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Graham v. Gibson

November 8, 2007

HARVEY GRAHAM, PLAINTIFF,
v.
JOHN GIBSON, MEDICAL DENTIST #3, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Court

DECISION AND ORDER

INTRODUCTION

Siragusa, J. Plaintiff's civil rights complaint alleges that the defendant, Dr. John Gibson, was deliberately indifferent to his serious medical need, while Plaintiff was an inmate of the Elmira Correctional Facility ("Elmira"). Plaintiff contends that Dr. Gibson removed, at Plaintiff's request, a lower right wisdom tooth, but left the broken-off root tips in his jaw to either heal, or surface on their own for later removal. As a result, Plaintiff maintains he suffered pain in violation of the Eighth Amendment proscription against cruel and unusual punishment. Before the Court are Dr. Graham's motion (Docket # 32) for summary judgment, and Plaintiff's cross-motion (Docket # 42), also seeking summary judgment. For the reasons stated below, Dr. Graham's motion is granted, and Plaintiff's cross-motion is denied.

BACKGROUND

Plaintiff filed his complaint pursuant to 42 U.S.C. § 1983 on March 4, 2004, alleging that Dr. Gibson violated his Eighth Amendment rights by deliberate indifference to his serious dental need, in connection with care he provided in 2003 and 2004 at Elmira. In that regard, Plaintiff claims that: pieces of one of his lower right wisdom teeth broke off and remained in his gum during an extraction Dr. Gibson performed on October 10, 2003, at Elmira; Dr. Gibson refused to remove the pieces, and as a result, he suffered unnecessary pain, swelling and discomfort. Plaintiff also claims that, as a result, he suffered a punctured left ear drum. In compliance with Local Rule of Civil Procedure 56.1, both parties have filed statements of undisputed material facts. Pursuant to those statements, the following facts are undisputed, except where otherwise indicated.

Dr. Gibson is licensed by the State of New York as a dentist and has practiced dentistry for over 28 years. He was employed by the New York State Department of Correctional Services ("DOCS") as a dentist at Elmira in 2003 and 2004 and remains so employed today.

When Dr. Gibson first examined Plaintiff on August 6, 2003. At this time, Plaintiff complained of pain on biting and told Dr. Gibson that one of his wisdom teeth on the lower right rear side of his mouth, identified as tooth number 31, was sensitive to cold. Dr. Gibson examined the tooth and observed questionable tenderness to percussion, no swelling and no cavity. In Dr. Gibson's opinion, tooth number 31 was a healthy tooth. Consequently, Dr. Gibson recommended that the condition of the tooth be observed for a few weeks, and he told Plaintiff if his symptoms worsened or became acute, to submit a slip for a call out. Dr. Gibson also told Plaintiff that extracting the tooth was not a good choice. (Gibson Decl. ¶ 4; Ex. A*fn1 to Gibson Decl. at 48-50.)

On August 19, 2003, Plaintiff was seen by a dental assistant at Elmira after he submitted a call out indicating he wanted the tooth extracted. However, when he arrived at the Elmira dental clinic, he refused the extraction and signed a refusal slip. (Gibson Decl. ¶ 5; Ex. A to Gibson Decl. at 47-48.) On October 10, 2003, plaintiff appeared at the dental clinic again and stated he desperately wanted the tooth extracted. Dr. Gibson explained the procedures, alternative treatments, risks, and possible complications to Plaintiff before the extraction, after which Plaintiff signed a consent form. When Dr. Gibson extracted the tooth, several small pieces of the tooth's root tips which were fused to his jaw bone broke off. (Gibson Decl. ¶ 5.) Since normally "retained" root tips heal in place and never cause a problem to the patient after healing, Dr. Gibson decided to not remove the pieces but rather to wait and see if they would heal. Dr. Gibson also concluded that removing the pieces at that time would have caused significant pain and trauma to Plaintiff's soft tissue and jaw because removal of root fragments requires the drilling of bone and prying. Moreover, Dr. Gibson believed that removal of the root tips would increase the likelihood of a painful condition called dry socket. (Gibson Decl. ¶ 5.) However, Dr. Gibson did not take x-rays of Plaintiff's mouth following the extraction Dr. Gibson advised Plaintiff he did not think the retained root tips would pose a problem, and prescribed antibiotics and fifteen Ibuprofen tablets (600 milligram each). (Def.'s Response to Pl.'s Statement of Facts, Docket No. 44, at 3-4.) This approach was in accord with accepted dental practice in Elmira, New York at the time. (Gibson Decl. ¶ 5; Ex. A to Gibson Decl. at 46, 48.)

