[*1]
Harvin v Roth
2014 NY Slip Op 51351(U) [44 Misc 3d 1226(A)]
Decided on August 27, 2014
Supreme Court, New York County
Lobis, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 27, 2014
Supreme Court, New York County


Holly Harvin, Plaintiff,

against

Steven E. Roth, DMD, and FISHMAN ROTH CHASE, LLP d/b/a SmilesNY, Defendants.




800135/2011
Joan B. Lobis, J.

In this dental malpractice action Holly Harvin sues Steven E. Roth, D.M.D., and Fishman Roth Chase, LLP d/b/a SmilesNY. Defendants move for summary judgment pursuant to Rule 3212 of the Civil Practice Law and Rules. Plaintiff opposes the motion. For the reasons stated below, the motion is denied.



Steven E. Roth, D.M.D., treated Holly Harvin from November 2009 until March 2010 at his practice SmilesNY. Dr. Roth first saw Ms. Harvin on November 6, 2009. She complained of a loose front tooth and receding gums. Dr. Roth took x-rays and high resolution digital photos, in addition to cleaning, scaling, and polishing Ms. Harvin's teeth. Several days later, Ms. Harvin had a second appointment with Dr. Roth. He informed her that she needed restoration due to decay under old amalgam fillings.



Dr. Roth provided Ms. Harvin with two options for treatment, which he gave to her in writing. The first treatment plan involved the removal of old fillings in teeth that exhibited decay around the fillings and replacement with three composite fillings and two crowns. The second option, which he recommended, involved a composite filling or inlay for tooth No.2, gold inlay for tooth #15, composite for tooth #19, and gold or porcelain onlays or crowns for teeth #30 and #31. Ms. Harvin agreed to the second option.



On December 22, 2009, Dr. Roth treated teeth #2, #30, and #31. He cleaned tooth #2 and prepared it for an inlay[FN1] . He removed an old silver filling in tooth #30, prepared it for a gold crown, and placed a temporary crown. He prepared tooth #31 for an inlay and placed a temporary crown. On January 11,2010, Dr. Roth placed a gold inlay on tooth #2 and crowns on teeth #30 and #31. Two days later, Dr. Roth confirmed the presence of recurrent decay under fillings at teeth #15 and #19. He claims to have discussed marginal breakdown of tooth #18 with the patient, and she declined treatment. Teeth # 15 and # 19 were prepped, and there was a plan to place two surface [*2]onlays on the teeth.[FN2]



Ms. Harvin returned to Dr. Roth on January 18, 2010, complaining of throbbing pain in tooth # 15. He referred her to an endodontist for a root canal, but she decided not to have a root canal at that time. Dr. Roth saw Ms. Harvin again on January 25, 2010, for a temporary insert on tooth #19. On February 4, 2010, Ms. Harvin came back to SmilesNY, where she saw Dr. Roth's partner Dr. Chase, due to complaints of pain in tooth # 15. She was referred again to an endodontist. Ms. Harvin received a root canal from a private endodontist in one session on February 5, 2010. Less than two weeks later, Ms. Harvin went to see Dr. Roth, who then placed an onlay on tooth #19.



Plaintiff commenced the action on April 12, 2011. She alleges that the dental treatment and care provided by Dr. Roth and SmilesNY was negligent and departed from accepted standards of dental and surgical care. She claims that Defendants performed unnecessary and contraindicated procedures, and, as a result, she has sustained severe permanent injuries including "severe shock to her nervous system . . .internal injuries, and was caused to suffer severe physical pain and mental anguish, as well as economic damages . . . . " In particular, she claims that Defendants performed unnecessary restorative treatment on teeth #2, #15, #19, #30, and #31 and as a result suffered malocclusion; nerve exposure; bone loss; loose front molars; severe infection, abscesses, gingival recession and narrow zone of keratinized gingiva; mercury toxicity; and psychological injuries including severe anxiety and concern about further complications. Lastly, she alleges that Defendants failed to receive her informed consent by failing to advise her of the



risks, hazards, complications, and dangers inherent in the treatment she received, and failed to advise her of the alternatives to the treatment.



