Fine v. Checcio

• Decision Date: 30 March 2005
• Docket Number: No. 55 EAP 2003, No. 68 WAP 2003.
• Citation: 870 A.2d 850,582 Pa. 253
• Parties: Eric FINE, Appellant, v. Mary Anne CHECCIO, D.D.S., Appellee. Rosezetta Marie Ward, Appellee, v. Jeffrey W. Rice, D.M.D. and Jeffrey W. Rice, D.M.D., P.C., Appellants.
• Court: Pennsylvania Supreme Court

870 A.2d 850

582 Pa. 253

Eric FINE, Appellant, v. Mary Anne CHECCIO, D.D.S., Appellee.

Rosezetta Marie Ward, Appellee, v. Jeffrey W. Rice, D.M.D. and Jeffrey W. Rice, D.M.D., P.C., Appellants.

Nos. , .

Supreme Court of Pennsylvania.

Argued April 15, 2004.

Decided March 30, 2005.

Allen Paul Neely, Esq., State College, for Jeffrey W. Rice, D.M.D., P.C.

Patrick John Loughren, Esq., for Rosezetta Marie Ward.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Chief Justice CAPPY.

These are consolidated appeals, in which Appellant Eric Fine ("Fine") sued Appellee Mary Anne Checcio, D.D.S. ("Dr. Checcio"), and Appellee Rosezetta Marie Ward ("Ward") sued Appellants Jeffrey W. Rice, D.M.D. and Jeffrey W. Rice, D.M.D., P.C. (collectively, "Dr.Rice"), for dental malpractice. Dr. Checcio and Dr. Rice each filed a motion for summary judgment based on the two year statute of limitations in 42 Pa.C.S. § 5524(2).¹ In their respective responses, Fine and Ward raised the discovery rule and the doctrine of fraudulent concealment. At the trial court level, Dr. Checcio's motion for summary judgment was denied, but Dr. Rice's motion for summary judgment was granted. The Superior Court reversed the trial court in both cases. We conclude that neither Dr. Checcio nor Dr. Rice was entitled to summary judgment. Accordingly, for the reasons that follow, we reverse the Superior Court's order in the appeal brought by Fine and affirm the Superior Court's order in the appeal brought by Dr. Rice.

The record on summary judgment in each of these cases may be summarized as follows:

Fine v. Dr. Checcio

In June of 1998, Dr. Checcio recommended that Fine's four wisdom teeth, three of which were impacted and one malaposed, be surgically extracted. Fine accepted Dr. Checcio's recommendation and signed a consent form, which set forth the complications and physical conditions that could follow the surgery. The consent form included: "Lip, tongue, chin, gums, cheeks, and teeth, Parasthesia/Anesthesia (Numbness may be permanent)". (R.198a). Dr. Checcio and Fine discussed the procedure and what Fine could expect. While Dr. Checcio testified in her deposition that she explained to Fine that the risk in his case for post-operative numbness was higher than usual because of the position of the inferior alveolar nerve in his mouth, Fine testified in his deposition that Dr. Checcio did not do so.

Dr. Checcio removed Fine's four wisdom teeth on July 17, 1998, cutting soft tissue and drilling bone. At that point, Fine had pain, bleeding, infection, swelling, and numbness on both sides of his face. As of July 17, 1998, Fine knew he was "hurt"; considered the conditions he was experiencing to be "normal"; believed the facial numbness to be one of several "after-surgery effects"; and found the numbness "significant" in scope. (R. 175a, 343a, 347a). Except for the numbness, these conditions disappeared entirely. From July 20, 1998 to October 9, 1998, Fine saw Dr. Checcio in her office on ten separate occasions. During each of the visits, Fine and Checcio discussed the lack of sensation that Fine continued to experience in his face. According to Fine, Dr. Checcio repeatedly told him that it would take about six months for the numbness to subside. According to Dr. Checcio, she consistently gave Fine a balanced prognosis, informing' him that in the worst case scenario, she would refer him to an oral maxillofacial surgeon for an evaluation. While sensation returned to most of Fine's face, the numbness in an area approximately two fingers in width and an inch in length on the left side of his lip and chin persisted. On April 16, 1999, Fine signed an authorization that permitted his attorney to retrieve his medical records from the surgery. About a year after the surgery was performed, Fine came to believe that the persistent numbness was abnormal. On August 8, 2000, Fine commenced an action in tort against Dr. Checcio. In his amended complaint, Fine alleged, inter alia, that Dr. Checcio was negligent in transecting his inferior alveolar nerve during the surgery and for failing thereafter to refer him to a neurosurgeon. Fine also alleged that the damage to the nerve caused him permanent facial numbness. Dr. Checcio raised the statute of limitations as an affirmative defense in her answer and new matter.

