Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kenneth Arnoult v Melissa Webster, DMD (6/12/2020) sp-7457

Kenneth Arnoult v Melissa Webster, DMD (6/12/2020) sp-7457

           Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                         

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



KENNETH  ARNOULT,                                                )  

                                                                 )          Supreme  Court  No.  S-17168  

                                 Appellant,                      )  

                                                                                                                                       

                                                                 )          Superior Court No. 4FA-15-02606 CI  

           v.                                                    )  

                                                                                                 

                                                                 )          O P I N I O N  

                                         

MELISSA WEBSTER, DMD,                                            )  

                                                                                                               

                                                                 )          No. 7457 - June 12, 2020  

                                 Appellee.                       )  

                                                                 )  



                                                                                                           

                                              

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                  

                      Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                      Judge.  



                                                                                                       

                      Appearances:  Ted Stepovich, Law Office of Ted Stepovich,  

                                                                                                            

                      Anchorage,  for  Appellant.                        John  J.  Tiemessen,  Clapp,  

                                                                                                       

                      Peterson, Tiemessen, Thorsness &Johnson, LLC, Fairbanks,  

                             

                      for Appellee.  



                                                                                                                 

                      Before:          Bolger,  Chief  Justice,  Stowers,  Maassen,  and  

                                                                                        

                      Carney, Justices.  [Winfree, Justice, not participating.]  



                                            

                      STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                     

                      A  man  who  suffers  from  periodontal  disease  received  treatment  from  



                                                                                                                   

October 2011 through December 2012 and brought suit against his periodontist for  



                                                                                                                              

dental malpractice in  October  2015.                            The periodontist filed  a motion  for  summary  



                                                                                                                                        

judgment based on the two-year statute of limitations.   The man responded that the  



                                                                                                                                     

discovery  rule  applied  and  the  statute  of  limitations  did  not  start  running  until  


----------------------- Page 2-----------------------

October 2013, less than two years before he brought suit. The periodontist asserted that                                                                                                                                 



the man was on inquiry notice in January 2013, and therefore the statute of limitations                                                                                                               



expired  months before he brought suit.                                                                       The superior court granted the motion for                                                                   



summary judgment.                                     Because the superior court correctly determined that the statute of                                                                                                    



limitations had expired, we affirm the superior court's order.                                                                                  



II.               FACTS AND PROCEEDINGS                  



                 A.                Facts  



                                   Dr.   Melissa   Webster   first   diagnosed   Kenneth   Arnoult   with   aggressive  

                                                                                                 1    She indicated that almost all of the bone loss he  

periodontal disease in October 2011.                                                                                                                                                                                        



had sustained had already occurred and "not much more damage could occur in the  

                                                                                                                                                                                                                          



future since the rate of bone loss had . . . decreased significantly by 2011."  Dr. Webster  

                                                                                                                                                                                                             



explained that bone grafting was not necessary and instead recommended scaling and  

                                                                                                                                                                                                                         



root  planing  along  with  antibiotics.                                                               Arnoult  offered  to  have  past  X-rays  sent  to  

                                                                                                                                                                                                                            



Dr.  Webster,  but  she  declined  because  she  thought  they  were  not  necessary.                                                                                                                                   She  

                                                                                                                                                                                                                       



completed the scaling and root planing the following month.  

                                                                                                                                                                



                                   Arnoult returned to Dr. Webster in January 2012, at which point she stated  

                                                                                                                                                                                                                    



that her treatment was not as successful as she had expected.  She recommended a new  

                                                                                                                                                                                                                      



course of treatment:  a hygienist would clean Arnoult's teeth every three months, and  

                                                                                                                                                                                                                         



Dr. Webster would see him at every other cleaning to monitor progress.  Arnoult asked  

                                                                                                                                                                                                                    



if  testing  could  identify  whether  a  certain  bacteria  was  causing  his  symptoms,  but  

                                                                                                                                                                                                                         



Dr. Webster said this was not possible.  Arnoult again suggested that Dr. Webster look  

                                                                                                                                                                                                                       



at his past X-rays dating back to 2005, but she again indicated this was not necessary.  

