Burke v. Fancher

• Decision Date: 20 May 1964
• Citation: 151 Conn. 640,201 A.2d 461
• Parties: Mary L. BURKE v. Morris C. FANCHER. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 461

201 A.2d 461

151 Conn. 640

Mary L. BURKE v. Morris C. FANCHER.

Supreme Court of Errors of Connecticut.

May 20, 1964.

Harry Hammer, Rockville, for appellant (plaintiff).

Bradley B. Bates, Hartford, with whom, on the brief, were Charles W. Page and Philip S. Walker, Hartford, for appellee (defendant).

Before KING, C. J., MURPHY, ALCORN and COMLEY, JJ., and HOUSE, Acting justice.

ALCORN, Associate Justice.

The plaintiff brought this action to recover damages for injuries claimed to have been sustained as a result of the alleged malpractice of her dentist, the defendant, in extracting her teeth and fitting her with dentures. A jury trial resulted in a verdict for the defendant. The plaintiff has appealed from the judgment rendered on the verdict, claiming error in the charge and in a ruling on evidence.

It was the plaintiff's claim of proof that the defendant performed a surgical procedure called an alveoloplasty at the time the teeth were extracted. This procedure consisted of trimming and smoothing bony tissues, removing diseased gum tissue, and suturing the gums to facilitate the immediate fitting of dentures. The asserted malpractice was the defendant's alleged failure to give the plaintiff the proper postoperative care and treatment following the alveoloplasty.

In order to recover, the plaintiff had the burden of proving that the defendant failed to exercise the degree of care, skill and diligence which dentists in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Hurley v. Johnston, 143 Conn. 364, 366, 122 A.2d 732; Ardoline v. Keegan, 140 Conn. 552, 556, 102 A.2d 352. The plaintiff requested the court to charge in four particulars concerning the duty which this standard imposed on the defendant to furnish postoperative care. The plaintiff did not offer expert testimony specifically stating what care or treatment her condition required in order to meet the standard by which the defendant's conduct was to be tested. Nor did she offer expert testimony to the effect that the defendant had failed to meet that standard. Instead, she offered evidence of what was done by other dentists who treated her after she had ceased to consult the defendant. The apparent purpose was to furnish, by this comparison, a basis on which the jury could draw an inference of malpractice. In line with this evidence, the plaintiff requested the court to charge, in substance, that proof by specific expression of expert opinion critical of the defendant's course of treatment was not required so long as the jury could determine, on the basis of expert opinion, what duty was required of the defendant and whether it had been breached by him. The court did not charge in the express language of any of the requests. The charge did, however, properly and adequately cover the substance of all the requests concerning both the standard of professional care required of the defendant and the elements of proof necessary to establish a violation of that standard.

The plaintiff also assigns error in a portion of the charge in which the court observed that it did not recall expert testimony that the defendant's treatment had deviated from the methods approved by the standards of his profession in his area. The court has a wide discretion in commenting on the evidence so long as it does not invade the fact-finding province of the jury. Quednau v. Langrish, 144 Conn. 706, 710, 137 A.2d 544. Earlier in the charge, the court had, explicitly and in detail, emphasized to the jury that it was...