New York State Court of Claims

New York State Court of Claims
CAPALDO v. THE STATE OF NEW YORK, # 2017-041-511, Claim No. 124311


Trial proof demonstrated that defendant's six-year delay in performing root canal on claimant's tooth constituted dental malpractice, for which defendant is 100% liable, and claimant is awarded damages in the amount of $45,000 for past pain and suffering.

Case information

UID: 2017-041-511
Claimant short name: CAPALDO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124311
Motion number(s):
Cross-motion number(s):
Claimant's attorney: LAW OFFICE OF GARY DIVIS
By: Gary E. Divis, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Joan E. Matalavage, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 29, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Joseph Capaldo (claimant) filed an amended claim on June 20, 2014, alleging that while incarcerated at Bare Hill Correctional Facility (Bare Hill) and Franklin Correctional Facility (Franklin), defendant provided him substandard dental care. The claim contains various theories of dental malpractice, including a lack of dental care, delayed care and deficient care. Prior to trial, the parties stipulated to withdraw claimant's theory which was set forth in paragraph 7 of the claim, that defendant "intentionally failed since at least 6/5/08 to provide and [sic] adequate number of dental providers." The claim alleges, specifically, that defendant committed dental malpractice in its care and treatment of claimant's teeth #5, #6, #19, #20 and #30, from June 5, 2008 through 2014.

The law "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).

Defendant was required to exercise professional dental judgment within the range of accepted dental standards in its treatment of claimant. The relevant law provides that "neither a [dental] provider . . . nor the State or governmental subdivisions employing the [dental] provider, may be held liable for a mere error in professional judgment" (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

"To succeed in his dental malpractice claim, claimant was required to prove that [defendant] deviated from the accepted standard of dental care and that such departure was the proximate cause of his injuries" (Bennett v State of New York, 31 AD3d 1069, 1070 [3d Dept 2006]).

Through expert testimony, or other competent proof, claimant must "introduce sufficient evidence of the relevant accepted standard of care owed . . . [and] whether the defendant had departed from [the] standard of care" (Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745 [2d Dept 2009]).

Trial of the claim was conducted on April 4, 2017. Three witnesses testified - - claimant, claimant's dental expert, Dr. Michael Lipnick, and defendant's dental expert, Dr. Rogerio Oliveira. As Dr. Oliveira was, among others, a treating dentist of claimant, he additionally testified at times as a fact witness. Claimant, at trial, abandoned his claim that defendant had committed dental malpractice in its care and treatment of his tooth #20. Further, claimant testified that since November 2014 he has had "no dental pain issues," and that, regarding dental pain, "[t]oday, I'm - - you know just everything is just fine" (see Trial Transcript, hereafter "TT", p 47).

Dr. Rogerio Oliveira testified both as a fact witness and as a dental expert for defendant. Dr. Oliveira, often referencing dental records of claimant maintained during claimant's period of incarceration that were admitted as trial exhibits, testified about the dental care defendant provided claimant from June 5, 2008 to November 2014. Dr. Oliveira, having treated claimant and having reviewed claimant's dental and medical records during relevant periods, testified credibly to the following:

1) Claimant was examined at Bare Hill on June 5, 2008, x-rays were taken, multiple areas of decay were observed, and no pathology was evident;

2) At Bare Hill on June 10, 2008, a crown on tooth #6 was prepared and sealed, and a note to return for a filling on tooth #19 was made;

3) A "huge filling" of tooth #19 was performed on September 11, 2008;

4) On December 9, 2008, claimant's tooth #5 was examined;

5) Substantial fillings were performed two days later, December 11, 2008, on tooth #5 and tooth #6;

6) Claimant was seen on January 13, 2009 and reported that tooth #6 was much better and claimant was provided Amoxicillin;

7) When claimant was seen on April 9, 2009, bone destruction was noted on tooth #6, and root canal was recommended for the tooth;

8) On August 17, 2009, claimant refused defendant's offered extraction of tooth #5, indicating that he would seek future root canal of the tooth;

9) Fillings to other teeth were performed September 15, 2009;

10) Claimant was provided pain medication for tooth #5 on November 19, 2009, and claimant's medical records of November 19, 2009 noted that extraction of tooth #5 was discussed with claimant;

11) Claimant again refused extraction of tooth #5 on December 21, 2009, indicating he was awaiting private dental treatment in an effort to save the tooth;

12) On June 16, 2010, having now transferred to Franklin, claimant was examined, his previously provided x-rays were evaluated by Dr. Godwin of Franklin and it was noted that his "ADA classification had decreased from a 3 to a 2" (T, p 211), denoting a less serious dental condition for claimant then existed than had previously existed;

13) Dr. Godwin referred claimant to an outside oral surgeon on July 16, 2010 for a tongue biopsy;

14) Dr. O'Keefe, an outside oral surgeon, performed a tongue biopsy on claimant on September 15, 2010;

15) The following day, September 16, 2010, a tongue biopsy post operative follow-up was performed on claimant by Dr. Naik, and while no sign of inflammation or infection was observed on the tongue, in response to claimant's complaint of broken fillings and sharp edges on tooth #19 and tooth #30, Dr. Naik rounded the sharp edges and gave claimant Ibuprofen for pain;

