Kozlowski v Oana

[*1] Kozlowski v Oana 2011 NY Slip Op 52542(U) Decided on August 30, 2011 Supreme Court, Westchester County Murphy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2011
Supreme Court, Westchester County

Julia Kozlowski and GARY KOZLOWSKI, Plaintiffs,

against

Gabriela Oana, D.D.S., EVAN CHAFITZ, D.M.D., P.C., individually and/or d/b/a SCARSDALE ORAL SURGERY, P.C., Defendants.



23379/09



RAWLE & HENDERSON, LLP

Anthony D. Luis

14 Wall Street, 27th Floor

New York, NY 10005

Fax:(212) 323-7099

LAW OFFICES OF JASON B. KESSLER, P.C.

111 Church Street

White Plains, NY 10601

Fax:(914) 931-1722

J. Emmett Murphy, J.

The following papers numbered 1 to 30 have been read on this motion brought pursuant to CPLR 3212 by defendants Gabriela Oana, D.D.S., Evan Chafitz, D.M.D., P.C., individually and d/b/a Scarsdale Oral Surgery, P.C., seeking summary judgment dismissing the complaint and [*2]upon this cross motion brought by plaintiffs Julia Kozlowski and Gary Kozlowski seeking to preclude defendants from offering expert evidence of Frank Weber, D.D.S. in support of their motion for summary judgment and for an Order granting partial summary judgment as to liability.

PapersNumbers

Notice of Motion/Affirmation/Affidavit;1 - 3

Notice of Cross-Motion/Affirmation;16 - 17

Affirmations in Opposition/Reply;28

Expert Affidavits;14, 27, 29, 30

Exhibits;4 - 13, 15, 18 - 26

Upon the foregoing papers, it is ORDERED that the motion of defendants Gabriela Oana, D.D.S., Evan Chafitz, D.M.D., P.C., individually and d/b/a Scarsdale Oral Surgery, P.C. defendant seeking summary judgment dismissing the complaint is denied; and it is further

ORDERED, that the branch of the cross-motion brought plaintiffs Julia Kozlowski and Gary Kozlowski seeking to preclude defendants from offering expert evidence of Frank Weber, D.D.S. in support of their motion for summary judgment is granted; and it is further

ORDERED, that the branch of plaintiffs' cross-motion which seeks partial summary judgment as to liability is denied.

Plaintiffs Julia and Gary Kozlowski have brought this action asserting claims against defendants Gabriela Oana, D.D.S., Evan Chafitz, D.M.D., P.C., individually and d/b/a Scarsdale Oral Surgery, P.C. for negligent dental treatment and lack of informed consent arising from the extraction of plaintiff Julia Kozlowski's wisdom teeth in February of 2009. Plaintiffs claim that Dr. Oana mistakenly severed the lingual nerve as she was extracting the lower wisdom tooth on Julia Kozlowski's right side, resulting in numbness and loss of taste on the right side of her tongue. Gary Kozlowski has a derivative cause of action. Issue was joined on behalf of defendants Dr. Oana, D.D.S., Evan Chafitz, D.M.D and Evan Chafitz, P.C./Scarsdale Oral Surgery, P.C. and discovery has been completed. Defendants move to dismiss the complaint on the ground that plaintiffs have stated no cause of action for dental malpractice or lack of informed consent. In opposition, plaintiffs argue that the Court should not consider the affirmation of defendants' expert in support of the defendants' motion to dismiss and they also cross-move for partial summary judgment as to liability.

The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985] ). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York University Medical Center, 64 NY2d at 853). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material [*3]issue of fact that precludes summary judgment and requires a trial" (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986] ). "The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues" (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

In order to establish the liability of a dentist in a dental malpractice action, the elements of proof are a deviation or departure from accepted standards of dental practice, and that such departure was a proximate cause of the plaintiff's injuries (see Sharp v. Weber, 77 AD3d 812, 813 [2d Dept., 2010]; Koi Hou Chan v. Yeung, 66 AD3d 642 [2d Dept., 2009]; Cohen v. Kalman, 54 AD3d 307 [2d Dept., 2008]). Consequently, on a summary judgment motion to dismiss, defendants have the initial burden of establishing the absence of any departure from good and accepted practice or, if there was such a departure, that it was not a proximate cause of the plaintiff's injuries (see Zito v. Jastremski, 84 AD3d 1069 [2d Dept., 2011]; Myers v. Ferrara, 56 AD3d 78, 83 [2d Dept., 2008]; Larsen v. Loychusuk, 55 AD3d 560, 561 [2d Dept., 2008]; Terranova v. Finklea, 45 AD3d 572 [2d Dept., 2007]). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Koi Hou Chan v. Yeung, 66 AD3d at 643; see Ward v. Engel, 33 AD3d 790, 791 [2d Dept., 2006]; Johnson v. Ladin, 18 AD3d 439 [2d Dept., 2005]).

To defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing (see Zito v. Jastremski, 84 AD3d at 1070; Stukas v. Streiter, 83 AD3d 18, 21-26 [2d Dept., 2011]). However, mere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the claim at issue, are insufficient to defeat summary judgment (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458 [2d Dept., 2007]; Gargiulo v. Geiss, 40 AD3d 811, 812 [2d Dept., 2003]).

In support of their motion, the defendants submitted, inter alia, the deposition testimony of Drs. Oana and Chafitz, both plaintiffs, the affidavit of Dr. Oana, the IME report of Dr. Frank Weber as well as Dr. Weber's affidavit as defendants' dental expert opining that Dr. Oana did not depart from good and accepted practice. Inasmuch as defendants' expert disclosure was not produced until after the filing of the note of issue and certificate of readiness, and the defendants do not provide any adequate excuse for failing to identify their expert in response to plaintiffs' discovery demands, the Court will not consider it on this application (see Wartski v. C.W. Post Campus of Long Island Univ., 63 AD3d 916 [2d Dept., 2009; King v. Gregruss Mgmt. Corp., 57 AD3d 851 [2d Dept., 2008]; Construction by Singletree, Inc., v. Lowe, 55 AD3d 861 [2d Dept., 2008]). Notably, the defendants' expert affidavit is, perhaps intentionally, undated and thus the Court is unable to determine whether it was authored after the note of issue and certificate of readiness, the Court would have been more inclined to exercise its discretion in this regard and consider it (see Sierra v. D'Apuzzo, 28 Misc 3d 171 [Sup. Ct. Kings County, 2010]). Proffered as it is, the Court is left to conclude that since defendants had retained Dr. Weber to conduct plaintiff's IME some months before they disclosed him as their retained expert in this application [*4]for summary judgment, their conduct in failing to disclose him was wilful in this regard.

In any event, Dr. Weber, in reaching his conclusion, assumed the defendants' version of events, in particular that in performing the extraction of plaintiff's wisdom tooth, Dr. Oana extracted it by using "a hockey stick' incision," which he described as a buccal (cheek) sulcular incision with a hockey stick-shaped extension into the cheek which would create a flap in the cheek to extract the tooth, that she retracted the soft tissue flap with a Seldin instrument, that Dr. Oana used a bur (drill) to partially section the tooth vertically, that she irrigated the socket and removed the follicle at the extraction site on the cheek side as was accepted standard practice to prevent infection or cyst formation. Dr. Weber opines that "according to the records there were no intra-operative complications" although there appears to be no dispute herein but that damage to plaintiff's lingual nerve (anesthesia of the tongue) was an acknowledged intra-operative complication that occurred either as a result of a deviation from accepted standards of dental practice (that is, by failure to protect the lingual nerve during extraction) or was a known and acceptable risk inherent in the extraction of the lower wisdom teeth. In determining a motion for summary judgment, the Court would have to view the evidence in the light most favorable to plaintiffs' as the non-moving party. In that regard, defendants' evidence on this application is not addressed to the issue of whether transection of the lingual nerve is a possible, albeit rare, complication of the wisdom tooth extraction procedure employed here. Plaintiff's deposition and supportive medical records relate that the particular complication arising from the extraction was not merely damage to the lingual nerve, as characterized by defendants, but an actual amputation or transection of the lingual nerve which even defendant Dr. Oana appeared to concede in her testimony was an entirely different sort of damage than the more common complications which cause damage to the lingual nerve. In any event, defendants have failed to establish prima facie entitlement to judgment, and thus, the Court need not address the sufficiency of plaintiffs' opposition papers in this regard (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Koi Hou Chan v. Sammi Yeung, 66 AD3d 642 [2d Dept., 2009]; Larsen v. Loychusuk, 55 AD3d 560 [2d Dept., 2008]).

