Kirchner v Winegarten

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Kirchner v Winegarten 2013 NY Slip Op 30607(U) March 25, 2013 Supreme Court, New York County Docket Number: 800150/10 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. . UED ON 312812013 [* 1] SUPREME COURT OF THE 1,s fl 6 PRESENT: . s . .. ". . ... . TE OF NEW YORK I - NEW YQRK 9 COUNTY PART Justice 6 INDEX NO, MOTION DATE 0O.cMOTION CAL. NO. The following papers, numbered 1 t o 1 7 Notice of Motion/*Order to Show Causa were read on this motion to - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 0 Yes WNO Upoa the foregoing papers, it i ordered that this motion s .- Check one: ,&FINAL Check if appropriate: , I I DISPOSITION DO NOT POST NON-FINAL DiSPOSlTlON 0 REFERENCE [* 2] Index No. 800150/10 Plaintiff, 1 Decism. Order and Judgment -against- DR.ROBERT WINEGARTEN, DR.JERRY LYNN, and SOL STOLZENBERG, D.M.D., D/B/A TOOTHSAVERS, FILED 26 2013 Defendants Dr. Robert Winegarden, sh/aDr. Robert Winegasten, Dr. Jerry Lynn,and Sol Stolzenberg, D.M.D., P.C,, d/b/a TOOTHSAVERS, sMa Sal Stolzenberg, D.M.D., d/b/a/ TOOTHSAVERS, (TOOTHSAVERS) move for summary judgment purswt to Rule 32 12 of the Civil Practice Law and Rules' in this dental malpractice action. In 'the alternative, Defendants Winegarden and TOOTHSAVERS seek partial summary judgment dismissing Plaintiffs claims of recklessness and &lM, wanton and conscious disregard for Plaintiff's health and her claim for punitive damages. Dr. Winegarden also seeks partial summary judgment on Plaintiffs claim that he is vicariously liable for actions of others, Plaintiff Lisa Kircher opposes the motions, numbers 3,4, and 5 , which are consolidated for purposes of this opinion, order and j On January 11,20 10, Plaintiff Lisa Kirchner went to TOOTHSAVERS comp of a cavern in one of her lower teeth. A dentist, who is not a defendant in this case, examined her and took x-rays. The dentist told her that due to her grinding teeth problem she needed to have all her teeth restored. Ms.Kirchner balked at the cost. She did discuss financing with Defendant Lynn and recalls signing a document agreeing to pay $lO,sOO for treatment. The dental records are . .. . .... . . . . . . . . .. .. . - 'W [* 3] r* missing in this case. Ms. Kirchner hasiequested the files but TOOTHSAVERS has been unable to a locate them. TOOTHSAVERS alleges that Ms. Kirchner removed the files while she w s left unattended. On that same day that Ms. Kirchner was examined, Dr. Winegarden, who works for TOOTHSAVERS,began preparing five of Ms. Kirchner s lower teeth for restoration. He took impressions and ground down her teeth numbered 20,21,28,29, and 30. Ms. Kirchner received temporary crowns for those teeth. The next day, Ms. Kitcher returned to TOOTHSAVERS. One of the temporary crowns had fallen out. The crown was re-cemented, and Dr. Winegardm tried out different shades .- for the tinting of her permanent crowns, which were prepared by%e office s laboratory. She later . ,- retuned two times for whitening treatments in anticipation of the placement QE the pemanent crowns. She did not return for any further care following those treatments. In March 2010, she returned to her previous dentist, Dr.Eliott Folickman. D . r Folickman criticized the dental work that TOOTHSAVERS performed. He redid the fiqe crows. InNovember 20 10,Plaintiff sued Dr. Winegarden, Dr. Lynn and TOOTHSAVERS. She alleges dental malpractice and lack of informed consent. Plaintiff complains, among other things, that based on Defendants conduct she has incurred pain, suffering, mental anguish, occlusal disharmony, temporomandibular joint and neuromuscular problems, bone loss, and loss of tooth structure. -2- [* 4] In support of his claim for summary judgment, Dr. Winegarden submits the affirmation of David Abelson, D.D.S. Dr. Abelson has been a New York-licensed dentist since 1971. Based on his review of this case, which includes the models of Plaintiff's mouth prior to and subsequent to the preparation at TOOTHSAVERS, as well as the bill of particulars and transcripts of party witnesses, he opines that Dr.Winegarden did not depart from proper standards of care, did not proximately cause Plaintiff's alleged injuries, ahd did not fail to obtain informed consent for treatment of Plaintiff. In support of its motion for summary judgment, TOOTHSAVERS submits the affirmation of Dr. Arnold Jutkowitz. Dr. JutkowitZ is qualified in prosthodontics, periodontics, and ._ endodontics, and has a private practice in prosthodontics. He opines that TOOTHSAVERS did not depart from proper standards of care, did not proximately cause Plaintiff's injuriesand obtained fully informed consent from Plaintiff in providing treatment. Defendant Lynn in turn moves for summary judgment on the grounds that there me no triable issues of material fact showingthat he rendered any dental treatment to the Plaintiff,and,therefore, he similarly is not liable. Plaintiff opposes all three motions. In opposing Dr. Winegarden's and TOOTHSAVERS' motions she submits the affirmation of her subsequent treating dentist, Dr. Folickman, D .Folickrnan is a New York-licensed dentist. His opinion is limited to the temporw r restorations. He does not discuss Plaintiffs whitening treatment. He opines that the temporary restorations departed from proper standards of care: the temporary crowns ware ill-fitting, and the preparations, including margins, were not proper. He does not addres -3- Y [* 5] m addresses Plaintiff s claim of lack of infaked consent by stating that he lacks s a c i e n t idomation to opine but would opine that it would be a departure if 7hey did not discuss the reason for treatment and risks. * A defendant moving for summary judgment in a dental malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing % a t in treating the plaintiff there was no departure f o good and accepted medical practice or that any departure was rm not the proximate causa of the injuries alleged, J3oaues v. Noble, 73 A.D,3d 204,206 (1st Dep t 2010). To satisethat burden, defendant must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of parti~ulws.Id, Expert opinion m s be based on the facts in the record or those personally known to the expert. Roaues, ut a The expert cannot make conclusions by assuming material facts not supported by record evidence. a Expert opinion must explain Ghat [the physician] did and why. ! @ S I .i0-Ga-y v. Lawrence HOSD., A.D.3d 403,404 (1st Dep t 2010)(quoting Wasseman Y. Carel1% 307 A.D.2d 69 225,226 (1st Dep t 2003)). If a movant makes a prima facie showing, the burden then shiftsto the pwty opposing the motion Yo produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v.. Prospect H @ 68 N.Y.2d a, 320,324 (1986). To meet that burden, a plaintiff must submit EUI affidavit f o a physician attesting rm that the defendant departed from accepted dental practice and that the departure w s the proximate a cause of the injuries alleged. &,g Roaueg, 73 A.D.3d at 207. Where opposing experts disagree on issues, those issues must be resolved by a fact finder, and s u m ~ a r y judgment is precluded. BmeQ v. Fashakin, 85 A.D.3d 832,835 (ad Dep t 201 1); F r y v . Montefiare Med. Ctr,, 70 A.D.3d 15,25 (1st Dep t 2009). A defendant moving for summary judgment on a lack of informed consent claim -4- [* 6] -a + Y J must demonstrate that the plaintiff was informed of the alternatives to the treatment and its reasonably foreseeable risks and benefits and that a reasonably prudent patient would not have declined to undsrgo the [treatment] if he or she had been informed of the potential JCoi Hou Chan v. Young, 66 A.D.3d 642,643-44 (2d Dep t 2009); $ec a l Public Health Law 5 ~ 2805-d( 1). This Court finds that Defendants Winegarden and TOOTHSAVERS through their experts have established a prima facie case to support their motions. Moreover Plaintiffs expert in turnhas failed to rebut the Defendants e x p a clair& that any negligence did not pr&mately cause Plaintiff s alleged injuries or that Defendants failed to provide Plaintiff with informed consent. In addition, this Cowt finds that Defendant Lynn has also established that he is entitled to summary judgment. Plaintiff admits that Dr. Lynn did not her. Their conversations addressed financing and payment for services, Her expert, D ,Folic-, r doesnot mention Dr. Lynn in the Qpinionaccompanying Plaintiffs opposition to the other two Defcmdants motions, and Plaintiff dffers no expert opinion in opposing the Lynn motion far summary judgment. Because this Court grants D f n a t e e d n s motions for summary judgrnent, it need not address their motions for partial summary judgment, in the alternative. Accordingly, it is ORDERED that Defendants motions are granted, and the Clerk is directed to enter judgment accordingly. + ENTERED: W 26 2013 R JOAN -5- LOBIS, J.S.C.

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