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Statute of limitations precludes dental malpractice claim
P E R S P E C T I V E S DENTISTRY & THE LAW
Statute of limitations precludes dental malpractice claim renda Warner first visited Dr. Gilbert Ross for an emergency dental appointment on April 23, 1994. After his examination, Dr. Ross concluded that Ms. Warner had an impacted third molar surrounded by infected gingiva. Dr. Ross prescribed an antibiotic. Later that week, Dr. Ross removed the impacted third molar. (Ms. Warner had had her other third molars removed without incident.) A week later, Ms. Warner returned to Dr. Ross for a follow-up visit. At that time she complained of an aching pain in her jaw. Dr. Ross treated what he diagnosed as alveolar osteitis and scheduled another visit three days later, on May 9, 1994. Ms. Warner alleged that at this third visit, she complained again of ongoing pain and numbness. Dr. Ross advised her
on that visit that her symptoms could continue for weeks. Ms. Warner alleged that the dentist may have told her that the pain and numbness would last for six months. Dr. Ross denied that Ms. Warner reported anything other than normal, subsiding pain. Ms. Warner continued to experience the pain and numbness in her mouth but did not return to Dr. Ross. She alleged she “was afraid of him,” “was unhappy with him from the day he took the tooth out,” and had concluded by her May 9, 1994, visit that the dentist “had done something wrong.” Six months later, on Dec. 1, 1994, Ms. Warner was treated by another dentist for a routine dental cleaning. She complained to the hygienist of irritation and numbness, and was told her numbness was not customary. After reportedly consulting with a personal injury
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lawyer, Ms. Warner consulted a third dentist, who advised her that the numbness was caused by nerve damage from the third-molar extraction. On Oct. 30, 1996, Ms. Warner sued Dr. Ross for dental malpractice.1 Dr. Ross moved for summary judgment, arguing that Ms. Warner’s claims were barred by the twoyear statute of limitations for dental malpractice claims.2 The trial court granted the motion for summary judgment and the Appellate Division of the District Court affirmed. Ms. Warner then filed an appeal with the Third Circuit Court of Appeals, in which she maintained that there were material issues of fact that should have precluded the allowance of summary judgment. COURTS ANALYSIS
The Third Circuit reviews cases from the Virgin Islands, but the case law that it decides follows legal principles that U.S. courts recognize. The court observed that its
http://jada.ada.org May 2006 Copyright ©2005 American Dental Association. All rights reserved.
P E R S P E C T I V E S DENTISTRY & THE LAW
duty at this stage of the case was to determine whether there were material facts that would warrant a jury trial. The court, in other words, had to determine whether the facts of this case were so clear that a summary judgment was warranted without a jury trial. The Malpractice Act of the Virgin Islands established a two-year statute of limitations for medical malpractice claims. In reviewing the statute of limitations, the court found Ms. Warner’s cause of action began on May 9, 1994, the date of her last visit to Dr. Ross. It quoted a pertinent passage stating that when a patient continues to see a dentist for a period, a malpractice claim is measured from the date of the last treatment.2 Therefore, the court determined that unless it had been stopped—or “tolled,” in legal terms—the statute of limitations on Ms. Warner’s claim against Dr. Ross expired on May 9, 1996. Ms. Warner argued on appeal that the statute of limitations should have been stopped because of the discovery rule, under which a medical malpractice claim does not begin until the plaintiff knows about the injury and its cause. After discussing existing law on this doctrine, the court found that the equitable discovery rule stops the statute of limitations when the injury or its cause is not immediately evident to the victim. The court stated the discovery rule was inapplicable here because Ms. Warner knew or should have known that her ongoing pain and numbness were not normal side effects of the extraction procedure. The court noted Ms. Warner had had three third molars
extracted, all without complication. She alleged that Dr. Ross was agitated and frustrated during the surgery, and that he apologized to her repeatedly on the day of the surgery. As a result, Ms. Warner concluded Dr. Ross had done something wrong. The court found this affirmatively disproved ignorance of her injury and its cause, and accordingly, Ms. Warner knew or should have known by the date of her last visit to Dr. Ross that she had abnormal symptoms resulting from the third-molar extraction. On appeal, Ms. Warner contended further that the statute of limitations also was stopped by the fraudulent concealment doctrine.2 This doctrine allows the statute of limitations to halt for any period in which a health care provider knew of or should have known of an injury but failed to disclose this to the patient. In applying this doctrine, the court stated that it did not find evidence of fraudulent concealment. The court stated also that Dr. Ross was aware of Ms. Warner’s pain and discomfort during her return visits and even may have been aware of her numbness. However, there is no indication that Dr. Ross had actual knowledge of Ms. Warner’s nerve damage. Furthermore, Virgin Islands courts have held that fraudulent concealment requires a deliberate act of concealment. Thus, the inquiry in fraudulent concealment cases is whether there is evidence that the defendant took affirmative steps to conceal the wrongful conduct. The court observed that the only action by Dr. Ross that could plausibly constitute affirmative concealment was his assurance to Ms. Warner that her symptoms soon would
