While the Suffolk County District Attorney’s Office will not be resolving the age old question of whether a dentist is in fact a “doctor” (I do not want to be accused of being an antidentite by-the-way), DA Thomas J. Spota’s Herculoids (a little homage to Hana Barbara, folks), will soon be addressing whether a dentist can be criminally reckless if he or she performs procedures on a patient while intoxicated. According to reports, police arrested Robert B. Garelick, a Lindenhurst dentist, for Second Degree Reckless Endangerment (New York Penal Law 120.20) after he was accused of this exact conduct.
An “A” misdemeanor, Reckless Endangerment in the Second Degree is punishable by a year in jail. You are guilty of NY PL 120.20 if you recklessly engage in conduct which creates a substantial risk of serious physical injury to another person. To be clear, your conduct is not sufficient if it “may” or can “possibly” cause any type of injury, but creates a substantial risk of a physical injury that is legally classified as serious.
Although much is not known, those in the media like to throw around terms that may help sensationalize a case, but instead merely muddy the waters. It is alleged Garelick was “drunk” and “intoxicated.” Does this mean that if operating a motor vehicle, for example, he would have been considered intoxicated as a matter of law? In that case, was a chemical test taken establishing a BAC of .08 or greater? Alternatively, does “drunk” or “intoxicated” merely indicate that he smelled of alcohol on his breath and consumed a drink or two? If it is this subjective determination that is not supported by evidence (was there an admission or was alcohol found at the facility?), Garelick’s actions may be more akin to civil negligence than criminal conduct.
Even assuming Garelick was intoxicated, there is another issue that is critical in determining (establishing beyond a reasonable doubt) whether Garelick is guilty of Second Degree Reckless Endangerment. As of the drafting of this blog entry, it is not clear what procedure the dentist was performing. Was this a routine cleaning? On the opposite side of the spectrum, was Garelick performing a root canal or removing teeth? If the latter procedures, what tools was he using at the time and could those tools not just cause a physical injury such as a lacerated gum, but cause a serious physical injury that could result in long term protracted health or disfigurement?
Let’s be clear. I don’t want a dentist that is even slightly intoxicated or impaired when he or she is performing any procedure. Having said that, what may be malpractice may not be criminal. Intoxication alone, even when driving drunk, is not by itself legally reckless for the purpose of NY PL 120.20. More elements or actions are necessary. Was Garelick so intoxicated that he created a substantial risk of not just any injury, but a serious physical injury? I guess we will all soon find out and, while we are at it, whether dentists are doctors too (oh, dare to dream…).
To learn about Reckless Endangerment, including felony First Degree Reckless Endangerment, following the links above and review other blog entries on this offense.
A New York criminal defense firm, the New York criminal lawyers and former Manhattan prosecutors at Saland Law PC represent clients in Reckless Endangerment investigations and arrests throughout the New York City area.