A dental chain whose employees claimed it was normal for a 4-year-old patient to be "swollen, in pain, crying, visibly shaken, upset and afraid of the dentist" after they pulled several of his teeth and drilled others, often without anesthesia, has been denied summary judgment.
Supreme Court Justice Deborah Karalunas in Onondaga County (See Profile), the coordinating justice in more than 30 pending cases involving a chain of dental offices geared toward children covered by Medicaid, denied summary judgment on malpractice, fraud and other claims, finding "evidence from which a jury could infer that defendants intentionally pursued a scheme to maximize corporate profits at the expense of dental care."
Karalunas' decision clears the way for a Sept. 16 trial in Syracuse, the first of several targeting Forba Holdings, which runs numerous "Small Smiles" clinics in New York and a total of about 50 nationwide. Forba, which is now in bankruptcy, settled a federal False Claims Act case in 2010 for $24 million for performing unnecessary dental procedures on children to collect Medicaid benefits.
The case slated for trial next month, Varano v. Forba, 2011-2128, centers on Jeremy Bohn, who was 3 when he first visited Small Smiles Dentistry of Syracuse in 2006.
Before Bohn turned 4, he had undergone multiple dental procedures, including filings, extractions and root canals, often without anesthesia and occasionally while he was restrained, according to court papers. Bohn's mother, Kelly Varano, sued Forba, its predecessor and the individual dentists who treated her son, alleging multiple causes of action.
The defendants sought summary judgment, and Karalunas generally denied the motion and is allowing the major claims for malpractice, fraud and punitive damages to proceed.
On the malpractice claim, the three defendant dentists—Naveed Aman, Koury Bonds and Yagoob Khan—claimed they exercised sound medical judgment in subjecting Bohn to various treatments and argued that placing the boy in restraints because he was "uncooperative" and "out of control" is not actionable in malpractice because it was not part of the dental treatment. The dentists claimed the pain and fear Bohn experienced after their treatment was normal.
Karalunas said the plaintiffs' experts had established, sufficient to overcome summary judgment, that Bonds unnecessarily restrained Bohn; extracted two teeth and filled four others without justification; Aman performed medically unnecessary root canals and failed to use local anesthetics; and Kahn failed to use anesthetics before drilling the boy's teeth.
She said Bonds' alleged use of a restraint "easily falls within the New York Public Health Law definition of a 'diagnostic procedure which involved invasion or disruption of the integrity of the body.'"
The judge is also allowing the fraud claims against the nondentist defendants to go forward, finding "ample evidence from which a jury could conclude that defendants perpetrated a fraud on a plaintiff by treating him and other Small Smiles patients not to meet his medical needs but as a means to maximize profits."
Karalunas cited the fact that the U.S. Department of Justice and several state agencies, including the New York State Attorney General's Office, investigated the clinics and recovered millions of dollars in fraudulent Medicaid billings (See Agreements with the Department of Justice and the state Office of Medicaid Inspector General).
She also referenced a series of emails demonstrating an "overriding emphasis on profits."
Emails and other documents from the defendants stress the need to "increase production," perform additional procedures on patients per visit and complain that the number of cases generating over $500 "sucks," according to the decision.
"A jury could infer…that the Forba corporation and its participants were not merely making a living or maximizing corporate efficiencies," Karalunas wrote. "A jury could infer that defendants, from the time they were engaged to provide dental treatment, failed to disclose their primary and overriding concern with protecting their economic interests."
Karalunas also found that if the jury credits the plaintiff's evidence, "this is one of the exceptional cases that would support an award of punitive damages."
Patrick Higgins of Powers & Santola in Albany represents the plaintiff.
Higgins said the decision makes clear that "there is abundant evidence that the plaintiffs have a legitimate case." He said the rulings on the fraud and punitive damage claims are particularly significant.
"What the court is saying is that these children have proof that there was a corporate-wide scheme, starting at the top and running to the individual clinics and dentists, whereby profits were put over patient safety," Higgins said.
The dentists are represented by Theresa Marangas of Wilson, Elser, Moskowitz, Edelman & Dicker in Albany.
Kevin Hulslander and Robert Cahalen of Smith, Sovik, Kendrick & Sugnet in Syracuse represent Forba. The precursor to Forba is defended by Dennis First of O'Connor, O'Connor, Bresee & First in Albany.
Calls to the defendants' attorneys were not returned.
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