Bruno v Haselkorn
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Bruno v Haselkorn 2013 NY Slip Op 32643(U) October 8, 2013 Supreme Court, Suffolk County Docket Number: 08-10267 Judge: Daniel Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] IN DEX No. 08-10267 CAL No. 17015 77Di'vl SI IUR I FUR\I C>RIJER SLPREME COURT - STA TE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESENT: ll u11 DA NIEL MARTI\J ' - - - 'Justice of the Supreme Court -·- --· -------·- ---------------------------------------------------x BE VER LY BRUNO, Plaintiff, MOTION DATE 1-8-1 3 ADJ. DATE 2- 19-1 3 Mot. Seq. 003 - MD CA VALIER & ASSOC IATES Attorney for Plaintiff 144-1 Remington Boulevard Ronkonkoma, New York 11 779 - against !vi ICl-IAEL 1 -Li\SELKORN, D.D.S., Defendant HENRY SCHWARTZ, ESQ. Attorney for Defend ant 16 Couti Street, Suite 2600 Brooklyn, New York l 1241 -------------------· ------------ ------- -------- ---------------------x Upon the following papers numbered 1 toJ2_read on thi s motion for summary 1udgrnent ; Notice ofi'vlot1011/ Order to Sho w Cause supporting papers (003) 1-14; No tice of Cross Motion and supporting papers_; Answering A ffida v its and supporting pape rs 1.5- 17; Rc'J'l yi ng A fli dav 11 s and supporting papersJk.!.2_; Other_; (and after heating counsel in suppo rt and opposed to the 111otio11 ) it is. ~111 d ORDERED that this motion (003) by the defendant, Michael Haselkorn, D.D.S.J\.)r sum mary judgment d1 s111i ss i11g the complaint as asserted against him is denied .. In this dental malpractice action, the now sixty-nine year old plaintiff~ Beverly Bruno, alleges that th e dclendant, Michael Haselkorn, D.D.S., departed from good and accepted standards of dental practice an d fa ikd to provide her with informed consent regarding the dental care and treatment in placing bridges which caused c\c ruc1 gja\v pain , headaches, tightness in her jaw, ringing in her ears, inability to sleep, and which further atin ca usl.:'. d sores and abscesses in her month . The plaintiff also alleges that despite her complaints, the defend ant !~ii led to tak e a1~ y action to all ev iate her pain and discomfort, did not attempt to adju st the ill-fittin g brid ges. and 1·a1 led to treat the sores in her mouth with antibiotics. Th e plaintiff further alleges tlrnt th e dde ndant l'ai led to 1cpair lh:r original brid ge, and in stead replaced the bridge with the ill-fitting bridge. She was required to ull(krgu surgicil intervention to correct the issues caused by the defendant's neg ligent care and lrealrn ent, ~llld ll.1rthL:r su lforcd fractured teeth, loss of teeth # 19 and 20. and bone loss. proponent o!' a summ ary judgment motion must make a prima fa cie show in g 0 1· entitlement to 1ud g111ent ;1 a lllatter of law, tendering sufficient evidence to eliminate any material issues of fact from th e c1se . s To grant surn111;1ry _jud gment it must clearly appear that no material and triable iss ue of fact is presented (Friends of'.·l11i111als v Associated Fur Mfrs., 46 NY2cl 1065, 416 NYS2d 790 [ 1979]; Sil/mall v Twelltiet/I Ct'111111:r-Fox Film Corporation , 3 NY2cl 395, 165 NYS2cl 498 [1957]). The rno vant has the initial burdc11 l) 1 · pruvi ng crnitlcrnc11t to su mm ary judgment ( Winegrad v N. Y. U. Medical Center, 64 NY2d 851. 48 7 NYS2cl J I<> The [* 2] Bruno ,, H ~1sel korn lnd c\ No. 08 -1 02Ci 7 i I \)f\) ] ). Failure Lo mak e s uch a showing requires deni al of the motion, regard less or the sufficienc y of the Llp pos i11g papers ( Winegrad v N. Y. U. 1Vfedical Center, supra). Once such proof has been offc1·ecL th e burd e n tlll' ll shifo to the opposing party, who, in order to defeat the motion for summary judgment, must proffer C\ ide11 ce i11 adrn issi b le form ... and must "show facts sufficient to require a trial of any issue of fact" ( CP LR 3212 lbJ; Zuckerman v Ci()! of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). T he opposing party m ust asse mble, la y bare and reveal hi s proof in order to establi sh that the matters set fo rth in hi s pleadin gs are rea l and ca pabl e of bein g established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS 2d 340 [.2d Dept 198 1J ). 