Eatley v. Mayer

• Decision Date: 05 February 1932
• Docket Number: No. 38.,38.
• Citation: 158 A. 411
• Parties: EATLEY v. MAYER.
• Court: New Jersey Supreme Court

158 A. 411

EATLEY

v. MAYER.

No. 38.

Supreme Court of New Jersey.

Feb. 5, 1932.

Appeal from Circuit Court, Hudson County.

Action by Grace E. Eatley against Frank A. Mayer. From judgment for plaintiff (154 A. 10, 9 N. J. Misc. Rep. 918), defendant appeals.

Affirmed.

Argued October term, 1931, before GUMMERE, C. J., and PARKER and CASE, JJ.

Edward A. Markley and Charles W. Broadhurst, both of Jersey City, for appellant.

John G. Flanigan, of Jersey City, for respondent.

PER CURIAM.

This is a suit for alleged negligent malpractice, the defendant being a dental surgeon. The substance of the claim is that he negligently diagnosed and treated a case of month infection as a fractured jawbone. Plaintiff had a verdict and judgment of $1,200, and defendant appeals.

Of the eleven grounds of appeal assigned, only three are argued, viz.: Refusal to nonsuit; refusal to direct a verdict for defendant; and refusal to charge the eighteenth request to charge.

The first two grounds can be considered and disposed of together, as both are based on the proposition that there was no evidence of negligence of the defendant.

From the testimony, the jury were entitled to find the following facts:

Plaintiff's teeth needing attention, she went to a young dentist, named Bodner, who found a number of teeth in bad order, extracted several, prescribed a mouth wash, and told her to come back the next day. She did come back six days later, and he found she could not open her mouth. Preferring to have the case handled by a more experienced practitioner, he sent her to the defendant, who held himself out as a "Dental Specialist, X-rays," and testified for plaintiff that he was in fact a specialist and expert in those particulars. He made an examination and diagnosed a broken jaw. He took two X-ray negatives, one of which failed because the patient moved, and the other was criticized by another witness as unsatisfactory because overexposed; and also insufficient for its purpose. He wired the teeth and sent the plaintiff home. That night she was in great pain and called in Dr. Introcaso, who concluded there was an infection. Overnight, plaintiff's condition became decidedly worse, with high temperature. Dr. Introcaso. sent for defendant, and at a consultation insisted there was an infection, which defendant denied, and requested that the wires be removed, which defendant refused to do. Dr. Introcaso asked for the X-ray picture, and defendant said he would bring it, but did not do so. The temperature continued to rise; there was a large swelling; other physicians were called in and there were more consultations, the condition of the plaintiff growing hourly more serious. After three days of disputations, during which defendant adhered tenaciously to the broken jaw diagnosis, he consented to remove the wires, and the subsequent examination disclosed an extensive infection, which cleared up under appropriate treatment. Several X-rays taken by the witness Dr. Bassell showed there was no fracture, and from her testimony it would appear that the X-ray taken by defendant afforded no support for such a diagnosis. Not only this, but the testimony justified a finding that defendant not only wrongly diagnosed and treated, but obstinately refused to acknowledge his error, and seriously endangered the life of his patient, not to speak of causing her several days of severe suffering. Plaintiff's counsel argues, and correctly as we think, that the defendant, as a specialist and claiming to be an expert, was held to a higher degree of care and skill than the ordinary practitioner. Coleman v. Wilson, 85 N. J. Law, 203, 88 A. 1059, Ann. Cas. 1915D, 1122. In this situation it would have been error to take the case from the jury.

Defendant submitted...