SUPREME COURT - STATE OF NEW YORK. Plaintiff(s), Defendant(s).

Transcription

1 SHORT FORM ORDER s(j SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice DENISE EPSTEIN and ROBERT EPSTEIN, TRIAL/IAS PART 5 - against - Plaintiff(s), INDEX NO. 498/10 MOTION SEQUENCE NO. 1 & 2 IRA ROSENBERG, DDS and DENTAL HEALTH SERVICES, DDS, PC, Defendant(s). MOTION SUBMISSION DATE: March 2, X'f The following papers read on this motion: Notice of Motion Affrmation in Opposition Reply Affrmation Memorandum of Law Defendant, Dental Health Services, D. S. (hereinafter DHS), moves pursuant to CPLR 3212, for an order granting summary judgment dismissing the plaintiff' s complaint in its entirety, together with any and all cross-claims asserted against it. In the event the foregoing relief is denied, DHS alternatively moves for an order dismissing those claims predicated upon active negligence and limiting said claims to vicarious liability (Sequence #001). Defendant, Ira Rosenberg, D., moves pursuant to CPLR 3212, for an order dismissing the plaintiff' s claims sounding in dental malpractice and lack of informed consent in relation to treatment rendered prior to July 11 th, 2007, as well as for an order dismissing any remaining claims sounding in dental malpractice and lack of informed consent (Sequence #002). Defendant, DHS was the provider of dental services to whom the plaintiff presented on 46 separate occasions, between October, 1993 and April1 t, 2008 (see Brower Affirmation in Support at Exhs. 0, E). Upon initial presentment on October 1993 and continuing through September of 1998, the plaintiff was under the care of Dr. Katz, a non-party herein, during which time the plaintiff underwent annual cleanings and had four bridges placed in her mouth (see Chan Affirmation in Support at Exh. H at ; see a/so Exh. K). Thereafter, commencing on March 8, 2000 through March of 2006 I As of September 24, 2010, DHS ceased to operate (see Chao Affrmation in Support at Exh. J at p. 40).

2 the plaintiff came under the care of Dr. Rosenberg, who provided a variety of dental services including general examinations, placing a bridge in the plaintiff's mouth, making a removable denture, as well as excavating and fillng decayed teeth (id. at Exh. Hat pp ). Subsequent thereto, the plaintiff did not present to DHS until March 12, 2008, when she again.came under the care of Dr. Rosenberg to whom she complained that a bridge located in the lower left side of her mouth had become loose 125). In response thereto, Dr. Rosenberg re-cemented the bridge (id. at p. 126). Finally, on April 15\ 2008, the plaintiff presented to DHS for the final time whereupon she was seen by Dr. Verini (a non-party), who informed her that she had major bone and tissue loss and referred her to Dr. Crane, a periodontist (id. pp. 40, , ). On May 28, 2008, the plaintiff presented to Dr. Crane, who informed her that she had stage four periodontitis (id. at p. 38; Exh. N). The plaintiff alleges that as a consequence thereof she has lost numerous teeth, sustained bone loss and has suffered from and been treated for numerous infections (id. at pp ). As a result of the foregoing, the underlying action was commenced on January 11 t 2010 originally naming Dr. Rosenberg as the sole defendant (id. at Exh. A). Subsequently, the plaintiffs served an Amended Summons and Complaint adding DHS as a defendant and setting forth three causes of action, the first of which sounds in dental malpractice, the second of which alleges lack of informed consent, and the third of which asserts a claim for loss of consortium on behalf of co-plaintiff, Robert Epstein (id. at Exh. C). As recited therein, the plaintiffs allege inter alia that the defendants were negligent " in failing to properly diagnose and treat the plaintiff' s general dental and periodontal condition, in performing periodontal therapy in a careless and negligent manner, (and) in improperly treating a condition of periodontal disease and infection in plaintiff' s mouth" (id. at Exh. C at 1112). In response thereto DHS and Dr. Rosenberg each served an Amended Answer with Dr. Rosenberg asserting a cross-claim against DHS demanding indemnification (id. at Exh. D). The applications respectively interposed by the moving defendants thereafter ensued an are determined as set forth hereinafter. DHS Motion As to the