The New York Supreme Court, Appellate Division, First Department (“New York Appellate Court”) held in a dental malpractice case it decided on April 20, 2017 that a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers, and since the dental malpractice plaintiff’s opposition papers were insufficient absent this new theory of recovery, the defendant’s summary judgment motion should have been granted by the lower court.
The New York Appellate Court further held that the plaintiff’s cross motion for leave to amend should have been denied since the defendant had no notice of the plaintiff’s new claims, which were never mentioned in the pleadings or at depositions, and the plaintiff’s new theory of dental malpractice is not related to the claims in the pleadings.
The Underlying Facts
The dental malpractice plaintiff was born with a congenital condition that involves a constellation of symptoms, including ear abnormality. She had preexisting bilateral hearing loss and a significant underbite with an underdeveloped and asymmetric jaw, resulting in the nonalignment of her teeth with the midline of her face.
The plaintiff and her family consulted with the defendant oral surgeon concerning a plan to correct the plaintiff’s skeletal deformity, and the plaintiff consented to the elective double-jaw orthognathic surgery. In the plaintiff’s dental malpractice complaint and bill of particulars, the plaintiff alleges that, as a result of the surgery, she suffered further hearing loss, numbness of lips, chin and lower facial areas, as well as problems with her midline bite and posterior occlusion.
The defendant oral surgeon filed a motion for summary judgment supported by the plaintiff’s medical records, the opinions of two of the defendant’s experts, and the opinion of the defendant himself that addressed all theories of negligence alleged in the plaintiff’s bill of particulars, which the New York Appellate Court stated met the defendant’s burden for summary judgment and therefore the plaintiff was obligated to rebut the defendant’s prima facie showing with medical evidence demonstrating that the defendant departed from accepted medical practice.
The defendant’s orthodontic expert opined that any problems with the plaintiff’s midline misalignment and posterior occlusion did not result from the surgery and, in any event, the 1 mm mandible slide was de minimis and within the standard of care. The defendant’s otolaryngologist expert opined that, while the plaintiff may have suffered additional hearing loss, there was no medical explanation for the hearing loss and that loss of hearing was not a risk of orthognathic surgery. The defendant opined that his presurgical disclosure of the risks and benefits of the procedure, including the possibility of sensory deficits, comported with the standard of care and that hearing loss was not a foreseeable consequence of the procedure, and that the infection that led to removal of hardware had no functional consequence.
The New York Appellate Court held that the plaintiff failed to address the opinions of the defendant’s experts or the defendant’s prima facie showing that the result from the complicated, extensive double jaw surgery was anything but a reasonable result. Thus, there was no basis to preclude a grant of summary judgment in favor of the defendant.
Source Biondi v. Behrman, 2017 NY Slip Op 03039
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