With respect to that aspect of plaintiffs' complaint which alleges the lack of informed consent, defendants must show on summary judgment for lack of informed consent, that 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 v. Sammi Yeung, 66 AD3d 642, 643 [2d Dept., 2009]; see also Public Health Law § 2805-d[1]). To rebut a prima facie showing of entitlement, plaintiff must then demonstrate, through competent evidence, that the "doctor failed to disclose a reasonably foreseeable risk; that a reasonable person, informed of the risk, would have opted against the procedure; that the plaintiff sustained an actual injury; and that the procedure was the proximate cause of that injury" (Ophan v. Pilnik, 66 AD3d 543, 544 (1st Dept., 2009]).

Here, plaintiff signed the informed consent form which stated, inter alia, that "[t]eeth may be close to or in actual contact with the nerve that supplies sensation to the ... tongue. Rarely, [*5]these nerves may be involved in the area of surgery, causing numbness after the procedure. In most cases, if this happens at all, the nerve regenerates in a short time. In a few cases, the numbness may be permanent." This consent form does not establish that the injury which plaintiff alleges having sustained as a result of the extraction procedure, that is transection of the lingual nerve, was, in its nature and in its extent, consistent with the type of nerve involvement that plaintiff had been told prior to the procedure to consider as among the reasonably foreseeable risks of that proposed procedure, or that a reasonable, fully-informed person in the plaintiff's position would have chosen to undergo the tooth extraction despite the existence of that risk. Dr. Oana asserted in her deposition that the anatomical position of the lingual nerve can, in rare circumstances, lie on top of the mandibular crest which imply that a surgical complication such as transection of the lingual nerve could occur. This would suggest a qualitatively different kind of complication or risk that could be reasonably foreseen. Accordingly, as there are issues of fact as to the qualitative sufficiency of the consent, this aspect of defendants' motion is denied as is plaintiffs' cross-motion for partial summary judgment as to informed consent(see Wilson-Toby v. Bushkin, 72 AD3d 810 [2d Dept., 2010]; Public Health Law Section 2805d[1],[3]).

On plaintiffs' cross-motion for partial summary judgment, they maintain that proof that plaintiff's lingual nerve was severed demonstrates malpractice as a matter of law. They point to the operative report of Dr. Ruggiero, the surgeon who performed the nerve repair procedure on plaintiff that her lingual nerve had been severed and to Dr. Weber's IME which confirms that plaintiff still exhibits lingual anesthesia. In his affidavit, plaintiffs' unnamed expert, an oral surgeon, opines with a reasonable degree of dental certainty, that the dental care which Dr. Oana rendered to plaintiff was a departure from accepted standards of dental practice, that she did not perform the procedure as she claims to have, and that her deviation in this regard proximately caused the plaintiff's transected lingual nerve. Particularly, plaintiffs' expert explained that the reason why amputation of the lingual nerve is necessarily a deviation from the standard of care is because transection of this nerve can only occur when the dentist has placed a sharp instrument outside the cheek side of the wisdom tooth. Plaintiff's expert further opines that the lingual nerve is never located on the cheek side of the mandibular ridge and thus, an injury such as occurred here, can only happen if the dentist, unaware of the anatomical range of position of the lingual nerve, has ventured from the cheek side of the mandibular crest into the "lingual half of the mandibular crest." Further, the expert would refute that aspect of Dr. Oana's testimony that the precise anatomical location of the lingual nerve is not precisely known and that it can rarely be found top of the mandibular crest.

Plaintiffs have demonstrated on their cross-motion entitlement to judgment as a matter of law; however defendants have raised triable issues of fact which preclude partial summary judgment as to liability. Plaintiff's expert opines that the lingual nerve can never lie on the cheek side of the mandibular ridge and thus that the plaintiff's lingual nerve must have been severed because Dr. Oana strayed into the lingual side of the mandibular crest. Dr. Oana has maintained, however that occasionally, rarely, the lingual nerve is located on top of the mandibular crest. Whether the lingual nerve can lie on the top of the mandibular crest as Dr. Oana maintains and [*6]thus whether a wisdom tooth extraction can impact the lingual nerve even if the surgeon does not stray into the lingual side of the mandibular crest are issues for trial and thus, plaintiffs' motion for partial summary judgment is denied.

Dated:White Plains, New York

August 30, 2011

___________________________

HON. J. EMMETT MURPHY,

J.S.C.