Dentist’s Office Sued for Performing Unnecessary Dental Treatment on Child

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court order that denied the defendant’s motion for summary judgment in a case involving fraud, negligence, and battery at a dentist’s office.

The defendant is a company that owns Small Smiles, a dentist’s office in Albany, New York. The plaintiff is a small child who underwent unnecessary dental treatment without her consent. The plaintiff sued for battery, a violation of General Business Law 349, negligence via dental malpractice, and concerted action. In addition to personal injury damages, the plaintiff also requested punitive damages.

The defendant filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law as to all claims. Regarding the battery claim, the defendant argued that the battery claim was precluded by the dental malpractice claim. However, the Fourth Department disagreed. Battery during medical procedures requires either no consent or fraudulently induced consent. When consent is fraudulently induced, the defendant lies to the plaintiff in order to obtain consent, and that consent is only given because of the lies and false promises.

Battery and dental malpractice are not the same. If a dentist performs a procedure with no consent, the dentist has intentionally wronged the patient. This is not a negligent action. Performing any treatment without consent is therefore battery. Battery requires that the plaintiff prove offensive bodily contact. Lack of consent renders contact offensive. The defendant failed to show how the plaintiff had not raised a claim for battery, and the Fourth Department rejected this argument. Summary judgment was properly denied as to the battery claim.

Regarding the General Business Law 349 claim, this law covers deceptive business practices. The business practices must be directed at consumers, must be deceptive, and must injure someone. The dentist’s office argued that General Business Law 349 did not apply. The defendant argued the treatment was a private matter, not something directed at the public. However, the Fourth Department did not believe the nature of the treatment was relevant for General Business Law 349. Rather, the Fourth Department found that the plaintiff, in her complaint, sufficiently alleged that the defendants had placed profits over patient care. This scheme then affected the public at large, which went beyond what had happened in the dentist’s office between the plaintiff and dentist. Thus the defendant failed to show how the plaintiff had not raised a claim under General Business Law 349, and as such, summary judgment was properly denied.

Regarding the negligence claim, the defendant argued that the plaintiff had failed to prove the cause of her injuries. However, similar to the General Business Law 349 claim, the Fourth Department held that the plaintiff met her initial burden by showing there may have been a scheme that placed profits over patient care, which may have in turn resulted in negligent conduct that caused the injuries. As such, the defendant failed to show how it was entitled to judgment under this claim, and summary judgment was therefore properly denied.

Finally, the defendant requested that the court strike the request for punitive damages. A plaintiff can request punitive damages on top of actual personal injury damages. Punitive damages are intended to punish the defendant and prevent future similar wrongdoing. Punitive damages may be proper in a case that involves intentional wrongdoing, such as battery. The defendant argued that it had filed for bankruptcy, and as a part of its bankruptcy plan with its creditors, it had stipulated that any damages paid to the plaintiff would be covered by insurance. Insurance providers, however, will not cover punitive damages. The civil court is not bound by the bankruptcy plan. As such, the Fourth Department refused to honor this stipulation.

If you or a loved one has been injured at the hands of a doctor or nurse, you may have a medical malpractice claim. Contact the skilled medical malpractice attorneys at the Law Offices of Thomas L. Gallivan, PLLC today to review your case.


Matter of Small Smiles Litig., 125 AD3d 1287 (4th Dept., Feb. 6, 2015).

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