Rogoff v. King

• Decision Date: 08 November 1993
• Docket Number: No. 63782,63782
• Citation: 91 Ohio App.3d 438,632 N.E.2d 977
• Parties: ROGOFF et al., Appellants, v. KING, Appellee.
• Court: Ohio Court of Appeals

Page 438

91 Ohio App.3d 438

632 N.E.2d 977

ROGOFF et al., Appellants, v. KING, Appellee.

No. 63782.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 8, 1993.

Marc N. Silberman, Beachwood, for appellants.

Roy A. Hulme, Cleveland, for appellee.

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 "[u]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 "[i]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 chose not to do so. On November 24, 1989, however, Mrs. Rogoff was advised by Dr. Evan Tetelman, D.D.S., that a broken instrument was found in the tooth treated by Dr. King. Moreover, despite admitting to being "a lay person as it related to dental treatment," Mrs. Rogoff averred that it was not until November 24, 1989 that she learned of the source of "her great pain and discomfort in the tooth treated by" Dr. King.

In their brief in opposition to appellee's motion for summary judgment and before this court, appellants rely on the "expert medical report" and "supplemental expert medical report" of Dr. Ned Robertson, D.D.S., previously filed with the trial court. In Dr. Robertson's "expert medical report," he writes:

"As I understood the accepted standards of my profession, there are five possible causes for concern here regarding tooth # 19, each of which I would like to address. First, Sargenti paste was allegedly used. Second, the tooth was filled initially while the patient still experienced pain. Third, an instrument was broken off in one of the canals and the patient was not informed right away. Fourth, a temporary crown was apparently not placed to prevent tooth fracture, and no crown was recommended to the patient as the final treatment for this tooth. Finally, antibiotics could possibly have been used earlier to help clear up what may have been a periapical abscess.

" * * *

"In conclusion, although there may have been several breaches of the standards of dental care, I cannot say with certainty which, if any of these resulted in the prolonged pain experienced by the patient or the eventual loss of the tooth. Any one of the first four could have done so." (Emphasis added.)

In Dr. Robertson's "supplemental expert medical report," Dr. Robertson writes:

"You have requested clarification regarding my report of 14 October 1991 (Rogoff v. King). Specifically, do I feel the standards of care may have been violated in this case by Dr. King, and could this have resulted in the pain and/or subsequent loss of the tooth? The answer would be 'yes.' The written records and the patient's testimony both suggest this." (Emphasis added.)

Based on the foregoing, the trial court granted appellee's motion for summary judgment. Appellants timely appeal, raising the following assignments of error for our review:

"I. The trial court erred in granting defendant-appellee's motion for summary judgment where numerous issues of material fact existed and defendant-appellee was not entitled to judgment as a matter of law.

"II. The trial court failed to render a legally sufficient judgment pursuant to Ohio Civil Rule 54(A) which has placed an undue burden on plaintiff-appellants to prosecute this appeal."

I

In appellants' first assignment of error, appellants argue: (1) that by filing expert medical reports, an affidavit and a transcript of Mrs. Rogoff's deposition testimony, appellants met the requirements of Civ.R. 56(E) in responding to appellee's motion for summary judgment; (2) that summary judgment should not have been granted because appellants raised numerous issues of material fact, as well as called into question the credibility of Dr. King; and that (3) the trial court prematurely considered appellee's motion for summary judgment. Appellants' arguments lack merit.

A court reviewing the granting of a summary judgment must follow the standard set forth in Civ.R. 56(C). Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 523 N.E.2d 902. Civ.R. 56(C) provides that summary judgment shall be rendered:

" * * * if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that * * * (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

"A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus, citing Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Civ.R. 56(E) provides in part:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." (Emphasis added.)

"In reading section (C) in association with section (E), it can be readily seen that once a party moves for summary judgment and has supported his or her motion by sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as provided in section (C) setting forth specific facts explaining that a genuine issue for trial exists." Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 51-52, 567 N.E.2d 1027, 1031.

In order to establish a cognizable claim of medical malpractice, a plaintiff must show the existence of a standard of care within the medical community, breach of that standard of care by the defendant/physician, and proximate cause between the medical negligence and the injury sustained. Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 529 N.E.2d 449; Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673. In Bruni, supra, at 137, 75 O.O.2d at 190, 346 N.E.2d at 675, the Ohio Supreme Court stated:

"Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the...