Giambrone v. Farha, 24663/08.
| Citation | 946 N.Y.S.2d 66 |
| Decision Date | 20 December 2011 |
| Docket Number | No. 24663/08.,24663/08. |
| Parties | Betty GIAMBRONE, Plaintiff, v. Dr. Tony FARHA, Defendant. Antoine Farha, D.D.S. s/h/a Dr. Tony Farha, Third–Party Plaintiff, 5th Avenue Dental Associates, LLP, Dr. Glen Cosman, Joseph K. Ahlo, D.M.D. and “Dr. John Doe”, being a fictitious name representing the dentist who extracted all of the plaintiff's teeth on or about 4/22/10, Third–Party Defendants. |
| Court | United States State Supreme Court (New York) |
OPINION TEXT STARTS HERE
Joel Kotick, New York, for Plaintiff.
Gordon and Silber PC, New York, NY, for Defendant.
Upon the foregoing papers, in this medical malpractice action by plaintiff Betty Giambrone (plaintiff), defendant/third-party defendant Dr. Joseph Manfredi (s/h/a/ Dr. John Doe) (hereinafter Dr. Manfredi) moves for an order, pursuant to CPLR 3212, granting him summary judgment dismissing plaintiff's complaint and the third-party complaint as against him, and dismissing plaintiff's claim for dental malpractice, lack of informed consent and punitive damages. Third-party defendant 5th Avenue Dental Associates, LLP, (5th Avenue Dental) also moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiff's complaint, as well as the third party complaint insofar as asserted against it.
Plaintiff Betty Giambrone (plaintiff) commenced this dental malpractice action alleging, among other things, that she suffered injuries after the defendants failed to properly treat her dental condition, and further failed to inform her of the risks of the procedure she underwent. The underlying facts are as follows: Plaintiff, an elderly woman over 80 years of age, was first seen by defendant/third-party plaintiff Dr. Antoine Farha (sued herein as Dr. Tony Farha) from June 19, 2007 through October 18, 2007. She presented to Dr. Farha with a pre-existing old lower bridge and requested a new one. Dr. Farha's treatment plan was for a new replacement fixed cantilevered lower bridge, as well as root canal therapies of teeth No. 27 and 28. Dr. Farha thereafter fabricated a new lower prosthesis with three cantilever teeth on the left side. Over the course of the subsequent months, the plaintiff underwent treatments by Dr. Farha which consisted of temporary lower bridge work and ultimately permanent lower bridge work.
Approximately three years after being treated by Dr. Farha, the plaintiff presented to defendant 5th Avenue Dental on January 27, 2010, and was first seen by periodontist, Dr. Joseph Ahlo. According to 5th Avenue Dental's records, the plaintiff presented with a history of pain in the jaw, and experiencing a burning sensation in her mouth and lips. Dr. Ahlo's treatment entry notes that the plaintiff had periodontitis and that her gingiva was red and inflamed with overgrowth due to poor oral hygiene. Dr. Ahlo further noted that ill fitting roundhouse upper and lower bridges were present and that they were not cemented in her mouth. Additionally, Dr. Ahlo noted that the plaintiff had expressed her wish to have all of her remaining teeth extracted and to have upper and lower dentures placed. The records further note that Dr. Ahlo referred the plaintiff to an oral pathologist regarding a possible link to her symptoms, and that he advised her that he would not continue with any dental treatment unless she saw an oral pathologist first.
