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Rankin v. Sowinski

Decided: June 3, 1972.


Collester, Mintz and Lynch. The opinion of the court was delivered by Collester, P.J.A.D.


Defendants appeal from the denial of their motions for summary judgment in this dental malpractice action.

On January 15, 1969 Florence Rankin (hereafter plaintiff) instituted suit against defendants to recover damages for injuries sustained as a result of the alleged negligence of the defendants. Her husband joined in the suit per quod. In her complaint plaintiff alleged that on February 3, 1964*fn1 Dr. Ronald Sowinski negligently extracted an impacted wisdom tooth causing an injury to her jaw. She also alleged that Dr. Joseph Ruff on February 6, 1964 and Dr. Mark

Donner on February 12, 1964 negligently diagnosed her injury and failed to render proper treatment. Defendants answered denying negligence and raised as a special defense the bar of the statute of limitations, N.J.S.A. 2A:14-2. At the subsequent pretrial conference plaintiff added the charge that defendants fraudulently concealed the fact of her injury and the cause thereof.

Following answers to interrogatories and depositions of the parties, defendants moved for summary judgment of dismissal on the ground that plaintiff's cause of action was barred by the two-year statute of limitations. The court denied the motions and defendants appealed.

The record consists of the pleadings, pretrial order, the interrogatories, and depositions of the parties. Mrs. Rankin testified that Dr. Sowinski extracted her impacted wisdom tooth on February 3, 1964. She said that during the extraction the dentist held the instrument in one hand and gripped her jaw tightly with the other. The hand on her jaw was positioned so as to form a "V" with the thumb and first finger, and Dr. Sowinski kept holding her jaw, applying pressure during the 15-minute period it took to remove the tooth. Two days later, when she began to eat solid foods, she discovered she could not open her mouth wide and that her jaw made a "clicking" noise when she chewed. She testified that she felt an injury had been inflicted upon her by Dr. Sowinski and saw him on February 6. He said the clicking noise was caused by her chewing too much on the right side of her mouth. He recommended that she should consult with Dr. Ruff, an oral surgeon, for his opinion.

Plaintiff testified that she was examined by Dr. Ruff on February 7, 1964. She stated, in answers to interrogatories, that she consulted Dr. Ruff on that day "for the purpose of examining and treating the injury inflicted upon her by Dr. Sowinski." She said that Dr. Ruff heard the clicking noise and told her that the "joint of her jaw" was slipping -- that the jaw shifted to the left side. Dr. Ruff recommended wiring her jaw and prescribed a muscle relaxing drug. He

told her to return within a week but she did not do so. She also testified Dr. Ruff said "in effect" that there was nothing wrong with her.

On February 14, 1964 Mrs. Rankin was examined by Dr. Mark Donner, an oral surgeon of her own selection. On her first visit Dr. Donner expressed the opinion that the clicking noise was due to a dislocation of the jaw and was caused by pressure having been applied to the jaw area during the extraction. On her second visit, three or four weeks later, Dr. Donner took X-rays of her jaw. He then said that it was not a true dislocation but she had lost fluid in the joint. He recommended cortisone injections to replace the fluid but said it would be painful and he could not guarantee that it would be the answer to the problem. Although she was supposed to return to Dr. Donner she did not do so.

Mrs. Rankin said that the clicking continued but she saw no other doctors or dentists until after she conferred with her lawyer in August 1968. He recommended that she see Dr. Ira Berlove, a dentist in New York City. She was examined by Dr. Berlove on September 12 and 19, 1968. When asked during the deposition hearing what Dr. Berlove's X-rays revealed and when she first realized the probability of malpractice existed, her attorney refused to permit her to answer.

In his deposition Dr. Sowinski said he extracted plaintiff's impacted wisdom tooth on March 3, 1964 but could not recall any complaint by plaintiff thereafter except discomfort which he attributed to the healing process. He referred her to Dr. Ruff to put her mind at ease. Dr. Ruff testified that he saw plaintiff only once, on March 17, 1964. His examination revealed a clicking of the jaw which he said was probably caused by the extraction. He prescribed a muscle relaxing drug and said it was very likely he told plaintiff about a possible wiring of the jaw. Although she was supposed to return in a ...

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