Tooth Extraction Causes Nerve Damage

Our office obtained a $175,000.00 settlement prior to the deposition of the defendant for a 39 year old woman who sustained left side inferior alveolar nerve damage as the result of a tooth extraction.  The plaintiff had a rear molar extracted by a general dentist and due to the extreme force and trauma the inferior alveolar nerve was damaged causing paresthesia of the left lip, chin and gum area of the plaintiff’s mouth.    The defendant did not refer the patient to an oral surgeon for the extraction and created extreme trauma to the inferior alveolar nerve.  This extraction took approximately one and a half hours which is an exorbinant amount of time for an extraction of a molar. The case was settled by Thoma Reilly of our office.

Things to Ask Your Orthodontist

Braces are becoming more of the norm and as such there are some things that parents and patients should be ask their orthodontist.  Recently I have seen more and more cases of braces causing root resorption and the loss of teeth.  This has happened in adults and children.  Make sure that your orthodontist takes pre-treatment x-rays that show the roots of the teeth and make sure that similar x rays are taken periodically.  Signs of root resorption can occur 3-6 months after treatment begins and becomes more prevalent the longer the treatment continues.  If there are signs of root resorption your orthodontist should closely monitor the situation and may need to remove the braces.  It is important to make sure that the doctor is watching for root resorption as the results can be the loss of teeth and need for implants or other restorations.

Another thing to make sure of is to know what the entire treatment plan is and what other options there are before you start treatment.  Sometimes there are certain issues with treatment such as tooth removal or transposed teeth that an orthodontist should discuss with you prior to treatment.  Some times the doctor does not discuss treatment options until after the braces come off.  At that point you really have no options.  The doctor should discuss the future need for restorations in these cases and all options prior to the start of treatment.  Make sure that you are aware of any abnormalities before the treatment starts and ask you doctor if he or she is capable of handling your situation.  If needed get a second opinion

Finally, make sure you or your child continues to treat with a general dentist for regular cleanings and check-ups.  If you have any questions make sure you ask them of your doctors and do not leave until you get an answer that you understand

You Are Entitled to a Copy of Your Medical Records

In New York a patient is entitled to obtain a copy of their medical records from their doctor.  Often if a doctor senses that there may be a lawsuit they refuse to provide records even when requested by the patient.  Should you find your self in a situation where a health care provider refuses to give you a copy of your records refer to the statute below.  Note the final line of the first paragraph “A release of records under this section shall not be denied solely because of inability to pay”.  If the health-care provider continues to refuse to provide you a copy of your medical records contact the New York State office of the Professions   http://www.op.nysed.gov/opd/complain.htm to file a complaint

17 Pub. Health. Release of medical records.

  Upon the written request of any competent patient, parent or guardian of an infant, a guardian appointed pursuant to article eighty-one of the mental hygiene law, or conservator of a conservatee, an examining, consulting or treating physician or hospital must release and deliver, exclusive of personal notes of the said physician or hospital, copies of all x-rays, medical records and test records including all laboratory tests regarding that patient to any other designated physician or hospital provided, however, that such records concerning the treatment of an infant patient for venereal disease or the performance of an abortion operation upon such infant patient shall not be released or in any manner be made available to the parent or guardian of such infant, and provided, further, that original mammograms, rather than copies thereof, shall be released and delivered. Either the physician or hospital incurring the expense of providing copies of x-rays, medical records and test records including all laboratory tests pursuant to the provisions of this section may impose a reasonable charge to be paid by the person requesting the release and deliverance of such records as reimbursement for such expenses, provided, however, that the physician or hospital may not impose a charge for copying an original mammogram when the original has been released or delivered to any competent patient, parent or guardian of an infant, a guardian appointed pursuant to article eighty-one of the mental hygiene law, or a conservator of a conservatee and provided, further, that any charge for delivering an original mammogram pursuant to this section shall not exceed the documented costs associated therewith. However, the reasonable charge for paper copies shall not exceed seventy-five cents per page. A release of records under this section shall not be denied solely because of inability to pay.

