Opinion
No. 15–P–840.
09-02-2016
Eunkyung YOON v. Frank Y. SHIN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 19, 2015, a Superior Court judge dismissed the plaintiff's complaint against Frank Y. Shin and Frank Y. Shin, D.M.D ., P.C. (collectively, the defendant), pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The judge concluded that the dental malpractice and negligence claims were barred by the three-year statute of limitations and that the misrepresentation, deceit and conversion claims were barred on an additional ground, namely the plaintiff's failure to allege facts necessary to support them. The plaintiff appeals, arguing that she did not discover the defendant's negligence and malpractice until she obtained a second opinion from another dentist on June 22, 2011, and that, as a result, the statute of limitations did not begin to run until that date. In addition, she argues that she pleaded sufficient facts in her complaint to state a cause of action for claims of misrepresentation/deceit and conversion. We affirm.
Following an order for dismissal, the plaintiff filed a motion for reconsideration, which was denied. The plaintiff did not appeal from that order and does not present any argument as to it on appeal.
Discussion. Dental malpractice. The plaintiff filed her complaint on June 20, 2014. The defendant had treated the plaintiff between September 17, 2010, and June 3, 2011; thereafter, the plaintiff declined any further treatment from him. She asserts that she did not know of his negligence until she consulted another dentist, Dr. John Murphy, on June 22, 2011. Murphy told her that no root canal had been done and that a bridge should never have been put in. Based on that, she argues that the statute of limitations did not begin to run until June 22, 2011.
A dental malpractice claim must be filed within three years of the date that the cause of action accrues. G.L. c. 260, § 4. See Darviris v. Petros, 59 Mass.App.Ct. 323, 326 (2003). Such “a cause of action accrues when the plaintiff ‘(1) knew or had sufficient notice that she was harmed; ...’ “ Lindsay v. Romano, 427 Mass. 771, 774 (1998), quoting from McGuinness v. Cotter, 412 Mass. 617, 627 (1992). “It is not necessary that the plaintiff have notice that the defendant was actually responsible for the injury, only that she have knowledge or sufficient notice that the [dental] care given by the defendant may have caused the injury.” Id at 628.
For the purposes of the statute of limitations, the plaintiff need not have known that the defendant's treatment of her was negligent, but only that it likely caused her harm. See Harlfinger v. Martin, 435 Mass. 38, 41 n. 3 (2001) (“A cause of action for medical malpractice does not accrue until the patient learns, or reasonably should have learned, that [s]he has been harmed as a result of h[er] physician's conduct”). Here, the plaintiff alleged in her complaint that she experienced “extreme pain” for several months after the defendant's November 9, 2010, bridge placement; that the defendant re-cemented that bridge on at least three separate occasions thereafter; that she experienced “intense pain” after the May 26, 2011, procedure. She also knew by June 3, 2011 (her last appointment with the defendant), that tooth number four, one of the teeth affected by the previous procedures, had fractured. We agree with the motion judge that “[i]t is simply not plausible that [the plaintiff] did not know that her pain emanated from her dental treatment” performed by the defendant. As a result, the plaintiff's June 20, 2014, complaint, filed more than three years after she ended her treatment with the defendant, was untimely.
Misrepresentation/deceit. In order to recover for fraudulent misrepresentation (or “deceit”), the plaintiff must allege “that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to [her] damage.” See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007). Here, the plaintiff asserted in the statement of facts in her complaint that the defendant “recommended a root canal on the temporary bridge.” That recommendation, for a future course of action, cannot constitute an intentional and reckless misstatement.
As to plaintiff's allegation that the defendant “allegedly performed the root canal on or about May 26, 2011,” and the fact that another dentist told her later that “there was no evidence that a root canal had been performed,” those statements do not allege that the defendant told the plaintiff that he had performed a root canal. They also do not allege any reliance on such a statement or financial harm based on it. In sum, these factual allegations are insufficient to make out a case of misrepresentation. As to plaintiff's other allegations of misrepresentation, they are general legal conclusions that do not suffice to state a viable claim in support of a misrepresentation action. Iannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
Conversion. Conversion occurs when a defendant “intentionally or wrongfully exercises acts of ownership, control or dominion over personal property to which he has no right of possession at the time.” Bleicken v. Stark, 61 Mass.App.Ct. 619, 622 n. 2 (2004), quoting from Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass.App.Ct. 503, 507 (1985). “A demand is a necessary preliminary to an action for conversion where the defendant's possession is not wrongful in its inception and demand and refusal are required to put him in the position of a wrongdoer.” Id. at 506–507 (1985), quoting from Atlantic Fin. Corp. v. Galvam, 311 Mass. 49, 50–51 (1942). See also Restatement (Second) of Torts § 237 (1965). The plaintiff's conversion claim fails for the reason, if no other, that she failed to allege that she made a demand on the defendant for the return of any monies.
Even if we assume, however, that such demand was made, the plaintiff alleged in her complaint that the defendant pre-charged her for the extraction of tooth number three, that he attempted but failed to extract the tooth in October, 2010, that he referred her to a different dentist at that time, and failed to issue a refund. On those facts, the statute of limitations on the conversion claim began to run in October, 2010; the plaintiff's complaint was not filed until June of 2014, making the claim time-barred by the three-year statute of limitations. See Massachusetts Hous. Opportunities Corp. v. Whitman & Bingham Assoc., P.C., 83 Mass.App.Ct. 325, 328 (2013).
Judgment affirmed.