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Oliviera v. Silva

Superior Court of New Jersey, Appellate Division

October 2, 2013

CIDARK OLIVIERA, Plaintiff-Appellant,
CLEBER P. SILVA, DDS, Defendant-Respondent.


Argued September 9, 2013.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4667-11.

Kenneth B. Grear argued the cause for appellant (Kenneth B. Grear, Ltd., attorneys; Mr. Grear, on the brief).

Robert T. Gunning argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Mr. Gunning, of counsel and on the brief).

Before Judges Yannotti and Ashrafi.


Plaintiff Cidark Oliviera appeals from an order entered by the Law Division on September 14, 2012, granting summary judgment in favor of defendant Cleber P. Silva and dismissing plaintiff's complaint with prejudice. We affirm.

On May 31, 2011, plaintiff filed a complaint in the Law Division against defendant, who is licensed to practice dentistry in New Jersey. Plaintiff alleged that in March 2008, defendant placed crowns on eight of his teeth, specifically teeth five through twelve. Plaintiff claimed that defendant was negligent and careless in his treatment.

Plaintiff alleged that the crowns placed by defendant had exposed roots and open margins, which could lead to infection, periodontal disease, potential tooth loss and expensive corrective dental work. Plaintiff alleged that defendant's negligence and carelessness consisted of, among other things, his failure to: take a complete history, conduct a comprehensive examination, and recognize that crowns should not be placed on substandard foundations.

Plaintiff further alleged that defendant did not obtain his informed consent before performing the aforementioned dental work. He claimed that defendant did not inform him of all the risks and complications of the dental procedures performed, or tell him about alternative procedures that could have been performed.

On August 16, 2012, defendant filed a motion for summary judgment, seeking dismissal of plaintiff's complaint with prejudice. Defendant argued that plaintiff was aware, or by the exercise of reasonable diligence, should have been aware, in April 2008, of the problems with all of the replacement crowns. Defendant argued that plaintiff's complaint should be dismissed because it was not filed within two years of that date, as required by N.J.S.A. 2A:14-2(a).

In support of his motion, defendant relied upon plaintiff's deposition testimony, in which plaintiff indicated that in 1999, he had crowns placed on seven upper-front teeth. Plaintiff acknowledged that in 2005, a dentist informed plaintiff he had "open margins" on the crowns and the crowns would have to be replaced. The dentist informed plaintiff that "open margins" may result if crowns are too small or if there was some problem with their placement.

In May 2006, plaintiff presented to defendant, complaining of ill-fitting crowns and open margins. Defendant told plaintiff some of the crowns would have to be replaced and plaintiff might require other dental treatment including root canal procedures. Plaintiff agreed to the treatment plan. Defendant prepared plaintiff's teeth and on March 31, 2008, placed replacement crowns on eight teeth.

At his deposition, plaintiff conceded that shortly after defendant installed the crowns, he complained to defendant of bulkiness, pain, swelling and open margins in the crowns. Plaintiff testified that he spoke with defendant about these complaints in April 2008, and in September 2008, defendant agreed to replace all of the crowns he had installed but indicated that he could not do so until certain periodontal work was performed by another dentist in the office. Plaintiff said he was aware that crowns should not have open margins and, if that occurred, it was the result of some error on the part of the dentist.

In support of his motion, defendant also relied upon a complaint that plaintiff filed with the New Jersey State Board of Dentistry, dated November 26, 2009. In that complaint, plaintiff stated that defendant did not perform the dental work properly. Plaintiff stated that some of the crowns had open margins. Plaintiff also stated that some of his teeth looked "bulky" and did not have an aesthetic appearance.

Plaintiff opposed defendant's motion. He submitted a certification in which he asserted that after defendant installed the crowns, he knew there were gaps or margins in the crowns on teeth five and six. Plaintiff said that defendant told him continuing treatment would correct the problem. Plaintiff claimed that, before June 6, 2009, he did not know there were problems with the crowns on teeth seven to twelve.

Plaintiff asserted that on June 6, 2009, while on a trip to Brazil, he was examined by Dr. André Luiz de Souza Braga and "first learned" that the crowns on teeth seven through twelve had open margins and gaps that would require "at a minimum complete revision." Plaintiff submitted a report from Dr. Braga concerning the June 6, 2009, examination, in which Dr. Braga stated that the crowns on teeth five through twelve had to be "exchange[d]."