    For the purposes of this section the term “laboratory tests” shall include but not be limited to tests and examinations administered in clinical laboratories or blood banks as those terms are defined in section five hundred seventy-one of this chapter.

Super Lawyer Albert Chianese

For the second straight year Albert W Chianese was named to the New York  Super Lawyers Metro Edition.  

Once a year, Super Lawyers  invites lawyers in each state to nominate the top attorneys they’ve personally observed in action.  Each nomination carries a point value. The procedures and database have several safeguards that prevent lawyers from “gaming” the system. For example, they track who nominates whom. This helps them detect any excessive “back-scratch” nominations (lawyers nominating each other) and “block nominations” (where members of the same law firm all cast identical nominations). Super Lawyers also prohibit lawyers from engaging in “campaigning” or solicitation of nominations from other lawyers.

While important, the nomination phase is simply the first step in the process. It puts lawyers on the radar for further research and evaluation, and awards points in our rating system. 

“Star Search” process

Super Lawyers attorney-led research staff searches for lawyers who have attained certain honors, results or credentials, which indicate a high degree of peer recognition or professional competence—what we term “Star Search Credentials.”  Most of the lawyers identified in the Star Search process have also been nominated by their peers. Occasionally, however, they find outstanding lawyers who have been overlooked in the nomination process. These “overlooked” attorneys fall into predictable categories. These include:   lawyers in smaller firms or from smaller communities; and lawyers practicing in less visible or highly specialized practice areas.

 Albert W. Chianese has been selected for this process and after careful review has been named a Super Lawyer in 2010 & 2011 for his excellence in the field of Dental Malpractice.

Crown and Bridge Verdict Nassau County

On March 22, 2011 a Nassau Jury awarded a 59 year old woman $125,000.00 verdict for injuries she sustained as the result of Dental Malpractice.  The plaintiff was a patient of the defendant’s office for over twenty years.    At trial the plaintiff claimed that the bridgework, crowns and implant restorations that the defendant placed were beneath the standard of care in the field of dentistry.  It was claimed that the bridges had open margins that allowed bacteria to enter under the restorations.   As a result the plaintiff was required to have all of the dental work replaced and lost three teeth.  After five hours of deliberation the Jury awarded the plaintiff $125,000.00.   Albert W. Chianese was the trial attorney for the plaintiff.

$1,350,000.00 Dental Malpractice Settlement

settlement against a hospital that misdiagnosed a cyst in a young woman’s jaw, which led to improper follow up and treatment by an oral surgeon.  Years later the cyst reoccurred in the same area and required removal of three quarters of her jaw.  During the removal of her jaw a graft from her fibula was taken and attached to a titanium plate that was used to replace her jaw.  A skin graft from her hip was taken to replace the gum tissue in that portion of her mouth.  Implants, restorations and further bone grafts will be required to replace the teeth in that area.   The expert for the defendant alleged that had the pathologist properly read the slide the treatment that was performed years later would have been required at that time.

Same-Sex Marriage and Your Estate Plan

by Anthony M. Brown, Esq. – June 28, 2011

Estate Planning for same-sex couples in New York just got a lot more interesting.  While marriage equality is certainly welcome in the Empire State, there are now conflicting Federal and State guidelines that must be understood and incorporated into your overall estate plan.  Conflicts between these two governing interests must be resolved as best as possible and your estate plan must be a portable as possible.

A comprehensive estate plan must now properly define a marital relationship in a manner that will be respected by, yet not conflict with, the laws of the federal government and with the laws of states which do not recognize the NY marriage. 

It is also critical to understand exactly what rights and benefits your NY marriage will provide.  From intestate succession to priority status in a probate proceeding, marriage carries powerful protections for a surviving spouse and peace of mind for couples seeking to protect their families.

