Caywood v. Gossett

• Decision Date: 11 April 2008
• Docket Number: No. 1-06-2458.,1-06-2458.
• Citation: 887 N.E.2d 686
• Parties: Jill CAYWOOD, Plaintiff-Appellant, v. Paull C. GOSSETT, and A.M.M. LTD., an Illinois Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

887 N.E.2d 686

Jill CAYWOOD, Plaintiff-Appellant, v. Paull C. GOSSETT, and A.M.M. LTD., an Illinois Corporation, Defendants-Appellees.

No. 1-06-2458.

Appellate Court of Illinois, First District, Sixth Division.

April 11, 2008.

Grasso Bass & Williams, P.C., Gary A. Grasso and Adam R. Bowers, Burr Ridge, IL, for Appellants.

Querrey & Harrow, LTD., David E. Neumeister, Jennifer L. Medenwald, John M. Green and Sylvia Karalekas, Chicago, IL, for Appellees.

Justice O'MALLEY delivered the opinion of the court:

Plaintiff Jill Caywood filed suit against defendants Paull C. Gossett, D.D.S., and A.M.M. Ltd., alleging dental malpractice. Defendants moved to dismiss plaintiff's complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2006)), arguing that plaintiff failed to timely bring her suit within the two-year time period delineated in section 13-212(a) of the Code. 735 ILCS 5/13-212(a) (West 2006). The circuit court found that plaintiff knew or should have known that defendants committed malpractice more than two years before filing her action and granted defendants' motion to dismiss the complaint as untimely filed. For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

In January 1988, plaintiff and her family began treating with defendants for general dental care. In 1994, plaintiff complained to defendants about problems with teeth grinding. Defendant Gossett recommended that plaintiff floss regularly and rinse with saltwater. Defendants did not refer plaintiff to an oral surgeon or other specialist for evaluation. Plaintiff continued to treat with defendants for seven more years, during which, defendants provided plaintiff with regular exams, cleaning, bleaching, bonding and crowns.

On November 24, 2000, defendants examined and cleaned plaintiff's teeth. Defendants' records indicated that no abnormalities were noted. On March 2, 2001, plaintiff made an emergency appointment with defendants complaining of severe pain and swelling in her mouth and face. Plaintiff was diagnosed with a parotid sialolithiasis, a blocked salivary gland, and defendants prescribed an antibiotic and pain medication for her condition. Defendants continued to treat plaintiff's condition with antibiotics for a period of five months. Defendants' treatment initially relieved plaintiff's symptoms; however, the pain and swelling returned. Defendants neither referred nor reevaluated plaintiff during that five-month period.

On August 18, 2001, plaintiff returned to defendants, again complaining of pain and swelling in her mouth. That same day, defendants removed tooth number 15, a molar, from the upper left side of plaintiff's mouth. Following the procedure, plaintiff complained of increased pain and swelling in the area surrounding tooth number 15. Defendants prescribed antibiotics and pain medication for plaintiff's deteriorating condition. At the end of August 2001, plaintiff sought treatment from her physician, Dr. Gill, relative to the condition in the upper left side of her mouth. Plaintiff complained to Dr. Gill that following defendants' extraction of tooth number 15, the pain and swelling around that area worsened. Dr. Gill prescribed an antibiotic for plaintiff.

Sometime in August 2001, plaintiff began to insert foreign objects into her mouth in an attempt to relieve the inflammation and pain in her gums and jaw. Plaintiff used pencil erasers, tweezers, a make-up brush, Sharpie brand marker caps and paper clips, in addition to her fingers. In September 2001, plaintiff used a pair of tweezers to remove a bone or tooth fragment on her own from the area where tooth number 15 was extracted. She testified in her deposition that the tooth fragment caused significant pain and irritation to her gums. Plaintiff presented the fragment along with the tweezers used to remove it to defendants on September 12, 2001, during an appointment. Defendants prescribed pain medication for plaintiff in September, 2001.

On the same day plaintiff presented the tooth or bone fragment to defendants, she also visited Dr. Gill, who examined her mouth and ordered a CT scan. The CT scan revealed that plaintiff suffered from a sinus infection. On September 14, Dr. Gill informed plaintiff that the sinus infection was caused by defendants' extraction of tooth number 15 and prescribed antibiotics for her treatment. On October 3, 2001, Dr. Gill admitted plaintiff to Hinsdale Hospital as a result of the infection and her pain and swelling. An examination of plaintiff revealed that a fistula, an opening between two cavities, developed between plaintiff's mouth and sinus cavity. Bacteria from plaintiff's mouth entered into her sinus cavity through the fistula causing a severe infection in her upper left jawbone area and severe inflammation and pain.

