Walk v. Ring

• Decision Date: 24 April 2002
• Docket Number: No. CV-01-0090-PR.,CV-01-0090-PR.
• Citation: 202 Ariz. 310,44 P.3d 990
• Parties: Jimmye WALK, a single person, Plaintiff-Appellant, v. Dale J. RING, D.D.S. and Christine L. Ring, husband and wife; Dale J. Ring, D.D.S., Ltd., a limited partnership, Defendants-Appellees.
• Court: Arizona Supreme Court

44 P.3d 990

202 Ariz. 310

Jimmye WALK, a single person, Plaintiff-Appellant, v. Dale J. RING, D.D.S. and Christine L. Ring, husband and wife; Dale J. Ring, D.D.S., Ltd., a limited partnership, Defendants-Appellees.

No. CV-01-0090-PR.

Supreme Court of Arizona, En Banc.

April 24, 2002.

Plattner Verderame, P.C., by Richard S. Plattner, Phoenix, Attorneys for Plaintiff-Appellant.

Jennings Strouss & Salmon, P.L.C. by Frederick M. Cummings (formerly with White & Cummings, P.C.) David B. Earl, Phoenix, Attorneys for Defendants-Appellees.

OPINION

FELDMAN, Justice.

¶ 1 This is another in the long line of claimed professional negligence cases in which our courts have examined the manner in which the discovery rule and constructive fraud theories apply to toll the statute of limitations.

¶ 2 Jimmye Walk (Plaintiff) brought an action against Dr. Dale J. Ring (Defendant) for dental malpractice in 1997. The trial judge granted summary judgment to Defendant on the basis of the statute of limitations, and the court of appeals affirmed. See Walk v. Ring, No. 1 CA-CV-00-0233 (filed Feb. 8, 2001) (mem. dec.). We granted review to examine and reconcile Arizona's cases applying discovery and fraud theories to the statute of limitations for claims of professional or fiduciary negligence. We have jurisdiction under article VI, § 5(5) of the Arizona Constitution.

FACTS

¶ 3 We are required to view the facts and all legitimate inferences in the light most favorable to Plaintiff, the party against whom summary judgment was granted. Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990).

¶ 4 Plaintiff consulted Defendant, a dentist practicing in Prescott. Defendant ultimately recommended a full-mouth reconstruction, which involved grinding down and crowning all of Plaintiff's teeth. The reconstruction work began in 1991 and took several months, with different sections of teeth being worked on at different times. Plaintiff previously suffered from a type of temporomandibular joint (TMJ) problem. Defendant was aware of this before starting his work and sent Plaintiff to Doctor Hodges for evaluation. Doctor Hodges examined Plaintiff and concluded that her TMJ problems were not causing any significant pain prior to the start of Defendant's reconstruction procedures. However, shortly after Defendant began his grinding and crowning work, Plaintiff began to suffer from pain in her jaw; she reported significant TMJ pain to Defendant in October 1991, following an eleven-hour reconstruction session.

¶ 5 From late 1991 through fall 1992, Defendant not only consulted with Doctor Hodges about the TMJ problem but made numerous adjustments in an effort to relieve Plaintiff's pain, including removal and replacement of crowns and adjusting the splint. The pain did not subside, and by late 1993 Defendant was no longer proceeding with reconstruction. Instead, he was working with Doctor Hodges to adjust Plaintiff's bite in an attempt to resolve her TMJ problems, which by now had become severe, requiring administration of narcotics and other palliative efforts.

¶ 6 In October 1993, Defendant referred Plaintiff to Doctor McDonald, a Phoenix dentist whose practice emphasized the treatment of TMJ problems and reconstruction work. The history taken by Doctor McDonald indicated that Plaintiff's head and neck pain had commenced with Defendant's reconstruction work. In June 1994, Defendant evidently concluded that he was unable to help Plaintiff. He told her that because the outcome of the reconstruction work was not what he had hoped or expected or what Plaintiff deserved, he was referring her to Doctor McDonald and would pay for McDonald's treatment. A confirming note in Defendant's chart, dated June 28, 1994, reads as follows:

Told [Plaintiff] that I needed to refer her to Jim McD. if he will accept this case. I'd certainly pay for the treatment, not because I did anything wrong, but rather that the outcome was not as I had expected or what she deserved. She said she didn't think I did anything wrong but it had been a learning experience we don't want to repeat.

(Emphasis added.)

¶ 7 Doctor McDonald's notes indicate that he took over Plaintiff's TMJ treatment in August 1994 at Defendant's expense because Defendant essentially "threw up his hands" and no longer knew how to help Plaintiff. After August 1994, Defendant saw Plaintiff primarily for routine maintenance, such as examinations and cleanings; he left the bulk of her TMJ treatment to Doctor McDonald while continuing to perform minor adjustments and writing prescriptions for pain medication.

