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Abboud v. Viscomi

Decided: June 29, 1988.

MARIE ABBOUD, PLAINTIFF-APPELLANT,
v.
DOMINICK VISCOMI, D.D.S., DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.

Stein

The sole question before us is whether plaintiff's dental malpractice complaint was correctly dismissed by the trial court as barred by the two-year statute of limitations. After a hearing conducted pursuant to our decision in Lopez v. Swyer, 62 N.J. 267 (1973), the court found that plaintiff was aware that defendant had "done something wrong" in extracting her wisdom tooth more than two years prior to her commencing this action, and therefore dismissed her complaint. The Appellate Division affirmed, concluding that the record supported the court's findings of fact and decision. We conclude, however, that the trial court failed to consider certain equitable factors, absent from our previous "discovery rule" cases but implicated in this case. Accordingly, we reverse and remand for a new Lopez hearing.

I

The claims result from the extraction of plaintiff Marie Abboud's lower left wisdom tooth on July 1, 1980. Although the relevant statute of limitations is two years, N.J.S.A. 2A:14-2, plaintiff did not file suit until June 13, 1984, nearly four years after the alleged tort was committed. The dispositive issue is the date plaintiff's claim accrued, and specifically whether it accrued before or after June 13, 1982.

Defendant, Dr. Dominick Viscomi, first examined plaintiff on June 3, 1980, when she consulted him for a routine dental examination.*fn1 At the close of his examination, defendant recommended the extraction of plaintiff's wisdom tooth, and plaintiff agreed. The extraction was performed at defendant's office on July 1, 1980.

Plaintiff suspected almost immediately that something had gone wrong during the procedure, apparently because the extraction seemed more difficult to her than those she had experienced in the past; her testimony indicated that she questioned whether defendant had performed the correct procedure to effect the extraction. Afterwards, she experienced substantial pain, and failed to recover normal feeling on the left side of her tongue, cheek, and gums. In addition to a continuing loss of sensation, over the next few months plaintiff began to experience intermittently various symptoms, such as an inability to distinguish various tastes (e.g., sweet, sour) from one another and an inability to detect the location of her tongue while chewing, causing her on occasion accidentally to chew her tongue. Further, plaintiff developed "hypo-hyperthermia," a condition in which the affected portion of her mouth would feel exaggerated thermal sensations from food and drink; on one side of her mouth hot food and drink felt a great deal hotter than it actually was, and cold food and drink felt colder.

Defendant conducted several post-operative examinations during the week following the extraction, and subsequently saw plaintiff on three more occasions, in October and December 1980, and on January 5, 1981.*fn2 Abboud discussed her symptoms with defendant during these visits, and defendant told her the extraction had caused nerve and muscle damage. According to plaintiff, defendant also explained that her discomfort was a normal part of the healing process and that her condition was not permanent. As she described it, defendant told her, "nerve regeneration takes a very long time * * * [I]t's different in different people, and there [is] no real predictable time * * *. This [regeneration] can take a year or more." Significantly, plaintiff contends she was told that the intermittent nature of her symptoms was indicative of continuing regeneration and healing, and therefore a good sign.

Defendant agreed that the process of nerve regeneration had been discussed, and stated that he gave plaintiff a time frame of several months to a year from the extraction for healing to occur. In his words, he "was trying to get her to understand there that nature takes a long time to heal in some cases." Dr. Viscomi neither confirmed nor denied plaintiff's characterization of his statements regarding the symptoms' intermittent nature, but did say that as of plaintiff's last visit, six months after the extraction, he felt optimistic she would fully recover. At no time did defendant tell plaintiff her injury was or could be permanent, nor did he advise her to consult another doctor if her injuries failed to heal within a certain time.*fn3

After her last visit to Dr. Viscomi in January 1981, plaintiff continued to experience the same symptoms, still believing she was undergoing a normal healing process and that her injury was temporary. Her optimism was fortified when, at some point shortly after her last visit, plaintiff consulted her family doctor and was told to accept Dr. Viscomi's prognosis and stop worrying. Plaintiff later began to doubt defendant's claims that she would heal within a year, but at the same time continued to accept his representations that she would eventually recover. "The term 'a year or more' * * * became fuzzy," plaintiff testified, but because of the continuing intermittent nature of the symptoms, she "always kept in [her] mind that things were getting better."

In December 1983, nearly three years after her last visit to Dr. Viscomi, plaintiff arranged an appointment with a neurologist after learning about a service offering free examinations for New Jersey ...


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