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Diyou v. Mandalay Dental Care, P.C.

Sup Ct, New York County

April 3, 2013

MU DIYOU Plaintiff,
MANDALAY DENTAL CARE, P.C., and TIN TIN SAN MA, DMD, Defendants. Index No. 100845/10 Motion Seq. No.001

Unpublished Opinion


In this dental malpractice case, the defendants are moving to dismiss the entire complaint. They are moving pursuant to CPLR §3212, but in reality, with regard to the two causes of action sounding in lack of informed consent and negligent hiring, they are actually moving pursuant to CPLR §3211 (a)(7) for failure to state a cause of action. The motion vis-a-vis dismissal of the claim sounding in dental malpractice is being made on the basis of a violation of the statute of limitations or CPLR §214-a.

When the Court refers to various causes of action, that is not really true, which is one of the problems here. The complaint filed on January 21, 2010, has only one cause of action. Virtually every claim made against the defendants appears in ¶ 20 of that complaint. This form of pleading is unacceptable, particularly with regard to lack of informed consent. That cause of action must be asserted separately, and its various elements must be stated with particularity. "The pleadings must establish, inter alia, that there was some unconsented - to affirmative violation of the plaintiffs physical integrity." Martin v. Hudson Val. Assoc, 13 A.D.3d 419 (Second Dept 2004).

Public Health Law §2805-d also requires, in part, a statement that a reasonably prudent person under the same circumstances would not have undergone that procedure had he been informed of the risks and alternatives to it and that lack of informed consent was a proximate cause of his injuries. As stated above, the only thing asserted by the plaintiff in ¶20 of the complaint is as follows:

in failing to obtain informed consent; in failing to inform the plaintiff of the risks inherent in, the purpose of, and the advantage of the procedures to be employed, or the lack thereof, the risk to health and life of proceeding or not proceeding, the available alternatives and the risks and advantages involved therein.

The complaint then concludes in the last four paragraphs with indications that "by reason of the foregoing, " the plaintiff was injured or rendered sore or lame, etc. That is not enough. As stated before, lack of informed consent must be a separate cause of action and all the elements contained therein must be specifically stated. Further, the bill of particular adds nothing more.

With regard to negligent hiring, not only is that claim not stated separately, but there is absolutely no basis for it. I say this because Dr. Ma is a sole practitioner and Mandalay Dental Care, P.C. is her own P.C. with no employees. Therefore, there were no hirings of anyone and thus there cannot be any "negligent hiring". Therefore, these two claims, contained in the one and only cause of action, are both dismissed for failing to state a cause of action.

The plaintiff here Mu Di You went to Dr. Ma for dental treatment from the period of November 17, 2005 through September 14, 2008. The action was commenced, as stated earlier, on January 21, 2010. Based on those dates, the moving defendants argue that all claims with regard to treatment before August 15, 2007, are barred by the applicable 2 1/2 year statute of limitations. Further, moving counsel points out that the root canal treatment on teeth #5 and #6, the treatment complained of, was performed in April of 2006, well before the August 2007 date.

Counsel argues further that once this time frame is established, the burden shifts to the plaintiff to show, if he can, that there was continuous treatment vis-a-vis the allegedly injured teeth after August 15, 2007. Finally, moving counsel points out that the records, as well as Dr. Ma's testimony, established clearly that in fact there was no continuous treatment with regard to these two teeth.

The plaintiff acknowledges that the root canal on teeth #5 and #6 were performed in April 2006. In an affidavit accompanying his opposition papers, he says that he still had pain after the root canal treatment and that Dr. Ma gave him medication for that pain. He also says that these two teeth are still sensitive and cause pain when he drinks or eats food that is either too hot or too cold. However, the defendants' dental records indicate with regard to these two teeth that the only further procedure done on either one was to fill a cavity on tooth #5 on September 14, 2008. But, there is no claim that this particular work was negligently done.

Plaintiffs counsel makes the argument that summary judgment should be denied because his client, Mr. You, is still feeling pain in these two teeth and that they were defectively treated. He also argues that summary judgment is inappropriate here because of the long dental relationship which existed from November 2005 continually through September 4, 2008.

However, the arguments made in opposition do not convince. It is clear, pursuant to the Court of Appeals' case of Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991), that the mere continuation of a physician/patient relationship (here dentist/patient relationship) does not constitute the requisite continuous treatment which is needed to toll the 2/4 year statute of limitations. Specifically, there must be treatment for a particular condition, here the root canal work on teeth #5 and #6 in order to justify the tolling of the statute. In the Third Department case of lazzetta v. Vicenzi, 200 A.D.2d 209 (1994), the court citing to Nykorchuck, supra, dismissed a dental malpractice case advising that the 22-year period of the dental relationship could not establish continuous treatment with respect to a condition that gave rise to the action.

Similarly, in the First Department case of Marrone v. Klein, 33 A.D.3d 546 (2006), the court citing to lazzetta and Nykorchuck, supra, affirmed the dismissal of a dental malpractice case because the circumstances of a seven-year professional relationship did not successfully show that there was continuous treatment for a single condition or complaint. There, since only isolated and discrete ...

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