Snoke v. Bolen, No. A051904

• Court: California Court of Appeals
• Writing for the Court: HANING; LOW, P.J., and KING
• Citation: 235 Cal.App.3d 1427,1 Cal.Rptr.2d 492
• Parties: Frances SNOKE, Plaintiff and Appellant, v. William BOLEN, D.D.S., Defendant and Respondent.
• Docket Number: No. A051904
• Decision Date: 14 November 1991

Page 492

1 Cal.Rptr.2d 492 235 Cal.App.3d 1427 Frances SNOKE, Plaintiff and Appellant,
v.
William BOLEN, D.D.S., Defendant and Respondent. No. A051904. Court of Appeal, First District, Division 5, California. Nov. 14, 1991.

[235 Cal.App.3d 1429] Carolyn L. Rosenblatt, Mary McLain, Offices of Carolyn L. Rosenblatt, San Rafael, for plaintiff and appellant.

Arthur V. Pearson, Emilia L. Sweeney, Murphy, Pearson, Bradley & Feeney, San Francisco, for defendant and respondent.

HANING, Associate Justice.

Plaintiff/appellant Frances Snoke appeals a summary judgment in favor of defendant/respondent William B. Bolen, D.D.S. in her dental malpractice action. She challenges the trial court's ruling that

Page 493

her action was barred by the statute of limitations. (Code Civ.Proc., § 340.5.) ¹ FACTS

In November 1986 respondent Bolen, appellant's dentist, referred her to Dr. Paul McKee, an oral surgeon, for extraction of tooth number 5. McKee performed the extraction on January 6, 1987. On January 16, 1987, appellant returned to respondent for preparation of a dental bridge between teeth numbers 4 and 6. While preparing teeth numbers 4 and 6, respondent noted that a perforation had occurred on the distal aspect of the root of tooth number 6, most likely caused by a dental drill. The perforation appeared on an x-ray taken January 16. On approximately January 20 respondent informed appellant of the injury and attempted to seal the perforation. It is undisputed that the perforation occurred sometime between January 6 and January 20, 1987. Respondent performed numerous treatments to salvage tooth number 6 and last treated appellant on December 5, 1988.

On February 26, 1988, appellant filed a complaint for dental negligence naming McKee and 20 Does, alleging that on or about January 6, 1987, she suffered injury to tooth number 6 and to the bone between teeth numbers 5 [235 Cal.App.3d 1430] and 6. The complaint further alleges that she was under the care of defendants until January 20, 1987, at which time her injuries were made known to her. On May 19, 1988, respondent wrote to appellant's then counsel, Leonard Shaw, recounting the history of appellant's injury and stating that in his opinion, McKee caused the injury during the extraction procedure and that McKee's treatment was below the standard of care. On May 30, 1989, at appellant's request, respondent sent a similar letter to appellant's new counsel, Carolyn Rosenblatt. This letter also stated that respondent told appellant that when he contacted McKee to tell him of the injury, McKee said he would "take care of the costs" and would contact appellant immediately.

In February 1989 a dental expert appellant retained in connection with the litigation informed her that it could not be determined whether McKee or respondent had caused her injury, but that one or the other must have done so. A second expert confirmed that opinion. On April 21, 1989, appellant amended her complaint to substitute respondent for Doe 1.

Respondent moved for summary judgment on the ground that appellant's action against him was barred by the statute of limitations, and that her substitution of him for Doe 1 was improper. Appellant's unsigned declaration ² submitted in opposition to respondent's summary judgment motion states that she relied on respondent's assessment of her injury in initiating the action against McKee, and that at no time prior to filing her...