{ "id": 3451752, "name": "EILEEN M. PASKE, Plaintiff-Appellant, v. JAMES M. GREEN, D.D.S., Defendant-Appellee", "name_abbreviation": "Paske v. Green", "decision_date": "1986-03-25", "docket_number": "No. 85\u20140658", "first_page": "367", "last_page": "373", "citations": [ { "type": "official", "cite": "142 Ill. App. 3d 367" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "407 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 1102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3197335 ], "weight": 3, "pin_cites": [ { "page": "1102-03" }, { "page": "1107-08" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/1102-01" ] }, { "cite": "396 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3292226 ], "weight": 2, "pin_cites": [ { "page": "901" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0895-01" ] }, { "cite": "421 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "85 Ill. 2d 146", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469943 ], "weight": 4, "pin_cites": [ { "page": "156" }, { "page": "156" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0146-01" ] }, { "cite": "375 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357336 ], "weight": 2, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0706-01" ] }, { "cite": "262 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2900656 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0032-01" ] } ], "analysis": { "cardinality": 624, "char_count": 12458, "ocr_confidence": 0.766, "pagerank": { "raw": 8.010186615442483e-08, "percentile": 0.4644272696979631 }, "sha256": "b8fa411c70293ebfee7246c617a3c51f261ea4207693f5f1bed1ca88d607db41", "simhash": "1:1a63fae32b4dae52", "word_count": 2016 }, "last_updated": "2023-07-14T17:12:38.085084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EILEEN M. PASKE, Plaintiff-Appellant, v. JAMES M. GREEN, D.D.S., Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE BILANDIC\ndelivered the opinion of the court:\nPlaintiff Eileen M. Paske filed a complaint against defendant James M. Green, D.D.S., her former dentist, claiming negligence, breach of contract, and breach of warranty. On defendant\u2019s motion, the trial court dismissed the action based on the applicable statute of limitations. Plaintiff appeals, arguing that the trial court erred in determining, as a matter of law, that her complaint was time-barred.\nOn December 31, 1981, plaintiff filed a two-count complaint against defendant dentist. The first count, alleging dental malpractice, stated that plaintiff employed defendant from 1974 through 1978 to perform various work on her teeth, including bridgework and treatment of her gums. Plaintiff claimed that the work performed by defendant was negligent and led to the loss of her dental bone structure, caused her to undergo periodontal treatment, and suffer a degenerative gum disease. Plaintiff also claimed that because of the negligent work performed by defendant, she had to suffer through nearly complete removal of the bridgework and undergo much dental work of a corrective nature. Plaintiff alleged that she did not discover defendant\u2019s negligence until 1980.\nThe second count, alleging breach of warranty, stated essentially identical facts but also claimed that defendant \u201cexpressly and impliedly warranted and contracted to render to plaintiff for valuable consideration, proper treatment, advice, and care in conformance with proper standards which the plaintiff relied upon.\u201d\nDefendant filed an answer and affirmative defense, in which he essentially denied plaintiff\u2019s allegations and asserted that plaintiff\u2019s complaint was precluded by the applicable statute of limitations. Thereafter, on February 4, 1982, defendant submitted interrogatories to plaintiff in which plaintiff was asked whether she had been treated by another dentist since the alleged negligence. Plaintiff responded that commencing on March 18, 1980, she began going to a Dr. Donald Grubman. Dr. Grubman performed extensive dental work on plaintiff, including the removal of both upper and lower left and right bridges installed by defendant and the repair of other bridgework installed by defendant.\nOn July 14, 1983, defendant took plaintiff\u2019s deposition. Thereafter, on July 17, 1984, defendant filed a motion to dismiss pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 619), claiming that plaintiff\u2019s deposition showed that she either knew or reasonably should have known of defendant\u2019s negligence as of May 1978, the last date that plaintiff saw defendant. In applying the two-year \u201cdiscovery rule\u201d to the instant injury, defendant alleged that because plaintiff knew or should have known of her injury in May 1978, the statute of limitations had run well before she filed her suit on December 31,1981.