Defendants now move for summary judgment. They maintain that there is no departure, proximate cause, or damages for medical malpractice or lack of informed consent. Defendants argue that Plaintiff gave informed consent since she received multiple treatment plan options and chose which one she wanted. In support of the motion, Defendants provide the expert affirmation of Richard L. Rausch, D.D.S., a New York licensed dentist who practices restorative and general dentistry. Dr. Rausch opines that based on his review of the deposition testimony and dental records, Dr. Roth was entirely consistent with the accepted standards of dental care. He opines that based on the x-rays, photographs, and examinations, the work performed by Dr. Roth was appropriate. Dr. Rausch maintains that Ms. Harvin "admitted in her deposition that she had no problems with any restoration on tooth #19, tooth #2 or tooth #30, and that her only issue with tooth #31 was cosmetic. . . ." He asserts that though she required a root canal on tooth # 15, it does not mean that Dr. Roth departed from good care as the "possibility of a root canal is always present and was discussed with the patient on several occasions. . . ." Dr. Rausch argues that though Ms. Harvin claims that there was an improper root canal procedure, Dr. Roth never performed a root canal.



Dr. Rausch contends that during her deposition, Ms. Harvin "denied or failed to [*3]confirm" abscesses, bone loss, and nerve damage. He affirms that some of her injuries were recorded by dentists prior to her treatment with Dr. Roth, including malocclusion, tempromandibular joint (TMJ) problems and difficulty chewing and pain. He opines that the medical records indicate that after Dr. Roth's treatment Ms. Harvin had her bite adjusted multiple times and did not complain of pain beyond normal limits. Dr. Rausch claims that Ms. Harvin's allegations that Dr. Roth caused nerve exposure and bone loss are not supported by any records. He avers that Ms. Harvin could not have suffered "loose front molars" because "there is no such thing as a front molar." He contends that when Ms. Harvin was first treated by Dr. Roth, she indicated that she had loose front teeth and cracks due to biking and snowboarding.



In opposition, Plaintiff argues that her teeth showed no evidence of recurrent decay or cracked teeth during her last dental visit with her previous dentist, Michelle S. McKenzie, D.M.D., five months before visiting Dr. Roth. She asserts that though she consented to treatment by the Defendants, that Dr. Roth lead her to believe treatment was necessary when it was not. Plaintiff also withdraws claims regarding infections and abscesses.



In support of her opposition, Plaintiff provides the expert affirmation of Peter M. Blauzvern, D.D.S., a New York licensed dentist who specializes in general, cosmetic, reconstructive, and implant dentistry. Dr. Blauzvern argues that the Defendants' treatment was unnecessary, failed to meet the standard of care and was the proximate cause of Ms. Harvin's injury and damages.



He avers that Ms. Harvin's dental records and radiograph films indicate that prior to her treatment by Dr. Roth she had no complaints concerning teeth #2, #15, #19, #30, and #31, and none of the teeth required restorative treatment. He opines that dental x-rays, performed by Dr. Roth, of teeth #15 and #19 show healthy teeth with no evidence of decay. Dr. Blauzvern argues that Ms. Harvin had no complaints of pain or discomfort except sensitivity in a front tooth. He opines that tooth # 15 may have required a composite filling at most, but Dr. Roth "over prepared this tooth, and by doing so, departed from the standard of care, and the unnecessary and overaggressive treatment directly caused the plaintiff to undergo a root canal." Dr. Blauzvern affirms that photographs taken after Ms. Harvin's root canal confirm that there was no decay. Dr. Blauzvern argues that Dr. Roth's chart shows that only a one surface or two surface composite or inlay was required for #15 and #19, but a note by Dr. Roth indicates that he changed his plan and decided to place crowns that were unnecessary prior to his "overcutting of the internal tooth structure." By overcutting the structure, Dr. Roth violated "the space and proximity to the pulp chamber where the nerve is housed," which caused nerve damage necessitating a root canal to remove the damaged nerve. Dr. Blauzvern avers that pre-operative photos of tooth # 19 show a healthy tooth with some staining, which did not require an inlay.



Dr. Blauzvern maintains that placing a gold inlay on tooth # 15 after the root canal was also inappropriate. He affirms that the appropriate treatment after the root canal would have been a full coverage porcelain fused to a metal crown to protect remaining cusps from fracture. He argues that this is why one month after Ms. Harvin's last visit to Dr. Roth, Dr. McKenzie removed the negligently placed gold inlay and properly placed a full coverage porcelain.



Plaintiff s expert also contends that there is no radiographic evidence showing decay for teeth #18 and #19. He opines that all work on tooth #19 was unnecessary as there were barely any stains and no decay. Dr. Blauzvern affirms that the work on the tooth resulted in an improper occlusion, which is evidenced by Dr. Roth's records that detail howhe attempted to address the improper occlusion. Dr. Blauzvern maintains that the unnecessary restorations exacerbated Ms. Harvin's TMJ problems by further damaging her bite.



