Chubb v. Holmes
| Decision Date | 02 June 1930 |
| Citation | 150 A. 516,111 Conn. 482 |
| Court | Connecticut Supreme Court |
| Parties | CHUBB v. HOLMES. |
Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.
Action by Edwin D. Chubb against Arthur B. Holmes, to recover damages for negligence and unskillfulness in extracting a tooth, in cutting plaintiff's tongue, and in postoperative treatment, brought to the superior court and tried to the jury. Verdict for plaintiff, and defendant appeals.
Error and new trial ordered.
The plaintiff offered evidence that he employed the defendant dentist to extract a crowned lower left molar that the defendant examined it and noted that symptoms indicated that it was infected, as after the extraction it was found to be. The defendant administered a local anesthetic, and first used a pair of forceps, but the crown broke off, leaving only the two roots. The defendant then used an instrument called an elevator. and, applying considerable pressure, endeavored to remove these roots. In that operation something gave away, and the elevator went through the tooth space and cut the tongue of the plaintiff causing a deep wound in the lower rear portion on its left side. The defendant looked in the general area, but did not observe the puncture, gave the plaintiff water with which to rinse his mouth and a slip of paper on which was printed the name of a mouth wash, and told him to return in a couple of days. The mouthwash specified could not be obtained at the drug store in Cheshire where the plaintiff lived, and, on the recommendation of the druggist, he purchased a bottle of Lavoris, a good germicidal mouth wash proper for use after extraction of teeth, and used it repeatedly. Within two hours after plaintiff left defendant's office, the tongue commenced to swell, and soon became badly swollen and so continued, causing pain, loss of sleep, and inability to engage in his work of teaching for ten days.
The defendant's evidence was that, when the plaintiff's tooth broke off, even with the gum line, he inserted the index finger of his left hand between the tongue and the tooth for the twofold purpose of counter pressure and of protecting the plaintiff from slips of the elevator, an instrument resembling a nut pick, which he used to remove the embedded roots. At the exercise of pressure and leverage, a piece of the tooth or bone let go and the instrument went through the opening. The defendant did not know of or see any wound in the plaintiff's tongue. He painted the area around the tongue and tooth socket with Churchill's iodine, a standard product, and applied an antiseptic mouth wash, gave the plaintiff a printed slip on which was the name of a standard antiseptic mouth wash, with instructions to buy it and use it, and instructed him to return two days later. Later, on the day of the operation, the defendant, while working on a patient, received a telephone call from plaintiff's wife, and the defendant's nurse assistant communicated to her the defendant's instructions to continue the use of the mouth wash and recommending an anodyne if the pain persisted. The defendant also introduced expert opinion, based upon a hypothetical question embodying the facts as claimed by the defendant, that the performance of the operation and the postoperative treatment accorded with that of a dentist using ordinary care, skill, and diligence.
No expert evidence was introduced by the plaintiff that the defendant was negligent in extracting the tooth, or in attending the same, or in disinfecting the tongue, the tooth socket, and the surrounding area, or in instructing the plaintiff as to subsequent care and treatment.
Defendant's requested charge, in action against dentist for negligence in extracting tooth, on presumption that professional man performed duty, held properly refused.
Lawrence A. Howard and Cyril Coleman, both of Hartford, for appellant.
Frederick C. Hesselmeyer and John D. McHugh, both of New Haven, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
HINMAN, J. (after stating the facts as above).
The assignment of error pertaining to the denial of the defendant's motion to set aside the verdict, and two of those relating to the charge to the jury, concern the effect of the lack of expert evidence supporting the allegations of the defendant's failure to exercise the required professional skill and care, with reference to postoperative treatment following the extraction of the plaintiff's tooth. While the plaintiff produced a physician and surgeon who testified as to the matter of infection of the tongue from an infected tooth, both the finding and the printed testimony disclose that no expert evidence was introduced that the defendant was negligent or failed to exercise suitable professional skill in performing the operation of extracting the tooth or in disinfection or other treatment following such operation.
The court withdrew from the consideration of the jury the first allegation that the defendant was negligent in cutting the plaintiff's tongue. The fourth specification, alleging negligent failure to remove all of the tooth, and the fifth, charging failure to properly instruct the plaintiff as to subsequent care and treatment, were also virtually removed from consideration of the jury, and the charge in these respects affords the defendant no ground for complaint.
The second allegation was that the defendant failed to use due and proper care and skill, " in that he carelessly and negligently failed to disinfect the wound in the tongue." As to this the court charged, in substance that, if the plaintiff's tongue was cut, even if the wound was caused by the defendant while operating with due care, yet, if the defendant knew of the wound or in the exercise of due care should have known of it, " it was his duty to properly treat it, and if the defendant failed so to do and the proof of his failure meets the requirements of the rule as to preponderance, and such failure was the proximate cause of the plaintiff's suffering, the plaintiff could still recover damages for such failure." The court then reviewed the conflicting evidence as to what was done in the way of disinfection following the extraction of the tooth and the injury to the tongue, and continued: ...
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Shelnitz v. Greenberg
...cannot have the requisite knowledge as to whether the proper treatment was given, procedure followed, or care used." Chubb v. Holmes, 111 Conn. 482, 486, 150 A. 516 (1930); see Ardoline v. Keegan, 140 Conn. 552, 556, 102 A.2d 352 (1954). The expert opinion that seeks to establish the causal......
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Basinger v. Roccapriore, No. CV02-0458993S (CT 1/10/2005)
...physicians in the same line of practice ordinarily have and exercise. Britton v. Hartshorn, 113 Conn. 484, 490 (1931); Chubb v. Holmes, 111 Conn. 482, 488 (1930). See Burke v. Fancher, 151 Conn. 640, 641 (1964). Secondly, the plaintiff must prove that any failure by the defendant was the pr......
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Britton v. Hartshorn
... ... of a presumption that he has discharged his duty *** until ... the contrary is shown" (as in Chubb v. Holmes, ... 111 Conn. 482, 487, 150 A. 516, 519) is that, without ... limitation, either express or arising from the context, it ... would ... ...
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Britton v. Hartshorn
..."entitled to the benefit of a presumption that he has discharged his duty * * * until the contrary is shown" (as in Chubb v. Holmes, 111 Conn. 482, 487, 150 A. 516, 519) is that, without limitation, either express or arising from the context, it would permit the implications from the right ......