Iolanda D’Ambrosi-Francavilla successfully obtained summary judgment dismissing professional malpractice claims for dental malpractice and lack of informed consent against an oral surgeon in the New York Supreme Court for Westchester County.
The treatment that was at issue in the lawsuit, started in September, 2019, when the plaintiff was referred to the oral surgeon by her general dentist for the extraction of tooth #9, an upper front tooth, which previously had been root canaled and had severe root resorption.
The oral surgeon performed an exam and there was unhealthy tissue and mobility of tooth #9. Plaintiff had resorption at #9, a failing root canal and loss of buccal bone. A CT scan was taken and reviewed and the oral surgeon recommended extraction of tooth #9, bone graft and the placement of an immediate implant. The risks, benefits and alternatives to the procedures were discussed, including implant failure.
In October, 2019, the tooth #9 was extracted and an implant and a bone graft were placed. Plaintiff signed and initialed two informed consent forms. The implant form specifically included the risk of implant failure and bone loss and plaintiff testified that she specifically recalled implant failure being a risk of the procedure. After the procedures were completed, the oral surgeon placed an Essex retainer on the upper part of plaintiff’s mouth, which is a clear Invisalign type device that surrounds the upper teeth, but contained a temporary tooth in the #9 spot. The oral surgeon reinforced hygiene instructions, which included cessation of smoking, removing the appliance and not eating with it or sleeping with it and cleaning the area.
Plaintiff returned for several follow up visit and in January, 2020, the implant site was red and there was significant inflammation around the implant. The oral surgeon noted that plaintiff did not remove the temporary prosthesis upon eating meals, during the day or nighttime. A CT scan was taken and there was bone loss and a radiolucency seen. The implant was removed and the oral surgeon stated he would replace the implant for the plaintiff at a later date free of charge. Plaintiff never returned and had the implant placement at #9 done by another doctor.
Thereafter, plaintiff started a lawsuit against the oral surgeon and claimed that the implant and bone graft were placed in a negligent manner. Specifically, plaintiff claimed that the implant should not have been placed immediately after the tooth was extracted and that the area needed time to heal. Plaintiff claimed that this was the reason for failure.
Rawle & Henderson LLP filed for summary judgment on behalf of the oral surgeon on the basis that plaintiff’s implant was properly placed and the treatment did not cause plaintiff’s implant failure. Ms. D’Ambrosi-Francavilla submitted an Expert Affirmation in support of the Summary Judgment Motion, which concluded that the oral surgeon conformed to the standard of care when he performed the bone grafting and implant procedures as a single stage treatment. Tooth #9 is a front tooth and in what is called the “aesthetic zone”. While implants are routinely placed in single stage treatment, it is especially true for a tooth in the aesthetic zone. This achieves the best aesthetic result for a patient because if the procedure is done in two stages, the patient can lose bone and height of contour. Further, it could leave the gum line uneven with the other teeth next to it.
The expert also stated in his Expert Affirmation that implants have an inherent fail rate and while some behavior such as smoking, not cleaning the area, or not taking out the Essex retainer can contribute to implant failure, a percentage of implants can fail for no reason at all. The expert further concluded that the oral surgeon appropriately treated plaintiff and there was nothing in his treatment that caused the implant failure.
In opposition, plaintiff submitted the Expert Affirmation from a prosthodontist, who stated that the oral surgeon was negligent by placing the immediate implant since the tooth was infected. The expert stated that the infection should have been cleaned out first and that the oral surgeon should have waited 4-6 months before placing the implant. He cited this as being the reason for implant failure
Ms. D’Ambrosi-Francavilla submitted a Reply and a Supplemental Expert Affirmation which stated that there was never any infection noted any records, including the oral surgeon’s or the referring dentist’s records. Furthermore, if the implant had failed due to an infection, the implant would have failed right away and not months later, such as in this case.
The Court issued a Decision and granted our Summary Judgment Motion. The Court found that plaintiff’s expert’s Affirmation was insufficient to raise a triable issue of fact in opposition to the prima facie showing by the defendant oral surgeon. The Court found that plaintiff’s expert did not address many of the allegations and provided an opinion on the infection seemingly based on a supposition. Further, our expert established that plaintiff’s theory was based upon an assumption of an infection, which was not documented in any records, making plaintiff’s experts’ opinion baseless. Ultimately, the Court found that the oral surgeon did not breach the standard of care and that plaintiff failed to show any departure on the part of the oral surgeon.
Regarding lack of informed consent, the Court found that plaintiff had been properly informed about the procedure as evidenced by the signed consent forms and plaintiff’s deposition testimony, which demonstrated that a reasonably prudent person in plaintiff’s position would have undergone the procedure. As such, both the professional malpractice and lack of informed consent were dismissed.