Alvarado v. Miles

Gonzalez, J.,

dissents in a memorandum as follows: Because I believe that the conflicting expert testimony in this dental malpractice case raises triable issues of fact as to whether defendant departed from the prevailing standard of care and, if so, whether such departure was a proximate cause of plaintiff’s injuries, I respectfully dissent and would affirm the denial of defendant’s motion for summary judgment.

On July 10, 2002, plaintiff had three wisdom teeth extracted by defendant Miles, an oral surgeon. After the procedure, plaintiff was given a postoperative instruction sheet which described the recovery process, including the potential for pain and swelling of the mouth. The sheet also listed a 24-hour answering service that plaintiff could call if any complications developed. Plaintiff was also provided with a prescription for the pain medication Vicodin.

For the remainder of the day and into the next morning, the pain and swelling of plaintiffs face increased. As a result, her mother, Diane Alvarado, called the 24-hour answering service at 5:45 a.m. on July 11 and defendant returned the call shortly after. The mother described plaintiff’s condition, including the pain, severe swelling and low-grade fever. Defendant responded that they should not be alarmed since pain and swelling were common aftereffects of oral surgery. Defendant instructed plaintiff to alternate taking Advil with the Vicodin, but did not *259instruct her to come into the office for a visit. Defendant left for his vacation home in upstate New York on Friday evening July 12 or the next morning, July 13.

The parties disagree as to what happened next. Plaintiff testified that when her condition failed to improve on July 12, her mother called defendant’s answering service on Sunday morning, July 13, and was told that defendant would contact her. However, defendant never returned that call or the additional eight calls made to his answering service at regular intervals that morning. According to plaintiff, the person from the answering service told her mother that defendant was not responding to the pages and they had no other way to contact him. Eventually, plaintiffs mother found another dentist in the Yellow Pages, who promptly referred plaintiff to the hospital after observing her condition. Plaintiff was ultimately diagnosed in the hospital with an infection and spent five days there after having an allergic reaction to the antibiotics given her.

Defendant, on the other hand, denies receiving any calls or pages from his answering service on July 13, but states in his affidavit that he did receive a call on that day from his partner, Dr. Gelfman, with whom he had a standing covering arrangement should he prove to be unavailable. According to defendant, Dr. Gelfman told him that plaintiff had been hospitalized and he then called and spoke to plaintiff directly over the telephone. Plaintiff disputes this, testifying that defendant did not call her until July 17, the day before she was discharged from the hospital.

Plaintiff commenced the instant action for dental malpractice and defendant moved for summary judgment. Defendant submitted an expert affidavit stating that neither the failure to see plaintiff on July 11 nor the failure to be personally available on July 13 were departures from accepted dental practices, nor was there any evidence that such alleged departures caused plaintiffs injuries. In contrast, plaintiff’s expert averred that the failure to see plaintiff on July 11 and the failure to provide adequate coverage by another dentist were departures from accepted practice, and that the combination of these failures was a substantial factor in necessitating plaintiff’s emergency hospital treatment.

Supreme Court properly denied defendant’s motion for summary judgment. The two necessary elements of a dental malpractice action are: a deviation or departure from accepted practice and that such departure was a proximate cause of the complained-of injury (Vona v Wank, 302 AD2d 516 [2003]; Knutson v Sand, 282 AD2d 42, 43 [2001]). Here, the conflicting *260expert affidavits raise issues of fact as to whether defendant departed from accepted practice by, inter alia, failing to examine plaintiff on the day after surgery when she called and complained about severe pain, swelling and a fever, especially given his imminent vacation in two days, and by failing to provide adequate covering arrangements while on vacation (see Calabro v Hescheles, 22 AD3d 622, 622-623 [2005]; Prigorac v Park, 20 AD3d 363 [2005]; Lewis v Capalbo, 280 AD2d 257, 258-260 [2001]).

The conflicting affidavits likewise raise a triable issue as to whether the aforementioned departures were a proximate cause of plaintiffs emergency hospital treatment. In order to prove causation in a malpractice action, a plaintiff need only offer sufficient evidence from which a reasonable person may conclude that it is more probable than not that the injury was caused by the defendant (Pasquale v Miller, 194 AD2d 597, 598 [1993]; Vona v Wank, 302 AD2d at 516). The evidence need not eliminate every other possible cause (Pasquale at 598).

In his affidavit, plaintiffs expert specifically states that the combination of defendant’s failure to see plaintiff on the 11th and to provide a covering oral surgeon “were substantial factors in necessitating that plaintiff seek treatment on an emergency basis on July 13.” The expert goes on to say that all of plaintiffs emergency treatment — including the morphine, intravenous antibiotics, incision and drainage surgery and allergic reaction to medication — “could have been avoided had she been seen by defendant Miles in his offices.” In light of this expert medical evidence, as well as the compelling inference that had defendant examined plaintiff on July 11 the resulting infection would have been discovered and remedied much sooner, clear triable issues of proximate cause have been raised (Barresi v Chou, 293 AD2d 637, 638-639 [2002]; Lewis v Capalbo, 280 AD2d at 259-260). It would hardly be speculative for a jury to conclude that defendant’s failure to examine plaintiff or to provide adequate postoperative coverage were substantial factors in causing her infection and emergency hospitalization.