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Dean v. State

New York State Court of Claims
Jun 13, 2016
# 2016-044-006 (N.Y. Ct. Cl. Jun. 13, 2016)


# 2016-044-006 Claim No. 119580-A



CHARLES DEAN, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Michael D. Brown, Assistant Attorney General


After trial of inmate claimant's claim for dental malpractice based upon lack of consent due to dentist shaving down three of claimant's teeth against his expressed wishes, Court dismissed malpractice claim, but found defendant 100% liable for assault and battery and awarded damages of $500.

Case information





Claimant short name:


Footnote (claimant name) :



Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):


Motion number(s):

Cross-motion number(s):



Claimant's attorney:


Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Michael D. Brown, Assistant Attorney General

Third-party defendant's attorney:

Signature date:

June 13, 2016




Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim to recover damages for dental malpractice based upon negligent treatment and/or lack of consent, alleging that while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira), the facility dentist "shaved down" three of his bottom teeth against his wishes during a procedure to replace a crown. A trial in this matter was conducted by video conference on June 7, 2016, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.

In his claim, claimant alleged that he had a dental appointment on December 7, 2010 with Dr. Khan to have a crown replaced on his front left top tooth. Claimant asserted that during the course of the procedure, Khan indicated that he would possibly have to shave claimant's bottom teeth to make the crown fit. Claimant stated that he told Khan "to not touch any of his real bottom teeth." Claimant alleged that because he was under anesthesia, he was not aware that Khan shaved down his three bottom teeth until after the procedure was completed and he looked in the mirror. Claimant asserted that he suffered physically and mentally due to the disfigurement of his bottom teeth. Claimant further noted that although Dr. Dawson (his previous DOCCS dentist and allegedly now DOCCS Dental Director) made three or four crowns for claimant's front left top tooth, he never needed to shave the bottom teeth to make the crowns fit.

Claim, ¶ 4.

Claimant attached a copy of Grievance EL-37-830-10 entitled "Do Not Touch Real Teeth" to his claim. In this grievance, claimant stated that even though he told Dr. Khan not to touch his real teeth, Khan shaved three of claimant's bottom teeth to make the crown fit. Claimant also indicates that Khan denied doing so and told claimant to leave. As part of the grievance, Khan prepared an investigative report in which he indicates that claimant "was hostile, confrontational, [and] questioning every step of his treatment, including dictating treatment." Khan continues that claimant constantly interrupted the procedure, even asking whether Khan knew what shade to use. Notably, Khan did not deny shaving the bottom teeth or indicate that notwithstanding claimant's directive not to touch them, it was appropriate for Khan to do so. Khan did make the statement "[i]f real teeth are not to be touched, how does dentistry get done?" The Superintendent denied the grievance, finding that in some cases "real teeth have to be modified to accommodate the repair."

Claim at 14.


Claim at 15.

At trial, claimant testified that he had agreed to have the tooth crowned before Khan told him the teeth would have to be shaved. He stated that he would not have agreed to having the crown if he was aware the teeth would have to be modified. He noticed that the teeth were different immediately after the procedure concluded. He said that the procedure did not cause any physical pain, but that his teeth had previously looked like his father's teeth, and the fact that they no longer did caused him emotional distress.

On cross-examination, claimant again acknowledged that shaving the teeth did not result in physical pain, and agreed that his damages were only due to sentiment. He stated he had no problems with the crown itself.

Claimant rested his case at the close of his testimony. Defendant moved to dismiss the claim on the ground that claimant had failed to establish a prima facie case, having introduced no expert testimony to show that defendant's alleged malpractice or negligence was a deviation from accepted medical practice, or that such deviation was the proximate cause of claimant's injuries. Defendant also contended that any cause of action for performing the procedure without claimant's consent would essentially be for a civil rights violation under 42 U.S.C. § 1983, over which the Court of Claims has no jurisdiction. The Court reserved decision on the motion.

To recover for dental malpractice, claimant must "prove that [DOCCS] deviated from the accepted standard of dental care and that such departure was the proximate cause of his injuries" (Bennett v State of New York, 31 AD3d 1069, 1070 [3d Dept 2006]). "[W]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007] [internal quotation marks omitted]).

Claimant has failed to establish a cause of action for medical malpractice, and accordingly defendant's motion to dismiss is granted with regard to that cause of action. Although claimant stated that Dawson never had to shave down his bottom teeth for the replacement crowns to fit, he failed to introduce expert testimony necessary to establish that the appropriate standard of care is to not adjust other teeth when replacing the crown.

However, claimant's uncontroverted and completely credible testimony that he did not consent to having this teeth shaved leads the Court to conclude that claimant has clearly set forth a prima facie cause of action for assault and battery. "[A]ssault is a viable theory of recovery in circumstances where a medical procedure is performed, against a competent patient's expressed wishes, in a nonexigent situation" (Oates v New York Hosp., 131 AD2d 368, 370 [1st Dept 1987]; see also Dale v State of New York, 44 AD2d 384 [3d Dept 1974], affd 36 NY2d 833 [1975]; Sangiuolo v Leventhal, 132 Misc 2d 680 [Sup Ct NY County, 1986]). This was certainly not an exigent situation, and the Court finds no reason to discredit claimant's testimony that he emphatically expressed his lack of consent to having his teeth shaved. Defendant has offered no proof whatsoever in opposition, and it does not appear that claimant bears any liability. Accordingly, the Court finds defendant 100% liable for assault and battery.

This is a situation readily distinguishable from a claim involving a lack of informed consent pursuant to Public Health Law § 2805-d. In any event, neither a cause of action for lack of informed consent nor one for assault and battery are in the nature of federal civil rights claims, contrary to defendant's counsel's argument. --------

Damages, however, are less quantifiable. Although claimant freely acknowledged that the procedure caused him no physical pain, he argued that his damages were due to both sentiment (his teeth no longer look like his father's teeth) and that he was disfigured. The Court examined claimant's teeth, and agrees that claimant's appearance has been permanently altered. After consideration, the Court awards claimant total damages in the amount of $500.

To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let judgment be entered accordingly.

June 13, 2016

Binghamton, New York


Judge of the Court of Claims

Summaries of

Dean v. State

New York State Court of Claims
Jun 13, 2016
# 2016-044-006 (N.Y. Ct. Cl. Jun. 13, 2016)
Case details for

Dean v. State

Case Details


Court:New York State Court of Claims

Date published: Jun 13, 2016


# 2016-044-006 (N.Y. Ct. Cl. Jun. 13, 2016)