Opinion
No. 56266-5-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-24222-3, Richard A. Jones, J., entered April 22, 2005.
Counsel for Appellant(s), Jerald D. Pearson, The Pearson Law Firm, 35131 SE Douglas St Ste 103, Snoqualmie, WA 98065-9233.
Michele G. Pearson, The Pearson Law Firm PS, 35131 SE Douglas St Ste 103, Snoqualmie, WA 98065-9233.
Counsel for Respondent(s), Vanessa Vanderbrug, Lawrence Versnel PLLC, 601 Union St Ste 3030, Seattle, WA 98101-2341.
John Cornelius III Versnel, Lawrence and Versnel PLLC, 601 Union St Ste 3030, Seattle, WA 98101-2341.
Affirmed by unpublished per curiam opinion.
This is a dental malpractice claim. The appellant Sandy Page sued the defendant Dr. Richard Crinzi more than three years after the last date the defendant treated her and more than one year after she knew or should have known that the injury was caused by the defendant's act or omission. Because Page had not presented any evidence of intentional concealment, the statute of limitation was not tolled on that ground. We hold that Page's action was not timely commenced and the trial court
Sandy Page and her husband David Page are both appellants. For ease of reference we refer to them collectively as `Page.'
FACTS
Sandy Page saw Dr. Richard Crinzi for dental treatment. She first visited his office on April 4, 2001. Crinzi removed one of Page's molars on April 13. Page contacted Crinzi several times in the subsequent days for follow-up treatment. She had on-going pain. At an appointment on May 3, Crinzi noted that the extraction site looked `OK' and was healing. Crinzi informed Page that the pain, `sticking,' and difficulty opening and closing her mouth was normal. Crinzi prescribed additional pain medication. Page saw Crinzi for the last time on May 10, 2001. Of this visit, Page stated:
10. I returned again to see him, for additional follow-up, with continuing pain, and he became increasingly agitated, irritated and angry at seeing me, and listening to my complaints.
11. Dr. Crinzi informed me that what I was experiencing spirits he was normal and that there was no objective cause for my pain, and that I was being too emotional. I was crying and explaining to him how the people in my church were praying for me, he specifically told me that they should stop praying for me because there was nothing wrong, or perhaps they should pray for me for other reasons.
12. I interpreted Dr. Crinzi's remarks to suggest I was [f]aking the pain or having psychological problems, and he reemphasized that there was nothing wrong with me and I should just `deal with it.'
Page had further evaluation of her jaw pain with Dr. Jason Pheling in December 2001. In a letter dated December 15, 2001, Pheling stated: Sandy is a pleasant 34 year-old woman in obvious distress, who states that her problems began following an extraction of #30 with Dr. Crinzi, an oral maxillofacial surgeon in April of this year. Apparently it was [a] difficult extraction, which needed sectioning and surgical removal. On the second day following the extraction she began noticing severe right-sided jaw pain in the preauricular area and limited opening. . . . An MRI was ordered which she says showed a slipped disc in her TMJ.
In the summer of 2002, Page underwent subsequent reconstructive surgery with Dr. James Yanney. Page alleges that Yanney told her that the damage to her TMJ discs that he had reconstructed was caused by trauma.
Page and her husband filed this lawsuit against Crinzi on September 17, 2004. Crinzi moved for summary judgment on the ground that the action was untimely. The trial court granted Crinzi's motion, and Page appeals.
DISCUSSION
When we review an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Summary judgment is appropriate the record shows `that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).
The statute of limitations requires claims for dental malpractice to be filed within three years of the act or omission alleged to have caused the injury complained of, or one year from when the patient or the patient's representative knew or should have known that the injury was caused by the act or omissions, whichever period expires later. RCW 4.16.350. The statute has a proviso tolling its commencement upon proof of fraud or intentional concealment until the date the patient or the patient's representative has actual knowledge of the act of fraud or intentional concealment. The patient or the patient's representative then has one year from the date of actual knowledge to commence a civil action. RCW 4.16.350.
The intentional concealment proviso of RCW 4.16.350 `requires more than just the alleged negligent act or omission forming the basis for the cause of action. The proviso is aimed at conduct or omissions intended to prevent the discovery of negligence or of the cause of action.' Gunnier v. Yakima Heart Ctr., Inc., 134 Wn.2d 854, 867, 953 P.2d 1162 (1998). The question of whether fraud or intentional concealment has occurred within the meaning of RCW 4.16.350 is generally a question of fact for the trier of fact. Duke v. Boyd, 133 Wn.2d 80, 83, 942 P.2d 351 (1997). However, the plaintiff must allege facts implicating the proviso. See Gunnier, 134 Wn.2d at 867-68.