On November 5, 2001, Dr. Checcio filed a motion for summary judgment, asserting that Fine's action, filed on August 8, 2000, was time-barred under 42 Pa.C.S. § 5524(2), inasmuch as it was not filed within two years of July 17, 1998, the date of Fine's surgery. In response, Fine asserted that there existed material, disputed facts as to whether the limitations period was tolled under the discovery rule or the doctrine of fraudulent concealment. The trial court denied Dr. Checcio's motion for summary judgment, without opinion. The case proceeded to trial. On April 26, 2002, a jury returned a $500,000 verdict in Fine's favor. Dr. Checcio's post-trial motions were denied. A judgment was entered in Fine's favor on August 28, 2002. Dr. Checcio filed a timely appeal in the Superior Court.

On appeal, Dr. Checcio asserted, inter alia, that the trial court erred in denying her motion for summary judgment. In an unpublished opinion, the Superior Court agreed and reversed the judgment for Fine.² The Superior Court found that on July 17, 1998, when the surgery ended, Fine knew that he was hurt and that he was experiencing significant and unexpected numbness. Based on these facts, the Superior Court concluded that the discovery rule was inapplicable because Fine knew of his injury and its cause at the time the injury was inflicted. Determining that Fine failed to establish that Dr. Checcio either intentionally or unintentionally concealed the true nature of his injury from him, the Superior Court also concluded that the doctrine of fraudulent concealment was not triggered. Thus, the Superior Court ruled that the limitations period in 42 Pa.C.S. § 5524(2) began to run on July 17, 1998, and held that Fine's action, having been commenced more than two years from that date, was time-barred.

Fine filed a petition for allowance of appeal, which this court granted.

Ward v. Dr. Rice

On February 8, 1995, Dr. Rice recommended to Ward that her four impacted wisdom teeth be surgically removed and explained the surgical procedure he would perform. In Dr. Rice's experience, temporary paresthesias and anesthesias commonly followed the procedure. It was Dr. Rice's customary practice to inform patients like Ward that paresthesia and numbness to the lip were complications of wisdom tooth extraction. In his deposition, Dr. Rice testified that because Ward was older, he told her that the risk of numbness increases with age. Ward testified in her deposition that no such conversation with Dr. Rice took place. Dr. Rice's assistant provided Ward with a consent form, which she signed. In the consent form, Ward acknowledged that Dr. Rice had explained the nature, purpose, and results of the operation to her.

Dr. Rice surgically extracted Ward's four wisdom teeth on March 28, 1995, cutting tissue and drilling bone. Immediately following the surgery, Ward's face was sore and numb. When the hospital where the surgery was performed telephoned Ward the next day to inquire about her condition, Ward indicated that she was fine and did not mention the soreness or numbness. The numbness on the left side of Ward's face continued. Ward had numerous post-operative office visits with Dr. Rice, starting on April 5, 1995, and ending on January 22, 1996. During the visits, Ward and Rice discussed her facial numbness. Ward testified that Dr. Rice repeatedly told her that sensation would return in two months' time. Dr. Rice testified that he advised Ward that numbness is a complication of the operation he performed; that statistics show that feeling could return in about two months; and that because no one can know what the future holds, there was hope and a chance of recovery. At Ward's seventh office visit with Dr. Rice on September 20, 1995, Dr. Rice referred her to Steven Kaltman, D.M.D. On October 11, 1995, Ward consulted with Dr. Kaltman, who outlined options for treating the numbness and pain. Ward returned to Dr. Rice for one last office visit on January 22, 1996. In March of 1997, Dr. Rice referred Ward to another oral surgeon for a consultation. At that point, Ward decided to sue Dr. Rice.

On September 26, 1997, Ward commenced an action in tort against Dr. Rice. Ward alleged that Dr. Rice committed a battery in performing the surgery without her informed consent, and was negligent in severing her inferior alveolar nerve and for failing to refer her to a neurosurgeon for repair. Ward also alleged that Dr. Rice's battery and negligence caused her nerve damage, severe pain, numbness, and discomfort. Dr. Rice raised the statute of limitations as an affirmative defense in his answer and new matter.

On February 15, 2002, Dr. Rice filed a motion for summary judgment, asserting that the limitations period in 42 Pa.C.S. § 5524(2) expired on March 29, 1997, which was two years after the surgery, and that Ward's action, commenced on September 26, 1997, was barred under the statute. Ward responded that her action was timely insofar as the record showed that the statute of limitations was tolled under the discovery rule and the doctrine of fraudulent concealment.

On June 18, 2002, the trial court granted Dr. Rice's motion and ordered summary judgment in Dr. Rice's favor. The trial court determined that the discovery rule did not toll the statute of limitations on Ward's claims because Ward knew of her injury and its cause immediately following the surgery and knew that her condition was not improving. The trial court also determined that Ward did not sustain her burden of showing that Dr. Rice concealed Ward's condition from her inasmuch as she experienced pain and...