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Patient’s noncompliance worsened infection, doc claimed




New York


New York County


New York Supreme

Injury Type(s):

other-infection; pulmonary/respiratory-respiratory

Case Type:

Medical Malpractice – Oral Surgeon, Oral Surgery, Failure to Test, Failure to Treat, Delayed Treatment, Infection Control, Post-Operative Care

Case Name:

Daniel Alvarado v. Manhattan Oral Facial Surgery, LLC and Ali Payami, DMD, MD,
No. 805325/13


October 3, 2017



Daniel Alvarado (Male, 28 Years)

Plaintiff Attorney(s):

John P. Tumelty;
Tumelty & Spier, LLP;
New York,
Daniel Alvarado

Plaintiff Expert(s):

Francis Murphy; D.D.S.; Oral Surgery; Rockville Centre,
NY called by:
John P. Tumelty


Ali Payami, 

Manhattan Oral Facial Surgery LLC

Defense Attorney(s):

Kenneth J. Burford;
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP;
White Plains,
Ali Payami, Manhattan Oral Facial Surgery LLC

Defendant Expert(s):

Raymond Fonseca;
Oral Surgery;
NC called by:
Kenneth J. Burford


Fortress Insurance Co. for both defendants


On March 27, 2013, plaintiff Daniel Alvarado, 28, a mason, presented to a hospital. Alvarado had undergone extraction of an infected tooth. The extraction was not eventful, but Alvarado’s infection worsened during the days that followed the procedure. The infection was compressing his trachea, and he was suffering resultant impairment of his respiration. He underwent surgical drainage of the infected area, and he required use of a medical ventilator. Alvarado claimed that the infection’s progression was a result of inadequate treatment by the surgeon who extracted the infected tooth, Dr. Ali Payami. Alvarado sued Payami and Payami’s practice, Manhattan Oral Facial Surgery LLC. Alvarado alleged that Payami failed to properly address the infection, that Payami’s failure constituted malpractice, and that Manhattan Oral Facial Surgery was vicariously liable for Payami’s actions. Alvarado’s oral-surgery expert opined that Payami should have delayed performance of the extraction. The expert contended that Alvarado’s infection should have been eliminated before the surgery was performed. The expert opined that a presurgical antibiotic should have been prescribed. The expert further claimed that Payami underestimated the severity of the infection. He contended that Payami did not perform tests that would have revealed the infection’s severity. He contended that Payami should have performed X-rays, that he should have measured the pressure of Alvarado’s blood, and that he should have measured Alvarado’s temperature. He claimed that those measures would have depicted the severity of the infection. Alvarado also claimed that Payami ignored postsurgical symptoms that suggested that the infection had progressed. Alvarado claimed that he telephoned Payami’s office, that he reported that the infected area was swollen and painful, and that Payami determined that the symptoms did not require intervention. Alvarado’s counsel contended that immediate intervention could have allowed milder treatment of the infection. Payami did not concede that those symptoms had been reported to him or his staff, but he claimed that they would have been appropriately addressed. Defense counsel claimed that Alvarado’s postsurgical complications were a result of Alvarado’s failure to utilize a postsurgical antibiotic that Payami had recommended. Defense counsel challenged the contention that Payami should have delayed performance of the extraction. He claimed that a delay could have caused dangerous complications. Defense counsel also challenged the necessity of the presurgical tests that Alvarado’s expert identified. He claimed that postsurgical tests did not reveal an abnormality of Alvarado’s temperature or blood’s pressure, and he argued that presurgical tests would have produced similar results.


Alvarado suffered an infection of his jaw. The infection traveled to his trachea, and it greatly inhibited his respiration. Alvarado underwent surgical drainage of the infected area, and he required use of a medical ventilator. Alvarado’s condition fully resolved. He sought recovery of damages for past pain and suffering.


The jury rendered a defense verdict.

Trial Information:


Arthur F. Engoron





Trial Length:


Jury Vote:


Editor’s Comment:

This report is based on information that was provided by defense counsel. Additional information was gleaned from court documents. Plaintiff’s counsel did not respond to the reporter’s phone calls.