Farley v. Goode, 771244

• Decision Date: 02 March 1979
• Docket Number: No. 771244,771244
• Citation: 219 Va. 969,252 S.E.2d 594
• Court: Virginia Supreme Court
• Parties: , 3 A.L.R.4th 305 Janet FARLEY v. Roland E. GOODE. Record

Page 594

252 S.E.2d 594

219 Va. 969, 3 A.L.R.4th 305

Janet FARLEY v. Roland E. GOODE.

Record No. 771244.

Supreme Court of Virginia.

March 2, 1979.

A. Albert Balavage, Fairfax, for plaintiff in error.

John J. Brandt, Arlington (Slenker, Brandt, Jennings & O'Neal, Arlington, on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this malpractice action against a general dentist, we determine the time from which the applicable two-year statute of limitations began to run on a claim for allegedly negligent diagnosis and treatment.

Appellant Janet Farley, the plaintiff below, filed suit on November 19, 1976, seeking an award of damages against appellee Roland E. Goode, a dentist practicing in Fairfax County. Plaintiff alleged that during a course of treatment by defendant, which extended over a period of years and which ended in August of 1976, defendant "failed to properly examine, diagnose, and threat her for a periodontal disease of her teeth and gums . . . ." With his grounds of defense in which he denied that he was guilty of any negligence, defendant filed a plea of the statute of limitations.

At the trial on the merits and after the plaintiff had presented her case-in-chief, the court below sustained defendant's motion to strike the plaintiff's evidence, ruling that the action was time-barred. We granted plaintiff a writ of error to the June 1977 final order entering summary judgment in favor of the defendant and dismissing her suit.

Viewing the evidence, as we must, in a light most favorable to the plaintiff, the record shows that in 1966, when plaintiff was about 30 years of age and married, she selected defendant as "a family dentist." From 1966 to 1969, defendant examined and treated plaintiff on at least 20 occasions for her dental problems. During this period of time, defendant took X-rays of her mouth, recommended "root canals" for several teeth, cleaned her teeth, filled some teeth, had at least one temporary tooth made for her, offered a "treatment plan" for crown and bridge work, placed a temporary upper partial denture in her mouth, and performed necessary crown and bridge work during which 12 upper and four lower teeth were "capped".

From September of 1969 to June of 1972, plaintiff did not see defendant for treatment. Plaintiff's explanation for this hiatus was that defendant had stated her "teeth would last a lifetime". Defendant advised, according to plaintiff, that she should brush her teeth "very lightly in order not to wear the plastic (caps) off", so she thought her "mouth was in good shape" and "saw no reason to go have my teeth cleaned."

Plaintiff returned to defendant for treatment on June 14, 1972, either for "cleaning and check" or "for a cavity." She next saw defendant on two occasions during 1973 complaining of bleeding gums and because of her concern that "the caps were wearing off and the gold underneath was showing".

Plaintiff next visited defendant in January of 1974, at which time X-rays of her mouth were taken. Plaintiff testified that she saw defendant twice in November of 1974 because she was "having some bleeding". Again, according to plaintiff, defendant stated that her teeth were "in good shape" and that they would "last a lifetime because they (had) been capped." During one of the November visits, plaintiff told defendant that her teeth "in the lower right section" were loose and that "two teeth in the front were spreading apart".

Plaintiff was not treated by defendant during 1975. In 1976, according to plaintiff's testimony, she visited defendant on "several" occasions when her teeth were loose, and defendant performed "filling work".

Plaintiff saw defendant for the last time professionally on August 23, 1976. On that date, plaintiff went to defendant's office because one tooth was "very loose". She testified that following an X-ray, defendant advised she had experienced "bone loss" and that the tooth must be extracted. Plaintiff stated that in response to her inquiry as to the cause of her bone loss, defendant told her that her "bite was probably off." Plaintiff testified that at no time during that visit, or at any other time during his course of treatment, did defendant make any reference to periodontal disease.

Because of her concern about having had a tooth extracted "which was very close to the front of my mouth", plaintiff obtained an appointment to see Dr. David C. Buckis, who was in the general practice of dentistry in Centreville. Upon his first examination, Buckis observed that plaintiff's teeth were loose and determined that she had lost the "attachment apparatus" in the right side of her mouth. Because the looseness seemed "extensive", Buckis immediately referred plaintiff to Dr. John Armstrong, a periodontist with offices in Falls Church.