                                                                                                                                                                                                                                  



                  1                In reviewing a grant of summary judgment, we view the facts in the light                                                                                                           



most favorable to the party against whom summary judgment was entered.                                                                                                                              Brannon v.   

Cont'l Cas. Co.                           , 137 P.3d 280, 284 (Alaska 2006).                                                                All facts in this section are thus                                         

presented as alleged by Arnoult.                               



                                                                                                              -2-                                                                                                    7457
  


----------------------- Page 3-----------------------

                                                                                                                                

                    Arnoult followed the new treatment plan.   He returned to the office in  



                                                                                                                              

February  for  a  cleaning.              In  April  his  symptoms  worsened.                     By  May  Arnoult  had  



                                                                                                             

developed a horrible taste in his mouth; his gums began to bleed more while brushing  



                                                                                                                            

and flossing; he found drinking room-temperature liquids painful; and he began to blend  



                                                                                                                                 

his meals and drink them through a straw.  Arnoult also had his older X-rays sent to  



                                                                                                                                 

Dr. Webster around this time.  Dr. Webster did not attend Arnoult's appointments in  



                                                                                                                        

May, August, or December.  By the end of 2012 Arnoult was suffering from extreme  



                                                                                                                            

fatigue and weight loss. Having not heard back fromDr. Webster to reschedule, he made  



                                                                                               

an appointment with a different periodontist in January 2013.  



                                                                                                                               

                    Arnoult visited his new periodontist, Dr. Jeffrey Rogers, on January 16,  



                                                                                                                              

2013.   Dr. Rogers diagnosed Arnoult with a bacterial infection.   Arnoult stated that  



                                                                                                                             

Dr. Rogers "expressed a certain degree of surprise that the bacterial infection hadn't been  



                                                                                                                          

treated sooner" and that "[Arnoult] had been seeing a periodontist but . . . there wasn't  



                                                                                                                          

a set of X-rays that showed the area in question better."  Arnoult stated that after taking  



                                                                                                                       

the antibiotics, "the gumpain, the bleeding, the horrible taste, and the fatigue all subsided  



                                                                                                                        

significantly."  Dr. Rogers also suggested that Arnoult may have an underlying medical  



                                                                                                                             

condition and sent a letter to Arnoult's doctor recommending that the doctor meet with  



                                                                                                                                

Arnoult to try to determine the "underlying etiology behind the dramatic downturn in his  



                                                                                                                                 

oral health."  Arnoult also visited his general dentist in February and another dentist in  



                           

March or April.  



                                                                                                                      

                    Arnoult spent most of 2013 trying to find a medical cause for his problems  



                                                                                                                   

because "the totality of the symptoms . . . combined with Dr. Webster's statements  



                                                                                                                         

indicated that there was likely another cause other than periodontal disease." By visiting  



                                                                                                                               

anendocrinologist,an internistwho investigatedpossiblegastroenterologicalcauses, and  



                                                                                                                               

an allergist, he "systematically eliminated all reasonably-possible medical causes as the  



                                                                                                                                     

culprit, andthereforedetermined that periodontal diseasemust havebeen theroot cause."  



                                                               -3-                                                         7457
  


----------------------- Page 4-----------------------

                                                                                                                              

He explained that he saw these other doctors "because the periodontal disease was  



                                                                                                                                 

allowed to . . . fester for such a long time and because the symptoms had become so  



                                                                                                                    

systemic that medical professionals were starting to wonder if there was an underlying  



                                                                                           

medical condition in order to explain the rapid bone loss."  



                                                                                                                      

                    In July Arnoult consulted an attorney to determine "where the threshold  



                                                                                                                             

wasfor missed appointmentsand [dental]malpractice,"as hewanted to understand "how  



                                                                                                                        

many  appointments  .  .  .  a  doctor  need[s]  to  miss  for  it  to  be  considered  [dental]  



                                                                                                                                

malpractice."  Prior to the meeting, he conducted some general Internet searches on the  



           

issue.  



