Defendant, Nicole V. Hinchy, D.D.S. (hereafter Dr. Hinchy), by Notice of Motion filed June 25, 2021, has moved for summary judgment pursuant to CPLR §3212 requesting that the plaintiff’s complaint and all cross-claims be dismissed. The grounds for the motion are that Dr. Hinchy owed no duty to the plaintiff when plaintiff was allegedly injured, that nothing Dr. Hinchy did or did not do caused any injury to the plaintiff and, that after the injury occurred, Dr. Hinchy did not deviate from the standard of care while treating the plaintiff. Plaintiff has offered no opposition to the motion, either in writing or at oral argument. Therefore, plaintiff’s complaint, insofar as it alleges claims of dental malpractice against Dr. Hinchy, is dismissed. However, Dr. Hinchy’s motion is opposed by co-defendant, Erie County Medical Center (hereinafter ECMC) which invoked in its answer (filed under Index No. 808467/2016) the limited liability provisions of Article 16 of the CPLR. It did not include in its answer a crossclaim against Dr. Hinchy nor did it recite any claims for contribution or indemnification. At that time, Dr. Hinchy was not a named defendant. A separate action was then filed against Dr. Hinchy (under Index No. 808159/2018) and the two actions were then consolidated under the later index number by stipulation filed on January 10, 2019. (See NYSCEF Doc. No. 7 filed under Index No. 808467/2016). ECMC’s answer was never amended to include a cross-claim for contribution or indemnification against Dr. Hinchy after the two cases were consolidated. No third -party action against Dr. Hinchy was ever commenced by defendant ECMC In this Court’s opinion, a demand for apportionment of liability for Article 16 purposes does not constitute a cross-claim. See Ilyayeve v. City of New York, 2016 NY Misc. LEXIS 3126 (Supreme Court, New York County, Aug. 25, 2016). In effect, there are no cross-claims to be dismissed in this case. Absent a cross-claim or third-party action, defendant ECMC does not have standing to oppose Hinchy’s summary judgment motion. Augustine v. Halcyon Constr. Corp., 71 Misc 3d 715 (Supreme Court, Bronx County, March 15, 2021). See also Blonder v. Casco Inn Residential Care, Inc., 2000 U.S. Dist. LEXIS 8054 (D. Me. May 4, 2000). Even if the Court were to regard ECMC’s third affirmative defense as a cross-claim, thus giving it standing to oppose Hinchy’s motion, the Court would grant Hinchy’s motion in its entirety. ECMC operates a dental clinic which not only treats patients but also acts as a training facility for post-graduate dental residents. The clinic is staffed with several attending dentists, including Dr. Hinchy, who provide training for and indirect supervision of the residents. On December 16, 2015, the plaintiff, as part of an overall treatment plan, was scheduled for a root canal procedure on one of his teeth. The procedure was performed by Nathan J. Chronister, D.D.S., a resident dentist who had performed root canal procedures previously as a dental student and as a resident at the ECMC clinic. During the procedure, Chronister is alleged to have over-extruded sodium hypochlorite (a bleach) past the apex of the plaintiff’s tooth causing him injury. Most of the critical facts of this case are not in dispute. Prior to December 16, 2015, Dr. Hinchy had had no contact with the plaintiff other than to sign a treatment note for another resident who had treated the plaintiff in August 2015. All prior treatment during the summer and fall of 2015 was with other resident dentists. The plaintiff’s treatment plan was developed by Dr. Chronister and signed off by another attending dentist, Dr. Frustino. The plan involved saving some of the plaintiff’s teeth including tooth No.8 upon which the root canal in question was performed by Dr. Chronister. When Dr. Chronister began the root canal procedure on December 16, Dr. Hinchy was not in the procedure room nor was it her custom or duty to be in attendance for the duration of any procedure. Rather, Dr. Hinchy was one of the attendings on duty that day to provide indirect supervision and advice to the residents. She testified that she stopped into Dr. Chronister’s procedure room and checked to see how Dr. Chronister was doing. He advised Dr. Hinchy that he needed to administer some additional anesthetic to Mr. Jones but that everything was okay. Dr. Hinchy then left the treatment room to continue her rounds. The over-extrusion of sodium hypochlorite took place later on in the procedure when Dr. Chronister was in the treatment