Alvarado v. Miles

32 A.D.3d 255, 820 N.Y.S.2d 39

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 2006
• Status: Published

Opinions

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about August 22, 2005, which denied defendant’s motion for summary judgment, reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this dental malpractice action, plaintiff alleges that she was injured as a result of defendant’s departure from accepted dental practice, and that defendant’s negligence was the proximate cause of the injuries she suffered following extraction of her wisdom teeth.

In May 2002 defendant extracted one of plaintiffs wisdom teeth without complication. On July 10, 2002, defendant extracted three more of plaintiff’s wisdom teeth. After the second procedure, plaintiff was given a “post-operative instruction sheet” which included the telephone number of a 24-hour answering service for defendant or his partner, in the event of a problem.

Plaintiffs mother called the answering service early on July 11, 2002 because plaintiff was experiencing severe pain and swelling. Defendant called back shortly thereafter recommending Advil in addition to the Vicodin he had prescribed. On July 11 or 12, defendant left for a weekend vacation. Plaintiff’s mother testified that she called the answering service eight times on July 13. When she did not hear from defendant, plaintiffs mother brought plaintiff to another dentist who was unable to examine plaintiff due to the swelling in her mouth. Plaintiff was referred to the emergency room at St. Luke’s Roosevelt Hospital where she was given penicillin for an infection. Plaintiff suffered an allergic reaction to the penicillin and was admitted to the hospital for five days.

Plaintiff brought the dental malpractice action claiming that defendant departed from accepted standards and medical practices by abandoning the plaintiff, failing to treat plaintiffs infection, failing to prescribe antibiotics and failing to see plaintiff for a follow-up visit. Plaintiff also alleged lack of informed consent

* Defendant moved for summary judgment arguing that plaintiff had failed to establish a prima facie case for medical malpractice. The court denied the motion, allowing the medical malpractice claim to proceed to trial. For the reasons set forth below, we reverse.

In order to establish medical malpractice, a plaintiff must demonstrate that defendant departed from accepted standards of medical practice and that this departure was the proximate cause of plaintiffs injuries (Knutson v Sand, 282 AD2d 42, 43 [2001]). The motion court found issues of fact as to whether defendant departed from the accepted standard of dental care in two ways. First, defendant failed to call plaintiff into his office on July 11, 2002 to examine her condition. Second, defendant failed to provide for alternative aftercare treatment while he was away for the weekend and may have thus “abandoned” plaintiff. The motion court further found that plaintiffs expert had raised triable issues of fact by testifying that the two purported departures combined were a substantial factor resulting in plaintiff’s admission to the hospital and thus the proximate cause of her subsequent injuries.

The dissent finds merit in this assertion even though plaintiffs expert’s opinion as to defendant’s “departure” of not seeing plaintiff for a follow-up visit on July 11 is nothing more than a bald conclusory statement. Plaintiffs expert opined that defendant was obliged to see plaintiff in his office due to the nature of her symptoms and defendant’s upcoming vacation.

Nowhere in the testimony does plaintiffs expert actually state that plaintiffs symptoms of pain and swelling were abnormal. Nor does plaintiffs expert mention “fever” as one of plaintiffs symptoms. Further, plaintiffs expert never controverts defendant’s testimony that pain and swelling are normal after wisdom tooth extraction; nor does plaintiff’s expert testify that defendant’s failure to see plaintiff for these normal symptoms of pain and swelling is a departure from acceptable standards of medical practice. Thus, the record is devoid of any assertion that had defendant called plaintiff into his office on July 11, he would have found plaintiffs extractions infected or given her some form of treatment other than the Advil he recommended over the telephone.

As to defendant’s second alleged departure, in order to establish a prima facie case of abandonment, there must be evidence of an affirmative “willful abandonment” or a refusal to treat the patient (Meiselman v Crown Hgts. Hosp., 285 NY 389, 395 [1941]).

In the case at bar, plaintiff was not sent home from the defendant’s office ill or in a state that required further medical attention. Defendant had completed a wisdom tooth extraction without complication and had provided plaintiff with information regarding her condition in the postoperative sheet. Further, in that same sheet, plaintiff was given information on further treatment. The sheet detailed the covering arrangement between defendant and his partner. While defendant’s covering arrangement was perhaps not as effective on July 13 as it was on July 11, in that it failed to put plaintiff in contact with defendant, both plaintiffs and defendant’s expert witnesses opined that such a covering arrangement was standard practice in the medical field.

In any event, even had defendant seen plaintiff on July 13, it is uncontroverted that he would have found himself in the same position as the alternative doctor: unable to examine plaintiff because her mouth was swollen shut. There is nothing in the record that indicates that had defendant been available on July 13 he would not have referred her to a hospital where she likely would have been administered the same medications she was given at St. Luke’s, and so would have experienced the same allergic reaction. Concur — Andrias, J.P., Sullivan, Williams and Catterson, JJ.

The motion court dismissed this cause of action and plaintiff did not cross-appeal, so plaintiffs claim that had she known defendant was going on vacation, she would not have had the extraction is barred on appeal.