New York: Oral Surgery Malpractice—Summary Judgment, Queens County

03/20/18

Plaintiff alleged in this action that Rawle & Henderson LLP’s client, Dr. X, an oral and maxillofacial surgeon, committed dental malpractice because he failed to detect and diagnose Actinomycosis, a rare bacteria, and failed to send him to the proper specialists to treat same, which caused plaintiff to develop osteomyelitis on the right side of his face and undergo multiple surgical procedures and hospitalizations. Plaintiff also alleged that he did not have informed consent for the procedures performed by Dr. X.

In our motion for summary judgment, Rawle & Henderson LLP argued—with the support of our expert, Dr. Y—that at no time did Dr. X fail to properly and timely diagnose Actinomycosis during treatment rendered to plaintiff. Moreover, even if an Actinomycosis infection had been diagnosed at the beginning of Dr. X’s treatment, the infection and osteomyelitis would still have progressed in the way it did no matter what treatment was rendered.

Rawle & Henderson LLP further included an Affidavit in support from Dr. X, who pointed out that, while he was treating plaintiff, plaintiff was also seeing other specialists.

In opposition, plaintiff, with the support of Dr. Z, a general dentist (as opposed to an oral and maxillofacial surgeon), argued that Dr. X departed from the standard of care by negligently failing to notice the signs and symptoms of Actinomycosis, negligently continuing to prescribe antibiotics even though plaintiff’s infection was not healing, and negligently failing to refer plaintiff to a specialist in infectious diseases or an oral pathologist.

Plaintiff additionally argued that, given plaintiff was not improving on antibiotics, it was incumbent on Dr. X to order cultures to ascertain the specific bacterial strains causing the infection. Instead, plaintiff argued, Dr. X prescribed antibiotics randomly in a “shotgun” approach toward resolution, and the proper antibiotic treatment specific to Actinomycosis was not prescribed.

Rawle & Henderson LLP submitted a vigorous Reply, in which we annexed a further Expert Affidavit from Dr. Y, as well as an Affidavit from our client, Dr. X. In summary, we argued that plaintiff failed to raise an issue of fact to preclude summary judgment in that plaintiff improperly relied on the opinion of Dr. Z who, as a general dentist, was simply not qualified to render an opinion about the standard of care of an oral and maxillofacial surgeon (like Dr. X) or about Actinomycosis—an extremely rare infection—in general.

Rawle & Henderson LLP pointed out that Dr. Z admitted in his Affirmation that a general dentist might not have the experience to recognize the signs or symptoms of Actinomycosis. We cited several cases—Behar v. Coren, 21 A.D.3d 104 (2nd Dept. 2005), Tsimbler v. Fell, 123 A.D.3d 1009 (2nd Dept. 2014), and Lavi v. NYU Hospital Center, 133, A.D.3d 830 (2nd Dept. 2015)—in which the Court held that plaintiff’s expert lacked the requisite skill, training or experience to render an opinion as to raise an issue of fact in order to defeat a summary judgment motion. Our expert, Dr. Y, provided an Affirmation supporting this point.

We further pointed out—citing Lopez v. Gramuglia, 133 A.D.3d 424 (1st Dept. 2015) and Sassen v. Lazar, 105 A.D.3d 410 (1st Dept. 2013)—that Dr. Z relied on inaccurate “facts” that were not in evidence. For instance, he erroneously indicated that a lesion found by a periodontist who examined plaintiff was producing pus, which was contradicted by the records.

Our client, Dr. X, and our expert, Dr. Y., provided additional papers setting forth in detail the erroneous “facts” relied on by plaintiff’s expert and why same were crucial to an assessment of the case. We also noted that plaintiff’s cause of action for “lack of informed consent” must be dismissed as plaintiffs did not even address this issue in their opposition papers.

Justice Peter J. O’Donoghue, of the Supreme Court, Queens County, granted our motion for summary judgment finding that plaintiff’s expert, Dr. Z, a general dentist, was not qualified to render an opinion with respect to the standard of care to be followed by an oral and maxillofacial surgeon such as our client, Dr. X; therefore, Dr. Z’s affirmation had no probative value and failed to raise a question of fact sufficient to defeat our motion.

Plaintiff’s counsel has indicated that they are appealing Justice O’Donoghue’s decision.