Filed: Jan. 11, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-11-2006 Warner v. Ross Precedential or Non-Precedential: Non-Precedential Docket No. 05-1014 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Warner v. Ross" (2006). 2006 Decisions. Paper 1763. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1763 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-11-2006 Warner v. Ross Precedential or Non-Precedential: Non-Precedential Docket No. 05-1014 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Warner v. Ross" (2006). 2006 Decisions. Paper 1763. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1763 This decision is brought to you for free and open access by the Opinions of the United Sta..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-11-2006
Warner v. Ross
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1014
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Warner v. Ross" (2006). 2006 Decisions. Paper 1763.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1763
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1014
BRENDA WARNER,
Appellant
v.
DR. GILBERT ROSS
On Appeal from the Appellate Division of the
District Court of the Virgin Islands, Division of St. Croix
D.C. Civil Action No. 99-cv-00111
(Honorable Raymond L. Finch and Honorable Thomas K. Moore,
United States District Judges, and
Honorable Rhys S. Hodge, Territorial Court Judge)
Argued December 5, 2005
Before: SCIRICA, Chief Judge, McKEE and NYGAARD, Circuit Judges
(Filed January 11, 2006)
K. GLENDA CAMERON, ESQUIRE (ARGUED)
Law Office of Rohn & Cameron
1101 King Street, Suite 2
Christiansted, St. Croix
U.S. Virgin Islands 00820
Attorney for Appellant
JAMIL N. ALIBHAI, ESQUIRE (ARGUED)
ARNETT GAUBERT, ESQUIRE
2000 Ross Avenue
4650 Trammell Crow Center
Dallas, Texas 75201
Attorneys for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
Brenda Warner appeals the entry of summary judgment by the Territorial Court
and its affirmance by the Appellate Division of the District Court of the Virgin Islands in
this dental malpractice action. We have jurisdiction under 28 U.S.C. § 1291 and will
affirm.
I.
Because we write for the parties, an abbreviated recitation of the facts will suffice.
Warner first visited Gilbert Ross for an emergency dental appointment on April 23, 1994.
After determining that Warner had an impacted wisdom tooth surrounded by infected
gum tissue, Ross prescribed an antibiotic. Later that week, Ross removed the impacted
wisdom tooth. Warner’s other three wisdom teeth had previously been removed. When
Warner returned to Ross a week later for a follow-up visit, she complained of an aching
pain in her jaw. Ross treated what he diagnosed as dry socket and scheduled another visit
three days later, on May 9, 1994. Warner alleges that at this third visit, she complained of
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ongoing pain and numbness, which Ross told her “might continue for weeks.” Warner
further alleges “[h]e may have said six months, I am not real sure.” Ross denies Warner
reported anything other than normal, subsiding pain.
Warner continued to experience pain and numbness in her mouth, but did not
return to Ross. She claimed she “was afraid of him,” “was unhappy with him from the
day he took the tooth out,” and had concluded by her May 9, 1994 visit that “he had done
something wrong.”
Six months later, on December 1, 1994, Warner visited a different dentist for a
routine dental cleaning. She complained to a hygienist of irritation and numbness, and
was told her numbness was not normal. Warner consulted a personal injury lawyer and a
third dentist, who informed her the numbness was caused by nerve damage during the
wisdom tooth extraction.
On October 30, 1996, Warner sued Ross for medical malpractice. Ross moved for
summary judgment, contending Warner’s claims were barred by the two-year statute of
limitations for medical malpractice claims under 27 V.I.C. § 166d. The Territorial Court
granted Ross’s motion for summary judgment and the Appellate Division of the District
Court affirmed. Warner now appeals, contending the record presents genuine issues of
material fact as to whether the statute of limitations was tolled by the discovery doctrine
and the doctrine of fraudulent concealment.
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II.