When Dr. Gibson next saw Plaintiff on October 17, 2004, for a post-operative examination, the root tips had not surfaced. He smoothed out a sharp edge in the socket in the alveolar*fn2 area of Plaintiff's jaw bone from which the tooth had been removed and instructed Plaintiff to continue to use warm saline solution and Ibuprofen for his discomfort. (Gibson Decl. ¶ 7; Ex. A to Gibson Decl. at 45.) Dr. Gibson saw plaintiff again in the dental clinic on October 22, 2003, at which time plaintiff reported some improvement, and Dr. Gibson observed that gingival tissue*fn3 was beginning to grow over the root cavity. Dr. Gibson told Plaintiff that, at some point, the root tips should surface and then they could be removed with little trauma. (Gibson Decl. ¶ 8; Ex. A to Gibson Decl. at 45.)

When Dr. Gibson saw Plaintiff on October 29, 2003, the tissue had completely healed over the extraction area. However, Plaintiff complained about pain, which, according to Dr. Gibson, was inconsistent with the healing that had occurred. Plaintiff told Dr. Gibson that medical staff had prescribed Oxycontin, a synthetic opiod, at sick call, but Dr. Gibson indicated to plaintiff that 600 milligram tablets of Ibuprofen should be adequate. (Gibson Decl. ¶ 8; Ex. A to Gibson Decl. at 45.)

Complaining of pain in the extraction area, Plaintiff was seen on November 12, 2003, by Manesh Mewar, D.D.S. Dr. Mewar's examination indicated slight tenderness to touch. Plaintiff claimed he was on antibiotics, so Dr. Mewar called the pharmacy and checked plaintiff's Ambulatory Health Record. He found no prescription for antibiotics. Plaintiff stated he wanted the root tips removed by an oral surgeon. Dr. Mewar told him the root tips would be removed when they surfaced, and Dr. Mewar noted that Plaintiff was pushy and argumentative. Dr. Mewar gave Plaintiff a prescription for antibiotics and 600 milligram tablets of Ibuprofen. (Ex. A to Dawson Decl., Docket No. 35, at 44.)

Dr. Gibson's next contact with plaintiff was on November 25, 2003, at which time Plaintiff complained of pain when he was eating. Dr. Gibson noted that while the tissue had closed over the extraction site, there was some puffiness over the root tips. Plaintiff told Dr. Gibson he wanted to see an oral surgeon, but Dr. Gibson responded that Plaintiff should be able to get along until the tips surfaced. Dr. Gibson then prescribed fifteen 600 milligram tablets of Ibuprofen that day, and again on December 4, 12, 18 and 29, 2003, and January 6 and 12, 2004. (Gibson Decl. ¶ 9; Ex. A to Gibson Decl. at 40, 43-44.)

Plaintiff wrote letters to Dr. Gibson, Elmira Nurse Administrator Mary Hopkins, and Elmira Deputy Superintendent Dana Aidala, dated October 23, 2003, November 3, 2003, November 25, 2003, and December 3, 2003, complaining about his condition and asking to be referred to an oral surgeon. Copies of Plaintiff's letters are attached Dr. Gibsons's Declaration as Exhibits C, D, E, and F. Plaintiff stated in a November 4, 2003, letter to Dr. Gibson that the ibuprofen provided only temporary relief of the pain, and after the medication wore off, the pain returned. (Ex. 3 to Graham Mem. of Law, Docket No. 42, at 13.)

On December 12, 2003, Dr. Gibson advised plaintiff that on December 2, 2003, a referral had been made to an oral surgeon and that it had been approved on December 9, 2003, by William Dawson, D.D.S., DOCS' regional dental director for the Wende and Elmira Hubs. Dr. Gibson informed Plaintiff that the he was now on a waiting list for oral surgery. In the meantime, Dr. Gibson gave Plaintiff another prescription for Ibuprofen. (Gibson Decl. ¶ 11; Ex. A to Gibson Decl. at 42-43.) Subsequently on January 26, 2004, the root tips were extracted by Dr. O'Keefe*fn4 at Attica Correctional Facility. (Ex. A to Gibson Decl. at 41.) On January ...


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