 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Despres v. Moyer3/26/2003
Reporter of Decisions
Argued: January 15, 2003
Terri Despres appeals from the judgment of the Superior Court (York County, Brennan, J.) granting David Moyer's motion for a partial summary judgment and granting his motion to report the case to this Court to decide:
Whether the foreign object exception to the statute of limitations set forth in 24 M.R.S.A. § 2902 works to circumvent the usual three year statute of limitations when the foreign object in question was not placed in the patient by the physician sued.
Despres asserts there is a genuine issue of material fact as to whether Moyer, an oral surgeon, placed in her body the foreign object that was later removed from her sinus; and that being so, we should vacate the partial summary judgment and not decide the reported question. Moyer moves to dismiss Despres's appeal. We consolidated the Superior Court's order of report and Despres's appeal, along with Moyer's motion to dismiss, and we affirm the partial summary judgment entered by the Superior Court and proceed to answer the reported question.
We agree with Moyer's assertion that there is no genuine issue of material fact in this case because Despres's statements in her response to Moyer's statement of material facts do not supply references to competent evidence to controvert Moyer's assertion that: (1) he did not put anything into Despres's sinus, and (2) no item originating with Moyer migrated into Despres's sinus. Because we agree that Despres's statement, asserting that she did not put anything into her sinus, is insufficient to controvert Moyer's material facts, we find no genuine issue of material fact and therefore affirm the Superior Court's grant of a partial summary judgment to Moyer. We address the reported question and conclude that the foreign object exception to the statute of limitations set forth in 24 M.R.S.A. § 2902 does not work to circumvent the usual three-year statute of limitations when the foreign matter at issue was not placed in the patient by the physician sued.
I. CASE HISTORY
The parties agree that on July 31, 1996, Dr. Jay Beauchemin extracted a molar from Despres's upper right jaw. A fistula or hole developed between the socket from which the tooth was extracted and Despres's sinus. Despres also developed a dry socket. Beauchemin treated Despres for her dry socket and fistula until August 29, 1996, when he referred her to Moyer for further treatment. Moyer first saw Despres on September 3, 1996.
The parties disagree as to what happened next. On September 9, 1996, Moyer removed material from Despres's sinus. Despres contends that, as Moyer's contemporaneous notes indicate, he removed five pieces of gauze, including a dry socket dressing. Moyer asserts that he removed four pieces of "gauze," which were actually elongated, twisted, rolled pieces of toilet paper or tissue paper, and one dry socket dressing. Moyer states that the dry socket dressing he removed from Despres's sinus was not the type used in his office and he does not know from where it, or any of the "gauze," came. He states that after he cleaned Despres's tooth socket, he inserted into it a fully intact piece of the specific type of radiopaque dry socket dressing used in his office.
When Despres returned the next day, however, the dressing appeared to be gone and a Panorex x-ray failed to reveal any dressing in her sinus. After Moyer cleaned and examined the tooth socket, he closed the fistula. On September 16 and 19, Moyer replaced some of the sutures inserted on September 10.
The parties agree that Moyer continued to treat Despres until her last office visit on Octobe
Page 1 2 3 4 Maine Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|