| Koi Hou Chan v Yeung |
| 2009 NY Slip Op 07229 [66 AD3d 642] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Koi Hou Chan, Respondent, v Sammi Yeung, Appellant, etal., Defendant. |
—[*1] McKenna, Siracusano & Chianese, East Rockaway, N.Y. (Thomas P. Reilly of counsel), forrespondent.
In an action to recover damages for dental malpractice and lack of informed consent, thedefendant Sammi Yeung appeals from an order of the Supreme Court, Kings County (Steinhardt,J.), dated January 13, 2009, which denied her motion for summary judgment dismissing thecomplaint insofar as asserted against her.
Ordered that the order is affirmed, with costs.
The requisite elements of proof in a dental malpractice action are a deviation or departurefrom accepted standards of dental practice, and that such departure was a proximate cause of theplaintiff's injuries (see Cohen v Kalman,54 AD3d 307 [2008]; Terranova v Finklea, 45 AD3d 572 [2007]; Posokhov v Oselkin, 44 AD3d921 [2007]; Keevan v Rifkin,41 AD3d 661, 662 [2007]). Consequently, on a motion for summary judgment, thedefendant dentist has the initial burden of establishing either that he or she did not depart fromgood and accepted practice, or if there was such a departure, that it was not a proximate cause ofthe plaintiff's injuries (see Myers vFerrara, 56 AD3d 78, 83 [2008]; Larsen v Loychusuk, 55 AD3d 560, 561 [2008]; Terranova v Finklea, 45 AD3d572 [2007]). To sustain this burden, the defendant must address and rebut any specificallegations of malpractice set forth in the plaintiff's bill of particulars (see Larsen vLoychusuk, 55 AD3d at 561; Terranova v Finklea, 45 AD3d 572 [2007]; Ward v Engel, 33 AD3d 790, 791[2006]; Johnson v Ladin, 18 AD3d439 [2005]).
The defendant Sammi Yeung (hereinafter the defendant) failed to make a prima facieshowing of her entitlement to summary judgment dismissing the first cause of action to recoverdamages for dental malpractice insofar as asserted against her. In support of her motion, thedefendant relied upon the expert affirmation of an oral surgeon, who opined that the defendant'sextraction of the plaintiff's lower right wisdom tooth had not injured the plaintiff's right lingualnerve. The oral surgeon based this conclusion on the fact that an injury to the lingual nervecauses immediate numbness of the tongue, and the plaintiff complained of pain rather thannumbness when he returned to the defendant's office one to two hours after the extraction.However, the oral surgeon failed to address the issue of whether the anesthesia administered bythe defendant prior to the extraction may have impeded the plaintiff's ability to discern that theright side of his tongue was numb. In addition, while the oral surgeon attributed the plaintiff'slingual nerve injury to emergency [*2]measures taken in thehospital to stop the extensive bleeding which the plaintiff experienced after the extraction, he didnot acknowledge the defendant's deposition testimony that she also took measures to stop thebleeding, including applying pressure and injecting epinephrine. The oral surgeon also failed torebut all of the specific allegations of dental malpractice set forth in the bill of particulars.Furthermore, while the defendant also relied upon the expert affirmation of a hematologist whoopined that the extensive bleeding which the plaintiff experienced after the extraction was theresult of a bleeding disorder, this expert did not address the contrary conclusion reached byanother hematologist whose report was included in the defendant's submissions.
Additionally, the defendant failed to make a prima facie showing of her entitlement tojudgment as a matter of law dismissing the second cause of action to recover damages for lack ofinformed consent insofar as asserted against her. The deposition testimony which the defendantoffered in support of her motion demonstrates that there is a factual dispute as to whether, inaccordance with Public Health Law § 2805-d (1), she informed the plaintiff of any of theforeseeable risks, benefits, or alternatives to the extraction of his wisdom tooth. Moreover, theoral surgeon's expert opinion that a reasonably prudent patient would not have declined toundergo the extraction if he or she had been informed of the potential complications wasconclusory.
In view of the defendant's failure to sustain her prima facie burden, her motion was properlydenied, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Larsen v Loychusuk, 55 AD3d at561; Terranova v Finklea, 45 AD3d at 573; Ward v Engel, 33 AD3d at 791).Fisher, J.P., Balkin, Hall and Austin, JJ., concur.