Harris v. Raymond

• Decision Date: 02 September 1999
• Docket Number: No. 71S05-9805-CV-276.,71S05-9805-CV-276.
• Citation: 715 N.E.2d 388
• Parties: David J. HARRIS, D.D.S., and Michiana Oral and Maxillofacial Surgery, Inc., Petitioners/Appellants (Defendants Below), v. Mary J. RAYMOND, Robert E. Raymond, Donna Bennett, Commissioner of Insurance, and G. Anthony Bertig, Respondents/Appellees (Plaintiffs Below).
• Court: Indiana Supreme Court

715 N.E.2d 388

David J. HARRIS, D.D.S., and Michiana Oral and Maxillofacial Surgery, Inc., Petitioners/Appellants (Defendants Below), v. Mary J. RAYMOND, Robert E. Raymond, Donna Bennett, Commissioner of Insurance, and G. Anthony Bertig, Respondents/Appellees (Plaintiffs Below).

No. 71S05-9805-CV-276.

Supreme Court of Indiana.

September 2, 1999.

Rehearing Denied November 9, 1999.

Kevin Charles Murray, Sandra Boyd Williams, Locke Reynolds Boyd & Weisell, Indianapolis, Indiana, Attorneys for Appellants.

Debra Lynch Dubovich, Levy & Dubovich, Highland, Indiana, Priscilla A. Herochik, Merrillville, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

SELBY, J.

David J. Harris, D.D.S. and Michiana Oral and Maxillofacial Surgery, Inc. ("defendants") challenge the trial court's denial of their motion for summary judgment on the question of the applicability of the two-year medical malpractice statute of limitations, Indiana Code § 34-18-7-1(b) (1998), which defendants assert as a bar to the malpractice claims of Mary Raymond and her husband Robert Raymond. The Raymonds allege that Harris, after inserting Vitek dental implants in Mary Raymond's jaw, negligently failed to warn her of the dangers associated with the implants after he received a safety alert regarding these implants from the Food and Drug Administration ("FDA").

We hold that the statute of limitations contained in the Medical Malpractice act cannot constitutionally be applied to bar Raymond's claim. We reach this conclusion by a careful application of the recently decided case, Martin v. Richey, 711 N.E.2d 1273 (1999) [hereinafter "Martin"], which held that the two-year medical malpractice statute of limitations could not operate to bar a claim where the long latency period of a defendant's disease prevented the discovery of the asserted negligence until after the statutory limitations period had run. We find that Raymond, like the plaintiff in Martin, could not have discovered the asserted negligence until after the statutory limitations period had run, and, consequently, that the application of the two-year statute of limitations would unconstitutionally deprive her of a claim when she had no reason to know of the existence of her claim. We further hold Raymond timely filed her claim after discovering the asserted negligence. Accordingly, we conclude that the trial court properly denied defendant's motion for summary judgment, and we remand for further proceedings not inconsistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

The facts material to this dispute as to the application of the medical malpractice statute of limitations here are undisputed.¹ Plaintiff Mary Raymond experienced severe jaw pain for several years. Her dentist referred her to defendant Dr. David Harris for evaluation of her temporomandibular joint ("TMJ") dysfunction. On June 11, 1986, defendant performed surgery in an effort to correct the dysfunction. He inserted Vitek Proplast Teflon discs into her jaw. Thereafter, plaintiff continued as defendant's patient. She consulted him regarding her implant and pain that she was experiencing on several dates, including July 25, 1988. Plaintiff's last office visit was on July 12, 1990, at which time defendant removed two teeth.

Sometime in 1991, Dr. Harris responded to an inquiry concerning the implants by an insurance adjuster following a work-related injury to plaintiff's jaw. Later in 1991, plaintiff relocated from Indiana to Arizona. She sent defendant her new address and a check for copies of her dental records. Defendant cashed the check and forwarded the records to her. Plaintiff found a dentist in Arizona, but she asserts that she nevertheless continued to regard defendant as her dentist as well. Plaintiff also asserts that she tried to reach defendant by telephone in July of 1992 and on April 5, 1993, and the April 5th call is noted on her chart.