subside. However, the court noted, it was unreasonable for Ms. Warner to rely on this assurance when the pain and numbness failed to lessen in intensity. In applying the fraudulent concealment doctrine, many courts have held that reliance on the word of one physician when the patient’s own common sense should lead him or her to a different conclusion is unreasonable. The court concluded that, since Dr. Ross was unaware of possible nerve damage, and since Ms. Warner had previous extractions without incident, she should have known of her injury. Thus, the Third Circuit upheld the lower court’s decision to grant summary judgment. CONCLUSION
Under the facts of this case, the court was correct in affirming summary judgment in favor of Dr. Ross and against Ms. Warner. Public policy favors terminating litigation after a reasonable period. Under the circumstances of this case, it would be unfair to the professional if an incident that occurred more than two years before a lawsuit was filed could impose liability. The legislatures in almost all states have proscribed that two years is a reasonable time to file a malpractice lawsuit, and this decision upholds this legislative scheme. ■ Mr. Sfikas is ADA chief counsel and an adjunct professor of law at Loyola University of Chicago School of Law. He has lectured and written on legal issues and is a fellow of the American College of Trial Lawyers. Address reprint requests to Mr. Sfikas at the ADA, 211 E. Chicago Ave., Chicago, Ill. 60611. This article is informational only and does not constitute legal advice. Dentists must consult with their private attorneys for such advice. 1. Warner v. Ross, 2006 WL 53608 C.A.3 (Virgin Islands), January 11, 2006. 2. 27 V.I.C. § 166d(a) (2005).
JADA, Vol. 137 http://jada.ada.org Copyright ©2005 American Dental Association. All rights reserved.
May 2006
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Statute of limitations precludes dental malpractice claim renda Warner first visited Dr. Gilbert Ross for an emergency dental appointment on April 23, 1994. After his examination, Dr. Ross concluded that Ms. Warner had an impacted third molar surrounded by infected gingiva. Dr. Ross prescribed an antibiotic. Later that week, Dr. Ross removed the impacted third molar. (Ms. Warner had had her other third molars removed without incident.) A week later, Ms. Warner returned to Dr. Ross for a follow-up visit. At that time she complained of an aching pain in her jaw. Dr. Ross treated what he diagnosed as alveolar osteitis and scheduled another visit three days later, on May 9, 1994. Ms. Warner alleged that at this third visit, she complained again of ongoing pain and numbness. Dr. Ross advised her
on that visit that her symptoms could continue for weeks. Ms. Warner alleged that the dentist may have told her that the pain and numbness would last for six months. Dr. Ross denied that Ms. Warner reported anything other than normal, subsiding pain. Ms. Warner continued to experience the pain and numbness in her mouth but did not return to Dr. Ross. She alleged she “was afraid of him,” “was unhappy with him from the day he took the tooth out,” and had concluded by her May 9, 1994, visit that the dentist “had done something wrong.” Six months later, on Dec. 1, 1994, Ms. Warner was treated by another dentist for a routine dental cleaning. She complained to the hygienist of irritation and numbness, and was told her numbness was not customary. After reportedly consulting with a personal injury
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lawyer, Ms. Warner consulted a third dentist, who advised her that the numbness was caused by nerve damage from the third-molar extraction. On Oct. 30, 1996, Ms. Warner sued Dr. Ross for dental malpractice.1 Dr. Ross moved for summary judgment, arguing that Ms. Warner’s claims were barred by the twoyear statute of limitations for dental malpractice claims.2 The trial court granted the motion for summary judgment and the Appellate Division of the District Court affirmed. Ms. Warner then filed an appeal with the Third Circuit Court of Appeals, in which she maintained that there were material issues of fact that should have precluded the allowance of summary judgment. COURTS ANALYSIS
The Third Circuit reviews cases from the Virgin Islands, but the case law that it decides follows legal principles that U.S. courts recognize. The court observed that its
http://jada.ada.org May 2006 Copyright ©2005 American Dental Association. All rights reserved.
