Man Claims Dental Clinics Drilled for Money

SCHENECTADY, N.Y. (CN) - A man claims in court that he was one of many children who received poor dental care at the 22-state "Small Smiles" chain, which federal and state governments accused of doing unnecessary dental work while taking "hundreds of millions of taxpayer dollars."

Shawn Zukoski seeks punitive damages from Smalls Smiles Dentistry of Albany, five other LLCs or corporations, seven dentists and others.

The complaint states: "In 2010, top law enforcement officials from the Department of Justice and representatives of numerous state governments (including New York), announced that they had uncovered a nationwide scheme directed at infant dental patients and the Medicaid system. A dental clinic chain known as 'Small Smiles', operating in twenty-two states including New York - performed unnecessary, inappropriate, unsafe and excessive dental procedures on young children. It received hundreds of millions of taxpayer dollars."

Zukoski says he was treated at the clinic in suburban Albany from 2005 to 2007, when he was 13 to 15.

During that time, he says, he got 12 fillings, a pulpotomy and crown, two extractions, four temporary crowns and two root canals.

Sometimes X-rays were taken and sometimes not, but "treatments that were needed, including steps to prevent decay or its spread, were ignored," he says in the complaint in Schenectady County Supreme Court.

Zukoski claims he "received treatment ... that was below the applicable standard of care and caused him to suffer injuries" at the hands of defendants Small Smiles Dentistry of Albany, Albany Access Dentistry, and dentists Maziar Izadi, Evan Goldstein and Judith Mori.

He also sued an umbrella defendant called Old FORBA and a handful of dentists and others who organized and served as officers of the entities that comprised it.

The Justice Department settled with New FORBA for $24 million, and New York separately got an additional $2.3 million, according to the complaint.

The clinics grew from a single office established by two dentists in Pueblo, Colo., in 1995, which treated children receiving Medicaid. Old FORBA was formed as more dentists and others joined to expand the idea across the country. By 2004, there were 20 children's Medicaid clinics; by 2006, there were 50.

"FORBA, its owners and dentists have regularly been charged by federal and state authorities with committing Medicaid fraud, violating dental standards of care, and breaching other state dental rules in connection with the treatment they provided to young children," the complaint states, citing dental licenses revoked or suspended in several states between 2004 and 2008.

Many of the actions stemmed from dentists strapping their patients into "papoose" restraints "for the convenience of the clinic and not because restraints were medically necessary."

A restrained child died while being treated in Arizona in 2003, the complaint states.

In 2006, Old FORBA sold the Small Smiles chain to New FORBA for $435 million. But because it was backed by private equity and a bank in Bahrain, New FORBA was interested in continuing the model of high revenue per clinic and per patient in order "to resell the business for a sizable profit on their $435 million investment," according to the complaint.

"FORBA dentists were required to - and did - treat patients with revenue generation as the primary goal rather than the medical needs of the patients." And to increase production, "FORBA dentists were expected to, and did, perform unnecessary dental procedures," the complaint states.

Patrick Higgins, with Powers & Santola in Albany, who represents Zukoski, has filed other lawsuits against Small Smiles on behalf of former patients. A complaint last fall in Rensselaer County Supreme Court mirrors Zukoski's in language and causes of action.

Higgins also brought suit in Schenectady County in April 2011 on behalf of 10 Schenectady children, the Albany Times Union reported, and did the same in Onondaga County for 10 Syracuse children and in Monroe County for 10 Rochester children.

New FORBA, also known as Church Street Health Management, based in Nashville, filed for Chapter 11 bankruptcy protection in February. The Times Union reported that the Small Smiles clinics in Albany, Syracuse and Rochester closed in March.

Zukoski seeks punitive damages for conduct that was "gross, wanton, reckless, outrageous and malicious, was actuated by evil and reprehensible motives sufficient to transcend the bounds of societal norms and involved a high degree of moral culpability."

He adds, "As to all causes of action, defendants' conduct is deserving of punitive damages because it displayed an utter disregard for the safety and rights of the members of the public, including the plaintiff."

The complaint accuses the defendants of fraud (revenue generation was paramount, not care); battery ("harmful or offensive bodily contact"); breach of fiduciary duty (putting their interests above the plaintiff's); false advertising (claiming to provide appropriate dental care); malpractice and negligence.

The complaint also claims the structure of the three Small Smiles clinics in New York violated a state prohibition against corporate dentistry. In New York, nondentists cannot own or control a practice or dental services company, and the owner is required to practice at his office.

Each of the New York clinics was set up as "a limited liability dental services company purporting to be owned by an individual dentist licensed in the state," the complaint states. But FORBA outfitted the clinics, hired the staff and pocketed the profits. "In short, FORBA was the true owner and manager of the New York clinics in violation of New York law," according to the complaint.

Powers & Santola is working with two Houston law firms, Hackerman Frankel and Moriarty Leyendecker, on Small Smiles complaints.

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