Dunbar v. Carlson

• Citation: 533 S.E.2d 913,341 S.C. 261
• Decision Date: 19 June 2000
• Docket Number: No. 3194.,3194.
• Court: Court of Appeals of South Carolina
• Parties: Frances DUNBAR, Appellant/Respondent, v. Paul H. CARLSON, D.M.D., Respondent/Appellant.

341 S.C. 261

533 S.E.2d 913

Frances DUNBAR, Appellant/Respondent, v. Paul H. CARLSON, D.M.D., Respondent/Appellant.

No. 3194.

Court of Appeals of South Carolina.

Heard May 8, 2000.

Decided June 19, 2000.

Rehearing Denied September 2, 2000.

Henry Hammer, Howard Hammer, G. Randall McKay and Arthur A. Aiken, all of Hammer, Hammer, Carrigg & Potterfield, of Columbia, for Appellant/Respondent.

Daniel R. Settana, Jr., and John R. Delmore, both of McKay & McKay; and Ruskin C. Foster, of McCutchen, Blanton, Rhodes & Johnson, all of Columbia, for Respondent/Appellant.

HEARN, Chief Judge:

This is a cross-appeal in a dental malpractice action. We affirm the trial judge's denial of Dr. Paul Carlson's motion to amend his answer to assert the statute of repose, and reverse his grant of Carlson's motion to amend to assert the statute of limitations and his grant of a directed verdict on that basis.

FACTUAL/PROCEDURAL BACKGROUND

Frances Dunbar began seeing Carlson in 1983 or 1984. He was her only dentist until 1994. Dunbar saw Carlson many times during this period, and on one of her visits he advised her to have all of her lower teeth crowned. However, Carlson only cleaned her teeth a couple of times during the ten years she was his patient, and he never informed Dunbar she was suffering from periodontal disease. During one two-year period, Carlson placed Dunbar on twenty regimens of antibiotics due to the infections she was having, and her face became badly swollen and painful. Nevertheless, Dunbar liked Carlson and never questioned his treatment.

After noticing Dunbar was constantly on antibiotics, her daughter, Rose Taylor, accompanied her on her last visit to Carlson on June 24, 1994. At that visit, Carlson announced that he had called the Medical University of South Carolina in Charleston and arranged for Dunbar to have all of her teeth extracted. He did not tell her she had periodontal disease. Taylor requested her mother's records and Dunbar was subsequently treated by Dr. Harold Jablon. Jablon found she had severe periodontal abscesses (infections of the teeth) and diagnosed her with "severe advanced periodontal disease."

Dunbar filed this medical malpractice action against Carlson on September 26, 1995, alleging he failed to diagnose and/or treat her periodontal disease, which ultimately resulted in severe bone loss and the extraction of all her teeth. Dunbar averred that in June 1994 she first became aware and was informed that she had severe bone loss and periodontal disease caused by Carlson's failure to diagnose and/or treat the condition during the time she was his regular patient.

At trial, Jablon was qualified as an expert in dentistry. He testified Dunbar's periodontal disease was the type of disease a general dentist would be expected to identify, and that it would be the obligation of the general dentist to inform the patient of the condition and provide treatment or to refer the patient to a specialist, such as a periodontist. He further testified that due to Carlson's failure to treat Dunbar, he ultimately had to extract all of her teeth due to severe advanced periodontal disease. Jablon found no indication in Carlson's notes that he had recognized this problem. He stated Dunbar should have been informed that she had a condition that needed treatment. Jablon estimated that when Dunbar came to him in 1994, her condition had been progressing for "six, seven years." When Jablon reviewed x-rays Carlson had taken of Dunbar, he could see some bone loss in one from September 1987 that would indicate the beginning stages of periodontal disease.

Rose Taylor, Dunbar's daughter, testified that she accompanied her mother on her last visit to Carlson, at which he announced he had made arrangements for Dunbar to have all of her teeth extracted at the Medical University in Charleston. She stated Carlson still did not inform her mother that she had periodontal disease, even at this last visit. On crossexamination, defense counsel asked Taylor whether when she first started going with her mother to see Carlson she thought anything was wrong. Taylor stated she supported her mother's decision, and that her mother had liked Carlson. Taylor then testified she had encouraged her mother to leave Carlson's care between 1992 and 1994. Upon further questioning from defense counsel, Taylor stated she could not be specific but thought she first advised her mother to leave Carlson in early 1992. Defense counsel stated, "Like February, March, April?" and Taylor stated that she became "very concerned" about her mother around that time.

