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Kubas v Blum 2008 NY Slip Op 32370(U) August 22, 2008 Supreme Court, Nassau County Docket Number: 4270-07/ Judge: Daniel R. Palmieri Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU

Present:
HON. DANIEL PALMIERI Acting Justice Supreme Court
---------------------------------------------------------------------x MIROSLA V KUBAS AND TAR KUAS,

TRIL TERM PART: 48

INDEX NO. : 004270/07

Plaintiff,

-againstJOSEPH BLUM, D. S. AND JOSEPH BLUM, S. d/b/a NEW IMAGES SMILES,
Defendants. ---------------------------------------------------------------------x
The following papers have been read on

MOTION DATE:7SUBMIT DATE:8SEQ. NUMBER - 001

this motion:

Notice of Motion, dated 6- 08......................................... Affirmation in Opposition, dated 7- 14- 08................... Reply Affirmation, dated 7- 28- 08.............................

The motion by the defendant pursuant to CPLR 3212 for sumar judgment is
granted to the extent that the second cause of action , sounding in lack of informed consent

is dismissed. The motion is otherwise denied.
In this dental malpractice action, the plaintiffMiroslav Kubas alleges in his complaint

and bil of pariculars that defendant Joseph Blum , D. S. is liable for damages

on two

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grounds.

1 The first is dental malpractice. He contends that Dr. Blum was professionally

negligent on November 4 , 2005 in that he improperly performed a root canal procedure, and
that the plaintiff was hared by a mandibular block injection 2 given to him as an anesthetic;

in that Dr. Blum failed to recommend an oral surgeon for the root canal , and an appropriate

specialist for complaints of parathesia/numbness after the procedure was performed; and in
that Dr. Blum failed to provide appropriate post-operative care. The second ground is lack

of informed consent for the allegedly harful injection. The plaintiff claims that as a result

of the foregoing, he suffers from nerve damage on the left side of his chin and mouth
(numbness/parathesia), and has difficulty in eating, speaking and chewing.
It is undisputed that the plaintiff presented to the defendant on November 4 , 2005 for
dental services after not having been to a dentist for a dozen years. His complaint was pain

on the left side of his mouth. Upon examination , Dr. Blum found significant decay on tooth
# 19 ,

and performed an emergency pulpectomy, which at his examination before trial (EB

he identified as removal of pulp tissue where the tissue had become infected. It is clear that
as par of the services

provided an anesthetic was administered. This was the mandibular

block injection. No referral to a specialist was made or discussed. Dr. Blum did not explain

nor seek the plaintiff s consent either to the injection or concerning
performed.

the procedure he

1 A derivative claim is advanced by Miroslav Kubas s wife , but that claim is not at issue on this motion and thus for present puroses all references are to him and to his causes of action.

2 It appears from the record as a whole that more than one injection was involved , but
this factor does not serve to alter the claims or the defenses raised.

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The plaintiff retued to Dr. Blum on December 13, 2005, Januar 6 , 2006, Apri111,
2006 and May 18, 2006.
Some seven months

after his last visit with Dr. Blum, the plaintiff
3 , 2007. At the time of

sought treatment from another dentist, a Dr. Karer, on Januar
visit, Dr. Karer noted that the

this

plaintifflacked feeling on his chin ,

and that upon probing the

gingiva on the left side of the mouth from the second
sensation of pain.

molar to the cuspid he found no

The present malpractice action was commenced by the filing of a

sumons and complaint in March, 2007.
, the On a motion for sumar judgment by a defendant in a dental malpractice action
movant must

demonstrate primafacie the absence of any deparre
deparre.

from good and accepted

dental practice, or that the plaintiff was not injured by any
AD3d 1078 (3d Dept. 2008); Terranova Finklea,

Amodio

Wolpert, 52

45 AD3d 572 (2d Dept. 2007). To sustain

this burden , the defendant must address and rebut any specific allegations of malpractice set
forth in the bil of pariculars.
Terranova Finklea, supra; see also, Ward

Engel 33 AD3d

790 (2d Dept. 2006).
In support of his motion, the defendant presents the affidavit of a dental expert , Allan

Kucine , DDS. Based upon his review of dental records and other documents associated with

this litigation , including deposition transcripts , Dr. Kucine does not contend that the patient

does not suffer from the nerve damage alleged , but that such damage was not caused by Dr.

Blum, and that Dr. Blum acted within the standard of care throughout his treatment of the

3 The record also contains an unsigned complaint dated September 2006 in a Queens Civil Cour action , in which Dr. Blum alleged that plaintiff had improperly abandoned a home the present contracting/carentr job. Neither par has asserted that ths has any relevance to case , and the presence of ths paper thus appears to be of no importance whatsoever.

