| Sharp v Weber |
| 2010 NY Slip Op 07524 [77 AD3d 812] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Heather Sharp, Appellant, v Frank L. Weber,Respondent. |
—[*1] Kolenovsky Spiegel LLP, New York, N.Y. (Maryanne Kolenovsky of counsel), forrespondent.
In an action to recover damages for dental malpractice, the plaintiff appeals from an order ofthe Supreme Court, Putnam County (O'Rourke, J.), dated May 5, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
On July 23, 2004, the plaintiff went to a dental clinic at Westchester Medical Center to havetwo wisdom teeth extracted. She was treated by the defendant, who was the attending oralsurgeon, and nonparty Dr. Adam Arnoldt, a resident, who surgically extracted her upper andlower right wisdom teeth.
On July 26, 2004, the plaintiff went to the defendant's private office complaining of severepain at the extraction sites. The plaintiff stated at her deposition that the defendant packed herupper and lower tooth sockets from which the wisdom teeth were extracted with gauze. Thedefendant, on the other hand, testified at his deposition that he packed the lower socket, but notthe upper socket. The plaintiff never saw the defendant again.
On July 30, 2004, the plaintiff returned to the dental clinic at Westchester Medical Centerand, as her chart indicates, another resident, nonparty Dr. Anthony Alessi, packed the lowersocket. On August 4, 2004, the plaintiff returned to the dental clinic complaining of pain aroundthe lower extraction site and Dr. Arnoldt removed the packing in that socket. Although theplaintiff and her mother insisted that there was packing in the upper socket, Dr. Arnoldt could notfind any.
The plaintiff continued to be treated at the dental clinic for right maxillary sinus pain andearache until September 1, 2004. Despite a panoramic radiograph and exploratory surgery, noevidence of packing in the upper socket was found. On August 23, 2004, the plaintiff expelled asmall piece of gauze from her right nostril. On August 25, 2004, the plaintiff expelled a secondpiece of gauze from her nose. The plaintiff's mother retained one of those pieces of gauze,brought [*2]it to the dental clinic, and eventually gave it to theplaintiff's attorney. At his deposition the defendant testified that the gauze the plaintiff expelledwas not the type used in his office for packing and that he uses a specific brand of iodoformgauze for packing.
On August 26, 2004, the plaintiff had a CT scan of her sinus; the initial report found thatthere was an interruption in the sinus floor anterior to the upper extraction site and an area ofhigh density consistent with "blood-soaked gauze" in the plaintiff's right maxillary sinus.However, the report was subsequently revised and the area of high density was described as ablood clot.
Thereafter, the plaintiff went for further treatment to Dr. Daniel Branovan, an ear, nose, andthroat specialist, and on October 8, 2004, Dr. Branovan performed a surgical procedure on theplaintiff's sinus and allegedly removed gauze from her right maxillary sinus. The plaintiff hadtwo subsequent surgical procedures on her sinuses. The plaintiff alleges that she suffers fromchronic sinus infections and loss of vision in her right eye allegedly as a result of the defendant'snegligence in inserting a piece of gauze into her sinus through a hole in the sinus floor above theupper socket and failing to remove it.
The plaintiff commenced this action against the defendant to recover damages for dentalmalpractice. The Supreme Court granted the defendant's motion for summary judgmentdismissing the complaint. We reverse.
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 Koi Hou Chan vYeung, 66 AD3d 642 [2009]; Cohen v Kalman, 54 AD3d 307 [2008]; Terranova v Finklea, 45 AD3d 572[2007]; Posokhov v Oselkin, 44AD3d 921 [2007]; Keevan vRifkin, 41 AD3d 661, 662 [2007]). Consequently, on a motion for summary judgment,the defendant has the initial burden of establishing that he or she did not depart from good andaccepted practice, or if there was such a departure, that it was not a proximate cause of theplaintiff's injuries (see Myers vFerrara, 56 AD3d 78, 83 [2008]; Larsen v Loychusuk, 55 AD3d 560, 561 [2008]; Terranova v Finklea, 45 AD3d 572[2007]).
The defendant failed to make a prima facie showing of his entitlement to summary judgmentdismissing the complaint. In support of his motion, the defendant relied upon the expertaffirmation of oral surgeon Dr. Allan Kucine, who opined that there was no departure since therewas no evidence that the defendant placed packing in the upper socket on July 26, 2004.However, the expert failed to rebut all of the specific allegations of dental malpractice set forth inthe bill of particulars, which included the treatment rendered by the defendant on July 23, 2004.The expert failed to address the issue of whether gauze could have been inserted into the sinusduring the extraction of the upper tooth on July 23, 2004. This failure is especially evident giventhat both the defendant and Dr. Arnoldt testified at an examination before trial that gauze wasused during the extraction at the dental clinic to stop the bleeding, and Dr. Arnoldt conceded thatthe type of gauze the plaintiff expelled was used at the dental clinic and gauze pads were notcounted before and after the procedure. In addition, the other evidence submitted by thedefendant failed to eliminate all material issues of fact from the case (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395, 404 [1957]).
In view of the defendant's failure to sustain his prima facie burden, his motion should havebeen denied, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Koi Hou Chan v Yeung, 66AD3d at 644; Larsen v Loychusuk, 55 AD3d at 561; Terranova v Finklea, 45AD3d at 573; Ward v Engel, 33AD3d 790, 791 [2006]).
The plaintiff's remaining contentions either are without merit or need not be reached in lightof the foregoing. Mastro, J.P., Covello, Dickerson and Roman, JJ., concur.