Osborne v Merchant Square Dental, PLLC
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Attorneys and Parties
Brief Summary
Dental malpractice and vicarious liability in a dental practice, including whether a practice can be liable for an extracting dentist's alleged malpractice and whether a practice principal had a dentist-patient relationship with the plaintiff.
The Supreme Court, Orange County, granted summary judgment to Merchant Square Dental, PLLC (MSD) and Syed Masihuddin, dismissing the amended complaint insofar as asserted against them.
The Appellate Division reversed the portion of the order granting summary judgment to MSD, but affirmed dismissal of the claims against Masihuddin.
Masihuddin showed that he never treated the plaintiff and had no dentist-patient relationship with her, and the plaintiff's opposing proof did not create a triable issue of fact. However, MSD failed to establish as a matter of law that Alexander Lee was an independent contractor rather than an employee, because deposition testimony raised fact issues about MSD's control over important aspects of Lee's work.
Background
The plaintiff, an employee of Merchant Square Dental, PLLC (MSD), alleged that she was injured on October 23, 2018, when Alexander Lee extracted her wisdom teeth, including tooth number 17, at MSD's office. She sued for, among other things, dental malpractice and lack of informed consent, alleging that MSD was vicariously liable for the conduct of Lee and Syed Masihuddin, MSD's principal. MSD and Masihuddin moved for summary judgment, arguing that Lee was an independent contractor and that Masihuddin had no dentist-patient relationship with the plaintiff.
Lower Court Decision
The lower court granted the motion of MSD and Masihuddin for summary judgment dismissing the amended complaint insofar as asserted against them.
Appellate Division Reversal
The Appellate Division modified the order by denying summary judgment to MSD while leaving intact the dismissal of the claims against Masihuddin. The court held that the evidence established prima facie that Masihuddin did not treat the plaintiff and was not present at MSD on the day of the extraction or the following day. Even considering the CVS Pharmacy prescription record (CVS record), the plaintiff failed to show a triable issue because Lee, not Masihuddin, directed the postoperative medications. The court also noted that the Supreme Court should not have sua sponte refused to consider the uncertified CVS record on hearsay grounds when the parties had not litigated that issue, and that unobjected-to hearsay in civil cases may be considered for whatever probative value it has. As to MSD, however, the court found that the defendants did not make a prima facie showing that Lee was an independent contractor, because testimony from Lee and Masihuddin raised factual questions about whether MSD controlled important aspects of Lee's services.
Legal Significance
The decision underscores two points in New York malpractice litigation: first, a practice principal is entitled to dismissal where there is no evidence of treatment or a dentist-patient relationship; second, a dental practice seeking to avoid vicarious liability must conclusively show that the treating dentist was an independent contractor and not subject to the practice's control over the means and methods of work. The case also confirms that a court should not sua sponte reject evidence as hearsay without giving the parties an opportunity to address the issue, and that hearsay admitted without objection may still be considered in civil cases for its probative value.
A dental practice cannot obtain summary judgment merely by labeling a treating dentist an independent contractor where the record shows possible control over the dentist's work, but an individual dentist or principal who never treated the patient and had no dentist-patient relationship may be dismissed from the case.