16) Claimant was seen by a dental hygienist on December 14, 2010, a medical history was taken, claimant had no complaints, an adult prophylaxis (cleaning) was performed and claimant was provided oral hygiene instructions (OHI);

17) Despite Dr. Oliveira's personal search and review of claimant's dental records, there was no documentation that claimant made any requests ("no dental slips were dropped, filled" [TT, p 215]) for dental care or treatment from December 14, 2010 to April 15, 2013;

18) Claimant complained on April 15, 2013 of broken tooth #30, and an examination was conducted, x-rays were taken and instructions to return for the extraction of tooth #30 were given;

19) Claimant was seen by Dr. O'Keefe, the oral surgeon, three days later, April 18, 2013, and Dr. O'Keefe declined to extract tooth #30 due to concerns about claimant's cardiac condition, claimant having suffered a heart attack in March 2013;

20) Claimant was provided Amoxicillin and pain medication from April 2013 to September 2013 "while waiting for the cardiac clearance;"

21) Claimant was sent to Erie County Medical Center on October 17, 2013 for a consultation on extracting tooth #19 and tooth #30, and to obtain necessary cardiac clearance to conduct the recommended extraction of the teeth;

22) Dr. Derisse, of Franklin, saw claimant November 15, 2013, observed a severely broken tooth #30, with decay, and claimant was given Amoxicillin to treat an infection;

23) During this time, medical consultations regarding claimant's cardiac clearance for tooth extraction were ongoing, and ultimately, medical clearance was obtained December 4, 2013, and claimant was returned to Erie County Medical Center for the extractions;

24) Claimant was seen December 27, 2013 for a broken tooth #19, the tooth was evaluated to be "un-restorable," a temporary filling was given and extraction was recommended;

25) Claimant was seen January 2, 2014 to evaluate tooth #19 and tooth #30 and he was prescribed Motrin for pain, as needed;

26) Claimant was next seen January 10, 2014 and provided OHI;

27) Tooth #19 and tooth #30 were extracted at Erie County Medical Center on January 23, 2014, procedures that were not documented in claimant's dental records, but in his medical records;

28) After returning to Franklin from Erie County Medical Center, claimant was provided pain relief medications;

29) Claimant was seen by Dr. Derisse on January 27, 2014, and upon examination, findings for swelling and pain were negative, with claimant stating he was getting better, and x-rays were taken;

30) At Franklin, a treatment plan was discussed with claimant on February 5, 2014, and claimant had a four-week check-up at Erie County Medical Center on February 20, 2014, at which time a recommendation was again made to claimant to extract tooth #5, a recommendation he once again rejected;

31) Dr. Oliveira met with claimant at Franklin on March 20, 2014, to review his dental and medical history and to discuss a dental treatment plan going forward;

32) Dr. Oliveira repaired claimant's chronically infected tooth #5 on May 16, 2014;

33) Scheduled root canal for tooth #6 is canceled in October 2014 because of claimant's attendance at religious services;

34) Dr. Oliveira performs root canal for tooth #6, starting on October 20, 2014 and concluding on October 28, 2014; and,

35) Dr. Oliveira provided claimant a filling for tooth #6 on November 4, 2014.

Dr. Oliveira provided the following testimony and opinion at TT, p 239:

"Q. Okay. Do you have an opinion with a reasonable degree of dental certainty as to whether there was a deviation from the requisite standard of care, dental care, provided to Mr. Capaldo?

A. My opinion, there was no deviation. There was a delay in treatment."

Dr. Michael Lipnick testified as a dental expert for claimant. Dr. Lipnick ultimately opined that defendant's treatment of claimant's tooth #6, tooth #19 and tooth #30, during the time period in question, deviated from the dental treatment duty of care that defendant owed claimant. Although Dr. Lipnick testified earnestly, the following factors rendered portions of his testimony either unpersuasive or not probative:

1) Prior to testifying, Dr. Lipnick had never examined claimant;

2) Dr. Lipnick never reviewed claimant's medical records, limiting his review, in preparation of providing trial testimony, to an examination of claimant's dental records alone; and,

3) Dr. Lipnick was not qualified as a medical expert related to cardiac care or to defendant's dental treatment of claimant that was influenced or affected by defendant's concerns for claimant's cardiac health and condition.

The trial record established that defendant provided claimant extensive dental care and treatment from June 5, 2008 to December 14, 2010, defendant additionally provided claimant pain and anti-infection medications, and that during this period of time, an assessment was made that claimant's dental condition had improved. The trial record further established that claimant made no requests for dental treatment from December 14, 2010 to April 15, 2013. Finally, the trial record demonstrated that defendant provided claimant substantial dental care and treatment from April 15, 2013 to November 2014, at which point in time claimant reported "no dental pain issues."

The Court will now address defendant's dental care of claimant specific to each tooth.