In March of 1990, Vitek, the manufacturer of the implants, issued a safety alert and at that time the FDA asked Vitek not to sell more implants until it completed its safety investigation. On or about December 28, 1990, the FDA issued a safety alert to all oral and maxillofacial surgeons regarding serious problems resulting from the Proplast implant and recommending notification of patients to obtain immediate and appropriate radiographic examination. At approximately that time or shortly thereafter, the FDA also issued a recall order. Defendant testified that he was aware that the FDA had asked Vitek not to continue to sell the implant in March of 1990, and that, at about that time, he stopped using the implants. He further testified that he did not remember receiving written information from the FDA regarding the implants until December 1991, and, at that time, defendant's staff attempted to contact patients who had received the implants and to send them the information. Defendant testified that he felt that he had an obligation to notify patients of the FDA safety alert. Plaintiff maintains that she did not receive any communication from defendant regarding the safety of the implants, and defendant does not dispute this fact or explain why she was not notified, except to say that her name was not on the list of patients with implants that his staff had compiled.

In March of 1993, plaintiff developed a severe earache and began bleeding from the ear. She consulted a doctor who thought she might have a tumor.² In fact, upon removal of the suspicious mass, she learned that it was a piece of Teflon. She had further tests, including a CAT scan which showed that her dental implants had shattered.

On April 28, 1993, Dr. Colyer removed the implants. He has opined that they were the normal size and shape of preformed implants and did not appear to have been trimmed or contoured to fit plaintiff's jaw as is generally done to prevent overextension and impingement upon the external boundaries of the joint. Dr. Colyer was unable to remove all of the pieces of the implant, and plaintiff had follow-up surgery performed by another physician. Some pieces of Teflon remain imbedded in her jaw and cannot be removed. As a result of the shattered implant, she asserts that she has suffered damages, including a perforated ear drum and muffled hearing.

Prior to having the implants removed, she asserts that she had heard or read nothing regarding the safety of Vitek implants or the FDA recall.

Plaintiff filed her initial complaint on August 16, 1993 and her amended complaint on January 25, 1994. She alleges, among other things, that defendant failed to properly disclose the risks associated with the implants and implant surgery; that he negligently performed the implant surgery; and that he failed to warn her that the implants were defective and likely to cause injury and for the need of radiologic evaluation and/or removal of the implant even after he knew or should have known of the risks.

Defendant moved for summary judgment on the ground that plaintiff's claims were barred by Indiana Code § 34-18-7-1(b) (1998) (formerly § 27-12-7-1(b) (1993)), the medical malpractice statute of limitations. Plaintiff opposed this motion and argued, among other things, that the statute of limitations was unconstitutional and that, under the doctrine of continuing wrong, plaintiff's complaint was timely filed.

The trial court denied defendant's motion for summary judgment. The Court of Appeals affirmed the trial court and, citing Martin v. Richey, 674 N.E.2d 1015 (Ind.Ct. App.1997), held that the statute of limitations was unconstitutional on its face under Article I, Sections 23 and 12, the Privileges and Immunities and Open Courts Clauses of the Indiana Constitution. 680 N.E.2d 551 (Ind. Ct.App.1997). We subsequently granted transfer and vacated the Court of Appeals decision in Martin, as well as the decision of the court below. 698 N.E.2d 1192 (Ind.1998). In Martin, 711 N.E.2d 1273 (Ind.1999), we declined to hold that the statute is unconstitutional on its face. Nevertheless, we did hold in Martin that, under Article I, Section 12 and Section 23 of the Indiana Constitution, the two-year occurrence-based statute of limitations may not constitutionally be applied to preclude the filing of a claim before a plaintiff either knows of the malpractice and resulting injury, or discovers facts, which in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.³ See id. at 1279.

DISCUSSION

Defendant challenges the trial court's denial of his motion for summary judgment on the question of the applicability of the two-year medical malpractice statute of limitations, Indiana Code § 34-18-7-1(b), which defendant asserts as a bar to plaintiff's claims.

Under Martin, we find, based on the facts of the present case, the statute of limitations is unconstitutional as applied, and, as a result, we need not reach the issue of whether the doctrine of continuing wrong allows the plaintiff relief. In other words, Raymond, like Martin, could not have discovered the alleged negligence within the statutory period, and to apply the statute of limitations would force her to bring a claim before she knew or reasonably could have known of the existence of such claim.

In Parts I and II, we discuss two preliminary issues that were not directly addressed by the parties on appeal. The first issue relates to the applicability of § 34-18-7-1(b) in this case. The second issue is the validity of plaintiff's third claim of negligence, that is, defendant's breach of his duty to warn plaintiff of the safety issues related to her dental implants. In Part III, we discuss the constitutionality and application of the medical malpractice statute of limitations on the facts of this case.

I. Applicability of the Medical Malpractice Statute

Both parties assume that the applicable statute of limitations in this case is the medical malpractice statute of limitations, § 34-18-7-1...