Falotico v. Frankel

Appellate Division of the Supreme Court of New York

Falotico v. Frankel

232 A.D.2d 607, 648 N.Y.S.2d 1004, 1996 N.Y. App. Div. LEXIS 11310

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 1996

StatusPublished

Cited by6 cases

This text of 232 A.D.2d 607 (Falotico v. Frankel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Falotico v. Frankel, 232 A.D.2d 607, 648 N.Y.S.2d 1004, 1996 N.Y. App. Div. LEXIS 11310 (N.Y. Ct. App. 1996).

Pincite

Opinion

—In an action, inter alia, to recover damages for dental malpractice, the defendant appeals from a judgment of the Supreme Court, Westchester County (Burrows, J.), entered March 7, 1995, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $175,000.

Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

On April 9, 1992, the plaintiff sought treatment from the defendant for a toothache. The defendant diagnosed the plaintiff as having an abscess in her upper left second molar and informed the plaintiff that she could either have root canal surgery or an extraction. The plaintiff chose to have the tooth extracted. The defendant gave the plaintiff Novocaine and performed the extraction. A large portion of bone was attached to the tooth when it was removed.

At trial, the plaintiff’s expert testified that the defendant failed to inform the plaintiff of the risks associated with an extraction and that the defendant committed various departures from accepted dental practice. The jury found that a reasonably prudent person in the plaintiff’s position would have consented to the extraction if provided with the appropriate information. The jury also found that the defendant departed from accepted dental practice and that the dental procedure was a substantial factor in causing the plaintiff’s injury. The jury awarded the plaintiff $175,000 for past and future pain and suffering. We reverse.

To establish a prima facie case of dental malpractice, the plaintiff must show a departure from the accepted standard of dental practice, and that such a departure was a proximate cause of the plaintiff’s injuries (see, Minelli v Good Samaritan Hosp., 213 AD2d 705; Newman v Shipper, 198 AD2d 129; Hughes v New York Hosp.-Cornell Med. Ctr., 195 AD2d 442). Here, although the plaintiff’s expert testified as to various departures, he failed to establish how these departures resulted in the plaintiff’s injuries. Accordingly, the plaintiff failed to establish a prima facie case of dental malpractice (see, DeCicco v Roberts, 202 AD2d 165). Rosenblatt, J. P., O’Brien, Sullivan and McGinity, JJ., concur.

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—In an action, inter alia, to recover damages for dental malpractice, the defendant appeals from a judgment of the Supreme Court, Westchester County (Burrows, J.), entered March 7, 1995, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $175,000.

Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

On April 9, 1992, the plaintiff sought treatment from the defendant for a toothache. The defendant diagnosed the plaintiff as having an abscess in her upper left second molar and informed the plaintiff that she could either have root canal surgery or an extraction. The plaintiff chose to have the tooth extracted. The defendant gave the plaintiff Novocaine and performed the extraction. A large portion of bone was attached to the tooth when it was removed.

At trial, the plaintiff’s expert testified that the defendant failed to inform the plaintiff of the risks associated with an extraction and that the defendant committed various departures from accepted dental practice. The jury found that a reasonably prudent person in the plaintiff’s position would have consented to the extraction if provided with the appropriate information. The jury also found that the defendant departed from accepted dental practice and that the dental procedure was a substantial factor in causing the plaintiff’s injury. The jury awarded the plaintiff $175,000 for past and future pain and suffering. We reverse.

To establish a prima facie case of dental malpractice, the plaintiff must show a departure from the accepted standard of dental practice, and that such a departure was a proximate cause of the plaintiff’s injuries (see, Minelli v Good Samaritan Hosp., 213 AD2d 705; Newman v Shipper, 198 AD2d 129; Hughes v New York Hosp.-Cornell Med. Ctr., 195 AD2d 442). Here, although the plaintiff’s expert testified as to various departures, he failed to establish how these departures resulted in the plaintiff’s injuries. Accordingly, the plaintiff failed to establish a prima facie case of dental malpractice (see, DeCicco v Roberts, 202 AD2d 165). Rosenblatt, J. P., O’Brien, Sullivan and McGinity, JJ., concur.

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Bluebook (online)

232 A.D.2d 607, 648 N.Y.S.2d 1004, 1996 N.Y. App. Div. LEXIS 11310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falotico-v-frankel-nyappdiv-1996.

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