Alexander v. Hill, Record No. 2121.
| Decision Date | 08 January 1940 |
| Docket Number | Record No. 2121. |
| Citation | 174 Va. 248 |
| Court | Virginia Supreme Court |
| Parties | JOSEPH A. ALEXANDER v. MIRIAM D. HILL. |
Present, Holt, Hudgins, Gregory Eggleston and Spratley, JJ.
1. PHYSICIANS AND SURGEONS — Dentists — Implied Representation of Possession of Proper Skill. — A dentist who holds himself out to the world as such, impliedly represents that he possesses the necessary and proper skill to practice his profession.
2. PHYSICIANS AND SURGEONS — Dentists — Degree of Care and Skill Required. — The degree of care and skill required of a dentist is the same as that which would be exercised by the ordinarily prudent dentist in good standing in his community. He does not guarantee or warrant a cure, and is not required to exercise the highest degree of care and skill known to the profession.
3. PHYSICIANS AND SURGEONS — Dentists — Actions for Malpractice — Doctrine of Res Ipsa Loquitur Inapplicable. — Ordinarily the doctrine of res ipsa loquitur does not apply in a malpractice suit against a dentist or physician, but negligence must be affirmatively proved.
4. PHYSICIANS AND SURGEONS — Dentists — Failure to Cure Insufficient to Raise Presumption of Negligence. — A bad result or a failure to cure is not in itself alone sufficient to raise an inference or presumption of negligence on the part of a dentist or a physician.
5. PHYSICIANS AND SURGEONS — Dentists — Liability for Negligence — Failure to Make X-ray Examination after Extraction — Case at Bar. — In the instant case, an action against a dentist for negligence, defendant extracted several teeth for plaintiff and assured her and her husband that the work had been cleanly performed and no roots left in her mouth. A second dentist to whom plaintiff was referred for the fitting of a plate testified that he observed nothing wrong with plaintiff's gums to indicate that it was not proper that a plate be installed. A subsequent X-ray examination by this second dentist, on complaint that the plate did not fit, disclosed fragments of roots in six of the sockets from which the teeth had been extracted. Plaintiff contended that an X-ray examination by defendant would have disclosed the broken roots. There was no evidence that it was the usual and approved custom and practice of dentists in the locality to make an X-ray examination after such an operation.
Held: That no inference of negligence could be drawn from the failure to make an X-ray examination.
6. PHYSICIANS AND SURGEONS — Dentists — Liability for Negligence — Negligence Not Shown by Mistaken Statement that Operation Had Been Successful — Case at Bar. — In the instant case, an action against a dentist for negligence, defendant extracted several teeth for plaintiff and assured her and her husband that the work had been cleanly performed and no roots left in her mouth. A second dentist to whom plaintiff was referred for the fitting of a plate testified that he observed nothing wrong with plaintiff's gums to indicate that it was not proper that a plate be installed. A subsequent X-ray examination by this second dentist, on complaint that the plate did not fit, disclosed fragments of roots in six of the sockets from which the teeth had been extracted. Plaintiff contended that defendant, with full knowledge that the fragments remained in her jaw, negligently failed to disclose this fact to her.
Held: That, while it was true that the evidence showed that defendant told plaintiff and her husband that the operation had been a success, the fact that he was mistaken in this did not show that the lack of success in the operation was in any way due to his negligence.
7. PHYSICIANS AND SURGEONS — Dentists — Actions for Malpractice — Sufficiency of Evidence — Case at Bar. — In the instant case, an action against a dentist for negligence, defendant extracted several teeth for plaintiff and assured her and her husband that the work had been cleanly performed and no roots left in her mouth. A second dentist to whom plaintiff was referred for the fitting of a plate testified that he observed nothing wrong with plaintiff's gums to indicate that it was not proper that a plate be installed. A subsequent X-ray examination by this second dentist, on complaint that the plate did not fit, disclosed fragments of roots in six of the sockets from which the teeth had been extracted. There was not the slightest evidence that the bad result was due to the negligence of defendant; nor was there any evidence that he knew after the operation that the broken roots were left in plaintiff's jaw. Defendant demurred to plaintiff's evidence.
Held: That the demurrer to the evidence should have been sustained.
Error to a judgment of the Law and Equity Court of the city of Richmond. Hon. Willis D. Miller, judge presiding.
The opinion states the case.
Parrish, Butcher & Parrish, Robert G. Butcher and A. N. Heflin, for the plaintiff in error.
Russell Keiningham, for the defendant in error.
Miriam D. Hill, hereinafter called the plaintiff, instituted an action at law against Joseph A. Alexander, hereinafter called the defendant, a dentist practicing in the city of Richmond, for damages which she alleged resulted from his negligence in extracting a number of her teeth and in treating her after the operation. The defendant filed a plea of the general issue and grounds of defense denying the allegations of negligence. At the conclusion of the plaintiff's evidence the defendant demurred thereto, The jury assessed damages in the sum of $300, subject to the demurrer. The trial court overruled the demurrer and entered judgment for the plaintiff. To review that judgment the present writ was granted.
The evidence is quite brief, consisting of the testimony of Mrs. Hill, that of her husband, and that of Dr. Ruth, a dentist likewise practicing in Richmond. As disclosed by the testimony of these witnesses the facts are as follows:
The plaintiff had been suffering with rheumatism or arthritis and upon the advice of her physician consulted Dr. Alexander as to the advisability of removing some of her teeth. After an X-ray examination Dr. Alexander determined that eleven of Mrs. Hill's upper teeth were diseased and should be extracted.
On February 13, 1938, Mrs. Hill came to Dr. Alexander's office, was given a general anaesthetic and the eleven teeth were removed. She was directed to return to her home, to use a warm mouth wash, and to make alternating hot and cold applications to her face.
Shortly after she reached home Dr. Alexander called to see her at the request of her husband. He then removed a piece of tooth or bone which was protruding from her upper jaw. About a week later Mr. Hill again...
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