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WELCH v. MCCARTHY6/17/1996
Joanne and Colburn Welch appeal from a summary judgment entered in the Superior Court (Penobscot County, Marden, J.) in favor of Daniel J. McCarthy, D.D.S. The Welches contend that (1) a motion for a summary judgment based on the statute of limitations is not appropriate prior to the submission of the case to the pre-litigation screening panel; and (2) the court erred in granting a summary judgment on the statute of limitations because a genuine issue of material fact exists whether McCarthy had a duty to warn Joanne of recently discovered dangers regarding the implants inserted in her body. We vacate the judgment.
In 1983 Joanne Welch sought treatment by McCarthy for problems with her jaw. In 1984 McCarthy surgically inserted proplast silastic meniscus implants on both sides of Joanne's jaw. McCarthy followed Joanne's condition until April 1985. In October 1987 Joanne received a letter from McCarthy informing her that it had recently come to his attention that some changes in her jawbone may have occurred as a result of her implants; that a small percentage of patients in whom proplast meniscus implants had been inserted had developed degenerative changes in the bone; and that in many cases these changes occurred without any symptoms. The letter stated that as a result of her implants she could also develop bone changes, and it recommended that she make an appointment to determine the status of her joints.
As a result of the letter McCarthy examined Joanne in November 1987. McCarthy told her that her x-rays were the same as they were in March 1985 and recommended no treatment at that time. No further communication occurred between Joanne and McCarthy until August 1992, when she received a certified letter from him. The second letter referred to and reiterated the information in the 1987 letter and requested that Joanne contact McCarthy's office for an examination and evaluation to determine the status of her joints and implants. The letter was prompted by McCarthy's receipt of additional information regarding problems with the implants. McCarthy examined Joanne in September 1992 and recommended she have the implants removed. In March 1993 McCarthy removed the implants. Because of continuing problems another surgical procedure was performed by a different surgeon in February 1994.
On October 26, 1993, the Welches served a written notice of a medical malpractice claim on McCarthy. In their notice of claim they
McCarthy filed a motion for a summary judgment on the basis of the statute of limitations. Subsequently, the Welches moved to amend the notice of claim to allege fraudulent concealment based on facts revealed through discovery. The court found that there was no evidence of fraudulent concealment and granted a summary judgment in favor of McCarthy on the basis of the statute of limitations. This appeal followed.
In reviewing an appeal from the grant of a summary judgment we view the evidence in a light most favorable to the party against whom the judgment was entered and review the trial court's decision for errors of law. Gonzales v. Commissioner, Dep't of Pub. Safety, 665 A.2d 681, 682 (Me. 1995). When there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law we will affirm a summary judgment. Id. at 682-83.
I.
The Welches contend that it was inappropriate for the court to consider the statute of limitations issue on a motion for a summary judgment prior to the submission of the case to the pre-litigation screening panel because the court analyzed factual questions. They contend that the only affirmative defenses that the court should consider are those claimed and determined
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