Butts v. Watts
| Decision Date | 02 March 1956 |
| Citation | 290 S.W.2d 777 |
| Parties | James BUTTS, Appellant, v. W. P. WATTS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Rodes K. Myers, George B. Boston, Bowling Green, for appellant.
G. D. Milliken, Jr., Bowling Green, for appellee.
STANLEY, Commissioner.
The appeal is from a judgment on a directed verdict for the defendant in an action against a dentist for malpractice.
The appellant, James Butts, suffering severe pain from a wisdom tooth, accompanied by great swelling, went to Dr. W. P. Watts in Bowling Green for relief. The dentist took an X-ray picture and determined the position of the tooth, injected novocain to relieve the pain and proceeded to extract it. In the process the tooth shattered, and he removed the splinters. He packed the cavity with medicated gauze and gave the patient an aspirin or other sedative. Suffering considerably, Butts returned the next morning and Dr. Watts changed the packing and advised him to go to see a physician, to be treated with penicillin. The physician, Dr. Moss, administered it and gave him some pain-relieving medicine. Butts returned the third day to the dentist who again merely changed the packing. His physician again administered penicillin. The pain spread and Butts' arm became numb and so stiff he could not raise it. He called Dr. Watts about his condition, and he told Butts 'he didn't want to fool with it any more.' Some three weeks later Butts went back to see Dr. Moss and later to see another dentist, Dr. Shreve. He took X-ray pictures which disclosed a piece of broken tooth embedded in his jaw. It was about the size of the head of a kitchen match. Dr. Shreve removed the fragment, and the patient recovered from his disability.
Butts' parents testified they had telephoned Dr. Watts and asked if there was not something he could do to relieve their son's pain. Dr. Watts told the mother when she suggested he take an X-ray picture that he 'positively will not take an X-ray picture' and that he had done all that he could for her son. He told his father,
After the fragment was removed, plaintiff continued under treatment by Dr. Carson, a physician. On Dr. Shreve's recommendation, Butts was examined by Dr. Carter, another dentist, and by Dr. Meacham, a nerve specialist in Nashville. The plaintiff proved considerable expense and loss of time from work.
The plaintiff well proved the swollen condition of his jaw before and his disability after the extraction. But it is fair to say Dr. Watts testified when called by plaintiff as if upon cross-examination that there was no swelling of the patient's jaw. This was the only bit of the plaintiff's evidence that was denied. All the rest of it stands admitted. Dr. Watts testified that he had pursued the proper course and customary practice for routine extractions, which he regarded this one to be. He testified, 'If you break a root, most of the time you feel it or you hear it.' He had not felt or heard any breaking of this patient's tooth.
There is a little testimony that may be regarded as technical. Dr. Carter appears to have been a reluctant witness and equivocal in answering questions attempting to elicit expressions of technical opinion. In regard to the defendant's statements about not 'fooling with the case any more,' the witness qualifiedly admitted it would be good ethical practice for a dentist having sole responsibility of a patient, to see the patient. Evidence of a technical character which may be regarded as sustaining the plaintiff's case is an admission of the defendant, Dr. Watts. In answer to the question if it is not the recognized practice of the dental profession to prescribe penicillin or other chemicals to prevent infection before extracting a tooth, he replied that it is 'in a real bad case; in extreme swelling.' The plaintiff had testified to facts showing his to have been such a case.
The court directed the verdict for the defendant at the close of plaintiff's case on the ground that no dentist testified that pulling a tooth where there is a swollen condition was improper medical practice; and, on the contrary, Dr. Watts' professional testimony was that he had pursued the proper practice. The complaint is specific as to negligence in pulling a tooth that was abscessed, but in a general way it charges negligence in the manner in which the tooth was extracted, which allegation seems to have been overlooked by the court.
In reference to the defendant's inferential admission that in a 'bad case' where there is apparent infection, treatment for it should be administered before the tooth is pulled, we note Goodwin v. Hertzberg, 91 U.S.App.D.C. 385, 201 F.2d 204, 205. It was a suit for malpractice against a surgeon in performing an operation in which it was necessary to use care not to perforate the patient's urethra. The defendant had said on the witness stand, In holding that it was error for the trial court to have directed a verdict for the defendant because of insufficient evidence of his negligence, the court said:
The dentist who had treated the plaintiff postoperatively, Dr. Carter, was rather evasive when interrogated about the defendant's services and professional technique. Dr. Shreve was not called as a witness.
Several of our opinions contain the broad statement that Donoho v. Rawleigh, 230 Ky. 11, 18 S.W.2d 311, 313, 69 A.L.R. 1135. This rule is in accord with the weight of authority generally where the defendant's use of suitable...
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