Eric J. Ploumis, D.M.D., J.D.
Every New York orthodontist should be aware of the statute of limitations for dental malpractice in the State. A statute of limitations is a law passed by the legislature that sets a time limit on when a claim may be brought. Once the statute of limitations has expired on a plaintiff/patient’s claim, the patient loses his or her remedy at law and the defendant/doctor has an affirmative defense against an allegation of malpractice. Knowing the laws related to the statute of limitations for malpractice is an essential risk management tool that should be in every orthodontist’s toolbox.
Since 1975, the basic law in New York State is that an action for dental malpractice must be commenced within two years and six months of the occurrence of the alleged malpractice. (CPLR 214-a) An occurrence-based statute means that the statutory period begins to run when the negligent act occurred, not when the patient discovered it. Many states use discovery as the trigger for starting the clock on a patient’s right to bring an action for malpractice. Thanks in part to the efforts of the New York State Dental Association, New York still utilizes the more doctor-favorable occurrence standard. (Caveat: The Office of Professional Disciple may bring a disciplinary action against a dentist at any time; the civil statutes of limitations for malpractice do not apply.)
Some practitioners erroneously base fee collection efforts or record keeping requirements on this 2.5 year time span, believing that the passage of two and a half years provides a shield of invulnerability. But there are a host of exceptions that must be considered when calculating the expiration of the statute of limitations. For example, if the patient is an infant, the statue is tolled (suspended) until the child reaches majority, which is eighteen in New York State. The child does not lose his or her right to sue you for malpractice until two and one-half years after his 18th birthday. You may have treated little Jason when he was 11, but his right to sue you for malpractice does not expire until he is 20.5. It is not unheard of for a malpractice attorney to file a suit days before a patient turns 20.5 hoping to catch the doctor without adequate records. This “toll for infancy” is especially important for us as orthodontists, and for our pediatric dental colleagues.
Another significant exception to the basic rule is the continuous treatment doctrine. Any treatment that pertained to the initial therapy prevents the clock from running for statute-of-limitations purposes. For an orthodontic patient, the statute doesn’t start to run until the patient is officially dismissed from your office, which could be years after the appliances are removed if you continue to see the patient in retention as part of the overall treatment. In many offices, there is no bright-line dismissal date when the doctor says “treatment is completed.” This could result in the statute of limitations on malpractice never expiring, exposing you to continuous risk. It is essential that every office make it clear to the patient that treatment ends at a certain date so that you can start the statute of limitations clock ticking.
Foreign-object discovery is yet another scenario that will prolong the time during which a patient may sue for malpractice. You place a temporary anchorage device (TAD) in a patient and the TAD gets buried subgingivally or migrates into the sinus undetected. The patient discovers the TAD (foreign object) several years after the appliances are removed, well beyond the basic 2.5 year time limit for most malpractice claims. Under the foreign-object discovery exception, the patient has an additional one-year extension from the date she discovered, or reasonably should have discovered the foreign object you left behind. Even worse is the instance in which a practitioner fraudulently conceals the malpractice and does not inform the patient of the problem (think root resorption). Failure to disclose an untoward event tolls the statute indefinitely. If the foreign object (such as an implant or surgical fixation device) was intended to be left in the body, the “tolling” provision does not apply and absent any other exceptions the standard 2.5 years applies.
By waiting until the patient no longer has the statutory right to sue for malpractice, the savvy practitioner may think he or she can safely sue to recover an unpaid fee. In New York State, however, a patient who is sued for an unpaid fee may countersue the doctor for malpractice up to the amount of the doctor’s suit, even if the statute of limitations for malpractice has long since expired.
Understanding the statute of limitations for dental malpractice is essential to good risk management. Knowing the law will help you in developing a collections policy and a record keeping protocol. A working knowledge of the fundamentals of the statute of limitations will allow us to practice better dentistry with a higher level of comfort. We have discussed only a few of the more obvious exceptions to the rule; the examples cited are by no means a definitive list. To appreciate fully how New York law impacts on our dental practices, the prudent practitioner should consider a consultation with an attorney versed in medical and dental malpractice law.
This information is not intended as a substitute for legal advice. You should familiarize yourself with the laws of your jurisdiction and seek legal advice from an attorney who specializes in such matters.
Dr. Ploumis is an attorney at Rivkin Radler, an orthodontist in New York City, and an associate clinical professor of orthodontics at New York University. He limits his legal practice to business and transactional issues related to the practice of dentistry including practice transitions, partnership and employment agreements, office leases and the defense of allegations of professional misconduct. He can be reached at www.DentalPracticeLawyers.com.
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