\nI\nThe applicable statute of limitations at the time of the filing of the complaint provided:\n\u201cActions for damages for an injury to the person *** shall be commenced within two years next after the cause of action accrued.\u201d (Ill. Rev. Stat. 1981, ch. 83, par. 15, now Ill. Rev. Stat. 1983, ch. 110, par. 13-202.)\nHowever, when the patient is not aware of the injury during the two-year period, the limitation period does not begin to run until he or she learns of the injury. Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40, 262 N.E.2d 450.\nIn Roper v. Markle (1978), 59 Ill. App. 3d 706, 375 N.E.2d 934, the court clearly established two conditions which must be met before the statute begins running: (1) actual or constructive knowledge of both a physical problem; and (2) that someone is or may be at fault for its existence. (59 Ill. App. 3d 706, 713, 375 N.E.2d 934.) this \u201cdiscovery rule\u201d of Roper was followed in Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, where the court noted:\n\u201cIn many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact. [Citation.]\u201d (85 Ill. 2d 146, 156, 421 N.E.2d 869.)\nThe court recognized that in certain situations a question of fact may not be present: \u201cWhere it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court.\u201d Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869.\nPlaintiff contends that it was error to dismiss her complaint because a question of fact remained as to when plaintiff knew or should have known both of her injury and that defendant could have been the cause of injury. Defendant responds that the court may determine this issue as a matter of law in the proper circumstances.\nWe agree with defendant\u2019s proposition. However, the only circumstance in which such a determination can be made is \u201c[w]here it is apparent from the undisputed facts *** that only one conclusion can be drawn.\u201d Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869.\nDefendant referred to plaintiff\u2019s deposition for support of his argument that as a matter of law plaintiff knew or reasonably should have known both that she suffered an injury and that defendant could have been the cause of the injury over two years before filing her complaint. Defendant also makes repeated reference to plaintiff\u2019s deposition on appeal. However, as noted by plaintiff, her \u201cunhappiness about the shape, the feel, the color and the texture of her bridgework does not amount to knowledge of professional malpractice.\u201d Defendant also refers to plaintiff\u2019s deposition where she complained that her gums were painful and \u201cthey were all inflamed. They were all swollen. They used to bleed constantly.\u201d\nIt appears, as plaintiff argues, that defendant would have the court equate discomfort and dissatisfaction with knowledge that plaintiff suffered an injury at the hands of defendant. The record does not support such a conclusion and in fact supports the conclusion that plaintiff was neither aware that she suffered an injury nor that defendant could have been the cause prior to 1980. When discussing her dissatisfaction with the bridgework in general, plaintiff stated that when she voiced a complaint as to their color to defendant, \u201cHe said that that was the lightest that he could do; that they were matching my natural teeth, and they weren\u2019t.\u201d After the completion of the bridgework, plaintiff\u2019s gums began to bleed. Defendant then gave plaintiff acid treatments to \u201ccorrect\u201d her gum problem. Plaintiff stated that defendant told her that the acid treatments would \u201ccure\u201d the gums, although he never told her why her gums were bleeding. Plaintiff consequently thought that her gum problem \u201ccame with the bridgework,\u201d and \u201cwas something [she] just had to live with.\u201d For that reason, she did not stop going to defendant but continued her treatments because she thought defendant \u201cwas going to rectify [her gum problems].\u201d She finally stopped going to defendant in 1978, after having acid treatments approximately every six months from 1974 to 1978, because she thought \u201cwhat more could he do for me.\u201d\nHer gums remained in the same condition from 1978 until 1980, and she did not see another dentist during this period because she \u201cthought [she] had to live with [her gum problems].\u201d When she finally went to another dentist on the recommendation of a friend who was a dental assistant, she was informed that the condition of her mouth was \u201cterrible\u201d and that most, if not all, of her bridgework \u201chad to come out.\u201d After being informed by Dr. Grubman that the cause of her gum problems was that \u201cthe top parts of [her bridgework] were pushing up against the gums,\u201d she could discern what her problems were.