Fink v. Steele

• Decision Date: 20 February 1934
• Docket Number: 108.
• Parties: FINK v. STEELE.
• Court: Maryland Court of Appeals

171 A. 49

166 Md. 354

FINK v. STEELE.

No. 108.

Court of Appeals of Maryland

February 20, 1934

Appeal from Circuit Court, Caroline County; Wm. H. Adkins and Thomas J. Keating, Judges.

Action by Margaret Elizabeth Steele, by Clement Steele, her father and next friend, against Samuel M. Fink. Judgment for plaintiff, and defendant appeals.

Reversed.

Argued before BOND, C.J., and PATTISON, URNER, DIGGES, PARKE, and SLOAN, JJ.

J. De Weese Carter, of Denton, and C. Damer McKenrick, of Baltimore, for appellant.

Henry A. Warburton, of Elkton (William J. Rickards, of Denton, on the brief), for appellee.

SLOAN Judge.

This appeal is from a judgment for damages for alleged negligent treatment of a child by a dentist. The suit was brought by Margaret Elizabeth Steele, by her father and next friend Clement Steele, appellee, against Samuel M. Fink, appellant. The case went to trial on the second amended second count of the declaration, the first count having been abandoned wherein it was alleged that "on or about April 3, 1931 the plaintiff (appellee) was a patient of the defendant (appellant), a practicing dentist at Elkton, Maryland, at which time the defendant, acting in the scope of his employment, filled a tooth of the said infant plaintiff, and that said filling remained in said tooth for a period of five days, whereby said infant plaintiff suffered great physical injury, both serious and permanent; that said injuries to said infant plaintiff were caused directly by said defendant in filling said tooth and allowing said filling to remain in said tooth for five days, and that the filling of said tooth and permitting said filling to remain in said tooth for a period of five days was due to the want of reasonable care, skill and diligence and to neglect in the care, skill and diligence on the part of the said defendant, and that said acts of the defendant and the injuries resulting therefrom were not due to any want of care on the part of the said infant plaintiff or her father and next friend directly contributing to said injuries." The defendant demurred to this declaration as amended and the demurrer was overruled, and the first question in order on this appeal is the sufficiency of the declaration.

The defendant's first objection to the declaration is that the charge of negligence is too general, so general, in fact, that it does not amount to a charge of negligence at all. If the declaration "contains a plain statement of the facts necessary to constitute a ground of action (it) shall be sufficient." Code, art. 75, § 3. Such a reasonable degree of certainty is required as to warn the defendant of the claim or demand made on him (Poe's Pleading, § 562; Phelps v. Howard County Com'rs, 117 Md. 175, 178, 82 A. 1058); "so that they may be understood by the party who is to answer them" (P., B. & W. R. R. Co. v. Allen, 102 Md. 110, 113, 62 A. 245, 247). Measured by these simple rules as guides, what do we have here? A child went to a practicing dentist to have a tooth filled. He accepted the employment; he filled the tooth; the filling remained in the tooth five days "whereby" the child "suffered great physical injury both serious and permanent." There is no charge of negligence to this point. It is a mere statement of what happened to the child following the filling of the tooth. No physician or dentist is chargeable with the results of his efforts if he has applied the degree of care and skill ordinarily required and to be expected of one of his profession in the treatment of disease or injury. Angulo v. Hallar, 137 Md. 227, 232, 112 A. 179. The declaration then says that the injuries "were caused directly by the defendant in filling said tooth and allowing the filling to remain for five days." There is no charge of lack of care, skill, or negligence in this, but the declaration goes on to say "that the filling of the tooth and allowing the filling to remain in said tooth for a period of five days was due to the want of reasonable care, skill and diligence and to neglect in the application of care, skill and diligence on the part of the defendant." Suppose the declaration, after the statement of the injury, had said: "Said injuries so suffered by" her "had been caused directly by" and were "due to the want of reasonable care, skill, diligence and the neglect of the defendant." If he had treated the plaintiff at the times stated, it would have given him notice of the claim he was called on to defend, and that is for a period of five days he had failed to exercise the degree of care and skill required of one of his profession and that by reason of this failure and neglect the plaintiff had suffered injury for which compensation was demanded of him.

The defendant also objects to the declaration on the ground that it is bad for duplicity, in that it undertakes to allege two acts of negligence, when one alone would be effectual, if properly alleged and proved. One act, he contends, is the filling of the tooth; the other, allowing the filling to remain in the tooth for five days. There is no allegation that the tooth was improperly or unskillfully filled. Aside from the filling of the tooth, the declaration is silent as to just what was done by the defendant during the five days in which the damage, if any, was done; but there is the single allegation that in the filling of the tooth and in allowing it to remain in the child's tooth for five days she sustained injuries which were due to the want of reasonable care, skill, and diligence and neglect on the part of the defendant. We therefore think the court was right in overruling the demurrer to the declaration.

The principal contention of the defendant on the trial of the facts is that his prayer for an instructed verdict for want of legally sufficient evidence should have been granted. We think the prayer was improperly refused, but it is necessary to review the evidence in order to show why this court arrives at such a conclusion. On September 2, 1930, the infant plaintiff was taken by her father to the defendant at which time a small front tooth was extracted. Later in the month she again went to the defendant, and from that time until November 22, 1930, she made several visits; one of the things done being the filling of a lower right "six year molar." On the last Tuesday of March, 1931, the child, who was then in the third grade, came home from school and informed her mother that the filling had come out while she was at school. The mother said it was the filling in the six year molar. She sent the child that day to Dr. Fink to have the tooth refilled, and on her return from the dentist's she saw the refill. The father testified to the same effect. The infant defendant testified that she had been sent by her mother to the defendant to have the tooth filled and that it was refilled. She did not know the day or the month, but the first filling had come out, and as soon as she came home from school her mother sent her to Dr. Fink to have the tooth refilled, and she said that he did refill it. The father said, "She complained of her tooth aching when she returned home." That evening they tried to give the child relief but "she seemed to get worse. * * * The next day she was suffering and there were signs of swelling. * * * " Dr. Wallace Johnson, from Newark (Delaware), the family doctor, was called in. After Dr. Johnson left the home, the father went to Dr. Fink's office and told him that "Dr. Johnson had examined the girl and advised us to have the filling removed by whoever put it in." He replied that "that wasn't the cause of her trouble, that she had the mumps." He told Dr. Fink that she had been over the mumps about a month. This was Wednesday evening. The next day, Thursday, according to the testimony of the mother, Dr. Fink went to her house to see the plaintiff and repeated that "it was due to the mumps." The child's face was then "swollen terribly; * * * her face was almost square." Dr. Fink was called again on Saturday; the mother testifying: "When he (Dr. Fink) examined her he then said it was the tooth that was the cause of it and that he should have taken an X-ray before he filled it. He then said he would have to have the tooth out at once." Dr. Johnson was called, and after his arrival the child was given an anæsthetic. Dr. Fink removed the tooth and lanced the jaw on the inside. A friend, Mrs. Murray, testified that Dr. Fink there said "he shouldn't have filled the tooth." After that the child was attended and treated by Dr. Johnson, but several months later she was taken to a hospital for an operation on her jaw.

With all of these so-called admissions, there is in them no legally sufficient evidence that there was any want of reasonable care and skill in filling the child's tooth or that there then existed any symptoms or conditions from which the defendant might have anticipated any such results as followed. "An admission, to be sufficient, must be an admission of negligence or of lack of the skill ordinarily required for the performance of the work undertaken." 48 C.J....