No. 78 - Rivera v. Anilesh

Margarita Rivera, who had been a patient of Bronx dentist Dr. Indu Anilesh since 1991, sought
treatment of a tooth with a broken filling on May 4, 2000. Anilesh determined the tooth was
unsalvageable and agreed to extract it the same day. Anilesh administered an injection to anesthetize the area and, when it did not become completely numb, administered a second injection that Rivera later said was painful. The tooth was extracted without apparent incident, but Rivera returned four days later complaining of pain and swelling in her jaw. Anilesh prescribed antibiotics and pain medication. When Rivera returned after three more days, Anilesh referred her to an oral surgeon, who treated her for temporomandibular joint dysfunction until early June. After a further referral to Bronx-Lebanon Hospital on June 6, Rivera was hospitalized for treatment of an abscess in her jaw.

Rivera commenced this dental malpractice action alleging, among other things, that Anilesh had
administered the second injection in the wrong location, causing the infection and abscess to develop in her jaw.

Supreme Court granted Anilesh's summary judgment motion to dismiss the suit based, in part,
on her testimony about her custom and practice in the extraction of teeth and administration of
anesthesia and on testimony by her expert witness that her techniques were in accordance with accepted dental practice.

The Appellate Division, First Department reversed and reinstated the claim, but split 3-2 on the
admissibility of the dentist's "custom and practice" testimony. The majority said the lower court
"erroneously relied upon her testimony regarding her custom and practice .... and upon the testimony of her expert whose opinion was based solely upon her testimony. 'The general rule in New York is that evidence of a person's habitual conduct under similar circumstances in respect to using care is inadmissible for the purpose of raising an inference that [s]he exercised the same amount of caution on the occasion when the injury in question was sustained....' Here, Dr. Anilesh's testimony regarding her routine practice of administering anesthesia injections does not take into consideration the unique circumstances surrounding each individual patient, including plaintiff, and therefore cannot be compared with the 'repetitive "hornbook" warnings conveyed by a physician to prospective surgical patients' of the risks involved in a particular type of surgery...."

In a concurring opinion, two judges argued Anilesh's testimony about her routine technique was
admissible evidence of how she injected Rivera. "It seems to me that, for a dentist, giving such an
injection is 'a deliberate and repetitive practice' that is '[un]likely to vary with the attendant
circumstances,'" they said, citing Halloran v Virginia Chems. (41 NY2d 386). "Moreover, because the
dentist performing this task is 'in complete control of the circumstances,' proof of the dentist's routine injection technique is 'highly probative' of how he or she administered an injection on a particular occasion...." They agreed with the majority that Rivera's suit should be reinstated, because they found she had raised triable issues of fact regarding alleged malpractice, but they argued that Anilesh should be allowed to counter that evidence at trial "with her testimony about her customary injection technique."