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plaintiff.
Specifically, Dr. Kucine states that Dr. Blum recommended that he excavate the

decay he found to determine ifthe tooth # 19 could be salvaged. He performed a pulpectomy

to remove residual necrotic tissue in the canals and put calcium hydroxide in the tooth as an
anti- bacterial, and "parially instrumented' the tooth to 23 milimeters.
Dr. Kucine

states that

this procedure was not the cause of parathesia/numbness because it was not possible for a

small fie the size ofthe one used to go through the apex of the tooth and though the bone

which is necessar to reach the inferior alveolar nerve canal , and that there was no evidence
of this occuring. Furher , he claims that the administration of the alveolar nerve block and

long buccal nerve block was within the standard of care , and because risks associated with

them are very rare Dr. Blum did not depar from the stadard of care by
plaintiff of those risks.

not advising the

Finally, he opines that based on the records he reviewed the plaintiff never
complained about numbness, and thus there was no need to refer him to a specialist.

The Court concludes based on the foregoing that the defendant has not made out a
prima facie

case that he is entitled to judgment as a matter of law. As noted above, the
was

plaintiff alleges that the malpractice during the root canal that caused the claimed injur

the alleged improper administration of the nerve block. However, the expert makes no
reference as how to such an injection should be performed, nor to the medical records or
EBT testimony regarding how it was actually performed by the defendant in this case. Thus,

given the critical role this injection plays in the plaintiffs

claim, as asserted in the bil of

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pariculars, the expert' s

single, unsupported statement that "Dr. Blum s administration of an

inferior alveolar nerve block and a long buccal nerve block was within the standard of care

is insufficient as proof that it was properly performed. Indeed , his statement can be read as asserting no more than that the giving of such
injections was proper , something the plaintiff does not challenge , as opposed to asserting that

they were given properly, which the plaintiff certinly

does challenge. Dr.

Kucine goes into

detail about the root canal itself and provides a basis for a finding that it could not have been

responsible for the nerve damage , but it was the injection beforehand that forms the
substance of the claim. Nor does he provide an alternative explanation for the numbness
alleged by the plaintiff after the visit to Dr. Blum, which the plaintiff described in his EBT.

The transcript of this testimony is anexed to defendant' s papers , and the expert asserts he
read it.

Accordingly, with respect to the first cause of action the motion must be denied
the opposing papers. Winegrad

without regard to the strengt of
Ctr.
64 NY2d 851 (1985); Terranova

New York Univ. Med.
Amodio

Finklea, supra; cJ,

Wolpert, supra.

In any event , the plaintiffhas provided sufficient proofto rebut the defendant' s expert.

In his affidavit in opposition to this motion, the plaintiff describes " an extreme pain/electric

shock" and that he attempted to communicate this to Dr. Blum, but that he continued with
the injection. The plaintiff s expert states that this is indicative of contact ofthe needle with

the nerve , and that once there is any indication that this has occured the needle should have

been removed. The failure to do so may be seen as a deparre from accepted practice and
is sufficient to sustain a claim of dental malpractice. Hubbard Kamen,

29 AD3d 339 (1

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Dept. 2006). Thus, reading

this opposing proof, as it must, in a maner most favorable to
305 AD2d 385 (2d Dept. 2003); Rizzo v.

the

plaintiff(Nicklas

Tedlen Realty Corp.,

Lincoln

Diner Corp.,

215 AD2d 546 (2d Dept. 1995)), the motion should be denied as to the first

cause of action. The fact that in liis EBT Dr. Blum testified that the plaintiff did not react
to the injection simply creates an issue of credibilty for the jury to resolve.

In that regard,

the Court notes the attck

on the plaintiffs affidavit as tailored to defeat the motion and

contrar to his own EBT testimony, but a review ofthe transcript fails to reveal any question

put to him regarding what , if anything, he felt during the injection,
aftermath of the procedure.. M. Kubas EBT, at p. 23.

but rather only the

In view of this result , the Cour need not address the other aspects of the malpractice
claim , as the survival of anyone theory ariculated in the bil of pariculars
of the motion. Terranova

mandates denial

Finklea, supra.

With regard to the claim of lack of informed consent, however, the Cour reaches a
different conclusion. The plaintiffhas alleges in his bil of pariculars at paragraph 1 O(
d)

and

(e) that, as noted above , it was the injection that constituted the injury-causing malpractice

during the November 4 , 2005 root canal. The defendant' s expert states that "the risks of these
anesthetic injections are very rare ,

therefore the stadard of care does not require that Dr.
sufficient to make out a prima facie

Blum advise a patient of those risks. " That is
the second cause of action

case that

is without merit, shifting the burden to the plaintiff to come
See, e. g., Zuckerman

forward with admissible proof that issues of fact exist meriting a trial.

v.

City of New York 49 NY2d 557 (1980). In response, the plaintiff has failed to come

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..,' ~~~

forward with any contrar evidence. His

expert is silent with regard to the issue, essentially
second cause of action

conceding the contention advanced by Dr. Kucine. Accordingly, the
should be dismissed.

This shall constitute the Decision and Order of this Court

ENTER
DATED: August 22, 2008

HON. DANEL PALMIERI Acting Supreme Court J

TO: McKenna, Siracusano & Chianese
Attorneys for Plaintiff 361 Atlantic Avenue East Rockaway, NY 11518
Kolenovsky, Spiegel & Caputo By: Robyn S. Goldfarb, Esq. Attorneys for Defendants 135 West 29 Street, Ste. 801 New York, NY 10001

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