On August 9, 2006, an electrical fire broke out destroying oral surgeon Gideon Kay’s offices in a house on Utopia Parkway in Flushing, Queens.

Here is the actual home of the dental practice as it appeared shortly after the fire:

Within days, Dr. Kay sent letters to his patients advising them of the fire and that for medical reasons he had to retire immediately from the practice of dentistry.

Linda Rizzo, a 58 year old retiree, had been undergoing four years of dental treatment with Dr. Kay for which she had paid $36,000. She, like many others, though, was literally left out in the cold because Kay claimed that the fire destroyed patient records and he could not make arrangements with another dentist for continued care.

Claiming that Dr. Kay had inserted both upper and lower bridges that did not fit and that she’d been abandoned, Ms. Rizzo sued Dr. Kay. In the suit, Rizzo v. Kay (Supreme Court, Queens County, Index # 24608/06), plaintiff sought pain and suffering damages for permanent residual injuries of her jaw and gums.

Kay was sued by many more patients on similar grounds and the state Office of Professional Misconduct and Discipline charged him with practicing dentistry while his ability was impaired by physical disability. Kay did not contest the charge and his application to surrender his license was granted on October 23, 2007.

Meanwhile, Rizzo’s suit proceeded and a jury verdict was rendered in May 2009. Kay was found to have departed from the accepted standards of care (in other words, he was adjudged negligent) and  Rizzo was awarded pain and suffering damages in the sum of $450,000 ($300,000 past – 3 years, $150,000 future).

The defendant appealed claiming that the jury verdict was excessive. This week, the verdict was affirmed in Rizzo v. Kay (2d Dept. 2010).

The appellate court did not describe the injuries sustained. Here are the details:

  • 10 implant procedures and the insertion of ill-fitting bridges
  • need for 1-2 years restorative work
  • severe shooting ear pain
  • headaches
  • difficulty eating
  • TMJ disorder (pain and clicking in the temporomandibular joint)

An award of $450,000 for pain and suffering damages in a dental malpractice case is significant. Here are other recent significant dental malpractice cases in which pain and suffering damages have been ruled upon by the appellate courts in New York:

  • Garber v. Lynn (1st Dept. 2010) – $150,000 for 71 year old with improper bridge that caused pain, gum swelling and need for 20 implants and 14 crowns [case discussed here]
  • Clarke v. Limone (2d Dept. 2007) – $125,000 for improperly performed root canal causing cellulitis, infection and TMJ
  • Resnick v. Linkow (1st Dept. 2006) –$400,000 for 41 year old; nerve penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and itchiness. 
  • Dansby v. Trumpatori (1st Dept. 2005) – $550,000 for 48 year old; misplaced bridge caused abscesses and eye swelling, need for intravenous treatment and surgery
  • Green v. Blanket (1st Dept. 2005) – $225,000 for 60 year old; improperly performed root canal fractured linguinal root causing  pain on bite, swelling and inability to chew on one side
  • Becker v. Woods (2d Dept. 2005) – $750,000 for 41 year old with nerve damage from injection causing permanent parasthesia to side of face and scalp with tingling, twitching, numbness and low voltage electrical currents coursing through face
  • Krechmer v. Mintzer (1st Dept. 2004) – $275,000 for negligently made nightstand (a dental appliance) resulting in open bite, lisp and difficulty chewing
  • Cicalese v. Carter (2d Dept. 2004) – $105,000  for TMJ caused by dentist placing a bridge too forcefully
  • Rafaniello v. Gronowitz (App. Term 2004) – $348,000 for unneeded extraction of several teeth requiring periodontal, restorative and orthodontic treatment

Inside Information:

  • Defendant argued that the controversial trial judge, Duane Hart (about whom we’ve written before, here) improperly and unfairly inserted himself into the trial by asking too many questions of witnesses and demonstrating partiality toward the plaintiff. While the appellate court rejected this argument, in light of the fact that similar conduct by Judge Hart has resulted in several reversals and the need for new trials they admonished him and basically told him to stop acting improperly.
  • Defendant claimed he had an unspecified heart problem that led to his retirement; however, no medical evidence was introduced at trial to substantiate that claim.