Acton v. Morrison

• Decision Date: 29 January 1945
• Docket Number: Civil 4594
• Citation: 62 Ariz. 139,155 P.2d 782
• Parties: JOHN T. ACTON, Appellant, v. NORMAN H. MORRISON, Appellee
• Court: Arizona Supreme Court

155 P.2d 782

62 Ariz. 139

JOHN T. ACTON, Appellant, v. NORMAN H. MORRISON, Appellee

Civil No. 4594

Supreme Court of Arizona

January 29, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.

Judgment reversed and case remanded with directions.

Mr. W H. Chester and Mr. Herbert Watson, for Appellant.

Mr. H M. Van Denburgh, for Appellee.

Ross C. J. Stanford and LaPrade, JJ., concur.

OPINION

Ross, C. J.

This is an appeal from an order dismissing plaintiff's action on the ground that it was barred by limitation.

On May 21, 1942, plaintiff filed his complaint against the defendant, a duly licensed dentist, for damages for malpractice in performing certain professional services upon plaintiff's teeth, in the months of July and August, 1935. It is alleged, in substance, that plaintiff's wisdom teeth in his lower jaw were impacted, and that defendant was employed to remove them; that he performed such professional services in July or August, 1935, as follows:

"(a) Defendant negligently and carelessly allowed a portion of a dentist drill to be broken off, embedded and left in the jawbone of the plaintiff; (b) defendant negligently and carelessly allowed a portion of a hypodermic needle to be broken off, embedded and left in the jawbone of the plaintiff";

that he represented by his acts and words that the work had been done in a skillful and capable manner, and that plaintiff would have no more trouble by reason of the removal of his teeth or the work done; that such representations were false and known to be false by defendant and made with intent to induce plaintiff to believe that said work had been done skillfully, capably and carefully; that said representations were made for the purpose of concealing from plaintiff the true facts and to avoid liability for his negligent acts.

By reason of such false representations plaintiff had no other work done nor examination of his teeth or jaw except as hereinafter alleged, but that he became sick and sore and disabled as a consequence of the embedded metals in his jaw, and that he was forced to, and did, expend large sums of money in an attempt to discover the cause of his illness; that he became rheumatic and suffered a long period of illness; that he consulted defendant again in the fall of 1939, whereupon defendant took X-rays of his teeth and jawbone, and thereafter wrongfully and fraudulently represented to him that he had no disorders of the jawbone or his teeth, and that the work performed by defendant was skillful and capable; that plaintiff thereafter suffered from sickness and disability, and in October or November, 1941, he visited another dentist who took X-rays of plaintiff's jaw and advised him that defendant had allowed a portion of a dentist drill and a hypodermic needle to be broken off, embedded and left in the jawbone, and that a portion of the jawbone, in which the dentist drill was lodged, had to be removed; that the hypodermic needle could not be removed without removing a portion of the jawbone and other sound teeth, and was left in the jawbone.

The defendant filed a motion to dismiss the action on the grounds, (1) that the complaint fails to state a claim upon which relief can be granted; (2) that more than two years have elapsed from the date of the alleged injury and the bringing of the action, and therefore the action is barred by Section 29-202, Arizona Code Annotated 1939; and (3) that the complaint fails to state a claim upon which relief can be granted on the ground of fraud.

This motion was granted on September 14, 1942, in the following language:

"Order the defendant's motions for judgment on the pleadings is granted on the grounds the statute of limitations has run."

From this judgment the plaintiff has appealed, contending that the complaint states a cause of action for malpractice.

A reading of the complaint will disclose that the gravamen of the cause of action is negligence in extracting the plaintiff's teeth and a subsequent concealment of their condition. The action is based upon negligent and unskillful treatment and the fraudulent concealment from the plaintiff of the condition of his teeth and jawbone from the time of the operation until in October or November, 1941, when plaintiff visited another dentist who took X-rays of his jaw and advised him that defendant had allowed a dentist drill to be broken off and a portion left in the plaintiff's jawbone, and also that a hypodermic needle had been broken off and allowed to remain in the jawbone.

The liability of a dentist in performing an operation on a patient's teeth is very similar to that of a physician. 41 Am. Jur. 206, Sec. 88. He does not guarantee nor warrant his treatment will be successful. As held by this court in Butler v. Rule, 29 Ariz. 405, 242 P. 436, 440, quoting from Hales v. Raines, 146 Mo.App. 232, 130 S.W. 425:

"'We gather from the authorities that the correct rule is, that a physician and surgeon when employed in his professional capacity is required to exercise that degree of knowledge and skill and care which physicians and surgeons practicing in similar localities ordinarily possess. In other words, a physician is held to that care...