111 supp o rt oCthe ins tant application, the defendant has submitted, inter alia , an attorney ' s affirmation; copies o!'t he summons and complaint, answer, and plaintiffs' verified and supplemental verified bills of p~1rt icu lars; the signed and certified copies of the transcripts of the examinations before trial of Beverly Bruno dated April 18, 2011, and Michael Haselkom, D.D .S. dated June 13, 2011; and an uncertified copy of the defendant's onlce record. T he requisite ele ments of proof in a medical malpractice action are (1) a deviation or departure from accepted practi ce, and (2) evidence that such departure was a proximate cause of injury or dama ge (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852 , 678 NYS2d 503[2nd D ept 1998], opp denied 92 NY2d 8 18, (185 N YS2cl 420). To prove a prima facie case of medical malpractice, a pl ainti ff must establish that de fendant's negligence was a substantial factor in producing the alleged injury (see Derdiarian v Felix Contracting C01p., 51 NY2d 308, 434 NYS2d 166 [1980]; Prete v Rafla-Demetrious, 221 AD2cl 674, 638 N YS2d 700 [2d Dept 1996]) . Except as to matters within the ordinary experience and knowledge of laymen , c\'.pert rnedical opinion is necessary to prove a deviation or departure from accepted standards of m edical car e and th at s uch departure \Vas a proximate cause of the plaintiffs injury (se e Fiore v Galang, 64 NY2d 999, 489 !'\YS2d 47 [ 1985 ]; Lyons v AJcCauley, 252 AD2d 516, 517, 675 NYS2d 375 [2d Dept 1998] , app denied 92 NY2d 8 14, 681 N YS2d 475; Bloom v City of New York, 202 AD2d 465 , 465, 609 NYS2d 45 [2d Dept 1994]). Beverly Bruno testifi ed to the extent that she had fom1erly been a patient at Total Dental Care in Holb roo k, Ne\v York, where she received "precious metal tops and bottoms", and implants in the bottom and b~1ck of her mouth in about 2002 . She started treating with the defendant, Michae l Haselkorn, D.D.S., but she did not know \Vhat her care and treatment consisted of at the time. In 2005, she chipped the porcelain off of a front bottom too th on a brid ge that previously had "precious m etal" placed in it, and went to the defendant for treatm ent. She stated that after he examined her, he did not tell her what he was going to do, and just started wo rkin g, then told her he was going to make a bridge to replace the old bridge which was broken. He gave he r <1 tem po rary plate. At th at v isit , s he already had three posts in her mouth on th e bottom ri ght and left . When he plac ed the bridge, it did not fi t correctly. She returned for adjustments to the bridge and stated that the po sts fell nuL :-:o he put something in to make the posts stay. For about a year thereafter, when she ate, the posts slipp ed ou t and she developed sores in her mouth. Her upp er teeth prosthetics began to chip. She continued th at she retu rn ed to the defendant three times a week during that year. Her last visit was about November 2006 . The delcmlant did not perform any extractions or root canal s, but gave her "Snap" to repa ir the teeth at hom e. She sta ted that she sent a letter to th e Office of Profess ional Di sciplin e to complain about the defendant, and went tu another de nti st, Dr. Donnerman who told her she had to see a specialist. Sh e then saw Dr. lvry in Decemb er 2OO<i. The pla111ti ff continued that Dr. Tvry had to take out all her front upper teet h (she thinks six) and put <1 dr:1in, ~1s the teeth were all inrec ted. There was also an abscess in the lovver j aw where a post fell out. He put in lilkr so he could place implants, and made new temporary top and bottom teeth . She also developed TMJ \Vhich had been diagnosed by Dr. Haselkom who advised her that she needed surgery to treat it. Dr. lvry a lso [* 3] Bruno v !-lasdkorn Index :\o. 08-1026 7 Page No._:, diagnosed the TM.I and told her it was due to Dr. Haselkom's treatment and shifting teeth, causing herpw to go "back and forth." She no longer has pain in her mouth but still has the clicking and pain in her jaw and ringing in her ears. Dr. 1-laselkorn testified that he has been self-employed in a sole proprietorship for thirty-eight years in the general practice of dentistry. He stated that general dentistry enables him to do all phases of dentistry that he reels competent in dealing w ith, including the insertion of bridges and posts. He employs one dentist, dental assistants, front desk personnel and a part-time hygienist, but did not know the name of those employed by him in 2005 thrnugh 2006. Dr. Haselkorn testified that he knew the plaintiff prior to 2005 as a friend and from when she brought her children to his office. She first presented to him as a patient in January 2005. Prior to that, she lwd done some advertising or promotional work for him. He continued that in January 2005, the plaintiff presented on an emergency basis as her lower fixed porcelain bridge that she had made in Florida, broke and was not salvageable. He focused on her lower teeth as she had no problem with her upper teeth at the time. He took impressions so he could make a temporary bridge, which was completed