Cozart v. Chapin

• Decision Date: 06 February 1979
• Docket Number: No. 7810SC109,7810SC109
• Citation: 39 N.C.App. 503,251 S.E.2d 682
• Court: North Carolina Court of Appeals
• Parties: Sara COZART and T. Maurice Cozart v. Marvin E. CHAPIN, D.D.S.

Page 682

251 S.E.2d 682

39 N.C.App. 503

Sara COZART and T. Maurice Cozart v. Marvin E. CHAPIN, D.D.S.

No. 7810SC109.

Court of Appeals of North Carolina.

Feb. 6, 1979.

Smith, Anderson, Blount & Mitchell by James D. Blount, Jr., Raleigh, for defendant-appellant.

ERWIN, Judge.

Defendant contends that the trial court erred in denying his motion for a directed verdict at the close of all of the evidence on the grounds: (1) that plaintiff's evidence was insufficient to establish actionable negligence by defendant and (2) that plaintiff's evidence was insufficient to establish that defendant's failure to orient the x-ray with plaintiff's mouth was the proximate cause of plaintiff's injury.

Our Supreme Court held in Hunt v. Bradshaw, 242 N.C. 517, 521-22, 88 S.E.2d 762, 765 (1955):

"A physician or surgeon who undertakes to render professional services must meet these requirements: (1) he must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. Long v. Austin, 153 N.C. 508, 69 S.E. 500; Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Smith v. McClung, 201 N.C. 648, 161 S.E. 91; Wilson v. Hospital, 232 N.C. 362, 61 S.E.2d 102; Jackson v. Sanitarium, 234 N.C. 222, 67 S.E.2d 57. If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable."

The rules of liability applicable to physicians and surgeons apply likewise to dentists. Hazelwood v. Adams, 245 N.C. 398, 95 S.E.2d 917 (1957); Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485 (1949); McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354 (1898).

On motion for judgment as of nonsuit, plaintiff's evidence is to be taken as true. Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607 (1968); Edwards v. Johnson, 269 N.C. 30, 152 S.E.2d 122 (1967); Harris v. Wright, 268 N.C. 654, 151 S.E.2d 563 (1966). All the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues, which may be reasonably deducted from the evidence. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969). Defendant's evidence may be considered to the extent that it is not in conflict with plaintiff's evidence and tends to make clear or explain plaintiff's evidence. Clarke v. Holman, 274 N.C. 425, 163 S.E.2d 783 (1968); Blanton v. Frye, 272 N.C. 231, 158 S.E.2d 57 (1967); 12 Strong's N.C.Index 3d, Trial, § 21.1, pp. 399-400.

Plaintiff alleged defendant's negligence as follows:

"(H)e failed to exercise the degree of professional learning, skill and ability which others similarly situated possess; or to exercise the reasonable care and diligence in the application of his knowledge and skill to the plaintiff Sara Cozart's care; or to use his best judgment in the treatment and care of his patient Sara Cozart at the time in question.

15. Defendant was also negligent in that he failed to make a proper and necessary examination to diagnose the condition of plaintiff's tooth and jaw before extracting said tooth.

16. Defendant was also negligent in that he failed to make a proper and necessary examination of the plaintiff's tooth, particularly by his own x-rays, before such extraction.

17. Defendant was also negligent in that he obviously mis-read the x-ray that he was given of plaintiff's mouth, if indeed he read it at all.

18. Defendant was negligent in that he carelessly and negligently injected the needle to anesthetize the lower left side of plaintiff Sara Cozart's mouth, and said injection injured the neurovascular bundle (the secondary or tertiary branch of the V3 distribution) in the area of the mandibular third left molar, when in fact the tooth to be extracted was located in the right side of her mouth and there was no reason for an injection to be made on the left side of the mouth; OR IN THE ALTERNATIVE, the defendant was negligent in that while patient Sara Cozart had the right to an informed election as to whether to undergo the proposed elective surgery, defendant did not inform her of the likelihood of the adverse results and defendant had knowledge of the risk involved and the plaintiff Sara Cozart was unaware of such risks.

19. In addition to the negligence of making an unnecessary injection, defendant was careless and negligent in that said injection, to anesthetize the lower left side of the plaintiff Sara Cozart's mouth, struck and injured the neurovascular bundle in the area of the mandibular on the lower left side of plaintiff Sara Cozart's mouth; OR IN THE ALTERNATIVE, the defendant was negligent in that while patient Sara Cozart had the right to an informed election as to whether to undergo the proposed elective surgery, defendant did not inform her of the likelihood of the adverse results and the plaintiff Sara Cozart was unaware of such risks.

