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The Pennsylvania Superior Court said a dental malpractice defendant waived her appellate challenge to a jury interrogatory by failing to object at trial to language that asked jurors whether the plaintiff had filed his claim “within two years of when he knew or should have known that he was harmed by the defendant’s alleged negligence.” Defendant Mary Anne Checchio, a dentist, disputed the use of the term “alleged negligence” in the interrogatory, but the appellate court, writing in an unpublished decision, said the issue was not preserved for appellate review since counsel for the defense never specifically objected to the term at trial. The unanimous court panel also found no abuse of discretion in the trial judge’s decision to allow plaintiff expert Howard Kirschner, a dentist with extensive experience performing oral surgery, to testify on the standard of care exhibited by Checchio. The case of Fine v. Checchio made big legal news in March when the state Supreme Court ruled that the discovery rule is not forestalled by a plaintiff’s realization of injury within the statute of limitations period. At trial, plaintiff Eric Fine successfully argued that Checchio breached the standard of care by failing to refer him to an oral surgeon after he experienced numbness in his face in the months following his July 1998 removal of wisdom teeth. About a year after the surgery was performed, Fine concluded that the persistent numbness was unusual. He filed suit in August 2000 in Philadelphia Common Pleas Court. In November 2001, Checchio moved for summary judgment, arguing that the two-year statute of limitations that began in July 1998 had run out by August 2000. The trial court denied her motion. Fine initially raised several allegations against Checchio, but the case proceeded to trial only on the claim that Checchio acted negligently by failing to refer Fine to a neurosurgeon after the procedure. In April 2002, a Philadelphia jury awarded Fine $500,000, according to the opinion. After her post-trial motions were denied, Checchio appealed. The first time on appeal, the Superior Court ruled that the discovery rule was inapplicable, as Fine knew of his injury at the moment it occurred; and that the fraudulent concealment doctrine was not triggered, as it could not be established that Checchio kept the true nature of his injury from him. But in March the state Supreme Court reversed, holding that it is irrelevant to the discovery rule’s application whether a plaintiff’s injury was ascertainable within the statute of limitations period, and that the statute of limitations tolled under the fraudulent concealment doctrine begins to run only when an injured party “knows or reasonably should know” the cause of his or her injury or when it occurred. In so ruling, the justices resolved a question that first arose four decades ago in the state Supreme Court’s 1963 decision of Schaffer v. Larzelere, and appears to have vexed Pennsylvania’s appellate jurists ever since: Whether the discovery rule is restricted to cases in which an injury or its cause is not reasonably discovered until after the expiration of the statute of limitations. “Today, we hold that it is not relevant to the discovery rule’s application whether or not the prescribed period has expired,” Chief Justice Ralph J. Cappy wrote for a six-justice unanimous court. “The discovery rule applies to toll the statute of limitations in any case where a party neither knows nor reasonably should have known of his injury and its cause at the time his right to institute suit arises.” The justices remanded the case in Fine to the Superior Court to resolve all outstanding issues on appeal. Last week’s Superior Court ruling addressed those issues. First, Checchio argued that the jury interrogatory extended the statute of limitations unfairly by asking the jury to determine when Fine understood that the defendant had acted negligently — rather than when he realized he had been injured. The court panel — consisting of Judges Kate Ford Elliott and Richard B. Klein and Senior Judge Frank J. Montemuro Jr. — said that this issue was waived because Checchio failed to object to the use of the term “alleged negligence” at trial. “Appellant objected twice to the interrogatory concerning the statute of limitations,” the court wrote. “However, neither time did she specifically object to the use of the word ‘negligence.’ Therefore, her objection now is waived.” Before Philadelphia Judge C. Darnell Jones II instructed the jury at trial on the statute of limitations question, counsel for the parties met and Checchio’s attorney objected to the wording of the question. According to the Superior Court opinion, the attorney, John C. Farrell, told the court that the instruction should use the qualifier “alleged” with any reference to the “negligence” of the defendant. “Therefore,” the Superior Court panel wrote, “it is clear that appellant agreed that the use of the phrase ‘alleged negligence’ in the interrogatory was appropriate… . Any objection to the court’s reference to appellant’s ‘alleged negligence’ should have been made prior to the instructions to the jury.” On the second issue, Checchio argued that Kirschner was not qualified to testify to the standard of care or causation because he was neither an oral surgeon nor a nerve graft specialist. According to the opinion, Kirschner testified that he regularly performs oral surgery, including wisdom teeth removal, the procedure at issue in this case. The trial court ultimately accepted him as a general dentistry expert, with “an interest in oral surgery.” Kirschner testified that the standard period of time for referring a patient with “nerve interference” for outside consultation is 30 days. “After the first 90 days,” he was quoted as saying, “the chances of the success of treating or repairing a condition of nerve interference diminishes.” The Superior Court agreed with the trial judge that Kirschner was qualified to offer testimony regarding the appropriate time for referring a patient with a nerve interference. “Contrary to appellant’s protestations, this case did not require the testimony of a board certified oral surgeon,” the court wrote. “Rather, appellee’s sole claim at trial was that appellant failed to refer him to a nerve graft specialist in a timely manner.” The court also found no trial court error in the judge’s decision to allow Kirschner to testify as to causation. “Appellant argues that Dr. Kirschner ‘has no competency, through any source, to suggest that had [appellee] been referred for his nerve stretch or compression injury, his sensation would have returned,’” the court wrote, quoting Checchio’s brief. “However, appellant misconstrues Dr. Kirschner’s testimony. He opined that appellant’s failure to refer left appellee with no chance whatsoever of recovery. In other words, it increased the risk that appellee’s numbness would be permanent.” Under case law, when an expert can testify that a defendant’s conduct has increased the risk of harm, the question then is for the jury to decide, the court said. “Here, since appellee was never examined by a neurosurgeon during the critical 90-day period, and since the type of injury appellee suffered may be treatable by nerve graft surgery, we find Dr. Kirschner’s testimony appropriate,” the court wrote. The trial court order on both the interrogatory and expert issues was affirmed. Thomas F. Sacchetta of Sacchetta & Baldino in Media, Pa., represents Fine. He said he had not heard whether Checchio plans to appeal the case further. He said the issues on appeal in last week’s opinion were largely “non-issues.” “Throughout the trial, I think the trial judge was on point,” he said. Sacchetta said the expert issue was interesting, given that Kirschner was not an oral surgeon, but the question came down to Fine’s allegation of negligence, which was premised on Checchio’s failure to refer to an oral surgeon. Since Kirschner performed wisdom teeth removal procedures, Sacchetta said, the court found that he was qualified to offer an opinion as to when it is appropriate to make such a referral. Farrell, of Marshall Dennehey Warner Coleman & Goggin, along with the firm’s John J. Hare and Jonathan D. Weiss, are counsel to Checchio. They did not return calls for comment.

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