                                                                                                       

                    In August Arnoult requested that Dr. Webster send a copy of his records  



                                                                                                             

to his general practitioner.  Arnoult reviewed the records at a doctor's appointment on  



                                                                                                                                

October 30, at which point he "discovered information that caused him concern as to the  



                                                                                                                         

accuracy of the records." He identified a number of specific problems, including missing  



                                                                                                                                

records, modified records, and records that did not align with his recollections.   He  



                                                                                                                          

alleged it was at this point that he "understood he might have a likely claim against  



                                                                                                       

[Dr. Webster] for dental malpractice and he began to investigate."  



                                                                                                                               

                    In  February  2014  Arnoult  went  to  Dr.  Webster's  office  and  had  the  



                                                                                                                            

receptionist print the missing records for him.  Arnoult repeatedly requested to speak  



                                                                                                                         

with Dr. Webster about his records but each time was told she was unavailable. Arnoult  



                                                                                                                             

filed a request for peer review with the Alaska Dental Society in March.   He filed  



                                                                                                                            

concurrent complaints with the Better Business Bureau and the Dental Licensing Board  



                                                                                                                                

in July.  By February 2015, these groups had completed their reviews and closed the  



                                                                                                                                 

complaints.           Dr.  Webster  provided  Arnoult  with  a  second  copy  of  his  records  in  



                                                                                                                                  

April 2015.  A few days later he "discovered that the records had been altered and it  



                                                                                                                               

appeared that the second set had been intentionally falsified."  Arnoult stated that at this  



                                                                                        

point he realized trusting the records was unreasonable.  



                                                                -4-                                                         7457
  


----------------------- Page 5-----------------------

                

          B.        Proceedings  



                                                                                                                          

                    Arnoult, representing himself, filed a complaint in superior court against  



                                                                                                                                

Dr. Webster on October 6, 2015.   Dr. Webster filed a motion for judgment on the  



                                                                                                                   

pleadings in March 2016 based on the statute of limitations.  Arnoult, now represented  



                                                                                                                               

by counsel, filed an amended complaint on July 5. The amended complaint included two  



                                                                                                                        

counts.  The first count alleged that (1) Dr. Webster was negligent in failing to properly  



                                                                                                                                 

assess, diagnose, and treat Arnoult's symptoms; (2) Dr. Webster failed to respond to  



                                                                                                                        

Arnoult's inquiries about his treatment; and (3) Dr. Webster failed to give Arnoult  



                                                                                                                               

accurate and complete information about his treatment.  The second count alleged that  



                                                                                                                       

Dr. Webster had falsified his dental records to protect herself from liability and therefore  



                                                                                                                      

Arnoult was entitled to punitive damages. Dr. Webster answered the amended complaint  



                                                                                                                               

and raised a number of affirmative defenses, including the statute of limitations.  The  



                                                                                      

court denied the motion for judgment on the pleadings.  



                                                                                                                           

                    The case then moved forward with discovery.  Dr. Webster filed a motion  



                                                                                                                               

for summary judgment based on the statute of limitations in July 2017.  She argued that  



                                                                                                                             

the two-year tort statute of limitations began to run in January 2013 because at that point  



                                                                                                                               

Arnoult knew all the elements of his claim. She asserted that Arnoult did not receive any  



                                                                                                                          

new information when reviewing his dental records in October 2013.  She also argued  



                                                                                                                             

it was irrelevant that Arnoult discovered that the records were altered in October 2013  



                                                                                                                 

because he did not assert that the alteration caused any harm, but instead claimed only  



                                                                                    

that the alteration was grounds for punitive damages.  