Dr. Blauzvern opines that Ms. Harvin will need more restorations, root canals, and replacements due to the Defendants' negligence. He avers that she will need night guards, retainers, and future orthodontic treatment. He asserts that Dr. Roth also departed from the standard of care in his treatment of teeth #30 and #31, which did not require restorative treatment. He claims that these restorations failed as well.



In reply, Defendants argue that Dr. Blauzvern has a conflict of interest that should preclude him from offering any expert affirmation or testimony. They claim that Dr. Blauzvern has a "de facto affiliation" with Dr. Roth's malpractice carrier, and sits on the Nassau Dental District claims committee, which is governed by the New York State Dental Association (NYSDA). Defendants claim that this gives Dr. Blauzvern "inside knowledge of the strategies, experts and defenses routinely discussed" by defendant dentists. They assert that NYSDA's guidelines state that dentists that regularly serve as expert witnesses should refrain from serving on such committees.



Defendants also claim that Dr. Blauzvern's opinion is speculative and not based on any records or testimony. Defendants argue that Ms. Harvin "essentially withdraws the claim for lack of informed consent" as she concedes that she agreed to a treatment plan. Defendants contend Dr. Blauzvern offers no proof for his claims. They assert that Dr. Roth never treated tooth #18, that exacerbation of TMJ was never in the Bill of Particulars, and that the future treatment and damages are not based on any medical records or testimony.



In support of their reply, Defendants attach a supplemental expert affirmation by Dr. Rausch. He claims that Dr. Blauzvern's conclusions are baseless because x-rays do not always reveal decay, and that clinical judgment can be used to determine if decay is present. He argues that Dr. Blauzvern does not explain how Dr. Roth over-treated Ms. Harvin's teeth, and that the usage of a gold onlay was the best way to restore tooth # 15. Dr. Rausch opines that Ms. Harvin's occlusion was not damaged by Dr. Roth, and that it is customary and good practice to adjust a patient's bite after any type of restoration. Dr. Rausch asserts that any future treatment described by Dr. Blauzvern is speculative.



In considering a motion for summary judgment, this Court reviews the record in the light most favorable to the non-moving party. E.g., Dallas-Stephenson v. Waisman, 39 AD3d 303, 308 (1st Dep't 2007). The movant must support the motion by affidavit, a copy of the pleadings, and other available proof, including depositions and admissions. C.P.L.R. Rule 3212(b). The affidavit must recite all material facts and show, where defendant is the movant, that the cause of action has no merit. Id. This Court may grant the motion if, upon all the papers and proof submitted, it is [*4]established that the Court is warranted as a matter of law in directing judgment. Id. It must be denied where facts are shown "sufficient to require a trial of any issue of fact." Id. This Court does not weigh disputed issues of material facts. See, e.g., Matter of Dwyer's Estate, 93 AD.2d 355 (1st Dep't 1983). It is well-established that summary judgment proceedings are for issue spotting, not issue determination. See, e.g., Suffolk County Dep't of Soc. Servs. v. James M., 83 NY2d 178, 182 (1994).



A defendant moving for summary judgment in a dental malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged." Rogues v. Noble, 73 AD.3d 204, 206 (1st Dep't 2010). To satisfy this initial burden, a defendant must address and rebut any specific allegations of malpractice set forth in a plaintiffs bill of particulars. See, e.g., Chan v. Young, 66 AD.3d 642,643 (2d Dep't 2009). In positing a prima facie showing, the defendant must present expert opinion testimony that is supported by facts in the record and addresses the essential allegations in the complaint and the bill of particulars. 73 AD.3d at 206. Expert opinion must be based on the facts in the record or those personally known to the expert. Id. The expert cannot make conclusions by assuming material facts not supported by record evidence. Id. Expert opinion must "explain 'what defendant did and why.'" Ocasio-Gary v. Lawrence Hosp., 69 AD.3d 403, 404 (1st Dep't 2010)(quoting Wasserman v. Carella, 307 AD.2d 225, 226 (1st Dep't 2003)).



If a movant makes a prima facie showing, the burden then shifts to the non-moving party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). To meet that burden, a plaintiff must submit an affidavit from a physician attesting that the defendant departed from accepted dental practice and that the departure proximately caused the injuries alleged. See Rogues, 73 AD.3d at 207. Where opposing experts disagree on issues, those issues must be resolved by a fact finder, and summary judgment is precluded. Barnett v. Fashakin, 85 AD.3d 832, 835 (2d Dep't 2011); Frye v. Montefiore Med. Ctr., 70 AD.3d 15, 25 (1st Dep't 2009).



