Berardi v. Menicks

Citation340 Mass. 396,164 N.E.2d 544
Parties, 83 A.L.R.2d 1 Mary BERARDI et al. v. Samuel MENICKS.
Decision Date12 February 1960
CourtUnited States State Supreme Judicial Court of Massachusetts

Page 544

164 N.E.2d 544
340 Mass. 396, 83 A.L.R.2d 1
Mary BERARDI et al.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued Dec. 7, 1959.
Decided Feb. 12, 1960.

Page 545

[340 Mass. 397] James M. Harkless, Boston, for plaintiffs.

Andrew B. Goodspeed, Boston, for defendant.


[340 Mass. 397] SPALDING, Justice.

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.' 'Upon discharge from the hospital [on January 18], she was taken home by her husband. That evening, her mouth ached * * * severely and she had great pain. The pain was in the left jaw and was like a throbbing toothache * * *. Her jaw [340 Mass. 398] tightened and she could not eat, and as a result began to feel weak.' 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 'she was still nervous * * * [and] did not feel well and, on occasion, experienced a tightening in her jaw. This would occur every other month or so.'

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 'socket in * * * [the plaintiff's] left jaw where a wisdom tooth had previously been removed [by the defendant]. Prior to her visit to Dr. Kane's office, the plaintiff was not aware that a tooth root had been retained in the left side of her jaw.'

[340 Mass. 399]

Page 546

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...

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