Cases finding intentional concealment are instructive. In Doe v. Finch, 81 Wn. App. 342, 347-48, 914 P.2d 756 (1996), aff'd, 133 Wn.2d 96 (1997), the psychiatrist defendant was having a sexual relationship with the plaintiff's wife while the plaintiff was a patient. The plaintiff asked the psychiatrist why his wife seemed more devoted to the psychiatrist than to him. The doctor stated `that he was serving as a father figure for her; that his relationship with her was entirely professional, and that he was working to help preserve the marriage.' Finch, 81 Wn. App. at 350 (internal quotations omitted). The court concluded that these statements permitted a finding of intentional concealment, and thus the statute of limitations could not be determined as a matter of law and summary judgment was inappropriate. Finch, 81 Wn. App. at 353.
In Duke, 133 Wn.2d at 82-83, the plaintiff sued the defendant ophthalmologist for unsatisfactory results subsequent to eye surgeries between 1983 and 1985. The plaintiff expressly questioned the defendant about the unsatisfactory results, and the defendant stated that `she was the only patient who did not react positively to the procedure, and he implied or stated that her case was simply an unexplainable or unique phenomenon.' Duke, 133 Wn.2d at 82. The plaintiff consulted with two attorneys after the surgeries to discuss a possible malpractice action, but both attorneys explained that bad results do not necessarily indicate negligence. The plaintiff took no further action and continued to see the defendant for treatment for several years. Duke, 133 Wn.2d at 83.
In 1994, the plaintiff saw a television program mentioning the defendant by name and disclosing that many of the defendant's patients had unfavorable results from the same procedure. The plaintiff realized that the defendant's `statements regarding the uniqueness of her unfavorable results were untrue' and promptly filed a complaint. Duke, 133 Wn.2d at 83. The trial court granted summary judgment for the defendant on statute of limitation grounds. The plaintiff argued that his `misrepresentations and outright lies constituted fraud and intentional concealment.' Duke, 133 Wn.2d at 83. The Washington Supreme Court, noting that whether the plaintiff `can prove fraud or intentional concealment is a question of fact for the trier of fact to resolve,' held that summary judgment was granted in error and remanded for trial. Duke, 133 Wn.2d at 82-83.
The Duke court also held that the then-existing RCW 4.16.350 tolled the statute of limitations indefinitely. Duke, 133 Wn.2d at 85-86. The Legislature has amended the statute since the Duke decision to include the one-year period for filing suit after actual knowledge of fraud or intentional concealment. See RCW 4.16.350.
In Gunnier, to the contrary, the court found that no evidence of fraud or intentional concealment was presented and that summary judgment was therefore properly granted. Gunnier, 134 Wn.2d at 867-68. In that case, the plaintiff saw the defendant cardiologist. As part of her treatment, the defendant obtained an echocardiogram of the patient. Several years later, the patient had complications from dental work resulting in a stroke that was allegedly causally related to a bicuspid aortic valve. Gunnier, 134 Wn.2d at 856-57. She filed a complaint against the defendant for failing to disclose that her echocardiogram revealed a bicuspid aortic valve. Gunnier, 134 Wn.2d at 856-57. The trial court dismissed the complaint on summary judgment. Gunnier, 134 Wn.2d at 858. The Washington Supreme Court affirmed, noting that Plaintiff has not alleged any facts suggesting [the defendant] knew or even suspected he was negligent. There is no allegation he misinformed her or hampered her discovery of possible negligence. When she went to his office over eight years after her one visit with him, her medical records were intact and revealed the notations that her echocardiogram was suggestive of a bicuspid aortic valve.
Gunnier, 134 Wn.2d at 867. The Court held that that no allegations similar to those in Finch or Duke were present. The Court concluded that no material issues of fact as to the doctor's intentional concealment of negligence existed to toll the statute of limitations. Gunnier, 134 Wn.2d at 867-68.
We conclude that Page's complaint was not timely filed. Page's last visit with Crinzi occurred on May 10, 2001. The three year limitation period thus expired no later than May 10, 2004. And, the one year limitation period expired no later than the summer of 2003, one year after Yanney allegedly told Page that the damage to her TMJ discs was caused by trauma. Finally, like the plaintiff in Gunnier, Page has failed to present any evidence of intentional concealment. There is no allegation that Crinzi knew or suspected that he was negligent. There is no allegation that he hampered Page's attempt to discover any negligent act or omission. There is no allegation that the medical records are inaccurate or otherwise incomplete. Taking the evidence in the light most favorable to Page, Crinzi's comments constitute denials of negligence. A denial of negligence is insufficient to show intentional concealment; there must be evidence of `conduct or omissions intended to prevent the discovery of negligence or of the cause of action.' Gunnier, 134 Wn.2d at 867.
Because Page has presented no evidence of intentional concealment, we hold that, as a matter of law, the statute of limitation was not tolled on that ground under RCW 4.16.350. The trial court properly granted summary judgment in Crinzi's favor.
We therefore do not decide whether constructive knowledge of fraud or intentional concealment is sufficient to trigger the statute of limitation under RCW 4.16.350.
We affirm.
AGID and BAKER, JJ.