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STATING THE WRONG DATE FOR THE ALLEGED NEGLIGENCE IN THE NOTICE OF INTENTION TO FILE A CLAIM RENDERED THE NOTICE JURISDICTIONALLY DEFECTIVE; THE NOTICE THEREFORE DID NOT EXTEND THE 90-DAY PERIOD FOR FILING A CLAIM, RENDERING THE CLAIM FILED MORE THAN A YEAR AND A HALF LATER UNTIMELY; THE DENTAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the claimant’s failure to set forth the correct date of the alleged dental malpractice in the notice of intention to file a claim was a jurisdictional defect, notwithstanding the correct date set forth in the subsequently filed claim: Because the notice of intention was jurisdictionally defective it did not extend the 90-day period for filing a claim rendering the claim filed more than a year and a half later untimely:

The claimant served the defendant with a notice of intention to file a claim dated January 9, 2017, which alleged that the claimant was injured when her mouth and lips were burned during the course of her treatment as a patient at a particular address where the defendant operated a school of dental medicine. The notice of intention to file a claim stated that “[t]he claim arose on or about October 15, 2016, the last date of continuous treatment and prior to said date.”

In the subsequent claim, dated October 16, 2018, the claimant stated that she was injured on October 20, 2016, when hot wax was negligently spilled on her face and mouth while an employee of the defendant was attempting to make a wax mold for dentures. * * *

Section 10(3) of the Court of Claims Act sets forth time limitations for asserting “[a] claim to recover damages . . . for personal injuries caused by . . . negligence.” Such a claim “shall be filed and served upon the attorney general within [90] days after the accrual of such claim” (id.). However, if the claimant serves “a written notice of intention to file a claim” within 90 days after the accrual of the claim, “the claim shall be filed and served upon the attorney general within two years after the accrual of such claim” … . * * * Since the claimant’s notice of intention to file a claim was substantively deficient (see Court of Claims Act § 11[b]), it did not extend the claimant’s time to file and serve a claim beyond the 90-day statutory period … . Under the circumstances, the claim was untimely (see Court of Claims Act § 10[3] …). “The claimant’s failure to comply with the filing requirements of the Court of Claims Act deprived the Court of Claims of subject matter jurisdiction” … . Accordingly, the Court of Claims properly granted the defendant’s motion pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction. Sacher v State of New York, 2022 NY Slip Op 07087, Second Dept 12-14-22

Practice Point: Including the wrong date for the allegedly negligent act in the notice of intention to file a claim renders the notice jurisdictionally defective pursuant to the Court of Claims Act.

Practice Point: Ordinarily filing a notice of intention to file a claim extends the period for filing a claim from 90 days to two years. However, the extension is not triggered by a jurisdictionally defective notice of claim. The claim here, filed more than a year and a half after the notice of intention, was therefore untimely.

 

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IN THIS DENTAL MALPRACTICE ACTION, PLAINTIFF RAISED ISSUES OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS, THE DEVIATION FROM THE STANDARD OF CARE, AND THE LACK OF INFORMED CONSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this dental malpractice action, determine there were questions of fact about (1) the applicability of the continuous treatment doctrine to toll the statute of limitations, (2) the deviation from the standard of care, and (3) the lack of informed consent:

The instant case does not involve gaps in treatment longer than the 2½-year statute of limitations … , and “a discharge by a physician [or dentist] does not preclude application of the continuous treatment toll if the patient timely initiates a return visit to complain about and seek further treatment for conditions related to the earlier treatment” … . …

… [B]y submitting the affidavits of her experts, plaintiff raised issues of fact whether defendants deviated from the standard of care and whether such deviation was a proximate cause of plaintiff’s injuries … . …

… [P]laintiff raised an issue of fact whether she would have opted for extraction of several teeth and placement of implants had she been fully informed … . Bellamy v Baron, 2021 NY Slip Op 00953, Fourth Dept 2-11-21

 

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THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE SHOULD NOT HAVE BEEN DISMSSED DESPITE PLAINTIFF’S SIGNING A CONSENT FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the lack of informed consent cause of action should not have been dismissed in this dental malpractice action:

To establish a cause of action for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to inform the patient of reasonably foreseeable risks and benefits associated with the treatment, and the alternatives thereto, that a reasonable medical practitioner would have disclosed under similar circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury (see Public Health Law § 2805-d …). “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, although the injured plaintiff signed a consent form, the defendants submitted in support of their motion, inter alia, a transcript of the injured plaintiff’s deposition, during which she testified that the defendants never explained the risks of the tooth extraction or whether there were any alternatives … . Xiao Yan Ye v Din Lam, 2021 NY Slip Op 00895, Second Dept 2-10-21

 

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PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS NOT SPECULATIVE OR CONCLUSORY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DENTAL MALPRACTICE AND LACK OF INFORMED CONSENT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this dental malpractice and lack of informed consent should not have been granted. Plaintiff’s expert’s affidavits raised questions of fact:

“In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” … . In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party … , and “all reasonable inferences must be resolved in favor of the nonmoving party” … . * * *

Summary judgment is not appropriate in a dental malpractice action where, as here, the parties adduce conflicting medical expert opinions, since conflicting expert opinions raise credibility issues which are to be resolved by the factfinder … . …

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Many v Lossef, 2021 NY Slip Op 00165, Second Dept 1-13-21

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS DENTAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; DEFENDANT DEMONSTRATED THE PERFORMED PROCEDURE WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, THEREBY NEGATING THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant established he did not depart from good and accepted practice and the procedure he performed was not the proximate cause of plaintiff’s injury. Plaintiff’s expert’s affidavit was speculative and conclusory. Plaintiff did not raise a question of fact in support of the “lack of informed consent” cause of action:

… [M]ere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the cause of action at issue, are insufficient to defeat summary judgment … .

“[L]ack of informed consent is a distinct cause of action [which] requir[es] proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … .

The defendant established, prima facie, that his care and treatment did not proximately cause the plaintiff’s alleged injuries. In opposition, the plaintiff failed to raise a triable issue of fact as to whether a lack of informed consent proximately caused his injuries … . Kelapire v Kale, 2020 NY Slip Op 07553, Second Dept 12-16-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS THE CLAIM ASSOCIATED WITH TOOTH NUMBER 28 IN THIS DENTAL MALPRACTICE ACTION; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THAT CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, noted that the plaintiff’s expert’s affidavit did not address the plaintiff’s dental malpractice claim with respect to one tooth (tooth number 28). Therefore defendant’s motion for summary judgment should have been granted on that claim:

Even assuming, as defendant claims, that plaintiff would still have had to undergo future dental work had these six teeth been saved, and that any disfigurement was not fairly attributable to defendant because plaintiff opted to have another dentist install her dentures, these facts do not negate the primary injury claimed by plaintiff — the unnecessary loss of these teeth. It is immaterial that plaintiff’s expert did not indicate that he or she had reviewed plaintiff or her husband’s deposition testimony, as review of these documents was not necessary to make an informed determination about the appropriateness of treatment. * * *

However, defendant’s motion for summary judgment should have been granted insofar as plaintiff’s claims are directed at tooth number 28, because plaintiff’s expert failed to raise an issue of fact regarding a departure of care with respect to this tooth. Castro v Yakobashvilli, 2020 NY Slip Op 05281, First Dept 10-1-20

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THIS DENTAL MALPRACTICE ACTION ON THE GROUND THE PLAINTIFFS’ EXPERT WAS NOT QUALIFIED TO RENDER AN OPINION; ANY WEAKNESSES IN THE EXPERT’S AFFIDAVIT WENT TO ITS WEIGHT NOT ITS ADMISSIBILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this dental malpractice action should not have been dismissed. The weaknesses in plaintiffs’ expert’s affidavit went to the weight of her opinion as evidence, not its admissibility:

The Supreme Court granted that branch of the motion, determining that the defendant demonstrated his prima facie entitlement to judgment as a matter of law dismissing the dental malpractice cause of action insofar as asserted against him, and that the expert affirmation submitted by the plaintiffs in opposition lacked probative value because the plaintiffs’ expert was not qualified to render an opinion as to the applicable standard of care. …

… [T]he affirmation of the plaintiffs’ expert was sufficient to demonstrate his qualifications to render opinions as to the applicable standard of care and, under these circumstances, raised triable issues of fact as to whether the defendant deviated from that standard and whether any such deviation was a proximate cause of [plaintiff’s] injuries … . “Any lack of skill or expertise that the plaintiff’s expert may have had goes to the weight of his or her opinion as evidence, not its admissibility” … . The parties’ conflicting expert opinions raised questions of credibility for the trier of fact … . Lesniak v Huang, 2020 NY Slip Op 05044, Second Dept 9-23-20

