| Cole v Tischler |
| 2009 NY Slip Op 10019 [68 AD3d 1595] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Kathleen M. Cole et al., Respondents-Appellants, v MichaelTischler, Individually and Doing Business as Tischler Family Dental Center, et al.,Appellants-Respondents. |
—[*1] Edward J. Carroll, Kingston, for respondents-appellants.
McCarthy, J. Cross appeals from an order of the Supreme Court (Work, J.), entered January22, 2009 in Ulster County, which partially granted defendants' motion for summary judgmentdismissing the complaint.
On March 20, 2006, defendant Michael Tischler performed a bilateral sinus lift and bonegraft procedure on plaintiff Kathleen M. Cole (hereinafter plaintiff) to prepare her to receivedental implants. Plaintiff thereafter developed a staph infection which defendant attempted totreat with antibiotics pursuant to a standard protocol. Although there was some response to thetreatment, the infection did not resolve. Approximately six weeks after the surgery, plaintiff washospitalized with osteomyelitis, ultimately requiring removal of the bone graft on one side.
Thereafter, plaintiff and her husband, derivatively, commenced this action alleging dentalmalpractice and lack of informed consent. Following joinder of issue, defendants moved forsummary judgment dismissing the complaint. Defendants submitted the deposition testimony[*2]of both parties, the medical records for plaintiff, defendant'saffidavit and the affidavit of Carl Misch, a board certified and licensed dentist with extensiveexperience in dental implants. In opposition, plaintiffs submitted plaintiff's affidavit and anaffidavit from Alexander Corsair, a licensed periodontist with experience in dental implants.Supreme Court granted the motion as to the informed consent claim and denied the motion withrespect to the malpractice claim. The parties cross-appeal and we affirm.
Plaintiffs' claim based on a lack of informed consent requires a showing that (1) defendantfailed to disclose to plaintiff such alternatives and reasonably foreseeable risks and benefits tothe procedure that a reasonable dental practitioner would disclose in similar circumstances topermit a knowledgeable evaluation, (2) a reasonably prudent patient would not undergo thetreatment if fully informed, and (3) the lack of informed consent was a proximate cause ofplaintiff's injury (see Public Health Law § 2805-d [1], [3]; Foote vRajadhyax, 268 AD2d 745, 745 [2000]). Plaintiff, a nursing student at the time of theprocedure, executed consent forms acknowledging her consideration of alternative proceduresand her acceptance of the risks, including the risks of infection and graft rejection, attendant tothe procedure. She attended defendant's seminar on dental implants, repeatedly consulted withdefendant and admitted that she read and understood the consent forms. Plaintiff also obtained asecond opinion from another dentist specializing in dental implants who advised her that she wasa good candidate for dental implants. Plaintiff claims that defendant misrepresented the risk ofthe procedure by equating it with the risk associated with a tooth extraction; however, no proofwas submitted on the relative risks to support plaintiff's claim. To the extent that plaintiff'saffidavit contradicts her deposition testimony regarding her informed consent, it fails to raise anissue of fact (see Valenti v Exxon Mobil Corp., 50 AD3d 1382, 1384 [2008]). Finally,conclusory statements in Corsair's affidavit regarding defendant's failure to provide informedconsent find no support in the record and are insufficient to defeat summary judgment (seeAlvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Snyder v Simon, 49 AD3d954, 956 [2008]). Accordingly, Supreme Court properly dismissed the lack of informed consentclaim.
On the malpractice claim, defendants met their " 'initial burden of establishing that there wasno departure from accepted standards of practice or that plaintiff was not injured thereby' "(Menard v Feinberg, 60 AD3d 1135, 1136-1137 [2009], quoting Amodio vWolpert, 52 AD3d 1078, 1079-1080 [2008]), shifting the burden to plaintiffs to submitcompetent proof of a departure from accepted dental practices resulting in plaintiff's injury(see Menard v Feinberg, 60 AD3d at 1137). Corsair opined that defendant failed toadequately diagnose and treat the infection by not obtaining a culture sample after an extendedand unsuccessful course of antibiotic treatment. Plaintiff's staph infection resolved only after aculture sample taken at the hospital identified an appropriate antibiotic treatment. Therefore, atriable issue of fact exists as to whether defendant's failure to obtain a culture sample departedfrom accepted standards of practice and prolonged or exacerbated plaintiff's infection.
Finally, plaintiffs' claim in their appellate brief that plaintiff is entitled to a refund is notproperly before this Court.
Rose, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.