Donathan v. McConnell
| Citation | 193 P.2d 819,121 Mont. 230 |
| Decision Date | 22 March 1948 |
| Docket Number | 8695. |
| Parties | DONATHAN v. McCONNELL. |
| Court | Montana Supreme Court |
Rehearing Denied June 5, 1948.
Appeal from District Court, Eleventh District, Flathead County; C E. Comer, Presiding Judge.
Action by R. M. Donathan against J. H. McConnell for damages for injuries alleged to have been received by plaintiff as the result of extraction of a tooth by defendant. Judgment for plaintiff, and defendant appeals.
Judgment modified and as modified affirmed, on condition of remittitur.
Jardine, Chase & Stephenson, of Great Falls, and Walchli & Korn and Merritt N. Warden, all of Kalispell, for appellant.
George E. Hurd, of Great Falls, and James B. O'Flynn, of Kalispell, for respondent.
Coleman Jameson & Lamey, of Billings, Howard M. Lewis, of Bozeman Gibson & Fitzgerald, of Livingston, Loble & Loble, of Helena, Sid G. Stewart and J. B. C. Knight, both the Anaconda, W. T. Boone and Jack W. Rimel, both of Missoula, Sherman W. Smith and Edmond G. Toomey, both of Helena, H. R. Eickemeyer, of Great Falls, Hugh J. Lemire, of Miles City, H. Leonard DeKalb, of Lewistown, James T. Shea, of Glasgow, Corette & Corette, of Butte, and Foot & Aronson, of Kalispell, amici curiae.
GUY C DERRY, District Judge (sitting in place of Justice GIBSON).
This is an action for damages for injuries alleged to have been received by plaintiff as the result of the extraction of a tooth by the defendant, which operation was performed by defendant in his capacity as a dentist, and during the ordinary practice of his profession. Plaintiff prevailed in the trial court and defendant has appealed from the judgment with numerous assignments of error but with the principal contention that the verdict is against the law and the evidence, and that the jury were improperly instructed on matters of law.
Plaintiff's action is based upon the premise that the defendant was negligent in the manner of extraction of his tooth and in the treatment which he gave and failed to give to plaintiff after the extraction was completed. The evidence, viewed in the light most favorable to the plaintiff, establishes substantially the following facts: Plaintiff, requiring the services of a dentist to treat his upper left molar, which had been causing him some trouble, and which he knew contained a small cavity, went to the office of the defendant on the 9th day of April, 1942, for the purpose of having the tooth treated. The defendant made an examination of the tooth and decided that it would be advisable to take an X-ray picture, and after examining the picture, advised the plaintiff that the tooth should be removed rather than filled. Thereupon, with the consent of the plaintiff, defendant began the operation leading to the extraction of the tooth. In the operation the tooth was broken off at the gum line, leaving two buccal roots and one lingual root still imbedded in the jaw. In removing the roots, the defendant made a hole in the antrum, and a piece of the floor of the antrum came out with one of the roots. During the process the alveolar artery was ruptured. Defendant informed the plaintiff a special packing was required, and one was inserted in the cavity. The nature of this packing is an important element in the case. The defendant, who gave the only direct evidence on this point, stated he placed a special packing, called a sulphapac, in the cavity left by the extraction of the tooth. This pack was a well known and generally used compound put out by a dental laboratory, and commonly used for the purpose of preventing infection. The pack consisted of a soft and soluble putty-like substance. Plaintiff went to defendant's office about 10:00 o'clock and left there shortly before noon. He paid the defendant's fee of three dollars, covering the X-ray, extraction, and special packing. There is some dispute between the parties as to what was said at the time plaintiff left, he stating that the defendant told him that he was through and it would not be necessary for him to return, and that he was advised by the defendant that the packing would absorb in the blood stream. There was some oozing of blood from the tooth socket at the time plaintiff left the office. According to plaintiff's version, after he left the defendant's office and had gone a distance of about three blocks toward his home, his nose started bleeding on the left side, his mouth filled with blood and he became deaf in both ears. The bleeding continued until stopped by a physician at his home. The blood was coming in a stream about the size of a match. It would let up a little and then another stream came out. His wife used some home remedies but these not giving any relief she went to a nearby store to telephone to the defendant. Mrs. Donathan testified that she informed the defendant, 'Mr. Donathan just returned home from having that tooth extracted and has a severe nosebleed.' She further testified as follows: 'He said a tooth would lots of times do that, but it will quit in a little while, and if it did not quit, have him come back at one o'clock.'
