Berardi v. Menicks
| Decision Date | 12 February 1960 |
| Citation | 340 Mass. 396,164 N.E.2d 544 |
| Parties | , 83 A.L.R.2d 1 Mary BERARDI et al. v. Samuel MENICKS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James M. Harkless, Boston, for plaintiffs.
Andrew B. Goodspeed, Boston, for defendant.
Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.
The sole question for decision is whether, in this action of tort brought in one count by Mary Berardi for malpractice and in another count by her husband for consequential damages, the judge erred in ordering verdicts for the defendant. Mary Berardi will be referred to hereinafter as the plaintiff.
A summary of the relevant evidence shows the following: On January 15, 1955, the defendant, a dentist practising in Cambridge, made an examination of the plaintiff's teeth at his office and informed her that two of her wisdom teeth 'could come out and that she could report to the hospital the next day in order to have them extracted.' On January 16 the plaintiff entered the Otis General Hospital, and on the following day an operation for the removal of the two teeth was performed by the defendant. During the operation the plaintiff was 'under total anesthesia.' This condition continued throughout the night and in the morning there was a great swelling in the left side of her face and she was in great pain. She endeavored, without success, to get in touch with the defenant. The swelling and pain continued and she was unable to open her mouth.
During the first part of the week following her discharge from the hospital, the plaintiff 'began to hemorrhage from the mouth.' Between January 18 and January 28, the plaintiff saw the defendant 'quite a few times' at his office. He lanced her gum and told her to 'rinse her mouth out with a little salted water,' but her condition worsened. Twice during the week following her discharge from the hospital 'she began to hemorrhage * * * from the socket on the left side of her jaw' and she 'was rushed' to the East Boston Relief Station for emergency treatment. On the morning following the second of these visits, the plaintiff communicated with the defendant, who instructed her to go to the Otis General Hospital. In compliance with this instruction the plaintiff entered the hospital on January 28 and remained there for twelve days.
Upon her discharge from the hospital the plaintiff saw the defendant at his office a few times. In March she was able to resume her regular occupation but
In April, 1956 (slightly over a year after her return to work), the plaintiff consulted another dentist, Dr. Kane, who, after taking X-rays of her mouth, referred her to Dr. Irving G. Nathanson, an oral surgeon practising in Boston. Dr. Nathanson took X-rays, which disclosed a 'root * * * in the area of the third molar region' and he removed it. This root was in the The defendant testified that when he first saw the plaintiff he made a diagnosis of 'impacted lower left and lower right third molars [and] inability to move jaw.' He conceded that 'no intra-oral or extra-oral X-rays were taken of * * * [the plaintiff's] teeth prior to the extraction.' He testified that the purposes of taking X-rays prior to extraction are to determine the angle in which the teeth are located in the jaw, the curvature of the teeth in the mouth, and the number of roots. The defendant did not know the number of roots at the time he operated on the plaintiff. He stated that '[w]hen he performed the extraction, he intended to remove the whole tooth * * * [but] [a]fter the crowns * * * were removed the operation was discontinued, because of poor respiration and severe hemorrhage.' The defendant admitted that it was 'common practice to remove the whole tooth'; he did not, however, remove the roots subsequent to the operation on January 17.
The plaintiff's expert was Dr. Nathanson, the oral surgeon who removed the root from the plaintiff's jaw in April, 1956. He testified that he was 'familiar with the general practice of dentistry in the Boston and Cambridge community.' He also testified that the 'recognized procedure for the removal of an impacted lower third molar * * * would be indicated by the findings of the X-ray film.' The purpose of the X-ray would be to determine the location of the root. Dr. Nathanson was of opinion that, '[i]f the root had been removed within a matter of weeks after the crown had been removed, the plaintiff probably would not have had any problem.' 1
To entitle the plaintiff to go to the jury there must be sufficient evidence (1) to warrant a finding of negligence on the defendant's part, and (2) to warrant a finding that there was a causal connection between such negligence, if found, and the plaintiff's injuries.
The defendant's failure to take X-rays could have been found not to have been in accordance with the standard procedure in cases involving the extraction of impacted wisdom teeth, and we assume that such failure would have warranted a finding of negligence. But negligence is without legal consequence unless it is a contributing cause of the injury. Baggs v. Hirschfield, 293 Mass. 1, 3, 199 N.E. 136. The evidence reveals no causal relation between the failure to take X-rays and the injury of which the plaintiff complains. The testimony of Dr. Nathanson related to the consequences of the defendant's failure to remove the whole tooth; there was no expert testimony bearing on the effect of the lack of X-rays.
The defendant admitted that normal procedure would require the extraction of the whole tooth. He testified, however, that he discontinued the operation after he had removed the crown because of the plaintiff's 'poor respiration and severe hemorrhag[ing].' On the plaintiff's own testimony it is clear that, during the ten days following the operation, she experienced frequent and serious hemorrhaging. We are of opinion that it would be a distortion of the evidence to say that the jury might believe the portion of the defendant's...
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