Freche v. Mary

• Decision Date: 10 January 1944
• Docket Number: 17541.
• Citation: 16 So.2d 213
• Court: Court of Appeal of Louisiana — District of US
• Parties: FRECHE v. MARY.

16 So.2d 213

FRECHE v. MARY.

No. 17541.

Court of Appeal of Louisiana, Orleans.

January 10, 1944

Rehearing Denied March 6, 1944.

M C. Scharff, of New Orleans, for appellant.

Cabral & Courtin, of New Orleans, for appellee.

WESTERFIELD Judge.

Willie J Freche brought this suit individually and on behalf of his minor daughter, Imelda Freche, claiming a total of $15,744.32, as damages due to the alleged negligence and want of skill on the part of Dr. Amedee Mary, the defendant, a dentist, who extracted one of Miss Freche's teeth.

The defendant denied all charges of malpractice and negligence and after a trial upon the merits there was judgment below maintaining his defense and dismissing plaintiff's suit. The plaintiff has appealed.

On May 18, 1937, Miss Imelda Freche called at the dental office of the defendant complaining of an aching tooth. Dr. Mary extracted one of her teeth presumably the aching one. Miss Freche returned to her home and two days later, on the 20th, as she was suffering considerable pain, she went back to Dr. Mary's office, when he examined her gums and prescribed a mouth wash and a drug called "anacin" to relieve the pain. She went home, developed considerable temperature, became alarmed and called in Dr. Peter B. Salatich, who operated on Miss Freche at the Hotel Dieu on May 22, 1937. The operation consisted of an opening in the floor of the mouth and the removal of pus, after which three incisions were made and tubes inserted for drainage purposes. The next day her condition, according to Dr. Salatich, became worse and he was obliged this time to make "a very free incision, the whole length of the neck and separate all the muscles of the tissues of the neck because this girl, the structures in the neck had already begun to get black, a most terrific infection".

We are convinced that Miss Freche suffered very much and that her father was put to considerable expense in connection with her operation and if Dr. Mary was responsible therefor she is undoubtedly entitled to substantial damages.

We will now examine the question of Dr. Mary's negligence.

The charges in plaintiff's petition are that the defendant failed to use aseptic precautions prior to the injection of the anesthetic in Miss Freche's gums; that his instruments were not properly sterilized; that the treatment prescribed for Miss Freche was not such as reputable dentists in good standing would have suggested; and that in refusing to call on Miss Freche after being informed of her serious condition, he was guilty of negligence and further that in advising that the infection be undisturbed for six days he was guilty of grave error.

Dr. Mary had been the dentist of the Freche family for a number of years. He was also a graduate doctor of medicine. He described the procedure followed by him in extracting the tooth as follows:

"I took a piece of cotton saturated it with alcohol and phenol five percent and swabbed the surrounding tissues and the tooth. Then I took my hypodermic syringe from my sterilization and inserted the carpule of novocaine and proceeded to give her an infiltration anaesthesia. Before giving her though the anesthetic, I always put my forceps that I chose for the extraction, in my jar with a 25 per cent solution of phenol alcohol while I am giving this injection to insure again (st) asepsis. After a matter of fifteen minutes, I took my forceps, which was in this solution, I shook the solution off from the forceps with a couple of licks, and I pulled the tooth out."

Neither Miss Freche nor her mother, who was present at the time, was able to give any testimony which would indicate that Dr. Mary had not followed this procedure in the preparation for the extraction of Miss Freche's tooth. As a matter of fact, they were unable to give any satisfactory evidence on the subject at all which, under the circumstances, is not unnatural since they were chiefly interested in the comfort and relief of Miss Freche and not in the method by which Dr. Mary removed the tooth.

Dr. Mary contends that the precautions which he exercised are sanctioned by the best dental practitioners and he offered in substantiation of this statement the evidence of two other dentists, Dr. Wallace Nicaud and Dr. Leopold Levy, and a doctor of medicine, Dr. Rives, all three of whom agreed with him.

Dr. Salatich, whose testimony on the whole is by no means favorable to Dr. Mary, was unwilling to say that the infection of Miss Freche's mouth was due to the improper sterilization of the needle by which the anesthetic was introduced into her gums. He testified that the human mouth cannot be thoroughly sterilized due to the number of germs which are habitually present, such as saphrophytes, streptococcus and staphylococcus. He described the mouth as the filthiest part of the anatomy and stated that it contained ten times more germs than are found in the rectum.

Much is made of the fact that Dr. Mary advised against surgical interference until the sixth day after the beginning of the infection in order that the abscess might "point" or, as it is generally termed in lay parlance, "come to a head". This statement is contrasted with Dr Salatich's view that the abscess had to be opened at once. Of course, we do not know which of these contradictory statements is correct except as it is reflected by the testimony in the record. We notice, however, that Dr. Nicaud and Dr. Levy agree with Dr....