application interposed by DHS, counsel for said defendant argues that as the underlying action was commenced on January, 2010, any acts of purported malpractice relating to treatment rendered prior to July, 2007 are barred by the applicable statute of limitations and must be dismissed (see Brower Affirmation in Support at ,40). Counsel further posits that notwithstanding the continuing relationship between the plaintiff and DHS, there is an absence of evidence that any of the dentists working at DHS ever treated the plaintiff for periodontal disease and as such the applicable limitations period may not be expanded under the doctrine of continuous treatment(id. at ). As to those treatment dates of March 12 and April 1 st, 2008, counsel contends that while any purported malpractice occurring on said dates would not be barred by the statute oflimitations, dismissal thereof remains warranted as there is no evidence that the treatment rendered constituted a departure of accepted standards of dental practice (id. at 1J33, 40). Counsel for DHS provides the affidavit of Dr. Ronald M. Margolies, a dentist licensed to practice in the state of New York (see Margolies Affdavit at 111). Dr. Margolies avers he has reviewed the summons and complaint, the bils of particulars, the deposition transcripts, as well as the relevant dental records and upon said review concludes "with a reasonable degree of dental certainty that there was no ongoing and/or continuous treatment plan being carried out by Dr. Rosenberg or Dental Health Services with reference to the plaintiff, Denise Epstein in July, 2007 or immediately prior to that date (id. at 1J4 9). Dr. Margolies further states that with respect to the treatment rendered on March 12 and April 1 5\ 2008 "with a reasonable degree of dental certainty, that (DHS) did not depart from accepted dental practice" and " none of the plaintiffs alleged injuries were caused by any act or omission of the dental practice on either" of these dates (id. at 118). (id. 2 Dr. Ira Rosenberg was an employee of DHS (see Chan Affrmation in Support at Exh, J at p. 33).

3 , " Rosenberg Motion As to the application interposed by Dr. Rosenberg, counsel therefor similarly posits that any alleged acts of dental malpractice occurring prior to July, 2007 are time barred and given the absence of any course of treatment rendered in connection to the plaintiff's periodontitis, there is no tollng of the statute of limitations thereby warranting dismissal of those claims (see Chan Affirmation in Support at 1J23 35, 37,40,41 42,43). With respect to the treatment rendered by Dr. Rosenberg on March , counsel posits that said defendant only re-cemented a bridge which had come loose and there is no causal connection between any departures with respect thereto and the plaintiff' s untreated periodontal disease (id.. at ). Counsel provides the affidavit of Dr. Joel T. Gluck, DDS, a dentist licensed to practice dentistry in the State of New York (see Gluck Affdavit at 111). Dr. Gluck states that based upon his review of the Verified Bil of Particulars, the parties' deposition testimony, as well as the relevant medical records with a reasonable degree of dental certainty that any delay in the failure to diagnose the existence of the plaintiff' s periodontal condition or refer her for treatment of same for the first actionable dental treatment date, March 12, 2008 until the time she was ultimately examined and evaluated by a periodontist did not proximately cause or was not not a substantial factor in any injury or damage to the plaintiff' (id. at 1J4, 11). Dr. Gluck further opined that "the three (3 week) delay in her being referred to a periodontist * * * did not proximately cause or was a substantial factor in any damage to her dentition, periodontium or change in her treatment plan or resultant treatment" (id. at 1112). In opposing both the applications interposed by the moving defendants, counsel for the plaintiff contends that the continuous treatment doctrine is applicable to the facts herein and as such the within action was timely commenced warranting denial of the defendants ' respective motions (see Plaintiff' Memorandum of Law at Point I ). Initially, counsel argues that the 46 instances on which Mrs. Epstein presented to DHS collectively constitute a continued course of dental treatment during