On July 29, 2005, Helen Garber began extensive treatment in a dental office on 57th Street in Manhattan known as Toothsavers, a practice established by Jerry Lynn, with 50 employees including numerous dentists.
Over the next few months, the 71 year old Ms. Garber was treated at Toothsavers under a comprehensive plan that included implants, caps and permanent bridgework. By November a permanent bridge was made but it didn’t fit. It had to be revised three times. Finally, in February 2006, Garber left Toothsavers and never returned.
She sued for malpractice in April 2006 (Garber v. Lynn, Supreme Court, New York County, Index # 105673/06) and two years later a Manhattan jury found that there had indeed been malpractice (in the fit and placement of the temporary bridge) and plaintiff was awarded pain and suffering damages in the sum of $25,000 ($10,000 past – 3 years, $15,000 future). She was also awarded $75,000 in past and future dental expenses and $260,000 in punitive damages.
Now, on appeal, in Garber v. Lynn (1st Dept. 2010), the liability verdict has been affirmed while the pain and suffering award has been increased to $150,000 ($90,000 past, $60,000 future), the punitive damages award upheld but reduced to $100,000 and the dental expenses award affirmed.
Here are the details of plaintiff’s injuries:
- severe pain
- swelling of gums which bleed easily, pull away from the bone and trap bacteria
- impairment of ability to chew
- inability to clean the area around the bridge
Plaintiff established that to restore the damage she needs more than 20 additional implants and 14 crowns.
The defense argued on appeal (unsuccessfully) that the pain and suffering award should not be increased, in part, because Ms. Garber had failed to mitigate her own damages in that she wore an ill-fitting, painful temporary bridge for three years without seeking new treatment. Thus, they claimed, the jury was justified in concluding plaintiff acted unreasonably and, accordingly, discounting her claims of pain and suffering. This argument was rejected by the appellate court.
The affirmance of the punitive damages award is significant because, as New York’s highest court held in McDougald v. Garber (1989), they are prohibited unless the harmful conduct is intentional, malicious, outrageous or otherwise aggravated beyond mere negligence. And, as was held in Bothmer v. Schooler, Weinstein, Minsky & Lester, P.C. (1st Dept. 1999), even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as those involving an improper state of mind or cases involving wrongdoing to the public.
Defense counsel argued that the conduct of Toothsavers was, at worst, mere negligence, and nowhere near the severe standards required for the imposition of punitive damages. The key to the punitive damages award in this case, though, was the fact that it was a Toothsavers technician – not a licensed dentist – who always fit, placed, adjusted and re-cemented plaintiff’s temporary bridge.
The appellate court noted that the unlicensed practice of dentistry is a crime and the jury was therefore free to conclude that Toothsavers was "callous in its indifference to such illegality" by having a mere technician repeatedly conduct complicated procedures such as fabricating, placing and adjusting the bridge. This, the court concluded, is precisely the sort of willful or wanton negligence or recklessness that warrants deterrence and an award of punitive damages.
- Ms.Garber had gone to Toothsavers only to ask about repairing two chipped front teeth. After an examination, she was told she needed a whole lot more dental work including implants, caps and permanent bridgework. A $25,000 fee was quoted. When she said she couldn’t afford $25,000, the fee was adjusted down to $5,000 – and treatment began that day.
- Jerry Lynn and Toothsavers were notorious long before Helen Garber walked in the door. They were the subject of an expose in the New York Daily News on March 10, 2000.
- In March 2002, Lynn did not contest the charge of rendering substandard dental treatment and surrendered his dental license to the New York State Board of Regents. No longer allowed to practice, Lynn then entered into what the trial judge stated was a sham transaction – the purported $6,000,000 sale of his shares in Toothsavers to Sol Stolzenberg, then a 69 year old dentist employed by Toothsavers who had recently declared bankruptcy.
- The judge also stated that the evidence was overwhelming that Lynn controlled the day to day operations of the dental practice and that Dr. Stolzenberg was a "strawman."
- The technician – defendant Raimondo Perez – appears to have been a licensed dentist in the Domincan Republic for 11 years but when he applied here to a program for foreign dentists he was rejected.
- New York City attorney Joel M. Kotick represented Ms. Garber and says he’s represented patients in 50 cases against Lynn over the years. And has been successful in every one of them.