Dunbar rested her case after this testimony. Carlson then moved to amend his answer to allege the defenses of the statute of repose and statute of limitations and for a directed verdict on those grounds. The trial judge denied the motion to amend as to the statute of repose. However, the trial judge granted Carlson's motion as to the statute of limitations and granted a directed verdict to Carlson on that ground. Both parties appeal.

LAW/ANALYSIS

I. Dunbar's Appeal

A. Statute of Limitations

Dunbar contends the trial judge erred in allowing Carlson to amend his pleadings to assert the affirmative defense of the statute of limitations. We agree.

After Dunbar rested her case at trial, defense counsel argued Carlson should be allowed to amend his pleadings to assert the three-year statute of limitations based on Taylor's testimony on cross-examination that she first advised her mother to leave Carlson in February, March, or April of 1992. Since this action was not filed until September 1995, defense counsel contended the three-year statute of limitations had run on Dunbar's claim and Carlson was entitled to a directed verdict on this basis. The trial judge agreed and allowed Carlson to amend his pleadings to conform to the evidence under Rule 15(b), SCRCP, and then granted his motion for a directed verdict based on the three-year statute of limitations.

Section 15-3-545(A) contains the statute of limitations governing medical malpractice actions. It provides a three-year limitations period for such claims, employing the discovery rule for determining the accrual date. S.C.Code Ann. § 15-3-545(A) (Supp.1999). The three-year statute of limitations begins to run when the facts and circumstances of the injury would put a person of common knowledge and experience on notice that some right of hers has been invaded or that some claim against a party might exist. Johnston v. Bowen, 313 S.C. 61, 64, 437 S.E.2d 45, 47 (1993).

Carlson did not plead the affirmative defense of the statute of limitations in his answer. See Rule 8(c), SCRCP. However, Rule 15(b), SCRCP, allows for amendments of pleadings to conform to the evidence presented at trial. It provides in pertinent part: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 15(b), SCRCP. The decision whether to allow the amendment of pleadings to conform to the evidence is left to the sound discretion of the trial court. Kelly v. South Carolina Farm Bureau Mut. Ins. Co., 316 S.C. 319, 323, 450 S.E.2d 59, 61 (Ct.App.1994). Amendments should be allowed if no prejudice occurs to the opposing party. Rule 15(b), SCRCP; Soil & Material Eng'rs, Inc. v. Folly Assoc., 293 S.C. 498, 501, 361 S.E.2d 779, 781 (Ct.App.1987).

Rule 15(b) covers two situations involving amendments to conform to the evidence. "First, if an issue not raised by the pleadings is tried by express or implied consent of the parties the court may permit amendment of the pleadings to reflect the issue. Second, if a party objects to the introduction of evidence as not being within the pleadings the court may permit amendment of the pleadings subject to a right to grant a continuance if necessary." Sunvillas Homeowners Ass'n, Inc. v. Square D Co., 301 S.C. 330, 334, 391 S.E.2d 868, 871 (Ct.App.1990). "Express consent may be demonstrated by a stipulation but implied consent depends on whether the parties recognized an issue not raised by the pleadings entered the case during the trial." Id. at 335, 391 S.E.2d at 871.

In this case, no objection was made to the evidence; therefore, the second part of the rule is not applicable. Further, there was no express consent. Thus, the question before us is whether the parties tried the issue by implied consent.

Carlson asserts Dunbar impliedly consented to the amendment based on her failure to object to her daughter's testimony. To the contrary, we find the failure to object in this case is evidence that Dunbar did not recognize the purpose for which Carlson sought to elicit this testimony. Carlson further argues Dunbar cannot claim the amendment prejudiced her since she did not object to the testimony. See Woods v. Rabon, 295 S.C. 343, 348, 368 S.E.2d 471, 474 (Ct.App.1988)

. We disagree. The prejudice to Dunbar is patent in that the trial judge granted a directed verdict against Dunbar immediately after permitting Carlson's amendment. Unaware this was an issue in the case, Dunbar had not offered any evidence regarding the statute of limitations.

Just prior to eliciting the testimony at issue, defense counsel repeatedly asked Taylor about her mother's health during the time she was being treated by Carlson. Counsel asked Taylor whether her mother's health "was bad" from 1992 to 1994, which Taylor confirmed. In a series of questions, defense counsel thereafter asked Taylor about her mother's hypertension, back surgery, knee problems, and neurological problems. He also asked about the fact that in 1993 to 1994, her mother's glucose levels "skyrocketed." He then asked her about taking toxic levels of medication. Counsel then stated, "When you first started going with your mother to Carlson, you never thought anything was wrong, did you? You were happy with his care; correct?" Dunbar responded, "I personally,...