which "every single tooth in the plaintiffs mouth was treated by the defendants (see Friedlander Affrmation in Support at 1J4, 11 15). Additionally, counsel posits that during the time plaintiff was under the care of Dr. Rosenberg, between March of 2000 and April of 2008, she was continuously treated for periodontal disease having annually received deep scaling and curretage on seven occasions (id. at 1J-, 11-13, 15, 17-19). Counsel further asserts that while this treatment was rendered continually, it was performed in a negligent manner as it neither effectively treated nor arrested the plaintiff' periodontal disease (id. 1J9, 17, 21). Plaintiff' s counsel proffers the affidavit of Dr. H. James Fontek, D., who is licensed to practice dentistry in New York (see Fontek Affirmation at 111). Dr. Fontek states that based upon his review of the plaintiffs dentistry and medical records, the parties' deposition testimony, as well as his knowledge as a dentist, "to a reasonable degree of dental certainty, that the care and treatment rendered by the defendants * * * did not conform to good and accepted dental practice, contained errors and omissions, which caused injuries to the plaintiff. (id. at 1J3 4). More specifically, Dr. Fontek opines that as of January 18, 2003, examination revealed " interproximal bone loss, as well as "thickening of the perio membrane" and that "the only correct course of action was to refer the patient to a Periodontist" (id. at 116). Dr. Fontek asserts that the failure on the part of the defendants to refer the plaintiff to a periodontist "was a departure from good practice which over the next five years caused the patient to suffer extremes of bone loss, rendering her periodontal condition severe (id. Finally, and with particular respect to the periodontal treatment afforded to the plaintiff in the form of deep scaling and curretage, Dr. Fontek states while "(t)here is no notation of this treatment determination in the records, it is nonetheless " evident" that such treatment was undertaken (id. at 1J5 9). In order to establish a cause of action sounding in dental malpractice, the plaintiff " must establish that the defendant departed from good and accepted dental practice and that such departure was a proximate cause of the plaintiffs injuries (Cohen v Kalman 54 AD3d 307( 2d Dept 2008); Zito v Jastremski 84 AD3d 1069 (2d Dept 2011)).

4 , ", " ). ). Pursuant to CPLR ~214-a (a)n action for * * * dental * * * malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same ilness, injury or condition which gave rise to the said act, omission or failure. " However, under the doctrine of continuous treatment, the time in which to commence an action is tolled "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (McDermott v Torre 56 NY2d 399 (1982) at 405 quoting Borgia v City of New York 12 NY2d 151 (1962) at 155; Smith v Fields 268 AD2d 579 (2d Dept 2000); Leifer v Parikh 292 AD2d 426 (2d Dept 2002)). "(E)ssential to the application of the doctrine is that there has been a course of treatment established with respectto the condition which gave rise to the lawsuit" (Nykorchuck v Henirques, 78 NY2d 255 (1991) at ; Grippi v Jankunas 230 AD2d 826 (2d Dept 1996)). Moreover the mere 'continuing relation between physician and patient' " is not suffcient to satisfy the requirements of the continuous treatment doctrine (Nykorchuck v Henirques 78 NY2d 255 (1991), supra at 259 quoting McDermott v Torre 56 NY2d 399 (1982), supra at 405). As articulated by the Court of Appeals,,,(t)he doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor s skil because to sue while undergoing treatment necessarily interrupts the course of treatment" (Massie Crawford 78 NY2d 516(1991) at 519). In further expounding upon the policy considerations underlying the doctrine, the Court of Appeals additionally stated that" ' (i)t would be absurd * * * to require a wronged patient to interrupt corrective efforts by serving a summons on the physician' under those circumstances (id. quoting Borgia v City of New York 12 NY2d 151 (1962), supra at 156). In the instant matter, the Court finds the doctrine of continuous treatment inapplicable to the facts herein and accordingly the defendants are entitled to summary judgment dismissing the plaintiff' s claims predicated upon treatment dates preceding July, 