On February 1, 2010, the plaintiff returned to 5th Avenue Dental and again on March 25, 2010, at which time she was seen by Dr. Manfredi, a dentist also employed by 5th Avenue Dental. During the latter visit, records indicate that the plaintiff presented with multiple complaints, the biggest of which being an irritation related to tooth # 22. Specifically, the plaintiff had complained about pain resulting from a retained root tip of tooth # 22. The plaintiff also expressed her desire to have her remaining teeth extracted in order to have removable dentures fabricated and immediately placed on her upper and lower arch. Dr. Manfredi thereafter made the treatment plan to extract the root tip of tooth # 22, and later to extract the plaintiff's remaining teeth. The root tip of tooth # 22 was extracted on March 25, 2010.Two days later, on March 27, 2010, the plaintiff returned to the 5th Avenue Dental office where she saw Dr. Manfredi. During that appointment, the dental records indicate that an impression for immediate full upper and lower dentures was taken. Plaintiff was also given a referral for a neurology evaluation at Bellvue/New York University. Dr. Manfredi noted in the plaintiff's chart that the extraction site at tooth # 22 was healing well. On April 6, 2010, plaintiff returned to see Dr. Manfredi at which point a final impression and bite registration for full upper and lower dentures were taken and a shade was selected. On April 13, 2010, plaintiff returned and the upper and lower dentures were tried on her. On April 22, 2010, Dr. Manfredi extracted all of plaintiff's remaining 15 teeth (teeth # s 4, 5, 6, 7, 8, 9, 10, 11, 12, 23, 24, 25, 26, 27 and 28), with the immediate placement of full upper and lower dentures.
Following the extractions, the plaintiff, complaining of post-operative discomfort, thereafter returned to 5th Avenue Dental on 8 separate occasions, 6 of which were with Dr. Manfredi. The visits with Dr. Manfredi were on April 27, 2010, April 29, 2010, May 6, 2010, May 18, 2010, May 20, 2010 and May 27, 2010. The plaintiff presented with various complaints, including but not limited to pain, soreness, bruising and discomfort in her gums, improperly fitted dentures, difficulty eating and chewing, and difficulty breathing through her left nostril.
Shortly thereafter, the plaintiff commenced this action alleging dental malpractice and lack of informed consent against Dr. Farha. In or about September 2010, Dr. Farha commenced a third-party action against third-party defendants 5th Avenue Dental, Dr. Glen Cosman, Dr. Ahlo and Dr. Manfredi (sued herein as Dr. John Doe). Plaintiff subsequently filed a “Further Amended Complaint,” dated October 19, 2010, against 5th Avenue Dental, Dr. Cosman, Dr. Ahlo, and Dr. Manfredi. In her “Further Amended Complaint,” the plaintiff alleges that the defendants committed dental malpractice in the treatment that she underwent, and that defendants failed to properly inform her of the risks and alternatives to said dental treatment. Specifically, in her bill of particulars, the plaintiff alleges, among other things, that while she was under the care of 5th Avenue Dental, the defendants were negligent in improperly performing the extractions of her remaining teeth in plaintiff's upper and lower arches. She further alleges that the extractions were performed in an improper manner, and that Dr. Manfredi negligently failed to evaluate the condition of her teeth and extracted healthy teeth that should have been treated. He further failed to advise the plaintiff of the risks, alternatives and destructive nature of his treatment plan for her, and did not advise her against having teeth extracted. Additionally, the plaintiff is seeking punitive damages based upon her belief that Dr. Manfredi “willfully and wantonly negligently extracted teeth that should have been treated.” She further alleges that the defendants failed to obtain her informed consent prior to performing the extractions. Presently, issue has been joined, discovery is completed and the case is on the trial calender. Dr. Manfredi and 5th Avenue Dental Associates are now separately moving for summary judgment seeking to dismiss the plaintiff's complaint and the third-party complaint insofar as asserted against them.
Dr. Manfredi moved for an order, pursuant to CPLR 3212, granting him summary judgment dismissing plaintiff's dental malpractice and lack of informed consent causes of action as well as plaintiff's claim for punitive damages. 5th Avenue Dental (Dr. Manfredi's employer) also moved for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the causes of action for dental malpractice, lack of informed consent and punitive damages. This court, by order dated July 13, 2011, denied those branches of the motions which sought summary judgment dismissing plaintiff's lack of informed consent claim, and reserved decision on the issues related to the dental malpractice claims against the defendants as well as punitive damages with respect to the extraction of all of the plaintiff's teeth. By order dated, July 21, 2011, this court held, inter alia, that the punitive damages claim remains viable on the lack of informed consent claim only. The decision set forth herein incorporates this court's prior orders.
It is well settled that “[o]n a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement...
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