A woman was referred by her regular treating dentist to an endodontist for root canal treatment. The root canal was performed over two sessions approximately one month apart. About four months after the second root canal session, the woman's regular treating dentist noticed a sore or ulcer on the left side of her tongue and referred her to an oral pathologist. About six weeks later, the woman was examined by an oral pathologist, who performed a biopsy, which tested positive for oral squamous cell carcinoma.
The woman, and her husband suing derivatively, brought a dental malpractice action against the endodontist. The suit alleged that the endodontist deviated from accepted dental practice in failing to properly perform a screening test for oral cancer and failing to diagnose a cancerous lesion and refer her for treatment, thereby contributing to her damages. The Nassau County Supreme Court denied the endodontist's motion for summary judgment.
The Appellate Division of the New York Supreme Court, Second Department, affirmed holding that the endodontist established his prima facie entitlement to judgment as a matter of law, but
triable issues of fact existed as to whether the patient's oral cancer could and should have been detected sooner, and whether that contributed to her damages.
The court held that the requisite elements of proof in a dental or medical malpractice action are a deviation or departure from the accepted standard of care, and evidence that the deviation was a proximate cause of injury or damages. The court found that the endodontist established his prima facie entitlement to judgment as a matter of law by offering proof that both times he treated the woman he conducted oral screening examinations of her mouth and tongue, which revealed that she had no sign, symptom, or indicia of a cancerous condition.
The woman raised a triable issue of fact as to whether her cancer could and should have been detected sooner, and whether that contributed to her damages. In opposition to the endodontist's prima facie showing, the woman submitted affirmations of a physician with experience in the diagnosis and treatment of cancers of the head and neck, and a dentist with experience in the diagnosis of oral cancer and lesions, who opined, based on her records and other evidence, that in light of the stage and level of differentiation of her tumor at the time of her diagnosis, it was both detectable and diagnosable at the time she was treated by the endodontist, that he should have referred her for a biopsy, and had he done so, she would not have required the majority of procedures and treatments that she was then required to undergo.
The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s denial of the endodontist's motion for summary judgment.
See: Dien v. Seltzer, 2014 WL 1613001, 2014 N.Y. Slip Op. 02744 (N.Y.A.D. 2 Dept., April 23, 2014) (not designated for publication).
See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis