Professional Negligence Law Reporter

A New York appellate court held that a dentist may be liable for the allegedly negligent treatment of a slow-healing block bone graft.

Andrew Turetsky sued dentist Hiroshi Kimura and Hiroshi Kimura DMD, PLLC, alleging negligent treatment of a slow-healing block bone graft at the site of his upper left first molar. The defendants moved for summary judgment, arguing that an expert affidavit from a periodontist showed there had been no deviation from the standard of care. The trial court denied the motion.

Affirming, the appellate court noted that a defendant moving for summary judgment in a dental negligence action has the burden of establishing that they did not depart from good and accepted practice or that such an alleged departure was not the proximate cause of the plaintiff’s injuries. To defeat a summary judgment motion, the court added, the nonmoving party need only raise a triable issue of fact regarding an element of the cause of action. Citing case law, the court found that summary judgment is not appropriate in a dental negligence action where the parties involved produce conflicting medical expert opinions.

Here, the court found, in opposition to the defendants’ prima facie showing that they had not departed from good and accepted dental practice, the plaintiff raised a triable issue by submitting the affidavit of an expert oral surgeon opining that the defendants had deviated from accepted dental practice by failing to recognize that the block bone graft had failed and advising the plaintiff to wait for the gum tissue to heal over a four-month period.

Consequently, the trial court properly denied the defense’s summary judgment motion.

Citation: Turetsky v. Shumantov, No. 2023 WL 8792641 (N.Y. App. Div. Dec. 20, 2023).

Plaintiff counsel: Ralph A. Catalano and Ian L. Glick, both of Jericho, N.Y.