P E R S P E C T I V E S DENTISTRY & THE LAW
duty at this stage of the case was to determine whether there were material facts that would warrant a jury trial. The court, in other words, had to determine whether the facts of this case were so clear that a summary judgment was warranted without a jury trial. The Malpractice Act of the Virgin Islands established a two-year statute of limitations for medical malpractice claims. In reviewing the statute of limitations, the court found Ms. Warner’s cause of action began on May 9, 1994, the date of her last visit to Dr. Ross. It quoted a pertinent passage stating that when a patient continues to see a dentist for a period, a malpractice claim is measured from the date of the last treatment.2 Therefore, the court determined that unless it had been stopped—or “tolled,” in legal terms—the statute of limitations on Ms. Warner’s claim against Dr. Ross expired on May 9, 1996. Ms. Warner argued on appeal that the statute of limitations should have been stopped because of the discovery rule, under which a medical malpractice claim does not begin until the plaintiff knows about the injury and its cause. After discussing existing law on this doctrine, the court found that the equitable discovery rule stops the statute of limitations when the injury or its cause is not immediately evident to the victim. The court stated the discovery rule was inapplicable here because Ms. Warner knew or should have known that her ongoing pain and numbness were not normal side effects of the extraction procedure. The court noted Ms. Warner had had three third molars
extracted, all without complication. She alleged that Dr. Ross was agitated and frustrated during the surgery, and that he apologized to her repeatedly on the day of the surgery. As a result, Ms. Warner concluded Dr. Ross had done something wrong. The court found this affirmatively disproved ignorance of her injury and its cause, and accordingly, Ms. Warner knew or should have known by the date of her last visit to Dr. Ross that she had abnormal symptoms resulting from the third-molar extraction. On appeal, Ms. Warner contended further that the statute of limitations also was stopped by the fraudulent concealment doctrine.2 This doctrine allows the statute of limitations to halt for any period in which a health care provider knew of or should have known of an injury but failed to disclose this to the patient. In applying this doctrine, the court stated that it did not find evidence of fraudulent concealment. The court stated also that Dr. Ross was aware of Ms. Warner’s pain and discomfort during her return visits and even may have been aware of her numbness. However, there is no indication that Dr. Ross had actual knowledge of Ms. Warner’s nerve damage. Furthermore, Virgin Islands courts have held that fraudulent concealment requires a deliberate act of concealment. Thus, the inquiry in fraudulent concealment cases is whether there is evidence that the defendant took affirmative steps to conceal the wrongful conduct. The court observed that the only action by Dr. Ross that could plausibly constitute affirmative concealment was his assurance to Ms. Warner that her symptoms soon would
subside. However, the court noted, it was unreasonable for Ms. Warner to rely on this assurance when the pain and numbness failed to lessen in intensity. In applying the fraudulent concealment doctrine, many courts have held that reliance on the word of one physician when the patient’s own common sense should lead him or her to a different conclusion is unreasonable. The court concluded that, since Dr. Ross was unaware of possible nerve damage, and since Ms. Warner had previous extractions without incident, she should have known of her injury. Thus, the Third Circuit upheld the lower court’s decision to grant summary judgment. CONCLUSION
Under the facts of this case, the court was correct in affirming summary judgment in favor of Dr. Ross and against Ms. Warner. Public policy favors terminating litigation after a reasonable period. Under the circumstances of this case, it would be unfair to the professional if an incident that occurred more than two years before a lawsuit was filed could impose liability. The legislatures in almost all states have proscribed that two years is a reasonable time to file a malpractice lawsuit, and this decision upholds this legislative scheme. ■ Mr. Sfikas is ADA chief counsel and an adjunct professor of law at Loyola University of Chicago School of Law. He has lectured and written on legal issues and is a fellow of the American College of Trial Lawyers. Address reprint requests to Mr. Sfikas at the ADA, 211 E. Chicago Ave., Chicago, Ill. 60611. This article is informational only and does not constitute legal advice. Dentists must consult with their private attorneys for such advice. 1. Warner v. Ross, 2006 WL 53608 C.A.3 (Virgin Islands), January 11, 2006. 2. 27 V.I.C. § 166d(a) (2005).
JADA, Vol. 137 http://jada.ada.org Copyright ©2005 American Dental Association. All rights reserved.
May 2006
669