Case Results
Gordon & Silber Obtains Summary Judgment Dismissing Claims as to Dental Treatment, Based on Statute of Limitations - Court Rejects “Fraudulent Concealment” Claim by Plaintiff - November 2007.
Type of Case: Dental Malpractice
Venue: Supreme Court of New York, Kings County
Background Facts: This dental malpractice action alleged multiple poorly performed root canal therapies and grossly ill fitting bridgework, requiring complete and costly re-do of the work, three extractions, and two apicoectomies all of which rendered her self-conscious of her smile. After leaving defendant's care, plaintiff returned to her prior dentist for revisional treatment.
We moved to dismiss a majority of the claims as time barred. Plaintiff opposed the motion, not on the usual "continuous treatment" argument, but rather on a claim of "fraudulent concealment". Plaintiff argued that plaintiff's affidavit as well as defendant's deposition testimony established an issue of fact as to the alleged concealment.
Our Strategy: We argued that plaintiff failed to adduce at defendant's deposition any true issue of "fraudulent concealment". We argued that a doctor's diagnosis, made in good faith, even if totally erroneous and itself a "departure", will not supply the basis for a claim of equitable estoppel or defeat the Statute of Limitations defense.
Concealment by, or failure of a physician to disclose his or her own malpractice, without more, does not give rise to a cause of action in fraud or deceit separate and distinct from the customary malpractice action. We argued plaintiff failed to proffer evidence of scienter or the necessary intent to defraud and the allegations she was "mislead" or "deceived" or "shocked", were insufficient in the absence of evidence of an intentional misrepresentation. We also argued plaintiff failed to proffer evidence of reliance upon the purported misrepresentations, noting that plaintiff sought second and third opinions.
Result: The Court held that the claims based on the vast majority of our client's treatment were time barred.
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