                                                                                                                             

                    Arnoult filed his opposition. First, he argued that he did not know the cause  



                                                                                                                               

of the bone loss until late 2013, and therefore "he did not know that [Dr. Webster] was  



                                                                                                                         

providing false information and that he was subjected to negligent treatment."  Second,  



                                                                                                                                

he argued that he did not understand he had been negligently treated until he saw the  



                                                                                                                               

records in October 2013, at which point "he eventually discovered that Dr. Webster had  



                                                                -5-                                                         7457
  


----------------------- Page 6-----------------------

                                                                                                                   

altered   her   records   and   had   either   misdiagnosed   his   condition   or   had   made  



                                            

misrepresentations to him."  



                                                                                                                                      

                    The  court  held  oral  argument  on  the  motion  for  summary  judgment.  



                                                                                             

Arnoult's attorney summarized the claim for malpractice as "[f]ailure to diagnose that  



                                                                                                                   

. . . at the time [Arnoult] was seeing [Dr. Webster], . . . he had aggressive periodontal  



                                                                                                                          

disease, and that bone loss was occurring at a rapid rate at that time."  In other words,  



                                                                                                                               

"[t]he negligent conduct was failure to diagnose . . . severe rapid bone loss that was  



                                                                                                                                  

occurring during the time she was treating him.  And to take action."  With respect to  



                                                                                                                               

inquiry notice, Arnoult's attorney argued that Arnoult did not know that "bone loss was  



                                                                                                                          

occurring at the time [he] was seeing Dr. Webster . . . until . . . he saw [his dental]  



                                                                                                                            

records  in  October  [2013],"  at  which  point  "he  started  checking  into  this  issue  



                                                                                                                         

concerning the bone loss and how it had progressed."  Further, he claimed that Arnoult  



                                                                                                                               

was only on notice in October 2013 because "[t]hat's when he looked at the records, and  



                                                                                                                               

the  records  did  not  comport  with  his  recollection  as  to  what  happened  in  his  



                                                                                                                                

appointments."   Dr. Webster's attorney responded that Arnoult had spoken with his  



                                                                                                                                

general dentist in February 2013 about the "aggressive nature of the bacteria and the  



                                                                                                                                 

significant bone loss that has occurred already" and that he therefore must have been on  



                                           

inquiry notice by that time.  



                                                                                                                                

                    The court granted the motion for summary judgment. It summarized all the  



                                                                                                                            

facts Arnoult knew in July 2013 and found "[Dr.] Webster ha[d] established a prima  



                                                                                                                              

facie case that Arnoult had sufficient information to prompt an inquiry no later than  



                                                                                                                                 

July [2013]."   It found that "Arnoult had the same information available to him in  



                                                                                                                             

July 2013 that he had when he reviewed [Dr.] Webster's chart notes in October of 2013  



                                                                                                                                

except that after his review of [Dr.] Webster's chart notes he concluded she altered the  



                                                                                                                             

records" and thus concluded that Arnoult was on inquiry notice in July 2013.  The court  



                                                                -6-                                                         7457
  


----------------------- Page 7-----------------------

also explained that because "the purpose of Count II was to allege a claim for punitive                                                                                                                    



damages for the conduct alleged in Count [I]," the court dismissed Count II.                                                                                                                           



                                   Arnoult filed a motion for reconsideration, arguing that the court did not                                                                                                           



"adequately consider[] the alterations made to [his] records by [Dr. Webster]," which                                                                                                                           

were "pivotal because [they] served to mislead . . . Arnoult as to his cause of action,"                                                                                                                                      2  



and that the court incorrectly misconstrued his second count as being dependent on the  

                                                                                                                                                                                                                         



first count.  The court denied the motion.  It maintained its earlier position that Arnoult  

                                                                                                                                                                                                            



was on inquiry notice in July 2013.   And it disagreed with Arnoult's claim that the  

                                                                                                                                                                                                                        



second count stood on its own.  It had earlier determined that "the purpose of Count II  

                                                                                                                                                                                                                            



was to allege a claimfor punitive damages for the conduct alleged in Count I." The court  

                                                                                                                                                                                                                   



maintained that to the extent Count II concerned a cover-up of Arnoult's malpractice  

                                                                                                                                                                                                  



claim, "Count II is inextricably tied to Count I."  The court allowed that Count II could  

                                                                                                                                                                                                                  



stand alone as a claim for fraud but noted that Arnoult had provided no support for that  

                                                                                                                                                                                                                       

                                                                                                                                                                                                   3   The court  

contention, as there were "no facts supporting actual or justifiable reliance."                                                                                                                                    

                                                                                                                                                                          



entered final judgment, and Arnoult appeals.  