Claims of lack of informed consent are statutorily defined. Pub. Health Law § 2805-d. The law applies a reasonable practitioner standard to the duty to disclose: a defendant providing treatment or diagnosis must disclose to the patient alternatives and reasonably foreseeable risks and benefits involved as a reasonable dentist under similar circumstances would have provided. See id. § 2805-d(1). The disclosure, moreover, must permit "the patient to make a knowledgeable evaluation." Id. To prevail in a summary judgment motion on a lack of informed consent claim, the movant must establish as a prima facie case that proper disclosure was done and a reasonably prudent person in the patient's position would have undergone the treatment had the patient been fully informed of the alternatives to treatment and its reasonably foreseeable risks and benefits. See, e.g., Schilling v. Ellis Hosp., 75 AD.3d 1044, 1046 (3d Dep't 2010); see also Pub. Health Law § 2805-d(3). Or, even assuming a reasonably prudent person in the patient's position would not have undergone the treatment had that patient been fully informed, a movant may show that the lack of informed consent did not proximately cause the injury alleged. See 75 AD3d at 1046; Pub. Health [*5]Law S 2805-d(3). Consent forms that have been signed by a plaintiff by themselves are not dispositive of claims for lack of informed consent. See, e.g., Wilson-Toby v. Bushkin, 72 AD3d 810, 811 (2d Dep't 2010).



The Court first turns to the dental malpractice claims. Defendants have established a prima face case of entitlement to summary judgment. Dr. Rausch, the Defendants' expert, rebuts Plaintiffs allegations by explaining Dr. Roth's findings during treatment and why he performed the restorative work that he did. The Court finds, however, that Plaintiff has rebutted the prima facie showing. Plaintiff s expert, Dr. Blauzvern, interprets Ms. Harvin's dental records and radiographs differently than Dr. Rausch, arguing that there was no decay and that Dr. Roth performed unnecessary work. This establishes a material issue of fact which requires a trial. See Alvarez, 68 NY2d at 324. In Dr. Rausch's supplemental expert affidavit, he argues that Dr. Blauzvern's testimony is purely speculative. Dr. Blauzvern repeatedly states that his opinion is based on the record and points to. the specific aspects of the record that lead to his conclusions. Defendants claim that Dr. Blauzvern discusses tooth #18 when the tooth was not treated by Dr. Roth. Dr. Blauzvern did not state the tooth was treated, but rather opined that the tooth lacked decay, contrary to Dr. Roth's diagnosis and Defendants' motion papers. The remaining portions of the expert affirmation are not addressed persuasively by the Defendants.



Defendants' claim that Dr. Rausch's affidavit must be precluded due to a "conflict of interest" is also without merit. The NYSDA is not a governmental agency, rather it is a private organization. There is no statute, regulation, or case law that states that testimony by dentists who participate in a private organization that works .with defense attorneys cannot provide expert affirmations in dental malpractice cases. Dr. Rausch's affirmation "furthers truth-seeking objectives without engendering the concerns express in McDermott and Kraushaar." Gilly v. New York, 69 NY2d 509, 512 (1987), also see McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20 (1964); People et rel. Kraushaar Bros. & Co., Inc., v. Thorpe, 296 NY 233 (1947).



Turning to the Defendants' summary judgment motion as to the lack of informed consent claims, the Court finds that Defendants have established a prima facie case for summary judgment. The Court finds that Plaintiff is able to rebut the prima facie case. Though Plaintiff picked a treatment plan, the crux of Plaintiff s argument is that the treatment as unnecessary, and that Dr. Roth did not appropriately inform her of the state of her teeth. Contrary to Defendants' reply, Plaintiff never withdrew her claim for lacked of informed consent. Plaintiff conceded that she signed a form, but a consent form is not dispositive of informed consent. See Wilson-Toby, 72 AD.2d at 324. The Plaintiff, both in deposition testimony and in the verified complaint, states repeatedly that she believed the treatment to be unnecessary, and her expert states that the dental records indicate that no treatment of the kind provided was necessary. The evidence and testimony creates a disputed issue of material fact both to whether treatment was necessary and whether Dr. Roth should have informed that Plaintiff that the treatments were not necessary. Accordingly, it is



ORDERED that the motion is denied; and it is further



ORDERED that the parties appear for a pre-trial conference on September 23,



2014, at 9:30 am.



Dated:, 2014



ENTER:



____________________________



JOAN B. LOBIS, J.S.C.

Footnotes


Footnote 1:A prefabricated restoration sealed in the cavity with cement.

Footnote 2:A metal cast restoration of the occlusal surface of a posterior tooth or the lingual surface of an anterior tooth.