On October 8, 2001, plaintiff underwent an endoscopic sinus surgery performed by Dr. Cynthia Go, an otolaryngologist. The endoscopic procedure was performed to alleviate the swelling and pain and treat the infection in plaintiff's mouth. A second surgery was performed on October 10, 2001, to insert a catheter to administer antibiotics intravenously to treat the sinus infection. Following the surgeries, plaintiff remained at Hinsdale Hospital for two weeks and was discharged. On October 29, 2001, plaintiff was readmitted to Hinsdale Hospital because she complained of weakness and an altered mental state. Plaintiff's medications were regulated and she was released after one week. Three days following her discharge, she was re-admitted to repair a broken catheter line. On November 9, 2001, plaintiff was diagnosed with a severe sinus infection, upper left jawbone infection, and chronic facial pain syndrome.

On November 19, 2001, Dr. Go and Dr. Gregory Stevens performed a third surgery on plaintiff to repair the opening that allowed bacteria to enter plaintiff's sinus cavity from her mouth in the area of tooth number 15. While performing the surgery, Drs. Go and Stevens determined that tooth number 14 was also severely infected and they extracted the tooth. Following the surgeries, plaintiff returned to defendants for a general examination on December 11, 2001. Plaintiff could not recall if she was treated by defendants on that day.

On or around February 26, 2002, plaintiff commenced treatment with Dr. Ronald Schefdore. Dr. Schefdore cleaned plaintiff's teeth and created a mouth guard for her to wear at night to prevent her from grinding her teeth. Dr. Schefdore referred plaintiff to several specialists for treatment including a root canal specialist, gum specialist, oral surgeon and dentists at the University of Illinois at Chicago.

On December 11, 2003, plaintiff filed this lawsuit against defendants alleging that defendants failed to perform adequate and thorough examinations to diagnose temporomandibular disorder (TMD) and properly treat or refer plaintiff for treatment of TMD by a specialist. It was further alleged that defendants: failed to diagnose and treat plaintiff's gum disease, tooth decay, abscesses and bone loss; improperly performed the extraction of tooth number 15; misdiagnosed plaintiff's condition as a blocked salivary gland; and failed to heed plaintiff's continued complaints of pain and discomfort following the extraction of tooth number 15. Defendants denied any negligence and discovery commenced.

On February 8, 2006, defendants filed their motion to dismiss pursuant to section 2-619(a)(5) of the Code. 735 ILCS 5/2-619(a)(5) (West 2006). Defendants argued that plaintiff failed to file her complaint prior to the expiration of the statute of limitations provided in section 13-212(a) of the Code. 735 ILCS 5/13-212(a) (West 2006). Specifically, defendants assert that plaintiff knew, or should have known, as early as October 3, 2001, and no later than November 19, 2001, that defendants negligently misdiagnosed her TMD and negligently treated her symptoms. Plaintiff responded arguing that defendants' continuous treatment until December 11 2001, barred dismissal under the continuous treatment doctrine and that her complaint was filed within two years of terminating her treatment with defendants.

The circuit court granted defendants' motion and dismissed plaintiff's complaint with prejudice. The circuit court held that "plaintiff's own deposition demonstrates that she knew or should have known of her injury and its wrongful cause prior to November 19, 2001." The court based its decision on plaintiff's testimony that she knew that the sinus infection, for which she was admitted to Hinsdale Hospital, was caused by defendants' treatment. The circuit court further rejected plaintiff's contention that the continuing course of negligent treatment doctrine barred the court from dismissing her complaint because defendants treated her on December 11, 2001. The circuit court held that the continuing course of negligent treatment doctrine did not apply because plaintiff did not allege in her complaint or present any evidence that defendants' treatment was negligent on December 11, 2001.

Plaintiff filed a motion to reconsider the circuit court's order dismissing her complaint contending that the court misapplied the discovery rule to facts of this case. Plaintiff argued that her statements did not equate to an admission that she knew her injury was wrongfully caused but, rather, that the negative results were due to the prior treatment. The circuit court rejected this assertion, ruling that under the circumstances, a reasonable person would have been put on inquiry that actionable conduct may have accrued. The circuit court was "unwilling to believe that after all of [the] problems and negative results and armed with the knowledge that the dentist's removal of a tooth caused a sinus infection that a reasonable person would not have sufficient information to investigate whether Dr. Gossett's care fell below the standard of...