                                                                                                                      



                 2                 We note that Arnoult's argument that the alterations to his dental records                                                                      



misled him as to his cause of action is inconsistent with another argument in his brief -                                                                                                                                 

that the altered records actually alerted him to his cause of action.                                                                                    



                 3                 See Lightle v. State, Real Estate Comm'n, 146 P.3d 980, 983 (Alaska 2006)  

                                                                                                                                                                                                                  

(recognizing "justifiable reliance" as an element of fraud); Anchorage Chrysler Ctr., Inc.  

                                                                                                                                                                                                                       

v.  DaimlerChrysler  Corp.,  129  P.3d  905,  915  (Alaska  2006)  (recognizing  "actual  

                                                                                                                                                                                                             

reliance and justifiable reliance" as "prerequisites to claims of negligent and intentional  

                                                                                                                                                                                                     

misrepresentation").  



                                                                                                             -7-                                                                                                   7457
  


----------------------- Page 8-----------------------

III.       STANDARD OF REVIEW
            



                                                                                                             4  

                      "We review a grant of summary judgment de novo."                                                                   

                                                                                                                "[O]ur duty is to  



                                                                                                                                

determine whether there was a genuine issue of material fact and whether the moving  



                                                                                                                                        5  

                                                                                                                                              

                                                                                                                              

party  was  entitled  to  judgment  on  the  law  applicable  to  the  established  facts." 



                                                                                                                         

                      "Ordinarily, summary judgment is an inappropriate means of ascertaining  



                                                                      6  

                                                                                                                                       

when a statute of limitations commences."                                This is because "[t]he date on which the  



                                                                                                   7  

                                                                                                                               

statute  of  limitations  begins  to  run  is  a  factual  question."                                   "Only  in  the  unusual  



                                                                                                                           

circumstancein which 'thereexist uncontrovertedfactsthatdeterminewhen areasonable  



                                                                                                                                         

person should have been on inquiry notice' can a court properly resolve the question as  

                             8   "[W]e  must determine whether the superior court had before it  

                                                                                                                                          

a matter of law." 

uncontroverted facts sufficient to support its entry of summary judgment."9  

                                                                                                       



           4          Harrell  v.  Calvin,  403  P.3d   1182,   1185  (Alaska  2017).  



           5          Palmer  v.  Borg-Warner  Corp.,  818  P.2d  632,  634  (Alaska   1990).  



           6          Harrell,  403  P.3d  at   1186  (quoting  Palmer,  818  P.2d  at  634).  



           7         John's  Heating Serv. v. Lamb, 46 P.3d   1024,   1031 (Alaska 2002) (citing  



Gudenau   &   Co.   v.   Sweeney   Ins.,   Inc.,   736   P.2d   763,   767   (Alaska   1987));   see   also  

Jackson  v.  Municipality  of  Anchorage ,  375  P.3d  1166,  1170  n.12  (Alaska  2016)  ("When  

[plaintiff]   [is]   on   inquiry   notice   is   a   question   of   fact   that   'depends   upon   all   of   the  

surrounding   circumstances'   and   is  reviewed   for   clear   error."   (alterations   in   original)  

(quoting  Gefre  v.  Davis   Wright  Tremaine,  LLP,  306  P.3d   1264,   1276  (Alaska  2013))).  



