Brashears v. Peak

• Decision Date: 13 December 1944
• Docket Number: 2664.
• Citation: 19 So.2d 901
• Court: Court of Appeal of Louisiana — District of US
• Parties: BRASHEARS et ux. v. PEAK.

19 So.2d 901

BRASHEARS et ux. v. PEAK.

No. 2664.

Court of Appeals of Louisiana, First Circuit

December 13, 1944

J Oliver Bouanchaud, of Baton Rouge, for appellants.

Taylor Porter, Brooks & Fuller, of Baton Rouge, for appellee.

LE BLANC Judge.

The defendant herein is Dr. Rowland H. Peak, a practicing dentist in the City of Baton Rouge, who is being sued for damages for the alleged careless and negligent way in which he attended professionally one of his patients, Mrs. Sarah Elizabeth Brashears, wife of John P. Brashears, in removing a lower left bicuspid tooth from her jawbone. Mrs. Brashears' demand is for pain, suffering and discomfort, in the sum of $1,500, and for permanent impairment to her health and nerves, in the sum of $2,000. He husband joins her in the suit and makes demand for the sum of $89.75 for medical and hospital services alleged to have become necessary by reason of the gross negligence and carelessness of the defendant after he had failed to remove the root of the tooth which he had broken at the time of the alleged attempted extraction.

In the petition it is alleged that in the month of July, 1937, Mrs Brashears employed the defendant to extract all her teeth and to make a set of false teeth and that in pursuance of the said employment he did, from time to time beginning in July 1937, and up to about December 15, 1937, extract her teeth except as in the manner later on outlined and made for her a set of upper and lower false teeth which she began to wear during the latter part of December, 1937.

It is then set out that about the middle of November, 1937, in attempting to extract the bicuspid tooth referred to, the defendant broke the crown without removing the root and informed her that he had done so, stating that he had not had time to remove the root before she had come out of the influence of the gas which he had administered for the purpose of performing the extraction but that he would do so upon her next professional visit to his office. It is then alleged that during the first part of December, 1937, she returned to his office and he again administered gas in order to extract some remaining teeth and that when she was under the influence of the gas he performed certain surgical work in the socket in which the root of the broken bicuspid tooth remained and that after he had completed this work on that day, he informed her that he had removed the root of the broken bicuspid tooth. It is next alleged that the defendant made a plate or set of false teeth for her which she began wearing, and then gradually the gums in her mouth healed completely except at that spot over which the root of the broken bicuspid remained. That she made several visits to his office between December, 1937, and June 23, 1939, and upon each occasion complained that the gum over that portion of her jawbone was not healing and that it was sensitive and pained her. On each occasion, it is alleged, the defendant would assure her than that condition was not unusual and was caused by pressure of the plate over that area of the gum. That defendant would then treat her gums and would perform some adjustment work on the plate in order to relieve the pain of which she complained. This continued until about June 23, 1939, when the gum around the socket of the jawbone where she complained of pain became inflamed and abscessed and she again called at the defendant's office, at which time he made an X-ray picture of that portion of her jawbone and informed her for the first time that the root of the bicuspid tooth was still in the socket. That, acting on his advice, she called at his office on the afternoon of June 23, 1939, when he again administered gas and attempted to remove the root of the said tooth but was unsuccessful. That she again called upon the defendant on June 28, June 29 and June 30, 1939, for treatment, but that on the night of June 30, or early the following morning, she became so severely ill from the effects of the condition of her jawbone that her physician, Dr. C. A. Voss, had to be called to her home. That Dr. Voss treated her until July 3, when he advised that she be removed to the Balton Rouge General Hospital where he operated upon her and extracted the infected root of her tooth. She then sets out the pain and suffering she endured and the necessity of further hospitalization in order to more definitely set out the damages which she claims.

The defendant first filed a plea of prescription which was overruled by the trial judge and then filed his answer in which his defense may be said to be a denial of the alleged carelessness and negligence charged against him and also the affirmative defense that the technique which he used in extracting Mrs. Brashears' tooth was the standard method employed by all reputable dentists in such cases and that the treatment which he gave her after the extraction was likewise proper and correct, skillful and scientific. The defendant particularly denies that he ever told Mrs. Brashears that the root of her lower left bicuspid had been removed but avers on the contrary that he had previously advised her on numerous occasions that it had not been removed for the reason that in due course, nature would force it to come nearer to the surface of the gum, at which time it would be much easier and far less dangerous to remove it. In the alternative plaintiff pleads in the event it should be held that he was negligent in any manner as alleged by the plaintiff, Mrs. Brashears, that her claim is prescribed and barred by the lapse of one year.

After trial of the case in the lower court on the merits, judgment was rendered in favor of the defendant dismissing the suit of the plaintiffs at their costs. From that...