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Paske v. Green





Appeal from the Circuit Court of Cook County; the Hon. Benjamin S. Mackoff, Judge, presiding.


Rehearing denied April 22, 1986.

Plaintiff Eileen M. Paske filed a complaint against defendant James M. Green, D.D.S., her former dentist, claiming negligence, breach of contract, and breach of warranty. On defendant's motion, the trial court dismissed the action based on the applicable statute of limitations. Plaintiff appeals, arguing that the trial court erred in determining, as a matter of law, that her complaint was time-barred.

On December 31, 1981, plaintiff filed a two-count complaint against defendant dentist. The first count, alleging dental malpractice, stated that plaintiff employed defendant from 1974 through 1978 to perform various work on her teeth, including bridgework and treatment of her gums. Plaintiff claimed that the work performed by defendant was negligent and led to the loss of her dental bone structure, caused her to undergo periodontal treatment, and suffer a degenerative gum disease. Plaintiff also claimed that because of the negligent work performed by defendant, she had to suffer through nearly complete removal of the bridgework and undergo much dental work of a corrective nature. Plaintiff alleged that she did not discover defendant's negligence until 1980.

The second count, alleging breach of warranty, stated essentially identical facts but also claimed that defendant "expressly and impliedly warranted and contracted to render to plaintiff for valuable consideration, proper treatment, advice, and care in conformance with proper standards which the plaintiff relied upon."

Defendant filed an answer and affirmative defense, in which he essentially denied plaintiff's allegations and asserted that plaintiff's complaint was precluded by the applicable statute of limitations. Thereafter, on February 4, 1982, defendant submitted interrogatories to plaintiff in which plaintiff was asked whether she had been treated by another dentist since the alleged negligence. Plaintiff responded that commencing on March 18, 1980, she began going to a Dr. Donald Grubman. Dr. Grubman performed extensive dental work on plaintiff, including the removal of both upper and lower left and right bridges installed by defendant and the repair of other bridgework installed by defendant.

On July 14, 1983, defendant took plaintiff's deposition. Thereafter, on July 17, 1984, defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619), claiming that plaintiff's deposition showed that she either knew or reasonably should have known of defendant's negligence as of May 1978, the last date that plaintiff saw defendant. In applying the two-year "discovery rule" to the instant injury, defendant alleged that because plaintiff knew or should have known of her injury in May 1978, the statute of limitations had run well before she filed her suit on December 31, 1981.


• 1 The applicable statute of limitations at the time of the filing of the complaint provided:

"Actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued." (Ill. Rev. Stat. 1981, ch. 83, par. 15, now Ill. Rev. Stat. 1983, ch. 110, par. 13-202.)

However, when the patient is not aware of the injury during the two-year period, the limitation period does not begin to run until he or she learns of the injury. Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 40, 262 N.E.2d 450.

In Roper v. Markle (1978), 59 Ill. App.3d 706, 375 N.E.2d 934, the court clearly established two conditions which must be met before the statute begins running: (1) actual or constructive knowledge of both a physical problem; and (2) that someone is or may be at fault for its existence. (59 Ill. App.3d 706, 713, 375 N.E.2d 934.) this "discovery rule" of Roper was followed in Witherell v. Weimer (1981), 85 Ill.2d 146, 421 N.E.2d 869, where the court noted:

"In many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact. [Citation.]" (85 Ill.2d 146, 156, 421 N.E.2d 869.)

The court recognized that in certain situations a question of fact may not be present: "Where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court." ...

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