           8         John's Heating Serv., 46 P.3d at 1031 (quoting Palmer, 818 P.2d at 634);  

                                                                                                                                    

see also Harrell, 403 P.3d at 1186 ("Where, however, there exist uncontroverted facts  

                                                                                                   

that determine when a reasonable person should have been on inquiry notice  'we can  

                                                                                                                                       

resolve the question as a matter of law.' " (quoting Palmer, 818 P.2d at 634)); Jackson,  

                                                                                                                              

375 P.3d at  1170 ("[I]t is  a legal  question whether undisputed  facts establish that  a  

                                                                                                                                          

plaintiff is on inquiry notice." (alteration in original) (quoting Christianson v. Conrad- 

                                                                                                                               

Houston Ins., 318 P.3d 390, 396 (Alaska 2014))).  

                                                                    



           9         John's Heating Serv., 46 P.3d at 1031.  

                                                                            



                                                                    -8-                                                             7457
  


----------------------- Page 9-----------------------

IV.         DISCUSSION
  



                        An  action  in  a  personal  injury  case  must  be  "commenced  within  two  years  

of  the  accrual  of  the  cause  of  action."10  

                                                                      Generally,  the  statute  of  limitations  starts  to  run  



                                     11  

on  the  date  of  injury.                However,  if  "an  element  of  a  cause  of  action  is  not  immediately  



apparent,   the   discovery   rule   provides   the   test   for   the   date   on   which   the   statute   of  



                                               12  

limitations  begins  to  run."                     The  discovery  rule  provides  that  



                        (1)   a   cause   of   action   accrues   when   a   person   discovers, or  

                        reasonably   should   have   discovered,   the   existence   of   all  

                        elements  essential  to  the  cause  of  action;  



                        (2)  a  person  reasonably  should  know  of  his  cause  of  action  

                        when  he  has  sufficient  information  to  prompt  an  inquiry  into  

                        the   cause   of   action,   if   all   of   the   essential   elements   of   the  

                        cause   of   action   may   reasonably   be   discovered   within   the  

                        statutory  period  at  a  point  when  a  reasonable  time  remains  

                        within  which  to  file  suit[;]  



                                    . . . .  



                        [(3)]  where  a  person  makes  a  reasonable  inquiry  which  does  

                        not   reveal   the   elements   of   the   cause   of   action   within   the  

                        statutory  period at a point where  there  remains  a  reasonable  

                        time  within  which  to  file  suit,  the  limitations  period  is  tolled  

                        until a  reasonable  person  discovers  actual  knowledge  of,  or  

                        would   again   be   prompted   to   inquire   into,   the   cause   of  

                        action.[13]  



There are thus two possible accrual dates:  (1) "the date when [the] plaintiff should have  

                                                                                                                                                   



            10          AS 09.10.070(a).   



            11          Mine Safety Appliances Co. v. Stiles                              , 756 P.2d 288, 291 (Alaska 1988)                     



(citing  Russell v. Municipality of Anchorage                                  , 743 P.2d 372, 375 (Alaska 1987)).                 



            12          John's Heating Serv., 46 P.3d at 1031 (footnote omitted) (citing Pedersen  

                                                                                                                                           

v. Zielski, 822 P.2d 903, 906-07 (Alaska 1991)).  

                                                                          



            13          Cameron v. State, 822 P.2d 1362, 1366-67 (Alaska 1991).  

                                                                                                                     



                                                                           -9-                                                                    7457
  


----------------------- Page 10-----------------------

discovered the existence of all essential elements of the cause of action" - the actual or                                                                         



constructive notice date - or (2) "the date when the plaintiff has information which is                                                                             



sufficient to alert a reasonable person to begin an inquiry to protect his rights" - the                                                                         

                                     14   But our decisions have emphasized that "the inquiry notice date,  

inquiry notice date.                                                                                                                                          



rather than the date when the inquiry should have produced knowledge of the elements  

                                                                                                                                                      



of the cause of action," is the operative date for purposes of determining when the statute  

                                                                                                                                                           

of limitations begins to run.15                            Additionally, if the plaintiff makes a reasonable inquiry  

                                                                                                                                   



but does not discover all elements of the claim in a time reasonably sufficient to file his  

                                                                                                                                                                 



lawsuit within the statutory period, then the statute of limitations is tolled until there is  

                                                                                                                                                                    

actual notice or new evidence prompting a new inquiry.16  A plaintiff "has an affirmative  

                                                                                                                                                  



duty  to  investigate  all  potential  causes  of  action  before  the  statute  of  limitations  

                                                                                                                                                 

expires."17  



                          Arnoult  was  on  inquiry  notice  of  a  malpractice  claim  well  before  

                                                                                                                                                         

                            18    He knew in December 2012 that Dr. Webster had failed to attend or  

October 2013.                                                                                                                                                      

                  



             14          John's Heating Serv.                       , 46 P.3d at 1031 (alteration in original) (quoting                               



Cameron, 822 P.2d at 1366).                 