\nPlaintiff\u2019s deposition testimony reveals that she neither was aware that she suffered an injury nor that defendant could have been the cause until she went to Dr. Grubman in 1980. Although the record shows that plaintiff suffered discomfort and dissatisfaction with her bridgework, the record also indicates that plaintiff equated these problems with bridgework in general.\nFurthermore, defendant\u2019s statements that the bridgework was the best he could do and that plaintiff\u2019s gum problems would be \u201ccured\u201d by acid treatments support the conclusion that plaintiff was not aware she had suffered an injury until she visited Dr. Grubman in 1980. Therefore, it does not appear, as a matter of law, that only one conclusion can be drawn from the evidence and that plaintiff either knew or should have known that she suffered an injury more than two years before filing her complaint. Thus, the trial court improperly dismissed the complaint.\nII\nCount II of plaintiff\u2019s complaint alleges in part:\n\u201c3. That prior to any treatment, the Defendant expressly and impliedly warranted and contracted to render to the Plaintiff for valuable consideration, proper treatment, advice, and care in conformance with proper standards which the Plaintiff relied upon.\n4. That Defendant breached his warranties by failing to provide care, treatment, and advice consistent with the normal and usual standards of professional dental care in this community.\u201d\nThe allegations in this case are similar to the allegations in Carroll v. Grabavoy (1979), 77 Ill. App. 3d 895, 396 N.E.2d 836. Concluding that the complaint did not state a cause of action for breach of warranty, the court held: \u201cThe language used was employed to describe the treatment to be provided by the dentist as a part of his general obligation to treat the plaintiff with the reasonable skill required of his profession.\u201d 77 Ill. App. 3d 895, 901, 396 N.E.2d 836.\nThis case does not come within the purview of Cirafici v. Goffen (1980), 85 Ill. App. 3d 1102, 407 N.E.2d 633, where the court held that a complaint stated a cause of action for breach of warranty, without alleging a special consideration, where the complaint alleged:\n\u00ab*** plaintiff during a visit to her dentist, *** was examined for a complaint of ill-fitting dentures. During defendant\u2019s examination, X rays of plaintiff\u2019s existing teeth and related bone structure were taken. He then allegedly induced her to permit him to install dental implants which, he purportedly told her, would eliminate the difficulties she was having with her dentures, and said that she would be able to eat \u2018corn on the cob\u2019 and other foods for which natural teeth are particularly suitable. Plaintiff agreed to the operations and paid defendant *** for implant services rendered ***. The implants were maintained in plaintiff\u2019s mouth from about May 3, 1974, until December 2, 1976, when defendant extracted them, acknowledging that they were a failure. He replaced them with a denture for which he charged plaintiff an additional $635. During the entire period in which plaintiff maintained the implants, they were loose, painful and prevented her from eating solid foods. ***\u201d (85 Ill. App. 3d 1102, 1102-03, 407 N.E.2d 633.)\nDistinguishing Grabavoy, the Cirafici court stated:\n\u201cThe Grabavoy court held that the language used there was employed to describe the treatment to be provided by the dentist as a part of his general obligation to treat the patient with the reasonable skill required of his profession. Under the facts of the case before us, the statements made to plaintiff extend significantly beyond the suggestion that the implants would 'be attractive, fit well or be pleasing to the plaintiff and appear to be express promises to effect a specific result. Plaintiff here should be permitted an opportunity to prove her case, if she can, without the necessity of pleading or proving a separate consideration for the promise.\u201d 85 Ill. App. 3d 1102, 1107-08, 407 N.E.2d 633.\nTherefore, we conclude that the trial court correctly dismissed count II of plaintiff\u2019s complaint.\nAccordingly, the judgment of the circuit court of Cook County dismissing count I is reversed, and the order dismissing count II is affirmed.\nReversed in part; affirmed in part.\nHARTMAN and SCARIANO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BILANDIC" } ], "attorneys": [ "Jeffrey Dean Lewis, Ltd., of Chicago, for appellant.", "David A. Kanter and Ruth E. Van Demark, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee." ], "corrections": "", "head_matter": "EILEEN M. PASKE, Plaintiff-Appellant, v. JAMES M. GREEN, D.D.S., Defendant-Appellee.\nFirst District (2nd Division)\nNo. 85\u20140658\nOpinion filed March 25, 1986.\nRehearing denied April 22, 1986.\nJeffrey Dean Lewis, Ltd., of Chicago, for appellant.\nDavid A. Kanter and Ruth E. Van Demark, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee." }, "file_name": "0367-01", "first_page_order": 389, "last_page_order": 395 }