In this example, the statute of repose would give the injured patient a five-year time window to file. For example, patient Anne had her orthodontic treatment completed when she was 20, and now is 28 years old. She discovers that the dentist was negli-gent. Is it too late for her to file a lawsuit? The answer is yes, because it is eight years after the injury. In the instant case, the statute of repose will not allow a lawsuit more than 5 years after the injury. However, if patient Anne is now 24, she would be able to file a law suit. At age 24, Anne can actually sue for negli-gence up to age 25. The statute of limitations will allow for the lawsuit to be filed within two years of knowing of the injury but cannot allow her to commence the law suit past the 5-year perimeter of the statute of repose, here age 25. So far this formula is fairly straight forward, but when treating minors it gets a little trickier. The next example is where patient Anne completed orthodontic treatment at age 12 and now is now 22 years old. She learns of the negligent treat-ment and wishes to file a lawsuit. Here, the statutes are tolled until Anne is an adult, age 18. Anne will be able to commence a lawsuit until she is 23 years of age, because this is within the five-year time limit for the statute of repose. Anne’s treatment was completed 11 years prior, yet she is still able to sue the dentist who treated her! In this last case, being able to produce Anne’s records will allow for proper adjudication of this case. One more point to be made. Patient Anne had interceptive dental treatment at age 4, some 19 years ago. Now, at age 23, she files a lawsuit against the dentist who treated her. In addition, the dental prac-tice act of the state states that a dentist must keep records for at least 15 years. The dentist answers the complaint stating that the records were discarded because they were more than 15 years old and that the state law requires that a patient record must be kept for 15 years. Guess what? The judge or jury, depend-ing on what chosen, will have to determine the ques-tion of fact without the dentist’s treatment record. It’s doom, and that it is why records are to be kept for an indefinite amount of time. It can also be of aid when a patient tries to falsify dates as to when a supposed negligence took place. *Not intended as legal advice. Please consult with an attor-ney in the jurisdiction(s) you are licensed in. www.orthodontics.com Spring 2016 41
Journal of the American Orthodontic Society Spring 2016: Page 41
