Opinion
07C-02-103 FSS.
Submitted: September 17, 2008.
Oral argument was held on November 13, 2007 and the court tentatively announced its decision. Plaintiff's counsel, however, asked the court to defer a final decision while Plaintiff addressed other health problems. By letter, Plaintiff has now asked the court for a formal ruling.
Decided: December 29, 2008.
Upon Defendants' Motion for Summary Judgment — Granted.
Bruce L. Hudson, Esquire, Law Office of Bruce L. Hudson, Wilmington, DE.
Colleen D. Shields, Esquire, Wilmington, DE.
Dear Counsel:
This decides Defendants' motion for summary judgment in this dental negligence case. The motion is based on the statute of limitations. The pivotal issue concerns the "time of discovery" rule.
Generally, where negligent dental treatment occurs, a plaintiff has two years in which to file suit. If, however, during the two years the injury's occurrence "was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person," the statute of limitations is extended to three years "from the date upon which such injury occurred. . . ." Thus, a claim is time barred if, within two years following the final, negligent treatment, a reasonable person would or should have been on notice that a possible claim existed.
24 Del.C. § 1193.
Ewing v. Beck, 520 A.2d 653, 664 (Del. 1987) (". . . . when an inherently unknowable inj ury b ecom es known to a plaintif f within th e two year peri od f rom the alleged date of i nju ry, the plaintiff does not get the additional one year extension . . . but must file an action within two years."); Reyes v. Kent General Hospital, Inc., 487 A.2d 1142, 1145 (Del. 1984) (Plaintiff injured on September 15, 1980. Plaintiff becomes aware of injury in May, 1981. Supreme Court holds that plaintiff had two years from injury, at latest September 15, 1982, to bring a medical malpractice suit. Plaintiff's suit brought October 1, 1982 was time barred.).
Plaintiff received her last treatment from Defendants on January 17, 2005. She filed suit on February 9, 2007. Therefore, her complaint was approximately three weeks late, unles s she is ent itled to t he "time of disc overy" rule's benefit. Here, the factual wrinkle is that Plaintiff's filing delay is partly attributable to the dentist to whom Plaintiff turned after she stopped treating with Defendants. Plaintiff clearly knew she had a problem with her teeth when she stopped treating with Defendants, but she may have been lulled by the new dentist.
I.
Because this is a summary judgment, the court accepts all of Plaintiff's factual claims. The court also accepts Defendants' factual claims, in so far as they have not been challenged by Plaintiff. Viewing the record in that light, it appears that Plaintiff began treating regularly with Defendants in December 2000. In 2002, Defendants received a note from an endodontist informing them that he had found a "deep periodontal pocket," but they did not address the problem. Finally, on January 17, 2005, after Plaintiff complained to Defendants about shifting teeth, they referred her to a periodontist. She never went back to Defendants. Thus, January 17, 2005 was indisputably the last time Defendants treated Plaintiff. That is a pivotal fact. Moreover, as of January 17, 2005, Plaintiff undeniably knew she had a dental problem that had developed while she was treating with Defendants.
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
On February 9, 2005, Plaintiff saw the new dentist. He told her that she had severe periodontal disease. That fact was conveyed less than a month after Plaintiff had last seen Defendants. Assuming that the mention of "smoking" and "aggressive bugs," rather than malpractice, threw Plaintiff off Defendants' trail, that misdirection is not attributable to Defendants. They are not accused of fraudulent concealment.
See, e.g., Shockley v. Dyer, 456 A.2d 798, 799 (Del. 1983) (fraudulent concealment requires the doctor to have used actual trickery "which prevented plaintiff from gaining knowledge of the facts or have made some misrepresentation which was intended to put plaintiff off the trail of inquiry").
On March 3, 2005, the new dentist again saw Plaintiff, on an emergency basis. In response to her question, the dentist told Plaintiff "smoking was a major risk factor for her disease and at times aggressive bugs can do a lot of damage in a short period of time." He did not mention the possibility of malpractice. The next day, the new dentist extracted two teeth that were "hopeless." He also made plans for further extractions.
Therefore, as of January 17, 2005, Plaintiff knew something was wrong with her teeth — they were shifting — and the problem had developed while she was being treated by Defendants. By February 9, 2005, she had consulted with a specialist and she knew the problem was severe gum disease. The record also reveals that within a year of Plaintiff's leaving Defendants' care, Plaintiff actually suspected malpractice. By then, January 2006, she had consulted another periodontist and a lawyer. Nevertheless, Plaintiff waited more than a year after that to file suit. In other words, regardless of what happened in the month or two after she left Defendants, Plaintiff was positioned to file suit at least a year before the statute of limitations expired.
II.
In essence, Plaintiff contends that the two-year statute of limitations did not begin to run when she stopped treating with Defendants. It began later, when she realized that her periodontal problems were attributable to Defendants' negligence and not "smoking" or "aggressive bugs." Plaintiff's expansive view of the time of discovery rule is opened-ended and, therefore, unworkable. Moreover, as discussed above, even if her initial confusion cut into the time for filing suit, at the point she realized, or should have realized she had a claim, Plaintiff still had ample time left in which to sue — more than a year.While the court sympathizes with Plaintiff, the law provides that two years after Defendants last treated Plaintiff, they were entitled to freedom from the threat of litigation, unless the damage they did was undiscoverable through reasonable inquiry. Based on the record, it cannot be said Defendants did anything to justify expanding the time of discovery exception to the statute of limitations. It also cannot be said that, as a practical matter, the ordinary limitations period did not leave Plaintiff with ample time in which to file suit after she should have realized she had a malpractice claim.
III.
For the foregoing reasons, Defendants' motion for summary of judgements is GRANTED.
IT IS SO ORDERED.