2007 (Nykorchuck v Henirques 78 NY2d 255 (1991), supra; Grippi v Jankunas 230 AD2d 826 (2d Dept 1996), supra). Initially, as is conceded by the plaintiff's expert, the dental records are devoid of any documentation that the moving defendants undertook a course of treatment with respect to the plaintiffs periodontal condition (id. Rather, what the records do establish is a lengthy dentist-patient relationship during which the defendants provided to the plaintiff a wide array of dental services ranging from annual cleanings, the placement of several crowns and bridges, as well as the fillng of cavities. However, such a dentist-patient relationship, without more, is an insufficient predicate upon which to invoke the doctrine of continuous treatment (Nykorchuck v Henirques 78 NY2d 255 (1991), supra; McDermott v Torre, 56 NY2d 399 (1982), supra). Additionally, the plaintiff herein testified that she was not even cognizant as to the existence of her periodontal disease until her last visit to D. H.. S. on April PI, 2008 and did not undergo any corrective treatment in connection thereto until after she left the defendant's care (Grippe v Jenkins 230 Ad2d 826 (2d Dept 1996), supra; Lifer v Pariah 292 AD2d 426 (2d Dept 2002), supra; Borgia v City of New York, 12 NY2d 151 (1962), supra). Thus, while the failure on the part of the defendants to diagnose and subsequently treat the plaintiffs periodontal condition may indeed constitute dental malpractice, this Court "cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment" (Nykorchuck v Henriques 78 NY2d 255 (1991) supra at 259). As to those treatment dates of March and April 1 5\ 2008, the Court again finds that the moving defendants have demonstrated entitlement to summary judgment dismissing any claims of dental malpractice based thereon (Sharp v Weber 77 AD2d 812, (2d Dept 201 0); Larsen v Loychusuk 55 AD3d 560 (2d Dept 2008)). With particular respect to D., Dr. Margolies specifically opined that as to the treatment rendered on said dates, the defendant "did not depart from accepted dental practice" and "none of the plaintiff's alleged injuries were caused by any act or omission of the dental practice on either March 2008 or April 1, 2008" (id. With regard to Dr. Rosenberg, Dr. Gluck stated "that any delay in the failure to diagnose the existence of the plaintiffs periodontal condition or refer her for treatment of same for the first actionable dental treatment date, March 12, 2008 * * * did not proximately cause or was not a substantial factor in any injury or damage to the plaintiff (id. In opposing the applications respectively interposed by S. and Dr. Rosenberg, the plaintiff's expert does not address the treatment dates of either March 12 or April 1 5\ 2008, and accordingly has failed to raise a triable issue of fact with respect thereto (Zuckerman v City of New York 49 NY2d 557 (1980)).

5 ."""""... Finally, as to the plaintiff's cause of action sounding in lack of informed consent, in order to successfully assert same CIa plaintiff must establish that ' a reasonably prudent person in the patient' s position would not have undergone the treatment... if he (or she) had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought'" (Johnson v Staten Island Medical Group, 82 AD3d 708 (2d Dept 2011) quoting Public Health Law ~2805- d (3). As noted above, the record establishes that the defendants did not render a course of treatment with respect to the plaintiffs periodontal disease. Thus, given the demonstrated absence thereof, there would have been no occasion to solicit consent from the plaintiff with regard to treatment that was never undertaken (id. Accordingly, the cause of action is not viable (id.). Based upon the foregoing, the application interposed by defendant, D., for an order granting summary judgment dismissing the plaintiff' s complaint in its entirety, together with any and all cross-claims asserted against it, is hereby GRANTED, and; the application interposed by defendant, Dr. Ira Rosenberg, S., for and order dismissing those claims predicated upon treatment rendered prior and subsequent to July 11, 2007, is hereby GRANTED. (Sequence # ). This constitutes the Decision and Order of the Court All applications not specifically addressed are Denied. SO ORDERED. DATED: /.l is:c:.. ENTERED APR 24 20J2 NAtlAU COUNTY C8rv CLiMe" M'tCl