in about nine or ten clays. He smv her on a recall visit on the next visit for x-rays, cleaning, and a check up. She had problems with her temporary bridge for awh1 le as it was loosening. The bridge had been attached with cement to posts. Dr. Haselkom testified that on January 18, 2005, he took six emergency x-rays of her lower teeth, repaired her broken lower fixed bridge encompassing all of her lower teeth, made upper and lower alignment study models and gave a consultation. On January 20, 2005, he repaired the posts and did core buildups at teeth # 19, 28, 29, which posts had been placed by her prior dentist. At that first visit, they had a consultation about what procedures they could do and what her op tions were. He recemented an upper fixed bridge and made some adjustments on it, took three x-rays of her uppers and recommended a recall visit. On February 3, 2005, he recernentcd her temporary lower bridge. On March 27, 2005, he recemented and realigned her temporary lower bridge as it loosened. He felt that she was missing a lot of teeth, the teeth that she had were over prepared, !here \Vas not a lot of tooth structure, and there were retention problems with her lower mouth. On .July 7, 2005, he recemented the temporary lower bridge and advised of the need for the pemrnnent fixed bridge. I-le did not remember if he discussed the process ofapemrnnent bridge, but she had a permanent bridge before and was aware of what was involved. On July 20, 2005, he repaired and recernented her temporary bridge agam. At that time he did not feel a new temporary bridge was necessary. Dr. Haselkorn continued that on August 8, 2005, the plaintiff had an emergency visit. An x-ray was taken, pathology or abscess on the lower right side was noted at tooth# 28 under the temporary bridge. The tooth \Vas extrz1cted, and the temporary bridge was replaced. On August 25, 2005, he smoothed her lower teeth and gave her a prescription for Gelclair, a liquid rinse that soothes the tongue and mouth as she was sore from some ruugh edges on her temporary bridge. She returned on January 5, 2006, at which time he realigned and recemcntcd the temporary bridge. He made no notation and had no recoJlection of any contact with the plaintiff frum August 25, 2005 through January 5, 2006. Still no plan had been made by the plaintiff for a permanent fi\turc for her lower mouth as they had discussed. His notes indicated that on March 31, 2006, she had !]-actured porcelain on tooth #9, an upper tooth. He noted that the plaintiff had been playing dentist trying to rccemcnt the porcelain on her own with Crazy Glue, which he told her not to use. The porcelain was off the metal of tooth 'f. lJ, so he recovered the metal with a composite to make it aesthetic. He knew of no one in his office who would have given the plaintiff an acrylic monomer, to create a plasticy material. He generally usecl d di !Terent acrylic than that for the temporary bridges. On June 13, 2006, he adjusted and recemented her lower te 111 pcll"d ri cs. [* 4] Bruno\' Haselkorn Index No. 08-102(17 Page No. 4 Or, Haselkorn 's notation on August 7, 2006 was to remake her lower temporaries as there had been a breakage of the other temporary which could not be repaired. He had the same notation for August 9, 2006, and stated that they wen: to "'go over treatment plan," which included extractions on her lower kft, and he made notations about crowns and a removable lower paiiial in a flexsite material, and an upper fixed bridge and a ilex partial !'or the upper. Dr. Haselkorn testified that the plaintiff wanted a fu ll fixed bridge. On August 10, 200Ci, he did a repair on the lower temps. On August 14, 2006, he prepped teeth# 27, 29, and 31 on the lower right to create a new finish line for the permanent bridge. On August 21, 2006, he extracted teeth #I 9, a root tip, and i+ 20, a root tip, and prepared teeth# 18, 21, and 22 in the lower mouth, with a ''try in for the next visit". On August 28 11i, impressions of the upper counter or upper teeth, were taken to balance against the lowers that he 'vvas building up. He testified that he "tried in" the lower right on September 5, 2006, lower left and "fixed bridge frames, pick up and sent to solder and biscuit bake". He had two sections of the pennanent bridge and was having them soldered together to make one complete piece. Then he had to take an impression to see if that fit adequately in her mouth. On that date, it appeared that the permanent bridge fit properly. On September 21, 2006, he "'tried in the lower frame, made some adjustments for the pantie areas, pick up impression and a bite". The only problem was the