 

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STATEMENT FROM PLAINTIFF’S OUT-OF-STATE EXPERT IN THIS DENTAL MALPRACTICE ACTION NOT IN ADMISSIBLE FORM; CPLR 2106 REQUIRES A SWORN AFFIDAVIT FROM A DENTIST LICENSED IN ANOTHER STATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statement by a New Jersey dentist offered by the plaintiff in this dental malpractice action was not admissible because it was not in the form of a sworn affidavit. Therefore plaintiff did not raise a question of fact in opposition to defendants’ motions for summary judgment:

In opposition, the plaintiff submitted, among other things, the unsworn affirmation of Martin, who was licensed to practice dentistry in the State of New Jersey. Consequently, the out-of-state dentist’s statement did not constitute admissible evidence in that CPLR 2106 only authorizes attorneys, physicians, osteopaths, or dentists licensed in this state to utilize an affirmation in lieu of a sworn affidavit … . …

While an otherwise qualified expert physician, osteopath, or dentist, who is not licensed in this state, may submit a statement in support of or in opposition to a party’s position in a case at bar, that statement must be in the form of a sworn affidavit. CPLR 2106(a), which permits such a statement to be in the form of an affirmation, only applies to attorneys, physicians, osteopaths, and dentists licensed to practice in the State of New York. Nelson v Lighter, 2020 NY Slip Op 00420, Second Dept 1-22-20

 

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous treatment doctrine tolled the statute of limitations in this dental malpractice case. The doctrine may apply to one of the dentists (Gold) who retired by imputing to him the continued treatment by other dentists:

“Treatment” does not necessarily terminate upon the last visit, if further care or monitoring of the condition is explicitly anticipated by both physician and patient, as manifested by a regularly scheduled appointment for the near future … . Thus, “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment'” … . Even the monitoring of an abnormal condition may be sufficient to support the application of the continuous treatment toll … . The critical inquiry is not whether the defendant failed to make a diagnosis or undertake a course of treatment during the period of limitation, but whether the plaintiff continued to seek treatment for the same or related conditions giving rise to his or her claim of malpractice, during that period… . Accordingly, a defendant cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, if the defendant treated the plaintiff continuously over the relevant time period for symptoms that are ultimately traced to that condition … .

Here, the plaintiff does not claim merely that the moving defendant failed to diagnose her condition and treat her for it … . Rather, she alleged that between 2009 and 2015, she was treated continuously for symptoms ultimately traced to abnormal and severe periodontal disease. Both the plaintiff’s affidavit and her expert’s affidavit, which referred to numerous specific notations in the plaintiff’s dental records, raised triable issues of fact as to whether a course of treatment for periodontal disease was established and therefore the continuous treatment doctrine would apply to toll the statute of limitations … . Cohen v Gold, 2018 NY Slip Op 06878, Second Dept 10-17-18

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/DENTAL MALPRACTICE (QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/CIVIL PROCEDURE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/CONTINUOUS TREATMENT DOCTRINE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/STATUTE OF LIMITATIONS (DENTAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))

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DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT).

The Second Department, affirming Supreme Court, determined defendants’ motions for summary judgment on the lack of informed consent cause of action were properly denied. Plaintiff had signed a consent form but alleged the wrong tooth was extracted:

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“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action for malpractice based on lack of informed consent, plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law”… .

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… Supreme Court properly determined that triable issues of fact precluded an award of summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against them. The deposition testimony of the parties and the generic consent form signed by the plaintiff revealed a factual dispute as to whether the plaintiff was adequately informed about the extraction, namely which tooth would be removed… . In addition, each of the expert opinions submitted on the summary judgment motions was in agreement that a root canal was a viable alternative treatment to the extraction of tooth number four. Thus, there were triable issues of fact as to whether a reasonably prudent patient in the plaintiff’s position would have undergone the extraction of tooth number four if he or she had been fully informed … . Godel v Goldstein, 2017 NY Slip Op 08260, Second Dept 11-22-17

 

NEGLIGENCE (DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/MEDICAL MALPRACTICE (LACK OF INFORMED CONSENT, DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/DENTAL MALPRACTICE (LACK OF INFORMED CONSENT, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))

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