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Rogoff v. King11/8/1993
DONALD C. NUGENT, Judge.
This is an appeal from the decision of the Cuyahoga County Court of Common Pleas which granted the motion for summary judgment filed by defendant-appellee Steven W. King, D.D.S., on the complaint of plaintiffs-appellants Michelle B. Rogoff and Earle Rogoff.
Appellants initiated the present dental malpractice action through the filing of their complaint on February 21, 1991. Appellee duly answered. On July 1, 1991, a pretrial was set for September 13, 1991, by which time appellants were to supply an expert's report. Thereafter, on appellants' motion, the trial court extended the deadline for appellants to obtain an expert's report to October 14, 1991. Appellants' expert medical report was filed on October 15, 1991. After a pretrial held on October 17, 1991, appellants were given forty-five days to supplement their expert report. Appellee was further given until January 1, 1992 to file a dispositive motion, while appellants were given until February 1, 1992 to respond. The trial court set a final pretrial conference for March 5, 1992 and trial for April 13, 1992. Appellants filed a motion to file a supplemental expert medical report instanter on December 6, 1991, which the trial court granted. Appellee filed a motion for summary judgment, with leave of court, on January 30, 1992. Appellants filed their responsive brief, also with leave of court, on March 16, 1992.
The relevant facts are as follows:
In support of his motion for summary judgment, Dr. King averred that he had reviewed the treatment rendered to Mrs. Rogoff and that it was his opinion that " nder no circumstances was there any failure on my behalf to comply with the reasonable standard of dental care involving my consultation and treatment relative to Michelle B. Rogoff." Dr. King further opined that " n all respects, I have complied with the applicable standard for dentists practicing under the same or similar circumstances."
Also attached to appellee's motion for summary judgment was the following pertinent deposition testimony of Mrs. Rogoff:
"Q. Was it your perception that ever since the root canal had originally been done back in late 1987 that the treatment had not solved your problem?
"A. Absolutely.
"Q. Did you continue to have flare-ups and pain between late 1987 and when you last saw Dr. King?
"A. Yes, I did.
"Q. Did you complain to anybody about that pain?
"A. Yes, I did.
"Q. Who?
"A. Everybody.
"Q. Who is everybody?
"A. Dr. King, the girls in his office, all my friends, my family. I was really sick."
In opposition to appellee's motion for summary judgment, Michelle Rogoff averred that she was a patient of Dr. King from approximately July 1984 through September 1988. In October 1987, Mrs. Rogoff underwent root canal therapy as recommended by Dr. King. Mrs. Rogoff averred that from the time of the root canal therapy, she experienced extreme pain and suffering, causing her to make numerous visits to Dr. King's office for relief from said pain and suffering. Mrs. Rogoff further averred that during the course of her follow-up treatment from October 1987 through September 1988, Dr. King repeatedly reassured her that he could find no problem with the procedure performed, but he was puzzled as to why she was experiencing pain and felt that it would take time for her to heal and for the pain to be alleviated.
Mrs. Rogoff was advised by Dr. King that she should see an endodontist during the summer of 1988, but for financial reasons, as well as being scared, she cho
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