Chubet v Biondo

[*1] Chubet v Biondo 2010 NY Slip Op 51378(U) [28 Misc 3d 1217(A)] Decided on July 21, 2010 Civil Court Of The City Of New York, Kings County Joseph, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2010
Civil Court of the City of New York, Kings County

John Chubet, Plaintiff,

against

Ronald L. Biondo, D.D.S., Defendant.



TS-000755/08



Plaintiff's Counsel: Kenneth J. Burford, Esq., Westermann Sheehy Keenan Samaan & Aydelott, LLP, 222 Bloomingdale Road, Ste 305; White Plains, New York 10605 (914) 946-7770

Defendant's Counsel: Joseph Santora, Esq., Lutfy & Santora, 1405 Clove Road, Staten Island, New York 10302 )718) 442-2272

Ingrid Joseph, J.

In this dental malpractice action, plaintiff John Chubet ("plaintiff") seeks damages predicated upon lack of informed consent and dental malpractice ("malpractice claim"). Plaintiff asserts that defendant Ronald L. Biondo, D.D.S. ("defendant"), extracted his wisdom tooth ("tooth 32") without apprising him of the alternatives and inherent risks of the procedure and further, that defendant improperly extracted the tooth, which injured his lingual nerve causing numbness, altered taste and "zings" in the right side of the tongue.

The case was tried from March 11, 2010 to March 25, 2010, and the jury returned a unanimous verdict for plaintiff on the lack of informed consent claim and awarded damages for past pain and suffering in the amount of $70,000. The jury found in defendant's favor on the malpractice claim and declined to award damages for future pain and suffering.

Defendant now moves pursuant to CPLR § 2221, for leave to reargue the oral motion, made after plaintiff's case and at the close of trial, to dismiss the lack of informed consent claim and all causes of action advanced by plaintiff as permitted under CPLR § 4401-a. Concomitantly, defendant seeks an order pursuant to CPLR § 4404 granting judgment in its favor notwithstanding the verdict. Plaintiff opposes and cross-moves for an Additur of $250,000 for future pain and suffering and the imposition of sanctions upon the defendant and his attorney for purportedly advancing a frivolous defense.

In support of its motion, defendant claims that plaintiff failed to meet the burden imposed by Public Health Law ("PHL") § 2805-d by not adducing expert testimony in support of the alleged qualitative insufficiency of the consent. Defendant maintains that plaintiff's liability expert, Samuel Levin, M.D. ("Dr. Levin"), provided equivocal and speculative testimony and failed to establish that a reasonably prudent person in plaintiff's position would not have undergone the procedure if he had been adequately informed.

In opposition, plaintiff posits that there was extensive testimony from both parties' [*2]experts concerning the nature of the risks involved and whether those risks should have been disclosed to plaintiff. Plaintiff contends that defendant's counsel even acknowledged in his moving affirmation that Dr. Levin testified to a heightened risk of lingual nerve paresthesia. Plaintiff also maintains that he was not experiencing pain in tooth 32 at the time Dr. Biondo obtained the consent. Plaintiff argues further that Dr. Levin opined as to what a reasonably prudent person under those circumstances would have done when he stated explicitly, that an asymptomatic person, if apprised of the risks, would not have undergone the procedure.

CPLR § 2221(d) provides that a motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court. It is defendant's position that the court overlooked or misapprehended governing Second Department precedent when it denied defendant's motion at the end of plaintiff's case and again at the close of evidence. The motions were made orally before the court and each time, defendant sought dismissal of the lack of informed consent claim pursuant to CPLR 4401-a and dismissal of the entirety of plaintiff's claims based upon its contention that plaintiff failed to establish either cause of action under Public Health Law ("PHL") § 2805-d.

PHL § 2805-d provides, in pertinent part, that:

(1) Lack of informed consent means the failure of the person providing the professional [procedure] to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable... dental... practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.

(3) For a cause of action... it must also be established that a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.

Under CPLR § 4401-a, a motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely upon lack of informed consent, if the plaintiff fails to offer expert medical testimony in support of the alleged qualitative insufficiency of the consent.

