On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Michels, Bilder and Wallace. The opinion of the court was delivered by Michels, P.J.A.D.
Plaintiffs Joyce White and Robert White appeal from a summary judgment of the Law Division that dismissed their dental malpractice action against defendant Steven Katz, D.D.S. on the ground that the action was barred by the statute of limitations.
Plaintiff Joyce White treated with defendant on four separate occasions, beginning some time in January of 1989. Defendant indicated to plaintiff upon her first visit that she had some cavities, and that her teeth needed to be cleaned and scaled. Pursuant to this evaluation, a treatment regimen was commenced. According to plaintiff, the initial three visits with defendant entailed the cleaning and scaling of her teeth, which
was performed by an associate or assistant of defendant. Thereafter, "follow-up dental work" was to be performed, which involved the matter of plaintiff's cavities.
The fourth visit, which took place on March 30, 1989, is the one from which the allegations of dental malpractice arise. Plaintiff was experiencing pain as a result of a cavity on one of her rear molars. Defendant indicated that he could either fill the cavity or remove the tooth. When plaintiff asked whether removal was necessary, defendant responded that the tooth in question served no purpose. In light of this, plaintiff instructed defendant to "do whatever he felt was best." Defendant elected to extract the tooth. He did not, however, take an X-ray of the tooth prior to beginning the attempted extraction. Instead, he simply gave plaintiff an injection of anesthesia, and tried to remove the tooth. It was plaintiff's estimation that defendant attempted unsuccessfully to extract the tooth for a total time of "twenty to thirty-five minutes." Plaintiff was in pain throughout, and at times was moaning from it. Dr. Katz was "pulling" and "twisting" the tooth, and he expressed to his assistant a disbelief that it would not come out.
At some point, defendant stopped the procedure and ordered an X-ray of the tooth. The X-ray revealed that there was a hook on the root of the tooth, but defendant indicated that he was still going to try to pull it. After using a pick to pry the gum away from the tooth, defendant renewed his efforts at extraction. Eventually, the pain became unbearable for plaintiff, and she was forced to grab defendant's hand and tell him to stop.
Immediately after concluding the attempted extraction, defendant referred plaintiff to Dr. Feinstein, an oral surgeon. Plaintiff went to see Dr. Feinstein the very same day. Upon arriving at his office, plaintiff noted that her initial dose of anesthesia, which had been given by defendant, was starting to wear off. Consequently, she was experiencing pain in "what felt like the whole side of [her] face." Dr. Feinstein proceeded
to view the X-ray that defendant had sent over with the patient, and he stated that he "couldn't understand why [defendant] wanted to pull the tooth." Dr. Feinstein explained to plaintiff, and showed her on the X-ray, that the root of the tooth was curled underneath the jaw bone, and that it was sitting on a nerve. In light of this, and because of the fact that the tooth "only had a spot on it," Dr. Feinstein recommended that plaintiff not have the tooth pulled. Dr. Feinstein then placed stitches in plaintiff's mouth, in order to repair the area where defendant had pulled the gum away from the tooth, and released her.
Plaintiff later returned to Dr. Feinstein on April 5, 1989 to have the stitches removed. At this time, plaintiff indicated to Dr. Feinstein that she was having "funny feelings" in her face. Specifically, she noted that she was experiencing "twitching," "jerking," "numbness" and "pains." Dr. Feinstein opined that these problems were only temporary, and would probably go away. Despite the doctor's optimism, plaintiff eventually realized that her problems were not temporary in nature. In fact, in 1991 she was still experiencing "tingling sensations" and "numbness" in her mouth. As a result, plaintiffs decided to institute a dental malpractice action against defendant.
On March 28, 1991, plaintiffs attempted to file a complaint with the Clerk of the Superior Court by filing with the Atlantic County Clerk's Office. The complaint was received in the Office of the Superior Court by the Deputy Clerk of the Superior Court in Atlantic County on March 28, 1991. However, discerning that the complaint had not been prepared or signed by a New Jersey attorney, the clerk declined to file the complaint, and, in fact, returned it to Lewis P. Hannah, Esq., the Pennsylvania attorney who had forwarded it for filing. Thereafter, on April 5, 1991, an identical complaint was submitted on behalf of ...