When she returned to her home she got a four-pound coffee can and put a cup of water in it to keep the blood from sticking to the can and had her husband use the same to hold the blood coming from his mouth. His nose had stopped bleeding but blood continued to come from his mouth and plaintiff's wife thereupon went out to call in some neighbors, one of whom was a nurse. The nurse made some effort to stop the bleeding, and being unable to do so, advised that they call a physician, whereupon another neighbor went to the flour mill for the purpose of calling Doctor Ross. Doctor Ross responded to the call, arriving in about thirty minutes from the time that Mr. Donathan returned from the defendant's office. Doctor Ross testified that at the point of the tooth extraction he found 'it was bleeding profusely' and he packed the cavity with cotton. According to Doctor Ross, the history of the case, given him by Mr. Donathan, was to the effect that there had been some packing put into the cavity at the time of the extraction. He rolled up some cotton and put it into the cavity. He couldn't say how many packings he pressed into the cavity to stop the blood, but said it might have been two or three. He was there for ten or fifteen minutes, having waited around for some time after the packing had been inserted to see that the bleeding had stopped. Meanwhile the coffee can had become about half full of liquid composed of blood and water. The next time he saw the plaintiff was some eleven days later, on the 20th of April, at which time the plaintiff was brought to his office, complaining of a pain over his left antrum. He saw him after that time on the 24th and 27th of April, and on the 2nd, 10th and 15th of May, the latter date being the last time he saw him professionally. He gave him sulfadiazine and irrigated the cavity with boric acid.
From the time Doctor Ross treated him on April 9th plaintiff was never at any time under the care of defendant, nor did he at any time return to defendant's office for treatment nor did he call on defendant to treat him. On April 13th plaintiff's wife testified she called defendant on the telephone. Her testimony on this point was as follows: 'He answered the
Defendant denied any such call was made. In any event, after the time of the call to the defendant immediately following the extraction, the above conversation, assuming it took place, was the only time defendant ever had any contact with plaintiff and it is all the notice defendant had of any claim of disability by plaintiff.
Plaintiff's proof divides his claim for damages into two definite parts. The first damage shown to be suffered is disability resulting from the loss of blood, alleged to have occurred because of the failure of defendant to provide proper after care immediately following the extraction of the tooth. There is a sharp conflict in the evidence on the question of whether defendant was negligent in his method of treatment of plaintiff immediately following the operation. Since the weight of such testimony is for the jury we are only concerned with the question of whether there is any substantial evidence to sustain the verdict. There is competent evidence in the record from which the jury could find that defendant, having injected novocaine in the jaw before the extraction, which contracted the blood vesels in that vicinity, was negligent in not anticipating that as soon as the effect of the novocaine wore off, the blood would start floowing in dangerous volume from the ruptured alveolar artery, and further that a sulphapac would not long contain the wound, once the effect of novocaine had worn off, thus releasing the contracted blood vessels. There is also evidence to the effect that it was not in accord with good dental practice to leave sulphapac in a cavity without being irrigated out. Testimony offered in behalf of plaintiff tends to establish that, according to dental practice in that community, as soon as defendant was advised of the severe bleeding from the tooth socket, it was his duty to go to his patient and take care of his needs immediately rather than tell him to come to his office at some later time. ...
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