Fierberg v. Whitcomb

• Decision Date: 21 January 1935
• Court: Connecticut Supreme Court
• Parties: FIERBERG v. WHITCOMB.

177 A. 135

119 Conn. 390

FIERBERG v. WHITCOMB.

Supreme Court of Errors of Connecticut.

January 21, 1935

Appeal from Superior Court, Hartford County; Allyn L. Brown, Judge.

Action by Rose Fierberg against Dr. R. W. Whitcomb, a dentist, for malpractice. Verdict for defendant, and plaintiff appeals.

No error.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS JJ.

Aaron Nassau and Francis P. Rohrmayer, both of Hartford, for appellant.

Cyril Coleman and Lawrence A. Howard, both of Hartford, for appellee.

AVERY Judge.

This is an action for malpractice against the defendant, a dentist practicing in Hartford. The complaint is in three counts: The first is based on negligence, in that the defendant was alleged to have read certain X-ray plates inaccurately, whereby he extracted two teeth which were not abscessed, and failed to extract two abscessed teeth; the second is based on contract, and alleges a breach of the defendant's undertaking to extract two abscessed teeth and the third sets up a battery, in that the defendant extracted two teeth without the plaintiff's consent. It was alleged that the plaintiff, in addition to the loss of the teeth, continued to suffer from arthritis caused by infection from the two abscessed teeth, and was caused considerable expense for medical and dental care. The jury returned a verdict for the defendant, which the court refused to set aside upon the plaintiff's motion.

The errors assigned in the present appeal are in the action of the court in refusing to set aside the verdict, certain claimed errors in the charge, and claimed improper argument by counsel. While the errors assigned are quite numerous none of them are such as to require an extended discussion. The plaintiff seeks to have eleven corrections made to the finding. A finding in a jury case is merely " a narrative of the facts claimed to have been proved on either side made for the purpose of fairly presenting any claimed errors in the charge or rulings of the court." Brown v. Goodwin, 110 Conn. 217, 218, 147 A. 673, 674. The corrections sought by the plaintiff are either contrary to the evidence or are a recital of evidence immaterial to the decision of any questions of law raised on this appeal.

There is no dispute in the testimony that the plaintiff, a married woman twenty-nine years of age and with one child, had suffered severely from arthritis; and upon advice of her physician, had her teeth examined on May 26, 1932, by Dr Diana at New Britain, who took an X-ray of her mouth at that time and mailed it to her on June 16th. On June 20th the plaintiff entered the defendant's office in the Standard building on Trumbull street, Hartford, for the purpose of having four abscessed teeth extracted. The dispute between the parties arises as to what occurred after she entered his office. The plaintiff claimed that she presented to the defendant the X-ray plate taken by Dr. Diana which showed that four of her teeth were abscessed-the upper left central, upper left lateral, lower left first molar, and upper right first bicuspid, and requested him to extract the teeth shown to be abscessed by the X-ray. On the other hand, the defendant denied that he had seen the X-ray plates until November, 1933, seventeen months after the extractions. He claimed that on June 20, 1932, the plaintiff consulted him and advised him that she wanted four teeth extracted, that she pointed out the upper right central and upper right lateral, and stated that X-ray pictures had been taken by a New Britain doctor who had informed her which teeth were abscessed. Thereafter the defendant removed the two front teeth indicated by the plaintiff together with the back teeth about which there is no dispute. The defendant was corroborated in his statement by the testimony of a dental hygienist from a nearby office, who was present at the time, and claimed to have seen the plaintiff point to the teeth which she desired to be extracted. The envelope in which the X-rays were mailed to the plaintiff, and which she claimed to have brought to the defendant with the X-rays inclosed, contained, in the left-hand corner, the inscription " Dr. H. F. Diana, 300 Main Street, New Britain." After the extraction, the defendant placed on his record card in his own handwriting, under the word " Reference," the words " Dr. H. F. Diana, New Britain."

The plaintiff claims that the only possible inference is that she did have the X-rays with her when she entered the defendant's office, otherwise he would not have known the name and address of Dr. Diana, and that the defendant therefore incorrectly and negligently read the X-ray plates and extracted the two upper front teeth on the right side which were not abscessed, and failed to remove the two upper front teeth upon the left side which were shown to be abscessed on the X-ray plate. As against this claim was the direct testimony of the defendant that the X-ray plates taken by Dr. Diana were not shown to him before he made the extractions, which was corroborated by the dental hygienist who was present at the time. The defendant testified that he was acquainted with Dr. Diana, and this fact, together with information furnished by the plaintiff, could be fairly claimed to explain the entry upon the record card. It was therefore a question of fact for the jury's determination whether the defendant was in possession of the X-ray plates at the time and therefore extracted the wrong teeth as shown thereby, or, on the other hand, removed those requested by the plaintiff. The verdict of the jury imports that the facts were found in accordance with the defendant's claim, and the conclusion of the trial court that the verdict must stand is not erroneous.

It is unquestioned on the evidence that the plaintiff's health did not materially improve after the removal of the four teeth; and...