John Doe goes to the dentist. The dentist does a lot of work on John’s teeth.

Later John goes to a second dentist. The second dentist concludes the first dentist did some work wrong, and now John needs some corrective work done.

The first dentist issues a partial refund of fees, but John sues anyway.

These are essentially the facts in a recent Court of Appeals decision.[1]  The Court of Appeals upheld a dismissal on summary judgment. Here is why.

The first dentist alleged that the last possible date negligent work was done – if any – was March 15, 2007. The last day he saw the patient, though, was March 29. The case was filed after the statute of limitations ran on the March 15 date, but before it ran on the March 29 date.

So, to avoid dismissal the patient had to show some evidence that there was negligent work done on the March 29 visit. Otherwise, the statute of limitations had run out.

The patient’s attorney presented a document from the second dentist expressing an opinion that on the final March 29 visit the first dentist should have discovered the previous error, and that the failure to discover the previous error was medical negligence

Unfortunately, the patient’s attorney did not get this statement in the form of a declaration under penalty of perjury. Because the statement was unsworn, it was ruled not admissible as evidence. 

Perhaps if the statement had been sworn the case would have proceeded to trial. Perhaps we will never know, because the Court of Appeals agreed with the trial court that the unsworn statement was not proper evidence.

The dismissal was upheld.

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By personal injury attorney Travis Eller