A review of Appellate Division Second Department case law reveals that when a defendant moves pursuant to CPLR § 4401-a, the court must view the expert testimony in a light most favorable to the plaintiff and accord the plaintiff every favorable inference (see Geltzer v Leventhal, 287 AD2d 435 [2001]; Greenberg v James, 578 AD3d 849 [2008], and the motion should be granted when the movant can establish that there was no expert testimony presented at trial or, alternatively, if it can be shown that the expert failed to or inadequately or insufficiently addressed the qualitative insufficiency of the consent (see generally Sarwan v Portnoy, 51 AD3d 355 [2008]; Faulkner v Shnayerson, 273 AD2d 271 [2000]; Berger v Becker, 272 AD2d 565[2000]; Lopez v Sheskier, 262 AD2d 536 [1999]; Innucci v Bauersachs, 201 AD2d 460 [1994]; Dooley v Skodnek, 138 AD2d 102 [1988]; Lipsius v White, 91 AD2d 271 [2d Dept 1983]). In other words, the lack of informed consent question should not be submitted to the jury when there is an absence of expert medical testimony or the medical testimony is insufficient or inadequate to support the qualitative insufficiency of the consent (id.).

The Appellate Division has also held that if both parties present expert testimony in [*3]support of their respective positions, it is within the province of the jury to determine the experts' credibility (Dehaarte v Ramenovsky, 37 AD3d 724, 726 [2009]; Rabinowitz v Elimian, 55 AD3d 813, 814 [2008] see also Briggins v Chynn, 204 AD2d 158 [1994]). The jury's resolution of conflicting testimony is entitled to great weight, because it is the jury that had the opportunity to observe and hear the experts (Speciale v Achari, 29 AD3d 674, 675 [2006]).

Applying these principles to that branch of defendant's motion seeking leave to reargue its 4401-a motion, the court finds that there was no misapplication of the law and the lack of informed consent claim was properly submitted to the jury. Dr. Biondo gave conflicting testimony that there was a heightened risk of injury and whether he did, or did not, advise plaintiff that the procedure involved that heightened risk (TT, 3/12/10 pp. 26-28). Plaintiff's expert, Dr. Levin testified that there was a heightened risk of injury to the lingual nerve due to the impaction of tooth 32 (TT, Tr. 3/17/10, p. 2). Defendant's expert, Arthur Elias ("Dr. Elias"), countered by testifying that the exact location of the lingual nerve is unknown and therefore, Dr. Biondo could not have been expected to disclose the gravity of the risk involved (TT, 3/23/10, p. 74).

On direct-examination when asked whether a reasonably prudent person would have continued with the extraction in light of the risks involved, Dr. Levin responded, "I don't think the patient would have agreed to do it" (TT, 3/17/10, p. 63). On cross-examination, however, Dr. Levin conceded that he has performed the same procedure several times and did so after obtaining consent from his patients. Dr. Levin also testified as follows:

Q.All right. So then, doctor, you really can't say then that a reasonably prudent person informed of the heightened risk attached to the extraction of a wisdom tooth such as 32 would not have had the procedure done, can you?

A.No, I can't say that.

Q.So, any testimony that you gave earlier here today to the effect that a reasonably prudent person would not have undergone the procedure had they been informed, you're now telling us that's inaccurate what you said earlier [sic]?

A.Had they been informed is the key sentence. Had they been informed.

Q.Had they been informed?

A.Yes.

Q.Its your testimony now that what you said earlier —

A.Yes.

Q.— that a reasonably prudent person would not have done it. What you said earlier is wrong? [*4]

A.No, that's not wrong. It's just, it's not it's not wrong. It's a different, how we look at it. It's what the patient is. What there ability is to digest and understand it.

(TT, 3/17/10. pp.156-157)

As described above, Dr. Biondo and his expert, Dr. Elias, as well as plaintiff's expert, Dr. Levin, collectively provided testimony regarding the qualitative insufficiency of the consent. The experts provided competing testimony regarding whether the procedure involved a heightened risk of injury and gave differing opinions as to whether such information should have been disclosed to plaintiff. Furthermore, CPLR § 4401-a does not provide for dismissal of a lack of informed consent claim based upon plaintiff's experts' failure to state unequivocally his opinion as to what a reasonably prudent person would or would not do under the same or similar circumstances. Even if such testimony was required, Dr. Levin opined that a reasonably prudent person in plaintiff's position would have abstained from the procedure had he been provided the appropriate information, especially where, as is the case here, the tooth was asymptomatic. Viewing this testimony in a light most favorable to plaintiff and granting plaintiff every favorable inference, the court finds that there was sufficient proof to raise a factual issue for the jury to determine and the 4401-a motion was properly denied.

