The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”), in its Memorandum and Opinion entered on February 11, 2021, reversed summary judgment granted to the defendant dentist and defendant oral surgeon in a dental malpractice case that alleged that the defendants were negligent in extracting nine specific teeth throughout three quadrants of the plaintiff’s jaw even though those teeth could have been saved, in failing to recommend root canal retreatment or to refer the plaintiff to an endodontist, in performing unnecessary extractions without a reasonable basis in dentistry, and in recommending a treatment plan calling for the extraction of teeth and installment of implants, although the defendant lacked the expertise to develop such a plan.
The Underlying Facts
The plaintiff first saw one of the defendant dentists in July 2007, seeking relief from pain in three quadrants of her jaw, including the upper left. That dentist referred the plaintiff to the other defendant dentist’s office (an oral surgeon), and the oral surgeon, in accordance with a treatment plan of disputed origin, extracted several of the plaintiff’s teeth and replaced them with dental implants.
The plaintiff returned to the first dentist who, in accordance with the treatment plan, placed crowns on the implants. The defendants were aware beginning in July 2007 that the plaintiff was also treating with a neurologist and taking prescription medication for neuropathic pain in her mouth.
After undergoing the initial treatment, the plaintiff continued to treat with the defendants for nearly four years, complaining of recurrent pain in the upper left quadrant of her jaw. The plaintiff last treated with the defendant oral surgeon on May 5, 2011, and subsequently sought treatment from a third dentist, who informed her that the implants were failures and removed them.
New York Appellate Court Decision
Continuous Treatment Doctrine
The New York Appellate Court stated that by demonstrating that the action was not commenced until March 12, 2013, the defendant oral surgeon met his burden of establishing entitlement to judgment as a matter of law dismissing any claims arising before September 12, 2010. The burden then shifted to plaintiff to establish the applicability of the continuous treatment doctrine, which tolls the 2½-year statute of limitations for bringing an action for medical or dental malpractice until the end of a course of treatment for a particular condition. The rationale for the continuous treatment doctrine is that the best interests of a patient warrant continued treatment with an existing provider, rather than stopping treatment, as the existing provider not only is in a position to identify and correct his or her malpractice, but is best placed to do so.
The New York Appellate Court held that the plaintiff raised an issue of fact whether the continuous treatment toll applies because she established that she continued to treat with the defendant oral surgeon until May 5, 2011, in order to address pain for which she initially presented to his office and which was made worse by his initial treatment of her.
The New York Appellate Court noted that this 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.
Lack Of Informed Consent
The New York Appellate Court further concluded that the plaintiff raised an issue of fact whether she would have opted for extraction of several teeth and placement of implants had she been fully informed. “Plaintiff’s expert periodontist stated within a reasonable degree of certainty that sequential extraction of teeth was a reasonable alternative procedure that would have reduced the adverse effect of surgery on plaintiff’s neuropathic pain. [The defendant oral surgeon], however, failed to inform plaintiff of the risks and benefits of such a procedure, and a reasonable patient informed of the risks of the procedure performed here by defendants would not have consented to it in the presence of longstanding neuropathic pain.”
Source Bellamy v. Baron, D.M.D., CA 19-01874.
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