Other benefits of marriage include:

• The protection that divorce provides upon the dissolution of a marriage
• The ability to file joint state tax returns
• Exemption from State estate taxes for a surviving spouse
• Medical decision making and hospital visitation
• Public employee pension and health insurance benefits
• The ability to sue for wrongful death of a spouse and receive worker’s compensation for a spouse who is injured on the job

Getting married is an important and extremely personal choice.  You may feel compelled to marry because, “grow up, get married, have kids,” was the mantra you learned.  It is your choice.  Before marrying, you should also consider that gay-unfriendly states or countries might not recognize your marriage.  You may also become ineligible for means-based government assistance should the assets of your spouse be added to the eligibility calculation.   The immigration status of a spouse may be red-flagged due to a same-sex marriage.  Finally, many states and countries that allow single individuals to adopt, do not allow adoption for same-sex couples.  

Whether you decide to take advantage of New York’s new found marriage equality or not, if you are partnered, you must be proactive in your estate plan.  If you have any questions at all, please feel free to contact me at Brown@AWCLawyer.com.

Elements of a Nontraditional Estate Plan – Pt. 3

Providing for unforeseen circumstances is the goal of the nontraditional estate planner.  One of those circumstances is a court ordered guardianship appointment.  This situation is best illustrated by the case of Sharon Kowalski.  Kowalski had been living with her partner Karen Thompson when she suffered severe injuries in an automobile accident. Thompson cross-petitioned against Kowalski’s father for guardianship.  Thompson assumed that she would be able to visit her partner so she consented to the father’s guardianship.  The Kowalskis then, with the court’s approval, terminated all visitation rights to Thompson.  Eight years and many court rulings later, Thompson was reinstated as her partner’s guardian.

 A Nomination of Guardianship for Personal Needs and/or Property Management or Conservatorship grants standing to a same-sex partner to seek guardianship status in court. Most states authorize the nomination of a guardian by statute.  While guardianship is not automatic, a person whose same-sex partner, once their standing is established through nomination by documentation, may then demonstrate to the court why he or she is the appropriate guardian by presenting evidence such as common residence, financial and emotional interdependence and a mutually reciprocal estate plan.

 Perhaps the most emotionally memorable cases I personally have been involved with was that of Rosa and Vanessa.  Both partners in this 20-year relationship had previously been married to men and had families of their own.  They discovered their sexuality when they met and courageously bonded their relationship in the face of ridicule and misunderstanding from their own children.  Vanessa suffered a severe stroke ten years prior to Rosa seeking my assistance and had been in a convalescent home for that entire time.  As Vanessa steadily recovered and was preparing to finally go home with Rosa, Vanessa’s children arrived from Florida threatening to take Vanessa back with them.  I drafted a Nomination of Guardian Document and Medical Power of Attorney for Vanessa, naming Rosa as her agent.  Just these actions made Vanessa’s children back off from their threat and return to Florida leaving Vanessa in Rosa’s care, as she had been for the previous 10 years.

 Durable Powers of Attorney (DPA) for business management provide partners with the security of knowing that one partner can pay bills, make transfers, correspond with state and federal agencies and buy and sell property, among other enumerated powers, if the other is unable to for any reason.  “Durable” refers to the fact that the designation remains in effect even if the signatory is completely incapacitated.  Private entities, such as banks and brokerage houses, may require their own versions of the DPA, however, many private entities will accept a notarized DPA if it meets their execution requirements.

 The final document of a basic estate plan is an Affidavit of Burial or Cremation, which authorizes a surviving partner to have access to the final remains and to make the final arrangements for their deceased partner. Allowing same-sex couples to make funeral decisions for one another has been an acceptable legislative olive branch to the LGBT community.  However, as with homophobic hospital staff, homophobic funeral directors may look for a reason to deny a surviving partner access.  Affidavits of Burial or Cremation provide the surviving partner the legal authority to circumvent personal prejudices.

Unhappy with your Dentist? You do not have to pay for those Ill Fitting Crowns

Almost everyone visits a dentist at some point in their life. Most of these people need some sort of dental work. When the dentist recommends this we usually agree without considering what could happen. Why should we? Dentists go to school for a number of years in order to learn how to do these procedures properly. In most cases you are correct in assuming that your dentist can perform these procedures with no problem whatsoever, but there are those instances where this is not true and people are damaged by dentist error.

