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$1,000 Awarded After Surgeon Loses Broken Instrument in NY Prisoner's Mouth

On February 5, 2004, a New York Court of claims awarded a prisoner $1,000 for the negligence of an oral surgeon under contract with the New York Department of Correction (NYDOC).

Sean Tapp was a prisoner at Attica Correctional Facility on January 28, 2000, when he was seen by an oral surgeon, who was an independent contractor to have a wisdom tooth removed. The surgeon broke the blade of the surgical instrument during his attempt to cut around the tooth. The piece of blade, which was approximately 5 millimeters long, 2 millimeters wide, and 1 millimeter thick, became lost by the surgeon and lodged in Tapp's left maxillary sinus.

Tapp, who represented himself pro se, did not present expert medical testimony about his tooth extraction. That, however, did not prevent the court from concluding that the surgeon's application of force sufficient to break a surgical instrument that became lost could be inferred to be negligence, just from the occurrence of the event itself.

The court also held the NYDOC was not relieved of vicarious liability for the oral surgeon's negligence by virtue of his contract status. Tapp testified his teeth have become extremely sensitive to temperatures and he experiences respiratory problems and pain. The court of claims awarded Tapp $1,000. See: Tapp v. New York, New York Court of Claims, Case No: 105509.

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Related legal case

Tapp v. New York