Donoho v. Rawleigh

• Decision Date: 07 June 1929
• Parties: DONOHO v. RAWLEIGH.
• Court: Kentucky Court of Appeals

18 S.W.2d 311

230 Ky. 11

DONOHO v. RAWLEIGH.

Court of Appeals of Kentucky

June 7, 1929

Appeal from Circuit Court, McCracken County.

Action by Lucille Rawleigh against G. B. Donoho. Judgment for plaintiff, and defendant appeals. Reversed for a new trial.

Ben S Adams and W. A. Berry, both of Paducah, for appellant.

Wheeler & Hughes, of Paducah, for appellee.

REES J.

This action was brought by appellee, who was the plaintiff below to recover damages for injuries alleged to have been sustained by her by reason of the malpractice of the defendant as a dentist. The jury returned a verdict in favor of plaintiff for $2,000 and judgment was rendered for that amount. Defendant appeals.

The plaintiff had what is called and designated by dentists as an impacted wisdom tooth, or third molar, on the right side of the lower jaw. This wisdom tooth had not grown out so as to be free of the tooth in front of it, but had grown in the bone so that the head or crown of the wisdom tooth pressed against the roots of the second molar. The wisdom tooth being imbedded in the bone, could not be extracted by the usual method of extracting teeth.

Appellant's principal contention is that his motion for a directed verdict at the conclusion of the evidence should have been sustained.

Appellant who was the defendant below, is a dental surgeon in Paducah, Ky. and has specialized in the practice of removing impacted wisdom teeth. The plaintiff alleged in her petition that she employed the defendant to remove a tooth, and by reason of the unskillful and negligent manner in which he attempted to remove it, her jawbone was fractured. The defendant had previously removed two impacted wisdom teeth for the appellee. Plaintiff testified that in June, 1927, she discovered a small blister on her gum behind her wisdom tooth. She consulted the defendant, who took an X-ray picture of the jaw and found an impacted wisdom tooth which he advised her to have removed. It was agreed that she should return to the dentist's office on the following Thursday to have the tooth removed. She went to his office about 9 o'clock in the morning and he administered a local anæsthetic. After about 20 minutes he split the gum over the bone and began to work with a mallet, chisel, and a drill in an effort to remove the bone from above the impacted tooth. After a considerable period of time he placed an elevator under the tooth and attempted to remove it. While the elevator was being used the plaintiff's jaw was fractured. The defendant then called another dentist, Dr. Neville, and they succeeded in extracting plaintiff's tooth after the fracture had occurred.

The defendant testified that in removing the impacted tooth he used such instruments as are customarily used in such cases; that it was necessary to remove the bone by means of a drill, chisel, and hammer in order that the elevator could be placed under the tooth to force it out. The defendant, in describing the method employed by him in removing the tooth, and using a skull to illustrate his testimony, said: "She came to me with a swollen area up here,-swollen gum back of the last tooth, where this wax is-right here (indicating on the skull which he has in his hand). I immediately suspected a wisdom tooth laying down this way, with the roots coming back this way, and the crown of the tooth against the roots of this tooth here in front of it. I then split her gum and peeled it back this way (indicating on the skull in his hand) and I deadened her gum so she would not have any pain, and it takes some little time for this nerve blocking to work. You have to get at it back here where the nerve comes through to deaden the side of the face so she would not have any pain. I usually wait from 30 to 45 minutes. I tested it to see if she could feel any pain and it took 45 minutes. I lanced her gum and peeled it back and under the gum was bone, all you could see was bone, you could not see the tooth. I peeled it back just as you see me peeling this red wax on this jaw bone which I have in my hand. This is the jaw bone over this tooth, and I removed that bone like I am removing this wax. This represents the chiseling of the jaw bone from over this tooth (indicating to the jury). After I had removed the bone from over the tooth I could see it. I did that in her case, that is what we always do,-it was necessary to remove the bone from over the tooth in order to expose the tooth and remove it. After removing all the bone from over this tooth, the roots are still back here, and then you work this way (indicating) down by the side of the tooth, just as I am doing with this wax on this jaw bone in my hand. This is an elevator which I am now using. After I chisel the bone away from this tooth I insert the point of the elevator underneath the tooth, nothing else will remove it. I work down under it, this way (indicating to the jury) and the tooth is so far down in the bone it is almost in the center of the bone. You can see from the thickness of this jaw that a normal tooth almost fills the space of the entire jaw bone (indicating to the jury). I worked the elevator down under this tooth and elevated it up and that is when the fracture occurred. I might add that this opening back here (indicating on the jaw bone in his hand) is where the nerves and the veins pass through. We know where they are and-well this tooth lies directly on this nerve. The X-ray shows it, and we know the locating of it. The tooth lies directly over this nerve and when the tooth labors and cannot come out, it being down under this bone, that presses right back on this nerve. This nerve is connected with other nerves and it terminates, many times, in facial paralysis if not removed. When we find an impacted wisdom tooth like that we remove the tooth."

A number of skilled dental surgeons were introduced by the defendant, who testified that the operation was performed according to the approved methods of practice of dental surgery in Paducah and other similar communities. The plaintiff introduced no evidence to the contrary. It was shown by these witnesses that a fracture of the jawbone was likely to occur and did sometimes occur when an impacted tooth was being removed by a dentist working in a careful and skillful manner.

There is no evidence in the record of any unskillfulness or negligence on the part of defendant in removing plaintiff's impacted tooth. He testified that he used the proper and approved method or technique in removing the tooth, and in this respect he is supported by the testimony of the other dentists introduced as witnesses and who were qualified to testify on that point. Plaintiff wholly failed to make out a case of negligence, unless the jury should be permitted to infer negligence from the result, or, in other words, unless the doctrine of res ipsa loquitur applies to the facts in this case. That doctrine does not apply unless we can say that according to the ordinary experience of mankind, a fracture of the jawbone does not occur when an impacted tooth is being removed with proper care. The doctrine of res ipsa loquitur does not ordinarily apply in malpractice cases. We are not unmindful of the fact that in some cases the lack of skill or want of care is so obvious that expert testimony is unnecessary. This, however, is not such a case. The plaintiff has failed to point out anything which the defendant did or omitted to do that indicated lack of skill or care. It is merely claimed that want of care may be inferred from the result, but such an inference is not warranted without the aid of testimony by those skilled in the profession. In 21 R.C.L. 406, the rule as to burden of...