room with an unnamed dental assistant. Dr. Hinchy returned shortly thereafter to see how the procedure was going and, at that time, was advised by Dr. Chronister that he believed he had extruded the sodium hypochlorite past the apex of the tooth. Dr. Hinchy testified that she advised Dr. Chronister to irrigate the area with normal saline solution and she contacted Dr. Maureen Sullivan, the Chair of the Department of Dentistry. They discussed various treatment options which Dr. Chronister proceeded to administer to the plaintiff. Mr. Jones returned for further treatment by Dr. Hinchy on subsequent dates but none of that treatment is at issue in this lawsuit. The only time that plaintiff alleges that Dr. Hinchy was negligent, according to his bill of particulars, was on December 16, 2015. Defendant Hinchy has supplied her own affidavit in which she opined in a nonconclusory manner that she did not perform the root canal, had no duty to train or supervise Dr. Chronister and did not cause any injury to the plaintiff. She further opines that when she did treat the plaintiff (after the over-extrusion of sodium hypochlorite) she did so within the standard of care. The opposition of the defendant ECMC consists of the affidavits of Dr. Sullivan and Dr. David Weinman, D.D.S., as well as the deposition testimony of Dr. Hinchy. As to Dr. Hinchy’s treatment of the plaintiff after she appeared for the second time in the treatment room, the defendant ECMC has failed to create an issue of fact. Neither Dr. Sullivan nor Dr. Weinman found any fault with Dr. Hinchy’s follow-up treatment of the plaintiff. Rather, they both opine that, as an attending dentist, Dr. Hinchy had a duty to the plaintiff and should, as a matter of law, be held responsible for Dr. Chronister’s alleged negligence. The Court has disregarded the affidavit of Dr. Weinman because he did not profess to have any familiarity with the ECMC Dental Resident Program and he did not review any ECMC documents that describe, define or establish rules, policies or procedures of the Program. Regardless, the Court disagrees with the position of the defendant ECMC. The existence of a duty is an issue to be determined by the Court. Eiseman v. State of New York, 70 NY2d 175 (1987). Dr. Sullivan, in her affidavit, averred that “residents practice under the indirect supervision of the attending dentists”. She further stated the Dr. Hinchy was “available as a resource for consultation, and was rounding the procedure rooms”. Her further conclusion that Dr. Hinchy established herself as the attending dentist for the plaintiff when she stopped in twice to check on the status of the procedure, is a conclusion with which the Court disagrees. Dr. Hinchy had never before seen or treated the plaintiff as a patient. There was no dentist-patient relationship established between Dr. Hinchy and the plaintiff before the root canal procedure. See Gedon v. Bry-Lin Hosps., Inc., 286 AD2d 892 (4th Dep’t 2001). She did not formulate the plaintiff’s treatment plan and did not participate in any treatment decisions before the root canal procedure commenced. She was not present when the root canal procedure started and was not there when Dr. Chronister over-extruded the sodium hypochlorite. Dr. Hinchy gave no advice to Dr. Chronister before he administered the sodium hypochlorite and Dr. Chronister sought none from Dr. Hinchy. It was anticipated that Dr. Chronister would start and complete the root canal without any direct assistance from Dr. Hinchy or any other attending dentist. Dr. Hinchy’s duty here was to provide indirect supervision which she did. She had no other duty to the plaintiff. The facts of this case are very similar to those in Prosise v. Foster, 261 VA 417 (2001) in which the Virginia Supreme Court found that an on-call attending physician in a teaching hospital was not liable for a resident’s negligence notwithstanding a statutory requirement that residents work only under the direct supervision of an attending. See also Rivera v. Prince George’s County Health Dep’t, 102 Md. App. 456 (Md. Ct. spec. App. 1994). Cf. Monzinga v. Pitt County Memorial Hospital, Inc., 331 N. C. 182 (N.C. 1992). Dr. Hinchy is entitled to the same result as in Prosise. She did not have a legal duty to the plaintiff other than to provide indirect supervision to Dr. Chronister. Absent a direct duty to the plaintiff, Dr. Hinchy cannot be held liable for the alleged negligence of Dr. Chronister. The motion of defendant Hinchy is, in all respects, granted. Dated: October 22, 2021