Sometimes dentists make mistakes. This could be because of negligence or it could be an honest-to-goodness error. Humans are fallible so it stands to reason that some dental procedures will be done incorrectly. If your dentist admits to a minor error and offers to fix it, then there is no problem, but often-times dentists will try to pass it off, hoping you don’t notice. Always talk to your dentist if you are dissatisfied with a procedure. If you have exhausted all your options and are still unable to reach a resolution, this is the time to consult a dental malpractice lawyer.

Dental malpractice lawyers will be familiar with your situation and be able to offer you expert legal advice about the situation. They will evaluate your case and tell you how likely you are to win if it is pursued. The bottom line is that you should not have to pay for ill fitting crowns or any other dental work that has not been done properly. Whether it was an honest mistake or an act of negligence, the dentist is ultimately responsible for the quality of his work.

If you feel your dental work has been done incorrectly and your dentist is unwilling to make the needed changes, you should consult lawyer as soon as possible. In the New York area, the law firm of Albert W Chianese and Associates is the one to call. Contact us for a consultation if you are a victim of poor dental work.

Elements of a Nontraditional Estate Plan – Pt. 2

Medical visitation and decision-making authorizations are an essential part of any nontraditional estate plan.  Priority Visitation Directives (PVD), or Visitation Authorizations, instruct a health care provider or facility who you authorize to visit you if you are hospitalized.  An effective PVD prioritizes the designee above any family members that may seek access to a hospitalized partner.  In reality, hospital personnel in States or cities that are hostile to gay and lesbian families may simply refuse access to a hospitalized partner; however, without some form of documentation, an unrelated person has little or no chance of seeing their loved one in a hospital situation.

  A dangerous precedent was set in 2009 with the case of Langbehn v. Jackson Memorial Hospital.  While on vacation in Florida with her partner and their three children, Lisa Pond collapsed and was taken to a Miami hospital.  Her partner, Janice Langbehn, was informed that she was in an, “antigay city and state,” by hospital personnel and that she would receive no information regarding her partner’s condition, even though she presented the hospital with a medical power of attorney form authorizing Langbehn to make medical decisions for Pond.  The implications of this decision reach beyond that LGBT community.  The court ruled that Jackson Memorial Hospital had no obligation to allow their patients visitors, regardless of their relationship to the patient, essentially putting the rights of any visitor in the hands of whomever is on call at the hospital that night.  The court also ruled that the hospital was under no obligation to allow anyone into their trauma unit, a place where visitation is critical.

 Most hospitals, however, will honor Medical Powers of Attorney designating same-sex individuals the right to make medical decisions for their hospitalized partner if they are in compliance with state drafting and execution standards.  One critical consideration is providing one’s partner with access to their protected health information (PHI) in order to make an informed decision regarding their health care.  The Health Insurance Privacy and Accountability Act (HIPAA) of 1996 prevents the dissemination of protected health information to unauthorized individuals.  It is crucial that any Medical Power of Attorney contain a HIPAA waiver in order for the designee to have full access to their partner’s medical file.

 In order to protect a partner from family protests about end of life care, every estate plan must contain a Living Will, which defines which treatments the signatory wants for themselves in an end of life situation.  Thanks to the Supreme Court, a competent person may refuse life saving treatment if they so designate.  Without such a designation, or Living Will, the decision to provide or withhold life saving treatment falls on next of kin, if there is no individual authorized to make medical decision via a Medical Power of Attorney.  Same-sex couples must provide additional powers to their partners regarding end of life decision-making.  One answer to this problem lies in a specific authorization, contained in partner A’s Medical Power of Attorney, allowing partner B to interpret and override partner A’s end of life directive.  This effectively provides for the situation where partner A has an end of life condition which would otherwise warrant the withholding of life saving treatment under their Living Will, yet a situation exists where partner B knows of a stem cell study or drug trial, for example, directly associated with Partner A’s end of life condition.  Partner B may then authorize, under the terms of the Medical Power of Attorney, the continuation of life saving treatment until the results of that study or trial are available.

Part 3 of this series will be posted in two weeks.  To get email notification, please subscribe to this blog.