20. Defendant was negligent in that he made an incision and conducted surgery on the side of plaintiff Sara Cozart's mouth with the intention of extracting a wisdom tooth on a side of the mouth where there was no wisdom tooth."

Plaintiff and defendant stipulated:

"In early January, 1975, Dr. Hal P. Cockerham referred plaintiff to defendant for diagnosis and, if necessary, removal of an impacted wisdom tooth."

Plaintiff testified:

"(T)hen Dr. Chapin came in the room shortly after and he introduced himself, and I introduced myself. He picked up the needle and put the injection into the left side. I had a shock that shocked me and I heard Dr. Chapin say that I've hit the pocket, or some such thing as that, and that's good. I just relaxed thinking no problem and sat back and Dr. Chapin left the room. Dr. Chapin left the room while the Novacaine was taking effect and his nurse and I had small talk.

. . . I was sitting in a chair. This was the type chair that had the two headpieces that your head sits back on. Over to my left was the nurse with the tools and behind me was the x-ray. Dr. Chapin looked behind me to look at that x-ray. I did not see the x-ray. Then he picked up the knife and I closed my eyes and he began to do his surgery. I thought the surgery was completed and I opened my eyes. I said, 'Did you get the tooth' and he said, 'No,' he had read the x-ray backwards and that there was no tooth there. He finished sewing and he immediately picked up another needle and put an injection in the right side, which I did not feel any type of shock or any reaction with. He then left the room and I heard him say in the hall it was the first time he had ever done that. . . . . He did cut the tooth out, several pieces. I had not remembered it taking that long on having a wisdom tooth removed."

Plaintiff's medical evidence tended to show that defendant's standard of medical practice would require him to orient himself with plaintiff and the x-ray of her mouth, which was available to him at the time plaintiff was present in his office. All of the evidence showed the impacted wisdom tooth was in the right lower gum of plaintiff rather than the left lower gum.

There is no question that the defendant possessed the degree of professional learning, skill, and ability which others similarly situated ordinarily possessed. The record clearly shows that plaintiff was referred to defendant by Dr. Cockerham "for diagnosis and, if necessary, removal of an impacted wisdom tooth." To us, this required defendant to examine the area of the impacted tooth and the x-ray to determine if the tooth should be removed.

The evidence was sufficient to take this case to the jury on the issue of whether defendant exercised reasonable care and diligence in the application of his knowledge and skills to plaintiff's case and gave her such attention as he was required to give. Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973); Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565 (1966). Defendant's contention that he relied upon the information in his appointment book that number 17 the lower wisdom tooth was to be removed is in conflict with the requirements of the stipulated evidence, which he cannot escape.

To be actionable, it is not necessary that injury in the precise form in which it occurs should be foreseen from an act of negligence. It is only necessary that in the exercise of reasonable care, consequences of a generally injurious nature might be expected. Slaughter v. Slaughter, 264 N.C. 732, 142 S.E.2d 683 (1965); Childs v. Dowdy, 14 N.C.App. 535, 188 S.E.2d 638 (1972); 9 Strong's N.C.Index 3d, Negligence, § 9, pp. 364-5.

We conclude that plaintiff met her burden on the issue of proximate cause to submit the issue to the jury on the record before us. Defendant's motion for judgment as of nonsuit was properly overruled.

On direct examination of Dr. Burch (witness for plaintiff), the record reveals:

"Q. How did you come to your conclusion that the condition you found in Sara could have been caused by a neuroma?

MR. BLOUNT: Objection.

NO RULING WAS MADE BY THE COURT, BUT THE WITNESS ANSWERED:

EXCEPTION NO. 21

A. I came to that conclusion because one, of the history that I had after surgical procedure and local anesthetic having been undertaken, and two, that the patient had a complaint consistent with injury to the inferior alveolar nerve and findings on my examination also consistent with injury to that nerve. In the effort of applying local anesthetic, it was clearly Dr. Chapin's intent to anesthetize the distribution of the inferior alveolar nerve and the needle was therefore introduced in the immediate vicinity.

MR. BLOUNT: Your Honor, I move to strike. He doesn't know what Dr. Chapin's intent...