Bean v. Stephens

• Decision Date: 05 May 1975
• Docket Number: No. 2481--I,2481--I
• Citation: 534 P.2d 1047,13 Wn.App. 364
• Parties: Jerry BEAN and Patricia Bean, his wife, Appellants, v. George M. STEPHENS and Jane Doe Stephens, his wife, Respondents.
• Court: Washington Court of Appeals

Page 364

13 Wn.App. 364

534 P.2d 1047

Jerry BEAN and Patricia Bean, his wife, Appellants, v. George M. STEPHENS and Jane Doe Stephens, his wife, Respondents.

No. 2481--I.

Court of Appeals of Washington, Division I.

May 5, 1975.

Rehearing Denied June 30, 1975.

Robbins, Merrick & Kraft, Thomas J. Kraft, Seattle, for appellants.

Williams, Lanza, Kastner & Gibbs, Gerald A. Palm, Seattle, for respondents.

ANDERSEN, Judge.

FACTS OF CASE

The plaintiff, a young woman, went to a dentist in Renton on July 6, 1972. Her visit was in connection with a number of dental problems she had, one of which was a toothache.

The dentist, who with his wife are the defendants in this case, examined her and injected a local anesthetic into the area of the aching tooth.

Thereafter, the defendant proceeded to prepare the tooth for a possible root canal filling using a tiny instrument known as an endodontic broach or root canal broach. This device is approximately 1 1/4 inches long and has tiny barbs along one end of it. It is used to extract tissue from within the root canal of the tooth. In size and shape, it somewhat resembles a common straight pin.

During the course of the dental work, the plaintiff swallowed this small instrument. Major adominal surgery was ultimately required for its removal and this suit followed.

At trial, the plaintiff described to the jury how she came to swallow the endodontic broach:

Well, I was laying back and I had my arms braced and my head pushed back against the chair because I was expecting pain again like the first time but there wasn't none because it was numb right then and I had my mouth open and he was working over me then and I felt something in my throat then and after trying to get his attention that something was in my throat and I was afraid to move right away, then he backed away and I sat up in the chair with my feet clear up in the air and I patted myself on the back and I said, well, I swallowed it and he said, you just swallowed my dental instrument, that is the first time that ever happened to me.

The dentist testified that the occurrence was caused by the plaintiff:

And I took an instrument out similar to this (the endodontic broach) and placed it into the back of the tooth and when I got down to the very apex of the canal she jerked and the instrument was pulled from my grasp and went to the back of her throat and she swallowed it. . . . But at any rate, when I put the instrument in the canal, she made a, quite a substantial movement and it was; went down the hatch, I guess that is the best way to put it.

Expert testimony pertaining to the recognized standards of dental practice for the procedure in question was presented by both plaintiffs and defendants. This centered primarily about whether a rubber sheet or 'dam' was necessary to protect against what transpired here or, if that wasn't feasible, whether some other protective procedure should have been utilized such as positioning the patient in a tilted forward position in the dental chair.

Testimony as to the proper dental practice to be followed was in substantial conflict. The defendant also testified that the tooth involved, as well as the surrounding teeth, was so badly decayed and broken that it would have been difficult, if not impossible, to fasten a rubber dam to any of them.

The case was submitted to the jury on instructions proposed by the plaintiffs. There were no instructions on contributory negligence, it not having been pleaded by the defendants.

The instructions informed the jury that it was a dental malpractice case and that plaintiffs contended the defendant dentist was negligent in dropping a dental instrument into the plaintiff wife's mouth which she swallowed. The jury was instructed that plaintiff had the burden of proving that the defendant dentist acted or failed to act in one of the ways claimed by the plaintiffs and that in so acting or failing to act he was negligent and that such negligence was the proximate cause of her injury.

The instruction as to the defendant dentist's duty to his patient used language from Washington Pattern Jury Instructions. ¹ WPI, 105.01, 6 Wash.Prac. 307 (1967, Supp.1972).

Plaintiffs took no exceptions to the instructions given. Plaintiffs did, however, except to the court's failure to give two of their proposed additional instructions. These additional instructions were proposed later in the trial and were on res ipsa loquitur and informed consent.

The jury returned a defense verdict. Plaintiffs' motion for judgment n.o.v. or in the alternative for a new trial was denied and judgment was entered for the defendants. Plaintiffs appeal therefrom. Plaintiffs' counsel on appeal did not try the case below.

ISSUES

ISSUE ONE. Can error assigned to the trial court's failure to define ordinary negligence in its instructions to the jury be considered where, as here, no such instruction was proposed?

ISSUE TWO. Did the trial court err in not instructing the jury on res ipsa loquitur?

ISSUE THREE. Did the trial court err in also not instructing the jury on informed consent?

ISSUE FOUR. Should the trial court have granted a new trial on the ground that substantial justice was not done?

DECISION

ISSUE ONE.

CONCLUSION. It was not error to fail to give an instruction which was never proposed.

Plaintiffs assign error to the failure to give an instruction on ordinary negligence. No such instruction was submitted as required by CR 51. Having failed to request such an instruction, plaintiffs cannot predicate error on its omission. McGarvey v. Seattle, 62 Wash.2d 524, 532, 384 P.2d 127 (1963).

ISSUE TWO.

CONCLUSION. The court did not err in failing to submit a proposed instruction on res ipsa loquitur when it did not correctly state the law.

Plaintiffs assign error to the trial court's refusal to give their proposed instruction on res ipsa loquitur. ²

Plaintiffs rely principally on three medical malpractice cases in this state where the giving of an instruction on res ipsa loquitur has been approved. These are Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968); Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 31 A.L.R.3d 1100 (1967) and Horner v. Northern Pac. Beneficial Ass'n Hosps., Inc., 62 Wash.2d 351, 382 P.2d 518 (1963). In each of those three cases, the jury was specifically informed by the res ipsa loquitur instruction that it was at liberty to infer negligence or not to infer it as the jury saw fit. This is not what the proposed instruction did in this case.

The plaintiffs' proposed instruction on res ipsa loquitur provided that upon making certain findings, the jury 'shall find' that the dentist was negligent. Res ipsa loquitur is an inference and even in those cases where it is proper to instruct a jury on it, the jury should be left at liberty to infer negligence or not to infer it, as the jury sees fit. Lappin v. Lucurell, 13 Wash.App. 277, 534 P.2d 1038 (1975). Accord, Douglas v. Bussabarger, Supra; Pederson v. Dumouchel, Supra; Horner v. Northern Pac. Beneficial Ass'n Hosps., Inc., Supra. The proposed instruction was incorrect.

A trial court is not required to give an instruction which is erroneous in any respect. State v. Chambers, 81 Wash.2d 929, 933, 506 P.2d 311 (1973); Olympia v. Sprout, 5 Wash.App. 897, 898, 492 P.2d 586 (1971).

ISSUE THREE.

CONCLUSION. There was no substantial evidence in this case on the issue of informed consent and, therefore, the trial court did not err in refusing to instruct on it.

Plaintiffs assign error to the trial court's refusal to submit their proposed instruction on the defendant dentist's duty to inform the plaintiff wife of all material facts which she should know in order for her to make an informed decision as to whether or not...