Newberry v. Silverman, No. 14-3882 (6th Cir. May 29, 2015).
In the mid-90s, Peter Newberry alleges, he got a root canal from Dr. Marc Silverman. About ten years later, Newberry came back, complaining that the tooth that Dr. Silverman had operated on was hurting him. Dr. Silverman told Newberry that he had either “bitten down too hard, bruised a nerve, or developed cancer,” and that continued monitoring was appropriate. A few years after that, Newberry came back again with the same complaint, and Silverman again told him the pain had nothing to do with the root canal. When Newberry visited an endodontist, though, the endodontist discovered that Dr. Silverman hadn’t removed the whole root, and the remaining portion had become infected.
Newberry is now suing Dr. Silverman, asserting (among other things) negligence and fraud. Most of these claims, the Sixth Circuit says, are barred by Ohio’s statute of repose for dental claims. There is one exception: if Newberry is alleging that Dr. Silverman defrauded him by providing fraudulent diagnoses, that claim isn’t necessarily barred. The problem is that Newberry hasn’t sufficiently pleaded his fraud claim under Rule 9(b). So the fraud claim is sent back to the district court, with directions to allow Newberry to replead it.
Take note, by the way, of the alternative diagnoses that Dr. Silverman allegedly provided to Newberry: either biting down too hard, or a bruised nerve, or cancer. “You might have a slipped disc, or you might have leukemia. Let’s sit tight.” “You might be having heartburn, or you might be having a heart attack. Who can say?” “I’ll tell you this: it’s definitely either testicular torsion or a pulled groin.” Thanks, doctor.