BERGER v. Dr. David Zadick, et al., Defendants. (2010)

Judgment, Supreme Court, New York County (Carol Edmead, J., and a jury), entered April 22, 2009, in favor of defendant-respondent, unanimously affirmed, without costs.

While plaintiff's expert testified that the failure to take x-rays was a departure from the accepted standard of orthodontic practice and that x-ray monitoring would have shown rapid deterioration of plaintiff's condition, he did not specifically opine on whether that departure caused plaintiff's injury, and the record otherwise lacks evidence of causation for those departures. Thus, the trial court properly refused to submit to the jury whether defendant was negligent in not radiographically monitoring plaintiff's progress during treatment (see Stanski v. Ezersky, 228 A.D.2d 311, 312 [1996], lv denied 89 N.Y.2d 805 [1996]; Georgetti v. United Hosp. Med. Ctr., 204 A.D.2d 271, 272 [1994] ). Plaintiff failed to preserve her contention that the trial court erred in excluding evidence that defendant's initiation of orthodontic treatment was negligent, and we decline to review it. Further, considering the jury's findings that defendant had obtained plaintiff's consent to the treatment plan and the defendant's continuation of orthodontic treatment was not negligent, the error was harmless.

Plaintiff's other contentions are either not preserved or without merit.