Corbett v. Clarke

• Decision Date: 01 March 1948
• Citation: 46 S.E.2d 327,187 Va. 222
• Parties: CORBETT. v. CLARKE.
• Court: Virginia Supreme Court

46 S.E.2d 327

187 Va. 222

CORBETT.

v.CLARKE.

Supreme Court of Appeals of Virginia.

March 1, 1948.

Error to Court of Law and Chancery of City of Norfolk; Richard B. Spindle, Judge.

Action by notice of motion for judgment by Hortense B. Corbett against Dr. J. Campbell Clarke for alleged malpractice. To review the judgment, plaintiff brings error.

Reversed and remanded.

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Edward S. Ferebee, and William H. Sands, both of Norfolk, for plaintiff in error.

Leigh D. Williams, and Williams, Cocke & Tunstall, all of Norfolk, for defendant in error

HUDGINS, Chief Justice.

On November 12, 1946, plaintiff instituted this action against Dr. J. Campbell Clarke for malpractice in treating and extracting her teeth. To the notice of motion, defendant pleaded the general issue and filed a plea of release. In the latter plea, it was alleged that plaintiff, on the 6 day of August, 1946, had instituted a prior action against the Standard United Dental Corporation and Dr. L. R. Temple for damages caused by their negligence in extracting a tooth; that on November 26, 1946, that action, upon motion of plaintiff, had been dismissed "agreed"; that on the same day plaintiff had executed a release discharging defendants (the originalwrongdoers) in that action from any and all liability for claims and demands resulting from their malpractice and set forth in the notice of motion against them; that the alleged negligence of Dr. Clarke was a direct and proximate result of the negligence of the original wrongdoers; that the release of the latter operated as a release of Dr. Clarke.

Plaintiff moved to strike the plea of release, tendered in court of plea of estoppel and a replication to defendant's plea of release, and finally asked leave to amend her notice of motion. The trial court overruled each and every one of plaintiff's motions, rejected her several pleas and entered judgment on the plea of release dismissing the action. From that judgment this writ of error was awarded.

The specific question presented is whether a dental surgeon, whose wrongful acts caused substantial injury to a patient, is liable for separate and distinct injuries flowing from the gross negligence of another dental surgeon whose professional aid the patient obtained to treat her for the first injury and otherwise. This is an open question in this jurisdiction, hence we are free to decide it uninfluenced by the doctrine of stare decisis.

The general rule is that if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of the physician as a part of the immediate and direct damages which naturally flow from the original injury. A settlement with the original tort feasor operates as a release of the negligent physician. See Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550, Annotation 553; Mier v. Yoho, W.Va., 171 S.E. 535; Sams v. Curfman, 111 Colo. 124, 137 P.2d 1017; Wells v. Gould, 131 Me. 192, 160 A. 30; Benesh v. Garvais, 1945, 221 Minn. 1, 20 N.W.2d 532; Smith v. Thompson, 210 N.C. 672, 188 S.E. 395; Ross v. Erickson Construction Co, 89 Wash. 634, 155 P. 153, L.R.A.1916F, 319; Martin v. Cunningham, 93 Wash. 517, 161 P. 355, L.R.A.1918A, 225; Hooyman v. Reeve, 168 Wis. 420, 170 N.W. 282; 15 Am.jur. 495; 41 Am.Jur. 252.

This rule is based on the theory that the aggravation of the injury by the negligent treatment of the physician is a result that might reasonably have been anticipated. This theory embraces the much discussed question of what is "proximate cause."

McDonald v. Snelling, 14 Allen. Mass, 290, 92 Am.Dec. 768, is an old and leading case on this subject. It held that, when a person violates a duty imposed upon him by common law, it is just and reasonable to hold him liable to every person injured whose injury is the natural and probable consequence of his misconduct, if the injury is of a character likely to follow and which, under ordinary circumstances, might reasonably have been anticipated from the wrongful act. "The damage is not too remote if according to the usual experience of mankind the result was to be expected. * * * The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence. So long as it affirmatively appears that the mischief is attributable to the negligence as a result which might reasonably have been foreseen as probable, the legal liability continues. * * * It may not always be easy to determine * * * whether the ensuing consequences are so far natural and probable as to impose a liability for them in damages. Cases may be put falling very near the dividing line, and no rule can be laid down in advance which will determine all with precision. But the difficulty of applying a principle is a poor argument against its validity, unless one more satsifactory can be proposed in its stead."

This concept of "proximate cause" is recognized and applied in this jurisdiction. In Wyatt v. Chesapeake & Potomac Tel. Co, etc, 158 Va. 470, 163 S.E. 370, 373, 82 A.L.R. 386, we said: "* * * negligence carries with it liability for consequences which, in the light of attendant circumstances, could reasonably have been anticipated by a prudent man, but not for casualties which, though possible, were wholly improbable. One is not charged with foreseeing that which could not be ex-pected to happen." See Hubbard v. Murray, 173 Va. 448, 455, 3 S.E.2d 397.

The facts alleged in the replication and amended notice of motion reveal two separate and distinct torts. The original tort feasors, in extracting plaintiff's tooth, left the root in the gum and refused to give further treatment. The second tort, or series of torts, committed by defendant was not in the removal of the root of the broken tooth, but the extraction of another tooth, sewing up a foreign substance in the cavity, and the subsequent failure to find and remove the foreign substance from the wound. These subsequent negligent acts were more than the aggravation of the original injury. In the present advanced stage of medical science, it is not reasonable to anticipate that a dental surgeon will be so grossly negligent as to fail to remove absorbent cotton or other foreign substance from an opening in his patient's body before closing or sewing up the incision resulting from an operation. To so hold would strain the usual and normal concept of "proximate cause" to the breaking point.

There is a division of authority on the question, but the conclusion stated is in accord with many of the better reasoned cases.

In Purchase v. Seelye, 231 Mass. 434, 121 N.E. 413, 8 A.L.R. 503, the plaintiff sustained a rupture in his right groin while in the employ of the Boston & Albany Railroad Company. He consulted Dr. Seelye, a surgeon, who operated upon him. The day after the operation plai...