In Linker v. Malpeso ( Linker v. Malpeso, 2013 NY Slip Op 2679
- NY: Appellate Div., 1st Dept. 2013) the First Department of NY's Appellate Division
gave dentists statewide a stark reminder of burdens associated with the
continuing treatment exception to the 2 ½ year statute of limitations on medical and dental malpractice claims.
Typically the 2 ½
year statute of limitations bars malpractice claims against doctors when the
tortuous act occurs more than 2 ½ years from the time the claim is
interposed. Generally a claim is
interposed by starting a lawsuit. Thus
if a doctor committed malpractice three years ago and a lawsuit was brought
today, that doctor would face no liability for his acts, even if there is no
question that he committed the act or acts complained of.
There are two widely
known exceptions to the 2 ½ year statute of limitations. The first is where a doctor leaves a foreign
object in the plaintiff’s body. This
exception is known, creatively enough, as the “foreign body” exception. When a foreign object is left in the body, the
statute of limitations does not accrue until after the object is discovered by
the plaintiff. This means that if a
doctor leaves an inter abdominal retractor inside a patient (a-la Episode 60 of
“Seinfeld”, The Junior Mint) the two and
a half year period that the patient has to bring a law suit does not begin until the foreign object has been
discovered. This is the case even if the
object was left in the body three or four years prior to its discovery,
provided that the foreign object should not have been reasonably discovered by
the plaintiff.
The second exception
is the case where the doctor continues to treat the plaintiff after the act of
malpractice. In this case the statute of
limitations is “tolled” until after the plaintiff’s last treatment for the same
injury or illness. Goldsmith v. Howmedica, Inc., 67 N.Y.2d
120 (1986). The public policy reasoning
behind this exception is sound. If a
doctor botches a surgery he/she should not be able to avoid liability if that
doctor spends the next three years trying to patch or otherwise correct the
error. In many cases the patient will
not know something was done incorrectly until after
the doctor’s attempt to “fix” the problem has failed. Both of these exceptions to the normal
statute of limitations are nuanced and there are circumstances where either would
not apply.
In Linker v. Malpeso the Continuing
Treatment exception was at issue. In
that case, a dentist placed 20 implants
in a full mouth restoration on September 11, 2008. On September 14, 2011, more
than 2 ½ years after the implants were placed, the patient brought a
malpractice claim relating the the restoration.
The dentist brought a motion for summary judgment claiming that the 2 ½ year
statute of limitations barred the claim from being brought. The court, however, found there was a triable
issue of fact as to whether the continuing treatment exception applied and
allowed the lawsuit to continue. In
reaching their decision the court found that while the doctor noted that that restoration
was complete, he put the patient on a 2 month follow up schedule which apparently continued into 2009.
In subsequent appointments, the doctor treated the patient for gum and
and hygiene issues and replaced a crown. During that time the patientcontinued to complain about paid from
the restoration.
It’s important to
understand the procedural posture of the case to fully grasp the court’s
ruling. In a motion for summary judgment
a party will only prevail if there are no material issues of fact in dispute
among the parties. In the instance where
there are no material issues of fact in dispute, the judge can make a ruling on
the law alone so there is no need for a trail to proceed. Where the parties do
dispute a material fact or facts, a fact finder (usually a jury, but sometimes
a judge) must first determine what facts they believe to be true. The process whereby the fact finder decides
which facts to believe is the trial. In
this case, the court did not decide that the doctor committed malpractice, nor
did the court decide that the post restoration treatment constituted “continuing
treatment” as to satisfy the statute of limitations exception. Rather, the court’s decision was to allow a
finder of fact to determine if the dentist’s post restoration conduct
constituted continuing treatment. If a judge or jury found that doctors treatment
did constitute “continuing treatment” a separate trial to determine whether or
not the doctor committed malpractice would still be needed.
The lesson for
dentists is twofold:
1. Know the statute of limitations exceptions.
2. Make
sure you note in your charts when a specific treatment is complete. If you attempt to correct a defective treatment,
you are extending the statute of limitations. If the doctor in this case made absolutely clear that he was not treating the restoration issues, there would be no basis for the legal proceedings to continue, and the statute of limitations would have applied.
p.s. a third lesson
would be to avoid placing 20 implants when an implant supported bridge is a
better option (though we don’t really know if it was here)
A link to the appellate division's decision is here Linker v. Malpeso.
