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Kaufman v. Taub

OPINION FILED AUGUST 5, 1980.

K. RENEE KAUFMAN, PLAINTIFF-APPELLANT,

v.

JACK E. TAUB, D.D.S., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, K. Renee Kaufman, initiated suit in the circuit court of Cook County on August 22, 1977, against defendant, her former dentist, Jack E. Taub. She claimed to have suffered damages resulting from defendant's allegedly negligent course of treatment conducted during 1974 and 1975. Defendant moved for summary judgment, asserting the expiration of the two-year personal injury statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 15) as a bar to plaintiff's action. Summary judgment was granted defendant; plaintiff's subsequent motion to vacate was denied. This appeal follows.

Plaintiff contends that the trial court erred in ruling the limitations period had expired. First, she asserts that the trial court improperly made findings from disputed facts on a motion for summary judgment when it found that her last visit to defendant was in April 1975 and that she should have been cognizant of her injury (to trigger the running of the limitations period) on that date. She further claims that since she did not become aware of the negligent treatment administered by defendant until September 1976, the limitations period should comprise two years from the date of discovery. On either basis, plaintiff maintains that summary judgment was improperly granted because the limitations period for initiation of her professional malpractice action had not expired.

On May 31, 1974, plaintiff consulted defendant for dental care. Plaintiff contends that although her initial visit was merely a routine examination, she informed defendant of various other complaints (bleeding gums, crossed teeth, pain in her jaw), and he embarked on a course of extensive reconstructive therapy. According to the amended complaint, it was only two years later that plaintiff first discovered that defendant negligently failed to refer her to proper dental professionals for preparatory periodontal and surgical therapy prior to commencing reconstructive treatment. Her visit to another dentist, on September 2, 1976, following her move from the suburban area where defendant practiced, allegedly led to her discovery of what she later asserted to be the negligent nature of defendant's treatment.

Both plaintiff and defendant now agree that her gums were not treated. Defendant places the blame on plaintiff, who, he contends, refused to follow his recommendation that a specialist in periodontal disease be consulted prior to his reconstruction work. Plaintiff, however, disputes this contention. Further, she states that when she complained of bleeding gums and pain accompanying defendant's treatments, defendant responded that she was not flossing or brushing properly and was possessed of a low pain threshold and sensitive teeth. He also assured her that the pain would eventually dissipate as her mouth adjusted to the major reconstruction.

During her deposition, plaintiff stated that she had seen defendant many times and could not recall the exact dates of each visit although she had kept a record on a calendar at home. When asked if she could recall the last time she sought dental care from defendant, plaintiff responded:

"A. No, I don't. It was after we moved into our house. I don't know.

Q. Would it sound correct if I said April 29, 1975?

A. No.

Q. That does not sound correct?

A. That does not sound correct.

Q. Do you recall whether it would be before or after April 29, 1975, you first [sic] saw him?

A. After.

Q. How long after April ...


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