pantie area as there were no teeth so there was more space than he wanted, so he made some adjustments there. On September 26, 2006, Dr. Haselkorn's notes reflect a "#6 post and core and a new upper temporary", which he believed was due to a problem with a post that had to be replaced. He cemented the lower fixed bridge on October 23, 2006. The plaintiff had no complaints about the lower bridge. On December 29, 2006, Dr. Haselkorn testified that he had a conversation with the plaintiffs daughter that her mother was very upset over the bill of $9,000.00, and the continuing treatment. He advised the daughter that it included the proposed work for the upper and adjusted the bill to $5,000.00. He has not spoken to the plaintiff since her last visit. Dr. Haselkom testified that the plaintiff was a nice lady, but he was frustrated as she was noncompliant He did not recall the plaintiff developing any TMJ problems during his course of treatment with her, but testified that the fact that she had no teeth on the bottom was an issue. However, he never diagnosed her with TMJ. The defendant's expert, Ma1iin Bassiur, D.D.S. has submitted his affirmation wherein he affirms that he has been licensed to practice dentistry in New York State since 1968. He set forth his education and training, and the medical records and materials which he reviewed. He set forth his opinion within a reasonable degree of dental certainty that Dr. Haselkom's dental care and treatment of the plaintiff was within good and accepted dental practice throughout the course of the plaintiffs treatment at his office, and that his treatment was not the proximate cause or the plaintiffs claimed injuries. He further opined that the injuries suffered by the plaintiff :ire a result of her long-standing dental problems that were not causally related to the treatment rendered by Dr. Hase Ikorn, hut were pre-existing and persisted his treatment. He continued that the plaintiff had been neg! igen t 111 maintaining good dental health, and the records confirn1 that she had significant pre-existing dental problems :nvolving her teeth and temporary dental restorations. The records further demonstrate that the plaintiff had 1e111porary dental crowns and bridges for many years prior to seeing Dr. Hasclkorn, and the failing temporary dental restorations prior to his treatment were the proximate cause of her alleged injuries. Dr. Bassi ur continued that pursuant to the office records, the plaintiff presented to Dr. Haselkorn on an c111ergency basis on January 18, 2005 with a lower fixed bridge which was broken and not salvageable. X-rays revealed she was missing many teeth and there was very little tooth structure in her mouth. He described the care and treatment and opined that Dr. Haselkorn repaired the plaintiffs upper fixed bridge to preserve her preexisting dental restoration. He advised the plaintiff that she needed to have a permanent fixed bridge placed in the lower part of her mouth to replace the temporary bridge. The defendant's expert opined that the rcccmcnting or the lower temporary bridge prior to January 2006 was done to repair and preserve her pc-existing [* 5] Bruno v Hase lkorn Ind ex No. 08 -1 02 6 7 P;1 No. ) ge dental res torations and was within good and accepted dental practice and did not deviate from the standard of care. as was his advising th e plaintiff to replace the lower temporary with a permanent fixed bridge. Extraction of too th # 28 was necessary due to the abscess, and was not due to Dr. H aselkorn 's care and treatment. Rath el", it was caused by the plainti ff' s own documented failure to maintain good dental health, her failing prior te mporary dental restorations, including crowns and bridges provided to her for many years prior to treatin g with Dr. Hasclkorn. and her signifi cant pre-existing dental problems and decay invol vin g her teeth and temporary dental res t1.) ratio11s. Dr. Bass iur stated that on August 7, 2006, Dr. Haselkom discussed a treatment plan with the plaintiff and that she agreed with the plan and insisted that he place a full fixed bridge in the lower part of her mouth as he had prev iously recommended. This was within the standard of care in that the temporary bridge was not intended to be a permanent attempt to save the pre-existing dental work. Due to the failing dental restorations , it was appropriate to extract the non-viable teeth# 19 and 20, and repair and preserve plaintiff's dentition by prov iding new fixed bridgewo rk in the upper and lower parts of the plaintiff's mouth . The permanent low er fi xed bridge was cemented in place on October 23, 2006, with no complaints from the