Hubbard v. Kamen

Appellate Division of the Supreme Court of New York

Hubbard v. Kamen

29 A.D.3d 339, 814 N.Y.S.2d 158

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

DecidedMay 4, 2006

StatusPublished

This text of 29 A.D.3d 339 (Hubbard v. Kamen) 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

Hubbard v. Kamen, 29 A.D.3d 339, 814 N.Y.S.2d 158 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Rolando T. Acosta, J., and a jury), entered January 3, 2005, in favor of plaintiff and against defendant in an action for dental malpractice, unanimously affirmed, without costs.

The verdict is supported by legally sufficient evidence of malpractice, namely, that when a patient complains of severe pain while being given a mandibular block anesthetic, a failure to withdraw the needle is a departure from accepted practice that can traumatize the mandibular nerve and cause permanent paresthesia. Defendant’s expert’s conflicting opinion, that when the patient feels an electric shock type sensation the needle should be redirected but not withdrawn, does not render the verdict against the weight of the evidence (see Vona v Wank, 302 AD2d 516, 517 [2003]). Nor does the parties’ conflicting testimony as to the manner in which plaintiff reacted to the injection (id,.).

The trial court properly admitted defendant’s consent form. Although plaintiff had withdrawn his cause of action for lack of informed consent, the consent form did not list hitting the nerve or prolonged numbness as risks or complications of anesthetic injection, and the defense theory was that such were known, albeit rare, risks of the procedure. Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Malone, JJ.

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Judgment, Supreme Court, New York County (Rolando T. Acosta, J., and a jury), entered January 3, 2005, in favor of plaintiff and against defendant in an action for dental malpractice, unanimously affirmed, without costs.

The verdict is supported by legally sufficient evidence of malpractice, namely, that when a patient complains of severe pain while being given a mandibular block anesthetic, a failure to withdraw the needle is a departure from accepted practice that can traumatize the mandibular nerve and cause permanent paresthesia. Defendant’s expert’s conflicting opinion, that when the patient feels an electric shock type sensation the needle should be redirected but not withdrawn, does not render the verdict against the weight of the evidence (see Vona v Wank, 302 AD2d 516, 517 [2003]). Nor does the parties’ conflicting testimony as to the manner in which plaintiff reacted to the injection (id,.).

The trial court properly admitted defendant’s consent form. Although plaintiff had withdrawn his cause of action for lack of informed consent, the consent form did not list hitting the nerve or prolonged numbness as risks or complications of anesthetic injection, and the defense theory was that such were known, albeit rare, risks of the procedure. Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Malone, JJ.

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Bluebook (online)

29 A.D.3d 339, 814 N.Y.S.2d 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-kamen-nyappdiv-2006.

Opinion

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