             15           Cameron, 822 P.2d at 1366.  

                                                                      



             16          John's Heating Serv., 46 P.3d at 1031-32 (citing Cameron, 822 P.2d at  

                                                                                                                                                                   

 1367).  



             17          Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska1990) (emphasis  

                                                                                                                                                    

in original).  

      



             18           In  his  amended  complaint,  Arnoult  indicated  that  the  facts  alleged  in  

                                                                                                                                                  

Count II - that Dr. Webster had "intentionally altered and falsified [his] medical/dental  

                                                                                                                                           

records" - were a basis for punitive damages for the malpractice claim alleged in  

                                                                                                                                                                   

Count I.   Count II was not  asserted as an independent claim.   And Arnoult did not  

                                                                                                                                                                

explain how Count II is an independent claim in his motion to reconsider before the  

                                                                                                                                                                 

superior court or his brief on appeal to this court.   We therefore decline to address  

                                                                                                                                                        

                                                                                                                                             (continued...)  



                                                                               -10-                                                                          7457
  


----------------------- Page 11-----------------------

reschedule   his   appointments.     Arnoult   states   that   he   knew   in   January   2013   that  



Dr. Rogers was surprised that Arnoult's bacterial infection had not been treated sooner                                                                                    



and that there were no recent X-rays. In the early months of 2013 Arnoult knew that his                                                                                            



symptoms improved soon after being treated by Dr. Rogers.                                                                           All of these facts would                

have put a reasonable person on inquiry notice of a potential dental malpractice claim.                                                                                                19  



                             Once Arnoult was on inquiry  notice  in early 2013, he had a "duty to  

                                                                                                                                                                                     

investigate all potential causes of action before the statute of limitations expire[d]."20  

                                                                                                                                                                                           



This would include a claim for malpractice based on misdiagnosis or misinformation.  

                                                                                                                                                                                           



And Arnoult did investigate such claims before the statute of limitations expired - he  

                                                                                                                                                                                    



knew of the alleged misdiagnosis and misinformation by October 2013, giving him over  

                                                                                                                                                                                

a year to file within the statute of limitations.21  We therefore hold that "the superior court  

                                                                                                                                                                               



had before it uncontroverted facts sufficient to support its entry of summary judgment"  

                                                                                                                                                                   

based on its conclusion that the limitation period started no later than July 2013.22  

                                                                                                                                                                



V.            CONCLUSION  



                             We AFFIRM the superior court's order granting summary judgment.  

                                                                                                                                                           



              18             (...continued)  



Count  II  as  an  independent  fraud  claim.   Because  Arnoult  pleaded  Count  II  as  dependent  

on   Count   I  -  the   dental  malpractice   claim  -  the   statute   of   limitations   for   Count   II  

started to  run  when  Arnoult was on inquiry notice for the malpractice claim, not when  

he  had  notice  of  the  falsification  of  records.   



              19             See John's Heating Serv., 46 P.3d at 1031.  

                                                                                                             



              20             See Palmer, 818 P.2d at 634 (emphasis in original).  

                                                                                                                        



              21             See  Cameron,  822  P.2d  at  1367-68  (holding  that  "ten  months  was  a  

                                                                                                                                                                                      

reasonable time . . . to investigate and file [a] claim").  

                                                                                                  



              22             See John's Heating Serv., 46 P.3d at 1031.  

                                                                                                             



                                                                                        -11-                                                                                  7457
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC