Coddaire v. Sibley

• Decision Date: 22 January 1930
• Citation: 270 Mass. 41,169 N.E. 797
• Parties: CODDAIRE v. SIBLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

270 Mass. 41

169 N.E. 797

CODDAIRE

v.SIBLEY.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 22, 1930.

Exceptions from Superior Court, Essex County; Nelson P. Brown, Judge.

Action by Philipp Desjardins, against H. Robert Sibley, in which David J. Coddaire, as administrator of the estate of plaintiff, was substituted as plaintiff. On defendant's exceptions. Exceptions overruled.W. G. Todd and D. J. Coddaire, both of Boston, for plaintiff.

L. E. Keeley and A. D. Hill, both of Boston, for defendant.

CROSBY, J.

This is an action of tort to recover for injuries alleged to have been suffered by the plaintiff's intestate caused by negligence of the defendant, a dentist, in the making and insertion of artificial plates in the mouth of the intestate, and by negligent treatment and advice of the defendant relative thereto. Philipp Desjardins, the intestate, who will hereafter be referred to as the plaintiff, testified at the trial, and died shortly after a verdict in his favor was returned. The action is now prosecuted by the administrator of his estate. The case is before this court upon exceptions to the refusal of the trial judge to admit one offer of proof and to grant these motions: (1) To direct a verdict for the defendant at the close of the evidence, (2) to strike out the testimony of a witness called by the plaintiff at the conclusion of his testimony, on the ground that it was based, to a large extent at least, upon theories of diagnosis that were without medical or scientific authority, and therefore without basis for submission to the jury, and (3) to strike out the testimony of the same witness especially so far as it was based on an ‘electronic test.’

There was evidence tending to show the following facts: The plaintiff was forty-four years of age. In April, 1927, he employed the defendant who extracted nineteen teeth, which were all the plaintiff had at that time. The next day when he returned to the defendant's office his mouth was in good condition. About two months later, when the defendant took impressions for the purpose of making artificial plates, his mouth was then in good condition, and the defendant so stated to him. About the middle of September following, the defendant inserted two plates in the plaintiff's mouth, and the latter then complained of pain. The defendant removed the plates, and at various times thereafter before April, 1928, attempted to fit them, the total number of visits to the defendant's office before that date being twelve or fifteen. At the last visit the defendant said to the plaintiff, ‘Oh, that is nothing, just a little canker,’ and he burned it and told the plaintiff to put iodine on it. The defendant then put the plates back in the plaintiff's mouth. He had told the plaintiff when he first filed the plates that one of them was too long.

The plaintiff testified that about two or three weeks before he was last treated by the defendant the latter kept the plates over night replacing them in the plaintiff's mouth the next day, and said to him, ‘They are all right now-wear them until you are used to them’; that the left side of his face was swollen ‘in the jaw’ and in bad condition. The plates were admitted in evidence and showed that they were rough in places, and if worn would tend to cause an irritation. There was further evidence that as a result of irritation a cancer developed in the plaintiff's mouth. There was medical testimony to the effect that the plates were in such condition that they would cause irritation by reason of rough and sharp edges, and that they were not made in a good and workmanlike manner.

There was evidence tending to show that a physician called by the plaintiff was a specialist in cancers and tumors. He testified that he examined the plaintiff on November 25, 1928, and found a large mass extending from the angle of the left jaw which practically filled the entire left side of the mouth; that it was ulcerated and discharging; that the plaintiff was suffering from a form of cancer of the jaw called sarcoma; that a rough plate would cause an irritation at point of contact, and that he had treated cases in which cancer had resulted from an irritation caused by a jagged tooth or a roughened plate; that such irritation would be first indicated by inflamed and reddened tissues, and if permitted to continue would develop a malignant growth, cancerous in nature; that if the source of the irritation were removed the irritation would undoubtedly disappear; that in the present case the progress of the disease would be slow at first and then very rapid, and fatal within one or two years; that the condition is accompanied by much pain and suffering. In answer to a hypothetical question this witness testified: ‘My opinion is that this man at the present time is suffering from a cancer of the jaw, a form of cancer known as sarcoma; that the cancer, sarcomatous type of cancer is caused by a continued irritation over a continued period of time at that particular part, and that irritation without any question in my mind was due to the continued wearing of that plate.’ The witness further testified that he made a blood test which confirmed his diagnosis of sarcoma; that as a result of this blood test he could exclude syphilis and tuberculosis. In cross-examination he testified that the blood test he took was not the Wasserman test; that in diagnosing syphilis the Wasserman test was that most commonly employed; that the test he employed was known as the electronic or radio test; that he had not based his diagonsis of cancer alone on the electronic test, but that he confirmed his physical diagnosis by that test; that he got no history from the plaintiff justifying a diagnosis of syphilis and that an examination of the plaintiff showed no indication of it.

In view of the entire evidence the defendant's motion for a directed verdict was rightly refused.

It is the contention of the defendant that there was no negligence in the making of the plates; that from the time they were made until they were last adjusted he was constantly grinding and adjusting them; that there was no evidence of their defective condition during that time, but that they had been tampered with after he last adjusted them, and that an...