Tuber v New York Univ. Sch. of Dentistry

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Tuber v New York Univ. Sch. of Dentistry 2012 NY Slip Op 32916(U) December 7, 2012 Sup Ct, New York County Docket Number: 100753/2011 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON I211012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK (/g PRESENT: - NEW YORK COUNTY f BJ L PART 6 Justice - v MOTION SEQ. NO. z PAPERS NUMBERED Notice of Motion/ Order to Show CauseAnswering Affidavits Cross-Motion: - Affidavits - Exhibits ... Exhibits - n Yes m \ 4 3 1 -,s 7 d ,< 1EL o Upon the foregoing papers, it is ordered that this motion UlEC 0 7 2012 NEW YaR$$. COUNTY CLERK% Check one: FINAL DISPOSITION r? NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE SUBMIT ORDER/ JUDG. clj SETTLE ORDER/ JUDG. Check if appropriate: [* 2] . - Plaintiff, Index No, 100753/2011 Decision and Order -against- NEW YOKK IJNIVERSI TY SCHOOL OF DENTISTRY, Defendant. summary judgment pursuant to C.P.L.R. Q 3212 in this medical malpractice action. Plaintiff Scott Tuber opposes the motioil. For the reasons statcd bclow, the motion is granted in part and denied in part. NYUCOD operates a dental clinic staffed by dental students who are supervised by NYUCOD faculty. Plaintiff Scott Tuber was treated at NYUCOD for a variety ofdental issues from July 2009 through rkccrnbcr 20 I O . The treatment is allegcd to have affected teeth 2, 6, 7, 20,29, and 3 1 . Over the coursc of that treatment he signed several conscnt forms. Plaintiff sued in June 201 1, alleging that NYUCOD was medically negligent in its care and that the trcatmcnts were perforrncd without informed consent. A defendant moving for summary judgment in a rnedical malpractice action must make a prima facie showing of entitlement to judgment as a matler of law by showing that in treating the plaintiff there was 1 0departure fi-om good and acccpted medical practice or that any 1 [* 3] departure was not the proximate cause of the injuries alleged. Rosucs v. Nobel, 73 A.D.3d 204, 206 (1st Ilep t 201 0) (citations omitted). To satisfy the burden, defendant must prcscrlt expert opinion testimony that is supported by the facts in thc record and addresses the essential allegations in the bill ofparticulars. Id. If the movant makcs a prima facie showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish thc existcnce of matcrial issues o f fact which require a trial of the action. Alvarez v. Prospect IIosp., 68 N.Y.2d 320, 324 (1986) (citation omitled). To meet that burden, plaintiff must submit an affidavit from a physician attesting that the defendant departcd from acccpted medical pructicc arid that the departurc was the proximatc cause of thc injuries allcgcd. Roclucs, 73 A.D.3d at 207 (internal citations omitted). Where opposing experts disagree on issues, those issues must be resolved by a fact findcr, and summary judgment is precluded. Barriett v. Fashakin, 85 A.D.3d 832, . 835 (2d Dep t 201 1); Frycv. Monteliore Med. Ctr., 70 A.D.3d 15,25 (1st Dep t 2009). A dcfcndant moving, for sumnary judgment on a lack of informed consent claim must dernonstratc that the plajntij f was inl ormcd of the alternatives to treatment and its reasonably foreseeable risks and benefits and that a reasonably prudent patient would not have declined to undergo the [treatment] ifhc or she had been inforincd ofthe potential complications[. 1 Koi Hou Chan, 66 A.D.3d 642,643 (2d Dep t 2009); see also Public Health Law 6 ZSOS-d( 1). After reviewing all the submissions and argument of counsel, I find that material issues of fact exist as to treatment relating to all teeth in contcntion except tooth 2. In this case, the record shows that NYUCOD treated tooth 2 beginning in January 201 0. Defendant s expcrl, hdina Carrel, D.M.D., opined that Defendant s treatment of that tooth was within good and accepted medical practice. Plaintiff s expert, Robert Corwin, D.D.S., did not dispute that claim. Accordingly, --. -2- [* 4] summary judgment as to claims relating to that tooth is appropriate. Genuine issues o E material fact remain, howcver, as to Plaintiffs other contentions of mcdical malpractice. 'I'hc experts disagree whether the Dcfcndant acted within good and accepted rncdical practice rcgarding Defendant's treatment of tectli 20,29, and 3 1 and whether any departure caused plaintiff's allcged injuries. Plaintiffs expert further allcges following examination of plaintiff' and a review of thc medical records in this case that during treatrncnt of tooth 3 1 on July 20,2009, the Defendant chipped a porcclain laminate on plaintiffs tooth 6, which fell out later the same day and had to be reattached the next day. Plaintiff alleges that on July 2 1, 2009, thc dentist chipped the incisal edge of the laminate of Plaintiffs tooth 7 while adjusting the occlusion on tooth 3 I . ' h a t chip has not beun repaired. As to plaintiffs claim of lack of informed consent, this Courl finds geriuine issues of material fact remain on this issue. Dcfcndant alleges that several consents to treatment were obtained from Plaintiff over time. Plaintiff, however, claims he consented lo only one treatment plan, in January 20 10, and he claims that the scope of his consent to treatment was narrower than the scope that Ikfendant claims. l'his dispute over informed consent presents a question for the factfindcr. Accordingly, it is ORDEREL1 that Defcndant's motion for summary judgmcnt is granted to the extent of granting partial summary judgment for Defendant and against Plaintiff as to Plaintiff's claims -3- [* 5] 1 rclating to tooth 2;and the Clerk is directed to enter judgment accordingly; and it is further I OIUlEREJ> that the action shall continue as to all rcrnainiilg claims; and it is further ORDERED that counsel are directed lo appear for a status conference in Room 345 on December 11, 2012, at 9:30 am. Dated: November 3 D,2012 ENTERED: FILE BEC 0 7 2012 -4-

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