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12/10/87 Joanne Jacobson, v. Steven R. Natonson

December 10, 1987

JOANNE JACOBSON, PLAINTIFF-APPELLANT

v.

STEVEN R. NATONSON, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 304, 164 Ill. App. 3d 126, 115 Ill. Dec. 102 1987.IL.1820

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Joanne Jacobson, appeals from a judgment entered on the verdict of a jury in favor of defendant, Steven R. Natonson, D.D.S., in a dental malpractice action. Plaintiff contends the trial court erred in applying the dental malpractice statute of limitations and repose (Ill. Rev. Stat. 1983, ch. 110, par. 13-212) so as to bar evidence of defendant's allegedly negligent conduct while treating her.

Plaintiff commenced this action on May 1, 1985, to recover damages alleged to have been sustained as a result of negligent dental care and treatment by defendant. The complaint, as amended, stated that plaintiff was defendant's patient from 1969 through 1984, and he treated her continuously during that period. Plaintiff alleged that she came under the care of another dentist in June 1984, when she learned, for the first time, that she was suffering from severe bone loss and advanced periodontal infection; that defendant had failed to properly diagnose her condition during his treatment of plaintiff; that he failed to consult with other dentists to determine the condition of plaintiff's mouth, teeth and gums; that defendant failed to treat plaintiff for or advise her of the periodontal and endodontal condition for which she suffered and failed to refer plaintiff to a specialist for treatment of the condition. The complaint further alleged that defendant failed to exercise the normal and customary care commonly exercised by other dentists in these circumstances and, as a proximate result of defendant's negligence, plaintiff was injured by the loss of teeth and bone in her mouth. In his answer, defendant denied any negligence in treating plaintiff and alleged as an affirmative defense that plaintiff had contributed to her own injuries by failing to exercise proper oral hygiene and that her conduct was the proximate cause of any damage sustained. As a second affirmative defense, defendant alleged that the dental statute of limitations and repose barred this action as plaintiff knew, or should have known, of her alleged injury prior to May 1, 1985, when the complaint was filed.

Prior to trial, on motion of defendant, the court entered an order in limine under which plaintiff was barred from offering evidence of any negligent acts or omissions by defendant in treating her which had occurred prior to May 1, 1981, as time barred by virtue of section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-212) and Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, irrespective of whether or not they were first discovered by plaintiff after May 1, 1981. The in limine order also provided that as the complaint alleged there had been a continuous course of treatment by defendant between 1974 and 1984, that evidence of defendant's negligent conduct after May 1, 1981, was not time barred unless the action was brought more than two years after plaintiff discovered or should have discovered such conduct. The court further ordered that while acts or omissions by defendant prior to May 1, 1981, could not be the basis for any recovery by plaintiff for defendant's negligence, such conduct may be admissible on the question of plaintiff's knowledge of her injury more than two years prior to filing suit. Plaintiff's motion for an order in limine preventing defendant from offering evidence of any conduct by plaintiff prior to May 1, 1981, which contributed to her injuries was denied by the trial court.

The case went to trial under these limitations and plaintiff testified she had received dental care exclusively from defendant from 1969 to April 1984, during which time he had treated her on more than 60 occasions. She testified, inter alia, that defendant told her she had gum problems, but not that she had periodontal disease, and he discouraged her from seeing a periodontist. Plaintiff's condition worsened, and in May 1984, she consulted another dentist, Dr. Steven Potasknick, who referred plaintiff to periodontists. Gum surgery was recommended; six teeth were pulled and the surgery performed in July 1985. Plaintiff was cross-examined in detail as to her failure to see her dentist more often prior to May 1, 1981, and as to her personal oral hygiene.

Defendant testified, inter alia, that plaintiff's poor oral hygiene and failure to keep some dental appointments with him prior to 1981 caused damage to her teeth and gums. He stated that he was aware in 1969, when he began treating plaintiff, that she had periodontal disease and treated it with an oral hygiene program. Defendant testified that he did not refer plaintiff to a periodontist, but did inform her that expensive and painful gum surgery was available. Plaintiff's condition did not improve under defendant's care.

Dr. Potasknick testified for plaintiff as an expert witness, stating that subsequent to 1981, plaintiff's condition could not be managed by a general practitioner of dentistry and that home care would not arrest the disease. In the witnesses' opinion, defendant deviated from the standard of care by which a dentist's conduct is measured by failing to adequately manage the condition and failing to refer plaintiff to a periodontal specialist after May 1, 1981.

Two dental hygienists who were employed by defendant during 1974 through 1977 and in 1979, testified they had treated plaintiff and she lacked proper oral hygiene.

Dr. Gerald Miller, a specialist in periodontal therapy, testified as an expert witness for defendant that defendant's conduct conformed to the requisite standard of dental care and his treatment was proper. Dr. Miller gave as his opinion that plaintiff's failure to have her teeth professionally cleaned from 1977 to 1979 and to practice proper oral hygiene contributed to her tooth loss.

The jury was instructed by the trial court as to comparative negligence, proximate cause and the affirmative defense of the two-year statute of limitations. The jury was also instructed that "[based] upon rulings of law made by this court, evidence in this case has been admitted for a limited purpose. Evidence of acts occurring prior to May 1, 1981, have [ sic ] been admitted strictly on the issue of proximate cause. That evidence is not to be considered by you on the issues of negligence or contributory negligence." The jury was further instructed that plaintiff charged defendant with ...


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