The court now addresses that part of defendant's motion seeking an order granting judgment notwithstanding the verdict. Pursuant to CPLR § 4404, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of the party entitled to judgment as a matter of law. In Cohen v Hallmark Cards, Inc., 42 NY2d 493 [1978], the Court of Appeals held that a court must make a harsh, basic assessment of the jury's verdict to conclude as a matter of law that a jury verdict is not supported by sufficient evidence. The Court went on to explain that it is necessary to first conclude that there is "simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (id.).

Here, the jurors heard testimony from several experts and the parties' attorneys submitted various documents into evidence. The jury's determination follows a valid line of reasoning and rational minds could have arrived at the same result. Moreover, it is both feasible and plausible that the jury found in favor of plaintiff on the lack of informed consent claim and in defendant's favor on the malpractice claim. Thus, the court finds no basis for disturbing the jury's verdict.

With respect to the cross-motion, plaintiff contends that its damages expert, David A. Sirois, M.D. ("Dr. Sirois"), provided testimony that permanent anesthesia, loss of taste and a pain syndrome resulted from the procedure. Plaintiff maintains that Dr. Sirois also testified that these injuries constitute a decreased quality of life and accordingly, plaintiff should have been awarded future damages.

Defendant argues inter alia that the above testimony was countered by Dr. Biondo, who stated that plaintiff failed to return for an extended period of time after the procedure and did not pursue a referral to a neurologist (TT, 3/12/10, p.20). Defendant maintains that plaintiff even testified that his reason for not seeing a specialist was not related to any lack of finances. Defendant contends further that plaintiff also indicated that his real estate business has improved [*5]and that he met and married since sustaining the injuries alleged in this case.

Both parties presented testimony bearing the extent of plaintiff's injuries at trial. The jury is entitled to draw conclusions from such testimony, and the fixation of damages for personal injuries is peculiarly the function of the jury (see Mormon v Serkanic, 25 AD2d 526 [1966]. Additionally, plaintiff failed to establish that the verdict deviates materially from what would be reasonable compensation under the facts of this case (Fischl v Carbone, 199 AD2d 463 [1993]; Siegel, NY Prac § 407).

Regarding the request for sanctions, plaintiff alleges that the defendant initially asserted a false defense by maintaining that he sectioned tooth 32 before extracting it when, in fact, he did not. Defendant's answer and verified bill of particulars are devoid of any such defense and more importantly, defendant's counsel did not affirmatively advance that defense at trial. Plaintiff's contention that Dr. Biondo proffered a phony six-page doctor's note at trial is not a basis for sanctions. The note from Dr. Biondo's chart, which purports to document the extraction procedure, was entered into evidence as a business record. Plaintiff's counsel had ample opportunity to vigorously question Dr. Biondo about that note, and he seized upon every opportunity to do so. Additionally, the integrity or lack thereof, of the note or any of the information therein presents questions of facts for the jury. After weighing all of the evidence and due deliberation, the jury returned a verdict in favor of defendant on the malpractice claim and awarded plaintiff $70,000, for past pain and suffering on the lack of informed consent claim. In essence, the jury found that the defendant did not depart from good and accepted standards of dental oral surgery even though he extracted tooth 32 without sectioning it.

Predicated on the preceding analyses, the court finds that plaintiff's causes of action for dental malpractice and lack of informed consent should not be dismissed, and the court will not set aside any portion of the jury's verdict. The court denies plaintiff's requests for an Additur of $250,000 and the imposition of sanctions on defendant and his attorney.

In light of the foregoing, all other arguments and claims are without merit. Accordingly, defendant motion and plaintiff's cross-motion are denied in their entirety.

This constitutes the decision and order of the court.

July 21, 2010_____________________

HON. INGRID JOSEPH

Judge, Civil Court