extracted", but "the tooth that was extracted was badly diseased and should have been extracted", a judgment for the patient could not stand. (See Doniger v Berger, 241 AD 23, 23, 26 [1st Dept 1934].) The court noted that "no injurious results to the patient were proved" and "no special contract was made." (Id., at 26.) A dissenting judge disagreed on the latter issue, finding proof of a "breach of a special contract resulting in a trespass." (See id. [O'Malley, J, dissenting].) He would have allowed damages "predicated...upon the additional expense [the patient] would be required to incur for contemplated bridge work by reason of the absence of the tooth extracted." (See id., at 27-28.) There was no suggestion of an award of general damages, unrelated to proof of physical or economic harm.

Whether the form of action is contract or tort, "the inquiry must always be, what is an adequate remedy to the party injured"; "the law awards to the party injured a just indemnity for the wrong which has been done him, and no more." (Baker v Drake, 53 NY 211, 220 [1873]; see also Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990].) The tort cases for lack of consent to medical treatment support a conclusion that an invasion of the interest to control one's body is not compensable beyond an award of nominal damages, in the absence of proof of other harm, presumably including, in an appropriate case, emotional harm. (See Hawkins v Brooklyn-Caledonian Hospital, 239 AD2d 549, 553 [2d Dept 1997].)

The Court concludes that Dr. Bell's breach of her contract with Ms. Khiterer, fitting her [*6]with all-porcelain crowns rather than porcelain-on-gold crowns, was not substantial, so as to warrant a return of her total fee. An award based upon the cost of replacement (which, in any event, has not been established by competent evidence) would be "grossly and unfairly out of proportion to the good to be obtained." (See Jacob & Youngs v Kent, 230 NY at 244.) And, under the circumstances here, the "difference in value rule" yields an award of only nominal damages, to which Ms. Khiterer is entitled upon proof of breach of contract. (See Manhattan Savings Institution v Gottfried Baking Co., 286 NY 398, 400 [1941]; Magu Realty Company v Spartan Concrete Corp., 239 AD2d 469, 470 [2d Dept 1997].)

The Court's analysis and conclusion are supported by an analysis of Ms. Khiterer's claim, and the conclusion that would be reached, under Article 2 of the Uniform Commercial Code. The contract description of the goods, porcelain-on-gold crowns, would constitute "an express warranty that the goods shall conform to the description." (See UCC §2-313[1][b].) Ms. Khiterer could reject the crowns if they "fail[ed] in any respect to conform to the contract." (See UCC §2-601.) But Ms. Khiterer's use of the crowns for approximately two years would constitute acceptance of them (see UCC §2-606[1][c]); and, consistent with the substantial performance doctrine in general contract law, Ms. Khiterer could revoke her acceptance of the crowns only if the "non-conformity substantially impair[ed] [their] value" (see UCC §2-608[1].) Without a substantial impairment of value, Ms. Khiterer's acceptance would stand, and she would be obligated to pay for the crowns "at the contract rate". (See UCC §2-607[1].) She would retain a claim for damages, however, measured by the "difference...between the value of the goods accepted and the value they would have had if they had been as warranted." (See UCC §2-714[2].) Applying that formula, her damages would be nominal.

Judgment is awarded to Ms. Khiterer for $10.00, plus disbursements.

January 28, 2005__________________________

Judge, Civil Court