When Armstrong first examined the plaintiff within two weeks of her last visit to defendant, Armstrong determined that she had "advanced periodontal disease". Armstrong testified that this disease, of which the dental profession had become "rather acutely aware" during "the past ten years", affects the tooth and the gum around the tooth, resulting in destruction of the bone. He stated that the disease, which develops slowly and gets progressively worse if untreated, is caused by inflammation which in turn is caused by bacteria.

The first oral examination by Armstrong revealed bone loss around most of the teeth, dental decay, red gum margins and looseness of teeth. A probing examination, conducted with a hand instrument calibrated in millimeters and placed between the tooth and the gum, revealed "pocket depths" far in excess of a "normal" depth of two millimeters. The plaintiff's medical testimony indicated that the gum tissue is usually attached very tightly within "a couple of millimeters of where the edge of the gum line is" and when periodontal disease develops, "this attachment migrates or comes away from the tooth" and a "pocket" or "space" results.

The expert testimony further showed that as early as in 1971, the plaintiff had an "active periodontal disease" which should have been discovered then by a general dentist exercising ordinary care in the Northern Virginia dental community. The testimony also showed that it was standard practice in that area of the state for a dentist routinely to examine a patient for periodontal disease when the patient would come in for "other work", such as treatment of teeth which had been "capped" or for mouth X-rays. In addition, Buckis testified that the practice in the area was to instruct a patient such as plaintiff, in whose mouth "appliances" had been installed, in the proper techniques for cleaning the teeth and for using dental floss so that these methods of dental hygiene would remove the bacteria which created the "periodontal problem." The plaintiff testified that defendant never gave her any instructions on such procedures.

The evidence further showed that had the periodontal condition been discovered in 1971 or soon thereafter, it could have been arrested and controlled with a minimal amount of treatment at a cost of about $700. The record also reveals that, as of the time of trial, the treatment which would be necessary to arrest the disease, including surgery and repositioning of the teeth, would cost approximately $10,000. In addition, according to the evidence, plaintiff would be required to regularly see a periodontist for a visit lasting an hour and a half every three to four months over a period of 20 years for "maintenance activity" in order to preserve the work to be done by Buckis and Armstrong in treating the plaintiff's disease.

In sustaining the plea of the two-year statute of limitations, the court below relied on Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187 (1966), and Morgan v. Schlanger, 374 F.2d 235 (4th Cir. 1967). The trial judge ruled, in effect, that the periodontal disease existed prior to November 19, 1974; that plaintiff's evidence showed a breach of duty by defendant before that time, which, of course, was more than two years before this suit was filed on November 19, 1976; that plaintiff's cause of action thus accrued before November of 1974 when the defendant first negligently failed to diagnose and treat the condition; and that it did not accrue when plaintiff discovered defendant's negligent conduct.

On appeal, plaintiff argues that defendant's regular "treatment of Farley up to the year 1976, . . . constituted continuing negligence and thus, Farley should be entitled to . . . present her claim for full damages as a result of the cumulative effect thereof . . . ." She contends that her "case falls within the . . . rules of continuing treatment, or continuing negligence or continuing service . . ., and that so far as her proofs will allow, (she should) have her damages determined from the time of initial negligence . . . ."

Responding to that argument, defendant contends that to apply a continuing treatment rule to this case would encroach upon "the fixed Virginia principle that the right to sue accrues on the date of the injury", Citing Caudill v. Wise Rambler, Inc., 210 Va 11, 168 S.E.2d 257 (1969). Defendant points out that plaintiff's expert testimony clearly showed that the periodontal disease was present before 1974 "and should have been attended to in 1971". Thus, defendant notes, "the claimed acts of dental malpractice, to-wit: failure to diagnose and treat periodontal disease," occurred a "considerable period of time before" 1974, and "her cause of action obviously accrued" at that earlier time. Relying on Hawks v. DeHart and Morgan v. Schlanger, defendant says we should decline to apply a continuing treatment rule to the facts of this case, also stating certain policy reasons why the application of such a concept should be rejected. We do not agree with defendant's contentions.

In Hawks v. DeHart, the...