¶ 8 Sometime after the initial 1993 referral, Doctor McDonald concluded that the TMJ problems were attributable to Defendant's reconstruction work, specifically to the fact that the crowns inserted by Defendant were too long and had too steep an angle for occlusion, with the result that Plaintiff's jaw was mispositioned. Defendant, in fact, referred the matter to his insurance carrier in 1996. Doctor McDonald wrote the carrier after that, stating that Defendant's reconstruction and techniques were "contraindicated for someone with a TMD¹ condition," that he had spoken to Defendant, and that Defendant "understands that he was at fault."

¶ 9 Plaintiff was not told of this and claims she continued to believe that while the TMJ problems she was experiencing presumably were the result of Defendant's reconstruction work, the condition was simply an untoward result not attributable to any fault of Defendant. Plaintiff learned of Doctor McDonald's assessment in 1996, however, consulted an attorney, and filed a malpractice complaint against Defendant in 1997, well within two years of her discovery that McDonald believed Defendant had been at fault.

¶ 10 Defendant moved for summary judgment on the grounds that the two-year statute of limitations barred Plaintiff's claim. See A.R.S. § 12-542.² The trial judge granted this motion, and the court of appeals affirmed. We granted review to examine application of the discovery rule to this set of facts and to situations in which a patient is aware that she has been injured during the course of a physician's treatment but unaware that the injury is attributable to the physician's fault or neglect. We find considerable uncertainty, if not confusion, in the Arizona cases attempting to deal with such questions and believe the issue should be resolved. See Rule 23(c)(3), Ariz.R.Civ. App.P.

DISCUSSION

¶ 11 Plaintiff claims she was entitled to have a jury decide the disputed facts or draw the disputed inferences "as to when she discovered (knew or should have known) sufficient facts which caused her [claim] to accrue." Petition for Review at 1. She also contends that Defendant concealed the real cause of her problems and the statute was thereby tolled because of constructive fraud or fraudulent concealment. Finally, she argues that Arizona should adopt the continuing treatment rule, which tolls the statute of limitations while the patient continues to receive care from the physician.

¶ 12 Defendant contends, on the other hand, that it is the knowledge of injury that triggers accrual of the cause of action and running of the statute of limitations and that Plaintiff's "actual failure to comprehend that a potential claim exists will not prevent the accrual of the cause of action and will not toll the limitation period." Response to Petition for Review (Response) at 6 (citing Kowske v. Life Care Ctrs. of Am., Inc., 176 Ariz. 535, 537, 863 P.2d 254, 256 (App.1993)). Pointing out that in 1992 or 1993 Plaintiff was aware that her exacerbated TMJ problems were the result of Defendant's work, Defendant argues that our "law is clear that a plaintiff, armed with the fact that he has been injured and the identity of the person whose care inflicted the injury, has an obligation to exercise reasonable diligence in pursuing a claim." Response at 7 (citation omitted). Thus, concludes Defendant, Plaintiff did not investigate with reasonable diligence and her claim is barred.

¶ 13 The relevant statute of limitations bars claims such as this two years "after the cause of action accrues." A.R.S. § 12-542. Application of the statute's simple words has been difficult and the moment at which accrual occurs has been the subject of controversy in cases dealing with claims of professional or fiduciary negligence. Use of the word "accrues" in the statute of limitations permits judicial construction of the events or knowledge that will trigger accrual. See Kenyon v. Hammer, 142 Ariz. 69, 76 n. 6, 688 P.2d 961, 968 n. 6 (1984)

.

A. The discovery rule

1. Decision of the court of appeals

¶ 14 The court of appeals agreed with Defendant that Plaintiff "had an opportunity to discover Dr. Ring's negligence when she was treated by another dentist." Walk, mem. dec. at ¶ 11. The court of appeals concludes that because Plaintiff had such an opportunity, the statute of limitations began to run. Because Plaintiff "recognized her [TMJ] pain and its connection to Dr. Ring's full-mouth reconstruction at least by June 28, 1994, [the] cause of action accrued no later than that date." Id. at ¶ 14 (arguing by analogy to Kowske, 176 Ariz. at 537, 863 P.2d at 256). Thus, the 1997 action was time-barred. Id.

2. Arizona case law

¶ 15 In Kowske, the court of appeals held that the cause of action in a wrongful death case accrued when the surviving husband obtained medical records concerning his deceased wife. The statute was triggered at that time even though the doctor who forwarded the records stated that he "found no signs of misdiagnosis or mistreatment" and said that the autopsy also revealed nothing significant. Id. at 536, 863 P.2d at 255. The court held that the statute was not tolled even though plaintiff was not aware that his wife's death was attributable to negligence until he later consulted an attorney. Id. at 537, 863 P.2d at 256.

¶ 16 Kowske certainly is factually relevant to the present case....