Our review of the grant of summary judgment is plenary. Crissman v. Dover
Downs Entm’t Inc., 289 F.3d 231, 233 (3d Cir. 2002). Summary judgment is warranted
when the record shows there is “no genuine issue as to any material fact.” Fed R. Civ. P.
56(c). In reviewing the record, we are required to view the inferences to be drawn from
the underlying facts in the light most favorable to Warner, as the party opposing summary
judgment. Meritcare, Inc. v. St. Paul Mercury Ins. Co.,
166 F.3d 214, 223 (3d Cir. 1999).
III.
The Virgin Islands Malpractice Act establishes a two year statute of limitations for
medical malpractice claims. 27 V.I.C. § 166d(a) (2005). Warner’s cause of action
accrued from May 9, 1994, the date of her last visit to Ross. See id. (“[A]ny malpractice
claim brought under this subchapter may be filed within two years of the last treatment
where there is continuous treatment for the same illness, injury or condition which gave
rise to the alleged act, omission or neglect.”). Accordingly, unless tolled, the statute of
limitations on Warner’s claim against Ross expired on May 9, 1996.
Warner contends the statute of limitations was tolled by the discovery rule, under
which a medical malpractice claim does not accrue for statute of limitations purposes
until the plaintiff possesses actual or constructive knowledge of the injury and its cause.
See Joseph v. Hess Oil, 867 F.2d 179, 182 (3d Cir. 1989) (“[In the Virgin Islands,]
application of the equitable ‘discovery rule’ tolls the statute of limitations when the injury
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or its cause is not immediately evident to the victim.”). We conclude the discovery rule is
inapplicable here because Warner knew or should have known that her ongoing pain and
numbness were not normal side effects of the extraction procedure. She previously had
three wisdom teeth extracted, all without complication. She testified that Ross was
agitated and frustrated during the surgery, “was very upset and nervous about what he had
done,” and apologized to her repeatedly afterwards. This led Warner to conclude “he had
done something wrong,” affirmatively disproving ignorance of her injury and its cause.
Accepting all of Warner’s allegations as true and viewing the record in the light most
favorable to her, we conclude Warner knew or should have known by the date of her last
visit to Ross that she had abnormal symptoms resulting from the wisdom tooth extraction.
Warner contends the statute of limitations was also tolled by the fraudulent
concealment doctrine. See 27 V.I.C. § 166d(a) (tolling the statute of limitations for any
period during which a health care provider “had actual knowledge of any act, omission or
neglect of knowledge of facts which would reasonably indicate such act, omission or
neglect which is the basis for a malpractice claim and failed to disclose such fact to the
patient.”). Again viewing the record in the light most favorable to Warner, we find no
evidence of fraudulent concealment. Ross was aware of Warner’s pain and discomfort
during her return visits, and may even have been aware of her numbness. But we find no
indication that Ross had actual knowledge of Warner’s nerve damage.
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Furthermore, Virgin Islands courts have held fraudulent concealment requires an
affirmative act of concealment. See Payne v. Gov’t of the Virgin Islands, 44 V.I. 213,
217 (V.I. Terr. Ct. 2002) (“[T]he query in fraudulent concealment cases is whether there
is evidence that the defendant took affirmative steps to conceal the wrongful conduct.”).
Ross’s only action that could plausibly constitute affirmative concealment was his
assurance to Warner that her symptoms would soon subside. But it was unreasonable for
Warner to rely on this assurance when the pain and numbness failed to lessen in intensity.
In applying Pennsylvania’s fraudulent concealment doctrine, we have noted that “reliance
upon the word of one physician when the patient's own common sense should lead one to
a different conclusion is unreasonable.” Bohus v. Beloff,
950 F.2d 919, 925 (3d Cir.
1991). Here, we conclude the fraudulent concealment doctrine cannot serve to toll the
statute of limitations when, using reasonable diligence, Warner should have known of her
injury and its cause.
IV.
For the reasons set forth, we will affirm the judgment of the Appellate Division of
the District Court.
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