Plaintiff also relied upon his deposition testimony, in which he was asked about Dr. Braga's examination. He testified:

Q. And why did you see Dr. Braga?
A. Because I [wanted] him to take a look to see how the crowns [were], and see if everything was okay besides the open margins.
Q. Now, you mentioned open margin. This is the same open margin that you were aware of in April of 2008?
A. One was, yeah.
Q. You say one. Was there more than one open margin?
A. Yeah, there's more than one. The teeth next to the one I had the open margin and other side was open margin.
Q. So you are saying now that there were three teeth with open margins, three crowns?
A. On the front, yeah, one or two — I mean, two or three.
Q. You spoke about one [that] was observed in 2008.
A. That's the — it was the same one I had when I had the first set of crowns.
Q. And my question is when did you first notice the other two open margins, approximately?
A. The next one was about the same time, when he finish[ed] with the treatment. But I didn't know this side of my mouth had an open margin, too.
Q. The inside?
A. Yes, on the top.
Q. And how did you make that observation?
A. Dr. Braga told me that. He checked my mouth and he told me.

The motion judge considered defendant's application on September 14, 2012, and placed his decision on the record that date. The judge determined that plaintiff's cause of action accrued when defendant placed the crowns on plaintiff's teeth. The judge determined that plaintiff's complaint was untimely because it had not been filed within two years of that date. The judge entered an order granting summary judgment in defendant's favor and this appeal followed.

Plaintiff argues that the motion judge erred by granting summary judgment to defendant on his claims regarding the crowns defendant placed on teeth seven through twelve. He contends that he did not learn of defendant's alleged negligent treatment of those teeth until June 6, 2009, when he was examined by Dr. Braga in Brazil. Plaintiff contends that the discovery rule applies and his claims regarding teeth seven through twelve did not accrue until June 6, 2009. He argues that his complaint was filed within two years of that date, which was in the time required by N.J.S.A. 2A:14-2(a). We do not agree.

As we have explained, plaintiff has asserted claims for personal injuries arising from defendant's alleged negligence and failure to obtain his informed consent. N.J.S.A. 2A:14-2(a) provides in pertinent part that "every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within 2 years next after the cause of any such action shall have accrued."

A "statute of limitations governs the period during which a party may bring a suit, and generally accrues from the date of the negligent act or omission." Martinez v. Cooper Hosp., 163 N.J. 45, 51 (2000) (citing Tortorello v. Reinfeld, 6 N.J. 58, 65 (1950)). However, "[t]o prevent the sometimes harsh result of a mechanical application of the statute of limitations, " the courts have adopted the discovery rule. Id. at 52 (citing Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987); Fernandi v. Strully, 35 N.J. 434, 449-50 (1961)).

Under the discovery rule, a cause of action will not accrue "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim" against another party. Ibid. (citing Lopez v. Sawyer, 62 N.J. 267, 272-73 (1973). The discovery rule prevents the statute of limitations from running when an injured party is reasonably unaware that he has been injured or, if he is aware of an injury, did not know the injury was attributable to another person's fault. Ibid. (citing Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998).

Here, defendant completed the replacement of crowns on eight of plaintiff's teeth on March 31, 2008. Plaintiff conceded in his deposition that in April 2008, he complained to defendant of bulkiness, pain, swelling and open margins in some of the crowns defendant installed. Plaintiff testified that he knew a crown should not have an open margin unless the dentist deviated from the applicable standard of care. It is clear, therefore, that plaintiff's cause of action accrued in March 2008, when the crowns were installed, because plaintiff was aware almost immediately thereafter of his injuries and the person allegedly responsible for those injuries.

Plaintiff nevertheless argues that his cause of action as to teeth seven through twelve did not accrue until he was examined by Dr. Braga on June 6, 2009. However, because plaintiff had complaints about some of the crowns that defendant installed in March 2008, he should have known by the exercise of reasonable diligence that there were the same or similar problems with the other crowns that defendant had installed at that time. The fact that plaintiff's injury was more extensive or worse than he may have initially believed did not defer the accrual of his cause of action. Beauchamp v. Amedio, 164 N.J. 111, 121 (2000).

Plaintiff's lack of informed consent claim also accrued when defendant installed the crowns. To establish a prima facie case of medical negligence based on a lack of informed consent, a plaintiff must establish that (1) the physician failed to comply with the applicable standard of disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the procedure had he or she been so informed; and (4) the procedure was a proximate cause of the plaintiff's injury. Teilhaber v. Greene, 320 N.J.Super. 453, 465 (App. Div. 1999) (citing Bennett v. Surgidev Corp., 311 N.J.Super. 567, 572-73 (App. Div. 1998)).

Here, plaintiff was aware almost immediately after defendant performed the dental work that two of the crowns which defendant installed were deficient. By the exercise of reasonable diligence he should have known that there were the same or similar problems with the other crowns. Plaintiff's claim that defendant failed to inform him of the risks of the procedure and discuss alternative treatments with him also accrued at that time.

Accordingly, we conclude that the trial court correctly determined that plaintiff failed to bring his claims within the time required by N.J.S.A. 2A:14-2(a) and the complaint was properly dismissed with prejudice.


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