Rankin v. Sowinski

• Decision Date: 13 June 1972
• Citation: 119 N.J.Super. 393,291 A.2d 849
• Parties: Florence RANKIN and Richard Rankin, Plaintiffs-Respondents, v. Ronald SOWINSKI, D.D.S., et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 393

119 N.J.Super. 393

291 A.2d 849

Florence RANKIN and Richard Rankin, Plaintiffs-Respondents, v. Ronald SOWINSKI, D.D.S., et al., Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 8, 1971.

Decided June 13, 1972.

Harry R. Burton, South River, for appellants Ronald Sowinski and Mark Donner (Burton, Quackenboss & Axelrod, South River, attorneys; Robert T. Quackenboss, South River, of counsel).

John E. Keef, New Brunswick, for appellant Joseph T. ruff (Cohen, Hoagland, Cohen & Keefe, New Brunswick, attorneys).

Melvin Tolstoi, Newark, for respondents (William O. Barnes, Jr., Newark, attorney).

Before Judges COLLESTER, MINTZ and LYNCH.

The opinion of the court was delivered by

COLLESTER, P.J.A.D.

Defendants appeal from the denial of their motions for summary judgment in this dental malpractice action.

On January 15, 1969 Florence Rankin (hereafter plaintiff) instituted suit against defendants to recover damages for injuries sustained as a result of the alleged negligence of the defendants. Her husband joined in the suit Per quod. In her complaint plaintiff alleged that on February 3, 1964 ¹ Dr. Ronald Sowinski negligently extracted an impacted wisdom tooth causing an injury to her jaw. She also alleged that Dr. Joseph Ruff on February 6, 1964 and Dr. Mark Donner on February 12, 1964 negligently diagnosed her injury and failed to render proper treatment. Defendants answered denying negligence and raised as a special defense the bar of the statute of limitations, N.J.S.A. 2A:14--2. At the subsequent pretrial conference plaintiff added the charge that defendants fraudulently concealed the fact of her injury and the cause thereof.

Following answers to interrogatories and depositions of the parties, defendants moved for summary judgment of dismissal on the ground that plaintiff's cause of action was barred by the two-year statute of limitations. The court denied the motions and defendants appealed.

The record consists of the pleadings, pretrial order, the interrogatories, and depositions of the parties. Mrs. Rankin testified that Dr. Sowinski extracted her impacted wisdom tooth on February 3, 1964. She said that during the extraction the dentist held the instrument in one hand and gripped her jaw tightly with the other. The hand on her jaw was positioned so as to form a 'v' with the thumb and first finger, and Dr. Sowinski kept holding her jaw, applying pressure during the 15-minute period it took to remove the tooth. Two days later, when she began to eat solid foods, she discovered she could not open her mouth wide and that her jaw made a 'clicking' noise when she chewed. She testified that she felt an injury had been inflicted upon her by Dr. Sowinski and saw him on February 6. He said the clicking noise was caused by her chewing too much on the right side of her mouth. He recommended that she should consult with Dr. Ruff, an oral surgeon, for his opinion.

Plaintiff testified that she was examined by Dr. Ruff on February 7, 1964. She stated, in answers to interrogatories, that she consulted Dr. Ruff on that day 'for the purpose of examining and treating the injury inflicted upon her by Dr. Sowinski.' She said that Dr. Ruff heard the clicking noise and told her that the 'joint of her jaw' was slipping--that the jaw shifted to the left side. Dr. Ruff recommended wiring her jaw and prescribed a muscle relaxing drug. He told her to return within a week but she did not do so. She also testified Dr. Ruff said 'in effect' that there was nothing wrong with her.

On February 14, 1964 Mrs. Rankin was examined by Dr. Mark Donner, an oral surgeon of her own selection. On her first visit Dr. Donner expressed the opinion that the clicking noise was due to a dislocation of the jaw and was caused by pressure having been applied to the jaw area during the extraction. On her second visit, three or four weeks later, Dr. Donner took X-rays of her jaw. He then said that it was not a true dislocation but she had lost fluid in the joint. He recommended cortisone injections to replace the fluid but said it would be painful and he could not guarantee that it would be the answer to the problem. Although she was supposed to return to Dr. Donner she did not do so.

Mrs. Rankin said that the clicking continued but she saw no other doctors or dentists until after she conferred with her lawyer in August 1968. He recommended that she see Dr. Ira Berlove, a dentist in New York City. She was examined by Dr. Berlove on September 12 and 19, 1968. When asked during the deposition hearing what Dr. Berlove's X-rays revealed and when she first realized the probability of malpractice existed, her attorney refused to permit her to answer.

In his deposition Dr. Sowinski said he extracted plaintiff's impacted wisdom tooth on March 3, 1964 but could not recall any complaint by plaintiff thereafter except discomfort which he attributed to the healing process. He referred her to Dr. Ruff to put her mind at ease. Dr. Ruff testified that he saw plaintiff only once, on March 17, 1964. His examination revealed a clicking of the jaw which he said was probably caused by the extraction. He prescribed a muscle relaxing drug and said it was very likely he told plaintiff about a possible wiring of the jaw. Although she was supposed to return in a week plaintiff did not do so. Dr. Donner testified that he examined plaintiff on March 20, 1964 at which time she complained of a clicking of the right temporomandibular joint. On May 4, 1964 he took X-rays and prescribed a muscle relaxing drug. The X-rays revealed a 'slight slippage.' She was to return on May 18 but did not keep the appointment.

The trial judge found that plaintiff knew she had sustained an injury to her jaw immediately after the extraction in 1964. However, he concluded that the discovery rule enunciated in Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961), was applicable and that the statute of limitations did not accrue until plaintiff realized the nature and extent of her injuries. He held that there were factual issues to be determined at a trial both as to the bar of the statute and the claim of fraudulent concealment by defendants.

Defendants contend here, as they did below, that the testimony shows that plaintiff knew her jaw was injured during the extraction in February or March 1964. They maintain that plaintiff's cause of action accrued on that day and thus was barred by the two-year statute of limitations. They argue that the discovery rule was not applicable to the facts of the case and, if it did apply, the testimony showed that plaintiff discovered she had been injured by Dr. Sowinski within two or three days after the extraction and before she was examined by Dr. Ruff and Dr. Donner. They further contend that there was no evidence of fraudulent concealment on the part of the defendants.

Plaintiff alleges the discovery rule applies because she did not know she had a cause of action until September 1968 when she was examined by Dr. Berlove. She further alleges that defendants fraudulently concealed the malpractice by Dr. Sowinski ski and such concealment tolled the accrual of the statute of limitations until she discovered the fraud. She argues that factual issues were raised in the interrogatories and depositions which should be determined by a jury and therefore the court properly denied the motions for summary judgment.

The central issue in this case is when plaintiff's cause of action accrued. The statute of limitations, N.J.S.A 2A:14--2, provides that every action for an injury to a person caused by the wrongful act or neglect of another 'shall be commenced within two years next after the cause of any such action shall have accrued.' In Tortorello v. Reinfeld, 6 N.J. 58, 65, 7 A.2d 240 (1950), the court, interpreting the statute, said it was firmly settled that the 'accrual' of a cause of action means the time when a right first arises to institute and maintain an invasion of one's rights against the wrongdoer, and that the statutory period is computed from that time.

Several exceptions to the rule have been made by our courts, including the 'discovery rule' laid down in Fernandi v. Strully, Supra. In that case the evidence indicated that a surgeon during an operation had left a foreign object, a wing nut from a retractor, in the plaintiff's body which was not discovered until more than three...