plaintiff and no problem s with th e bridge noted. However, the plaintiff failed to return for further treatment after that date and mi ssed two appoi ntm e nts prior to December 29 , 2006. Although the defendant attempted to contact the plaintiff, she did not ret urn his calls. Dr. Bassiur also opined that informed consent was implied for the treatment that the plaintiff received, namely the restorative dental treatment to the lower part of the plaintiff's mouth, which was a non-invasive proced ure to remedy pre-existing dental work, thus there were no new procedures which required informing the pl aintiff of any new risks. Based upon the foregoing, the defendant has established prima facie entitlement to summary judgme nt on the bases that he did not depart from the accepted standards of dental care and practice in his treatment of the pl aintiff; that he did not proximately cause the plaintiff's injuries; and that he provided proper informed consent for th e non-invasive bridgework. To rebut a prima facie showing of entitlement to an order granting summ ary judgment by the defend ant, th e plaintiff must demonstrate the existence of a triabl e issue of fact by submitting an expert's affidavit of merit attestin g to a deviation or departure from accepted practice, and containing an opinion that the defend ant's ac ts or o mi ss io ns were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Betit Israel !Vied. Ctr-Kings Highway Div. , 7 AD3d 759 , 776 NYS2d 907 [2d Dept 2004]; Domaradzki v Glen Cove OBIGYN .tssocs., 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997)). "Summary judgment is not appropriate in a med ica l malpractice action \vhere th e parti es adduce conflicting medical expert opinions. Such credibility issues can onl y be resolved by a jury" (Bengston v Wang, 41AD3d625, 839 NYS2d 159 [2d Dept 2007]). ln opposition to this motion., the plaintiff has submitted the affinnation of her expert, Michael Y. T vry, D.D.S. who was also her treating dentist. He affirn1s that he has been licensed to practice dentistry in New York State sin ce 1998 , was a periodontics resident from 2001-2003; practiced oral surgery from 2003-2011; and spec iali zes in implant dentistry with Total Dental Care. He set forth the material s and records which he J"C\ ic wed, exclusive of the pleadings, and the party depositions. ft is Dr. Ivry's opinion that Dr. Hase lkorn departed frnrn good and acceptable dental practice when he fabricated the lower fixed bridgework because there was <111 in sufficient number of teeth to ensure the stability of a fixed prosthetic device, and i1nplant therap y should hav e been included in th e treatment plan. [* 6] Brn11u \ f-Ltsclkorn l11de\. \io. 118- li l.2(1 7 P~ 1gc \!11 (1 Dr. !ny opined that the plaintiff became his pati ent in December 2006, at which time he not ed the p l ~tint iffw~ts c·xperiencing a signi fic ant infection in her upper maxillary arc h. He took x- rays o f her upper ~111d ll1\\ er jaw a11d 11oted a fixed prosthetic device vvas implan ted on all of the plaintiff's upper teeth. He opined that thesl· teet h needed root canal treatment prior to the fabrication and installation of th e fixed prosthetic devi ce. The fr1i lure to do so led to th e deep space infection in her upper jaw, and was thus a departure from the stamhml n 1 c1 re lie stated. He furth er opined that the plaintiff should have been referred to an endoclontist irnm ec!i ate!y · prior to the installation of a fixed prosthetic device on all the teeth of the max ill ary arch, and that such ex pert \Vo uId have perfo rm ed the root canal treatment prior to the installation. Dr. [vry opines th at root canal therapy would have or should have been performed prior to ceme nting the upper bridge. Dr. !vry contends that Dr. Haselkom treated the plaintiff in a co nservative \Vay to try to prese rve ;t:; rn~lllY of the original dental restorations, and by doing so, he jeopardized the plaintiff's dental health , causin g the deep space infection in the upper maxillary arch. In asmuch as opposing expert affidavits have been provided to the Court, quest ions of fact exi st which mu st not be decided on a summ ary judgment motion. Similarly, the credibility of the experts must be left to a tri er of l ~1c t (sec S..J. Cape/in Assocs., Inc. v Globe Mfg. Corp., supra). f3a sed upon the foregoing, it is determined that plaintiff has raised a factual issue to preclud e summary judgme nt from being granted to the defendant. Acco rdingly, motion (003) is denied. Dated: October 8, 2013 Riverhead, NY FI NAL DlSPOSITION __x_ NO N-FrNAL DISPO SITIO N
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