PINO III v. DDS (2019)

Behrman failed to establish entitlement to judgment as a matter of law on the dental malpractice cause of action.  In support of his motion, Behrman relied on his own affidavit, which set forth a factual account of plaintiff's appointments and treatment and provided broad statements that he did not deviate from accepted standards of dental practice.  Although Behrman opined that the surgeries were reasonable and indicated for plaintiff, he did not explain, objectively, what the accepted standards of dentistry were that supported such determination.  Nor did Behrman explain why the surgeries were appropriate to achieve better occlusion.  Accordingly, Behrman's conclusory statements were insufficient to show that he did not depart from good and accepted dentistry and did not rely on any objective evidence (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]; Santiago v. Filstein, 35 A.D.3d 184, 186, 826 N.Y.S.2d 216 [1st Dept. 2006] ).

Plaintiff also failed to make a prima facie showing that Behrman deviated or departed from accepted standards of dental practice in his treatment of plaintiff, proximately causing his injuries (see Jackson v. Presbyterian Hosp. in City of N.Y., 227 A.D.2d 236, 642 N.Y.S.2d 524 [1st Dept. 1996], lv denied 88 N.Y.2d 812, 649 N.Y.S.2d 380, 672 N.E.2d 606 [1996] ).  Neither of plaintiff's experts stated that the surgeries Behrman performed were contraindicated for plaintiff or that those surgeries were not acceptable treatments to achieve better occlusion.  Although plaintiffs' experts opined that Behrman should have consulted with a dentist or periodontist prior to the second surgery, there is no evidence that Behrman's failure to consult proximately caused plaintiff's injuries.

Furthermore, Behrman did not appeal from the motion court's denial of his summary judgment motion with respect to the lack of informed consent cause of action, and we decline his request to search the record and dismiss the claim.  In any event, the record shows that triable issues exist as to whether plaintiff was informed of the elective nature of the surgeries.  Behrman's notes and the consent forms signed by plaintiff indicate that plaintiff was informed of unspecified alternative treatments, including no treatment.  Behrman also stated that he informed plaintiff of the elective nature of the treatment prior to the first surgery and discussed the nature of the second surgery prior to that procedure.  On the other hand, plaintiff stated that he was never informed of the elective nature of the procedures and that he would not have undergone that treatment if he had known it was elective.

We have considered the remaining arguments and find them unavailing.