Hoagland v. Kamp , 155 A.D.2d 148 ( 1990 )

OPINION OF THE COURT

Yesawich, Jr., J.

Plaintiffs instituted this dental malpractice action alleging that defendants, five general practitioners and an endodontist, all of whom practice in Tompkins County, improperly diagnosed and treated plaintiff Audrey Hoagland’s trigeminal neuralgia, a painful nerve disorder commonly known as tic douloureaux. At trial, Supreme Court refused to permit plaintiffs’ expert, a board-certified oral and maxillofacial surgeon whose practice is limited to the New York City area, to testify concerning the standard of care for general dentistry. Because plaintiffs offered no other medical support for their allegations, Supreme Court dismissed the complaint at the close of plaintiffs’ proof.

In an effort to prove their case, plaintiffs sought to have Dr. Leon Charis, a dental specialist licensed to practice in New York, testify concerning the standard of care of reasonably prudent general dentists practicing in Tompkins County. Alternatively, the doctor was offered as qualified to give opinions with respect to the standard of care of average members of the profession of general dentistry in the State.

Supreme Court rightly concluded that because Charis practices dentistry only in New York City and is unfamiliar with the standard of care to which reasonably prudent Tompkins County dentists should conform, the oft-cited and doggedly obdurate "locality rule” (see generally, Riley v Wieman, 137 AD2d 309, 314-315) would be breached were he permitted to testify. The locality rule, premised as it is on such variables as geography, availability of medical facilities, consultants, specialists, equipment, personnel and the like, does not, however, prohibit him from testifying to what we perceive plaintiffs proposed to show; namely, that there is a minimum standard of care that dentists licensed to practice in this State are expected to exercise in diagnosing and treating tic douloureaúx, that this standard is uniform throughout the State, and presumably that the treatment furnished in this instance fell below this threshold (cf., Purtill v Hess, 111 Ill 2d 229, 246-247, 489 NE2d 867). If, at the time Hoagland was diagnosed and treated, uniform minimum standards of care for the diagnosis and treatment of tic douloureaux existed, Charis’ unfamiliarity with dental practice in Tompkins County is irrelevant. Whatever may actually be the standard of care practiced by general dentists in any particular locality in this State, if it is less demanding than the minimum level of skill and expertise which general dental practitioners are required to achieve to attain and maintain licensure in the State, it is unacceptable. If that were not true, spectacular ineptitude could be condoned under the guise of the locality rule. Simply put, certain rudimentary criteria must be met before one can practice dentistry in New York.

Nor are we persuaded that Charis is foreclosed from testifying because he is a specialist (see, Evans v Ohanesian, 39 Cal App 3d 121, 128, 112 Cal Rptr 236). All that need be demonstrated is that he has knowledge of the standard of care about which he is testifying. That he has such knowledge is readily apparent from his credentials. He graduated from New York University College of Dentistry, 1 of 4 accredited dental schools in this State, and obtained a license to practice all phases of general dentistry in New York. He continued his dental education and became a specialist certified by the American Board of Oral and Maxillofacial Surgeons. For 1 of his 3 years of specialized training, he practiced general dentistry in Boston, Massachusetts, during evenings and weekends.

Charis is a member of a multitude of dental associations including the Queens County Dental Association, the Dental Society of the State of New York, the American Dental Association, the New York State Society of Oral and Maxillofacial Surgeons, and the American Association of Oral and Maxillofacial Surgeons. As representative for the New York State Society of Oral and Maxillofacial Surgeons, Charis serves on the New York State Dental Advisory Committee. In this capacity he helps define policies bearing on all aspects of the practice of dentistry as it relates to Federally funded dental care, such as Medicaid, within the State. He also cochairs the New York State Society of Oral and Maxillofacial Surgeon’s committee on health plans and legislation. Additionally, he helped found the American College of Oral and Maxillofacial Surgery. Finally, Charis serves as the senior attending oral surgeon for Astoria General Hospital and for five hospitals in New York City comprising the Catholic Medical Center.

Admittedly, Charis currently limits his practice to his specialty. His expertise, however, does not imply that he is unacquainted with the minimal standards of general dentistry. In fact, Charis routinely reviews the work of general practitioners, for a substantial number of patients who have complications arising from general dentistry are referred to him. Moreover, in this State all dentists must first be licensed as generalists before practicing any form of specialized dentistry. To obtain this license, a dentist must graduate from an accredited dental school (the accreditation standards for all four dental schools in New York are the same), and pass a written and a practical examination covering all phases of general dentistry. In sum, Supreme Court was mistaken when it refused to afford Charis the opportunity to testify, for plaintiffs satisfactorily established that the doctor was skilled in the field of dentistry and familiar with the accepted minimum standards of dental care for a general practitioner in New York (compare, Weinstein v Daman, 132 AD2d 547, 550, lv dismissed 70 NY2d 872, 951).

It is incongruous to permit one "already trained in the general area and science of medicine, [to] qualify as an expert in a specialized medical area by study alone” (Richardson, Evidence § 368, at 344 [Prince 10th ed]; see, e.g., Jones v National Biscuit Co., 29 AD2d 1033, 1034) and yet bar a specialist, necessarily trained in general dentistry, from testifying about minimum general dentistry standards. Defendants’ contention that plaintiffs’ expert lacks competence because he has not practiced general dentistry for more than 25 years is no impediment (see, e.g., Bearss v Copley, 10 NY 93, 95). Criticism of an expert’s experience goes not to the admissibility of his testimony, but simply affects the weight the fact finder ascribes to that testimony (see, Richardson, Evidence § 368, at 343 [Prince 10th ed]; see also, e.g., Fuller v Preis, 35 NY2d 425, 431; Karasik v Bird, 98 AD2d 359, 363).