On three occasions, August 17, 2009, December 21, 2009 and February 20, 2014, defendant recommended to claimant that tooth #5 be extracted, and on each occasion, claimant declined the offered treatment, seeking instead, unsuccessfully, to arrange private dental treatment of root canal for tooth #5. Claimant's dental expert never expressly opined that defendant's repeated offers to extract tooth #5 constituted a deviation from acceptable dental care and practice. Even in consideration of the testimony that Dr. Lipnick did provide regarding defendant's care of claimant's tooth #5, claimant failed to present persuasive proof that defendant's intended treatment of extraction for claimant's tooth #5 constituted substandard dental care. Given that, claimant is not entitled to demand a particular style of dental care in lieu of otherwise appropriate dental care offered by defendant and then assert that defendant's failure to perform claimant's personally preferred style of dental care constitutes denial of care and/or provision of substandard dental care.


Defendant first noted the potential for root canal (referred to as "RCT," for root canal therapy) of claimant's tooth #6 in late 2008 (see Exhibit 1, pp 17-18), and recommended on April 9, 2009 that root canal be performed on the tooth (see Exhibit 1, p 16). Ultimately, Dr. Oliveira began root canal of claimant's tooth #6 on October 20, 2014 and concluded the procedure on October 28, 2014.

Dr. Guldan, one of defendant's dentists, treated claimant at Bare Hill in 2008 and 2009 and declined to provide root canal to claimant's tooth #6 until claimant first agreed to have tooth #5 extracted (see TT, pp 67-68), a procedure claimant twice rejected in 2009 in an effort to salvage tooth #5. Defendant prescribed claimant anti-infection and pain medications in its ongoing treatment of tooth #6.

Dr. Lipnick's trial testimony (TT, pp 131-140) made clear, in his expert opinion, based upon a review of claimant's dental treatment records, that defendant's delay in performing root canal on tooth #6 until claimant acquiesced to extraction of tooth #5 constituted a deviation from acceptable dental practice, and that such care and treatment resulted in claimant having an abscessed tooth #6, treated time to time with anti-infection and pain medications, for six years. The Court credits Dr. Lipnick on this testimony.

Claimant, testifying generally (TT, pp 50-52) but credibly concerning the anti-infection and pain medications necessary to treat tooth #6 and the emergency treatment he sought for the tooth, described being given "many times, antibiotics, lots of ibuprofen, on occasion, Percocets for pain," for tooth #6, and that he sought emergency sick calls for the tooth "[i]t seemed to me like it was well over a dozen [times]." The Court credits claimant's testimony concerning the pain and suffering related to tooth #6.

Even defendant's expert, Dr. Oliveira, in expressing his ultimate expert opinion, in a somewhat self-contradictory way, stated, "My opinion, there was no deviation. There was a delay in treatment" (TT, p 239).

Based upon the credible and persuasive trial evidence, the Court finds that the failure of defendant to perform root canal upon claimant's tooth #6 from 2008, when defendant first considered the procedure, to October 2014, when the procedure was ultimately performed, constituted a deviation from acceptable dental care and treatment, and further, that the deviation proximately caused infection and pain in claimant's tooth #6 during that period of time.

TOOTH #19 and TOOTH #30

When claimant complained of broken tooth #30 on April 15, 2013, he was examined, x-rays were taken and instructions for his return to extract the tooth were given. Claimant was seen three days later by an oral surgeon, Dr. O'Keefe, who declined to then extract the tooth given concerns about claimant's cardiac health, as claimant had endured a heart attack the previous month. Awaiting "cardiac clearance" for the extractions, defendant provided claimant several months of anti-infection and pain medications. Claimant was sent to Erie County Medical Center on October 17, 2013 for evaluation and to pursue cardiac clearance for the recommended extractions. Claimant was medically cleared on December 4, 2013 to have tooth #19 and tooth #30 extracted, and they were removed January 23, 2014. Defendant provided claimant pain medication thereafter.

Given the limits of Dr. Lipnick's expertise, qualified as a dental expert alone and unqualified as a medical expert, claimant provided no probative proof that defendant's delay in extracting claimant's tooth #19 and tooth #30 from the date of defendant's diagnosis for extraction of tooth #30 in April 2013 until the date tooth #19 and tooth #30 were extracted, January 23, 2014, pending evaluation and resolution of concerns for claimant's cardiac health, was in any way unjustified or in any way negligent.

To summarize, claimant failed to prove by a preponderance of the credible evidence that defendant committed dental malpractice in its care and treatment of claimant's tooth #5, tooth #19 and tooth #30. However, defendant's delay in performing root canal on claimant tooth #6 from 2008 to October 2014 constituted dental malpractice, for which defendant is 100% liable.

In consideration of claimant's trial testimony that he has had "no dental pain issues" and that "everything is just fine" as of November 2014, and further, of the lack of any expert proof regarding claimant's future dental health or needs, claimant is awarded no future damages for defendant's dental malpractice in its treatment of claimant's tooth #6.

For defendant's malpractice in delaying treatment of tooth #6 from 2008 to October 2014, and the resultant pain and suffering claimant thereby endured, claimant is awarded damages in the amount of $45,000, together with the amount of the filing fee, if any, pursuant to Court of Claims Act 11-a (2).

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

November 29, 2017

Albany, New York


Judge of the Court of Claims