A woman went to the dentist. It was discovered that the woman’s upper right second premolar, referred to in the dental charts as tooth number four, had an abscess and required root canal therapy. The woman’s insurance company would not pay for the root canal. Extraction was an alternative option, but the woman did not want the tooth extracted. The woman received a workup for a root canal, but, according to the woman’s dental charts, the woman needed to discuss payment options with the woman’s husband before moving forward with the root canal. The woman was given antibiotics at that time. The woman decided that if the antibiotics fixed the problem, the woman would not pursue a root canal. The woman did not feel pain again in that tooth and did not pursue a root canal.
Approximately two years later, the woman returned to the dentist complaining of pain in the upper right portion of the mouth after having eaten a piece of hard candy. An X-ray revealed that the woman’s upper right second molar, identified in the dental charts as tooth number two, was fractured. The woman saw a different dentist on that visit. This dentist told the woman that the tooth would need to be pulled or crowned. The woman elected to have tooth number two pulled because it was in the back of the mouth where no one could see it. However, the dentist thought the woman elected to have tooth number two crowned. The dentist claimed that the dentist reminded the woman that tooth number four was infected and should be treated, and that the woman told the dentist that the woman was ready to have tooth number four removed.
The woman was referred to a third dentist to have a tooth extracted. The woman believed the fractured tooth, tooth number two, would be extracted. The referral paperwork identified tooth number four as the tooth to be extracted.
The woman signed a consent form in connection with the extraction in the reception area prior to seeing the dentist who was to perform the procedure. The consent form identified the diagnosis as “ext # 4.” The form did not identify the planned treatment or alternative treatment methods. Although there was a doctor’s signature on the form, it was not the signature of the dentist who was to perform the procedure.
The woman claimed that the dentist who performed the procedure did not speak to the woman prior to the surgery. The dentist who performed the procedure claimed that, prior to the operation, the dentist spoke to the woman about removing the infected tooth and reviewed X-rays with the woman.
The woman sued the three dentists and their respective dental practices for dental malpractice. The complaint alleged that the dentists and dental practices negligently extracted the wrong tooth and failed to obtain the woman’s informed consent for the extraction.
The dentists and practice groups moved for summary judgment dismissing the complaint. The Dutchess County Supreme Court awarded summary judgment dismissing the causes of action alleging malpractice in the removal of tooth number four. The trial court found that removal of tooth number four was not a deviation from accepted standards of dental practice. The trial court denied summary judgment dismissing the cause of action alleging lack of informed consent.
The Appellate Division of the New York Supreme Court, Second Department, affirmed. The court held that the trial court properly determined that triable issues of fact precluded an award of summary judgment dismissing the cause of action alleging lack of informed consent.
The trial court properly determined that triable issues of fact precluded an award of summary judgment dismissing the cause of action alleging lack of informed consent. The court found that the deposition testimony of the parties and the generic consent form signed by the woman revealed a factual dispute as to whether the woman was adequately informed about the extraction, namely which tooth would be removed. In addition, each of the expert opinions submitted on the summary judgment motions was in agreement that a root canal was a viable alternative treatment to the extraction of tooth number four. The court concluded that there were triable issues of fact as to whether a reasonably prudent patient in the woman’s position would have undergone the extraction of tooth number four if the patient had been fully informed.
The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s denial of summary judgment dismissing the cause of action alleging lack of informed consent against the dentists and practice groups.
See: Godel v. Goldstein, 2017 WL 5617385 (N.Y.A.D. 2 Dept., November 22, 2017) (not designated for publication).
See also Medical Law Perspectives Report: Surgical Misidentification: Wrong Site, Wrong Procedure, Wrong Patient
See also Medical Law Perspectives Report: Dental Procedures and Oral Surgery: Extracting Risks and Liabilities