Follis v. Watkins

855 N.E.2d 579, 367 Ill. App. 3d 548, 305 Ill. Dec. 412, 2006 Ill. App. LEXIS 844
Appellate Court of Illinois·Decided September 14, 2006·No. 4-05-0963·Published·Cited by 10 cases

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

On January 2, 2004, plaintiff, Linda A. Follis, filed a complaint alleging professional negligence against defendant, D. Michael Watkins, D.M.D. On November 10, 2005, the trial court (1) granted partial summary judgment in defendant’s favor because the statute of repose excludes evidence of any claims of negligence by defendant that occurred before January 2, 2000; and (2) stated that (a) plaintiffs claims involving allegations of a continuing course of negligent medical treatment were novel in nature and it only found two cases on point and (b) its ruling excluding evidence of allegedly negligent care prior to January 2, 2000, was deserving of a Supreme Court Rule 304(a) order (155 Ill. 2d R. 304(a)). On appeal, plaintiff contends the trial court erred in granting partial summary judgment because a genuine issue of material fact exists as to whether defendant’s alleged negligent care was part of a continuing course of negligent dental care. We reverse and remand.

Plaintiffs complaint alleged defendant treated her from March 5, 1994, through April 9, 2002. During this period, defendant solely provided all of plaintiff’s dental care and treatment. On or about October 16, 2002, plaintiff came under the care of Brad Halleck, D.D.S., after moving to Washington state. Plaintiff complained of a lump on her upper left jaw that was causing a throbbing pain. The lump was later discovered to be the result of an infection due to decay of plaintiff’s teeth. Dr. Halleck found the crown and fillings in plaintiffs mouth had been improperly sealed and her two front bridges were inadequately secured. He further found significant and extensive decay in 15 teeth.

Plaintiff’s complaint also alleged defendant failed to use the ordinary skill and care that would ordinarily be used by a reasonably well-qualified dentist under similar circumstances in the following ways: defendant (1) failed to properly diagnose and/or restore plaintiffs teeth; (2) failed to properly install a bridge at teeth Nos. 5 and 6; (3) failed to properly install a bridge at teeth Nos. 11 through 13; (4) improperly prepared or placed fillings at teeth Nos. 3, 4, 5, 10, 13, 18, 20, 29, 30, and 31; (5) misrepresented and fraudulently concealed the nature and scope of work he supposedly performed from plaintiff, in that he had seated a bridge on Nos. 5 through 7, when in fact the bridge was only on 5 through 6; and (6) misrepresented and fraudulently concealed the nature and scope of work he supposedly performed, in that he charted that he placed a bridge on Nos. 10 through 12, when in fact No. 10 was never treated. The complaint further alleged defendant’s treatment of plaintiff between March 5, 1994, and April 9, 2000, constituted an ongoing and continuous course of negligent dental treatment and that such treatment was so related as to constitute one continuing wrong.

On December 20, 2004, defendant filed a motion for summary judgment and a memorandum of law in support of the motion for summary judgment. Defendant contended the statute of limitations bars any claims for negligence occurring before January 2, 2002, or alternatively, if one presumed plaintiff’s allegations invoked the discovery rule, then plaintiffs limitation period for filing a cause of action was controlled by the four-year statute of repose. Thus, any and all claims regarding care and treatment provided to plaintiff prior to January 2, 2000, were barred by the four-year repose period. Attached to the memorandum was the deposition of Bradley Halleck, D.D.S.

On October 3, 2005, plaintiff filed a response to defendant’s motion for summary judgment. Plaintiff alleged her complaint is not barred by section 13 — 212(a) of the Code of Civil Procedure (Code) (735 ILCS 5/13 — 212(a) (West 2004)) because the continuing-course-of-negligent-treatment exception applies here. Attached to plaintiff’s response were the depositions of defendant, Bradley Halleck, D.D.S., and plaintiff. Plaintiffs affidavit was also attached.

The depositions of Dr. Timothy Nelson, Dr. David Coons, and Dr. Shawn Aaron, and the certified statement of Jill Miller, a former dental assistant of defendant’s, were also part of the record.

In his deposition, defendant testified he first saw plaintiff as a patient on March 5, 1994. His notes from the initial visit indicated plaintiff needed an occlusal filling on tooth No. 3. An occlusal filling is a filling on the chewing surface or top of the tooth. Tooth No. 2 needed a distal filling, which is a filling in the rear or back of the tooth. Teeth Nos. 20 and 29 each needed a distal occlusal filling, which is a filling in the back and top of the tooth. Defendant testified that although his chart indicated tooth No. 2 needed a distal amalgam and tooth No. 3 needed an occlusal amalgam (filling), his records do not indicate he ever did the needed work and defendant could not say why the charts do not indicate he ever did this work. Defendant acknowledged that, if one assumed this work was never done, he breached the standard of care with respect to teeth Nos. 2 and 3.

Defendant testified he examined plaintiff and performed the following dental care. On April 16, 1994, he placed a distal occlusal amalgam on tooth No. 20, and on May 29, 1994, he placed a distal occlusal amalgam on tooth No. 29. He recemented a bridge at tooth No. 5 on the upper right on June 28, 1994. On September 17, 1994, defendant saw plaintiff for an exam and noticed decay on the mesial aspect, or front, of tooth No. 15. On October 10, 1994, defendant placed a mesial occlusal amalgam on tooth No. 15.

Defendant next saw plaintiff on March 8, 1995. He temporized a broken tooth (No. 19) and informed plaintiff she needed a crown. Plaintiff saw defendant on March 17, 1995, and defendant’s notes indicated he did crown preparation that day. On April 11, 1995, he placed the crown on tooth No. 19.

Plaintiff had an appointment on May 30, 1995, for routine examination and cleaning. Defendant noticed decay on tooth No. 20. On June 21, 1995, defendant placed a distal occlusal amalgam on tooth No. 20. One week later, he placed a mesial occlusal amalgam on tooth No. 31. On August 15, 1995, defendant placed a distal occlusal lingual amalgam (which is on the back, top, and tongue side of the tooth) on tooth No. 18, and on December 6, 1995, defendant did his semiannual exam and cleaning of plaintiffs teeth.

Plaintiff visited defendant twice in 1996, on June 8 and December 18. Defendant noticed decay on tooth No. 3 during the December 18 examination.

On February 1, 1997, defendant placed a distal occlusal amalgam on tooth No. 3. His notes for that day noted plaintiff needed a filling on tooth No. 18. On February 15, 1997, defendant placed a distal occlusal lingual amalgam on tooth No. 18.

On July 2, 1997, plaintiff visited defendant for a routine examination, cleaning, and X rays. Defendant’s notes from this visit indicated plaintiffs teeth Nos. 3 and 13 needed fillings. On August 16, 1997, defendant placed a distal occlusal amalgam on tooth No. 3, placed a mesial occlusal distal amalgam on tooth No. 13, placed a facial composite on tooth No. 6, and recemented the bridge on tooth No. 5.

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Follis v. Watkins, 855 N.E.2d 579, 367 Ill. App. 3d 548, 305 Ill. Dec. 412, 2006 Ill. App. LEXIS 844 (Ill. Ct. App. 2006).

855 N.E.2d 579 (Follis v. Watkins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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