Woke up from surgery with a tooth missing

Attorney Answer

The consent form is where most people's attention goes, and it is usually the weaker part of a case like this. The stronger question is how the tooth was lost — and the answer is written down in records you can request.

Start with consent, because New York sets a demanding test for it. Public Health Law § 2805-d treats lack of informed consent as a claim of its own, and subdivision (3) adds the requirement most people miss:

For a cause of action therefor it must also be established that a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.

In plain terms: you would have to show that a reasonable person, told about a risk to a tooth, would have refused to have their gallbladder removed. For a needed operation and a dental risk, that is a hard case to make. The form you never saw is worth asking about, but it is unlikely to be the center of this.

The stronger claim asks something different: was the tooth lost because something during the procedure was not done with the care accepted practice requires? A consent form does not answer that question, and a claim on that basis does not depend on what you signed. How the tooth was lost is the first fact to pin down, and it is recorded — in the anesthesia record, the operative report and the nursing notes for the procedure. That nobody would tell you what happened makes those records more important, not less.

CPLR 214-a sets the period:

An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure

Two things in that sentence matter. The period is two years and six months, not the three years most people assume for an injury in New York. And it can run from the last treatment, not the procedure, where treatment for the same condition continued — so the clock depends on dates this page does not have, and it should never be counted from the day of the procedure alone.

If a city, a county or the State runs the hospital, the first deadline is far shorter. Against a public corporation, General Municipal Law § 50-e(1)(a) requires a notice of claim:

the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent

and § 50-i(1)(c) then limits the lawsuit itself to one year and ninety days from the event, though a court can sometimes allow a late notice under § 50-e(5). A State-run hospital is different again: the claim goes to the Court of Claims, and Court of Claims Act § 10(3) requires a claim, or a notice of intention to file one, within ninety days of accrual. Finding out who runs the hospital is therefore the first fact to establish.

The later dental visit you mentioned is a separate matter with a different provider and its own clock; keep its records apart.

What you can do

1. Request the anesthesia record, the operative report and the nursing notes for the surgery, along with a copy of any consent form you were asked about.

2. Have a dentist examine and record the missing tooth, and keep the records and any treatment estimate.

3. Find out who runs the hospital — private, or a city, county or State one. A public hospital means a ninety-day notice.

4. Put together the date of the surgery and any later visits for the same condition.

5. Consult a New York medical malpractice attorney soon. Most will review records at no cost.

⏱ Time limits apply. CPLR 214-a gives two years and six months from the act or from the last continuous treatment for the same condition, and if the hospital is public, a ninety-day notice deadline under General Municipal Law § 50-e or the Court of Claims Act § 10 comes first. Which applies depends on dates and facts a page cannot see — take them to a New York medical malpractice attorney promptly, and do not count from a calendar yourself.

A New York attorney can look at the specifics quickly, and most offer a short first conversation at no cost. A few minutes on your actual facts is worth more than any general guidance, this page included.