Higdon v. Carlebach

• Citation: 348 Mich. 363,83 N.W.2d 296
• Decision Date: 17 May 1957
• Docket Number: Nos. 73,74,s. 73
• Parties: Dolores R. HIGDON, Plaintiff and Appellant, v. Joseph CARLEBACH, D.D.S., and Brian Battersby, D.D.S., Defendants and Appellees. Sandra HIGDON, a minor, by Dolores R. Highdon, Guardian, Plaintiff and Appellant, v. Joseph CARLEBACH, D.D.S., and Brian Battersby, D.D.S., Defendants and Appellees.
• Court: Supreme Court of Michigan

Page 296

83 N.W.2d 296

348 Mich. 363

Dolores R. HIGDON, Plaintiff and Appellant, v. Joseph CARLEBACH, D.D.S., and Brian Battersby, D.D.S.,

Defendants and Appellees.

Sandra HIGDON, a minor, by Dolores R. Highdon, Guardian, Plaintiff and Appellant, v. Joseph CARLEBACH, D.D.S., and Brian Battersby, D.D.S.,

Defendants and Appellees.

Nos. 73, 74.

Supreme Court of Michigan.

May 17, 1957.

Joseph Marvaso, Detroit, for plaintiffs and appellants.

Moll, Desenberg, Purdy & Glover, Detroit, for defendants and appellees.

Before the Entire Bench.

BLACK, Justice.

These are consolidated actions for negligence occurring, as alleged, in the course of dental treatment. One is brought by plaintiff Sandra R. Higdon in her own right. The other, derivative from the first, is brought by Sandra's mother.

Sandra's cause is a striking duplicate of Vale v. Noe, 172 Wis. 421, 179 N.W. 572 and Ellering v. Gross, 189 Minn. 68, 248 N.W. 330. Vale denies recovery. The reasoning thereof shores defense argument that these actions cannot be maintained absent expert testimony tending, aside from the facts as shown, to establish Sandra's cause. Ellering sustains recovery in legally identical circumstances. Sandra's cause depends in essence on validity of doctrines therein approved. Our choice, consistent with Michigan law, must be made.

In the regular course of professional relationship Sandra, a high school student, sought treatment of her teeth by the defendants, each being a practicing dentist. Her theory of recovery against defendant Carlebach is disclosed in paragraph 3 of her declaration, quoted at margin. ¹ Immediately before Sandra's injury was sustained Dr. Battersby was engaged in working upon Sandra's teeth by means of an ultra thin electrically driven disk. The disk turned clockwise on its shaft and was five-eighths of an inch in diameter. Since our task is exclusively confined to appraisal of defendant's motion for instructed verdicts, we initially consider Sandra's version of occurrences giving rise to her alleged cause. She testified:

'I was holding on the chair with my both hands as now. My head was tilted back more than now. The doctor was on my right side. He used the drill for a short time, then he stopped and put the separator disk on the drill. He was then at my right shoulder, facing me. He was working on the lower teeth on the left side. As he was working with his separator disk, his left hand came from the back of my head around the side, and he was holding my jaw, my cheek with his middle finger. My mouth was as wide open as I could get, because he asked me to. My head was resting on the two round things that hold your head up and are attached to the chair itself. My feet were crossed. I was not given any instructions by the doctor as to how I should remain, or as to moving.

'Q. Now, we are at the place where he is beginning to use the separator disk and my question is did he begin to use that? A. Yes.

'Q. All right. Now, tell us in point of seconds--I want you to think about this--to the best of your recollection how long from the beginning of the use of the separator disk until the incident happened, how many seconds was it or minutes? A. It was about a minute or so.

'Q. Sandra, I want you to face the jury and in your own words tell them what happened. A. He was drilling on my tooth for just a short time, and then, all at once, the drill just went off my teeth on to my tongue and it didn't seem like he took it out right away. It seemed to be there for a second or so before he took it out. And, then, he went around and shut it off. Then he took it out and told me just to sit still. And, he went out into the office.

* * *

* * *

'I then began to bleed in my mouth. Dr. Battersby told me I would be all right. He said he had just cut my tongue a little bit. I was administered a shot in the arm. Another doctor then came and they started to suture my tongue. There was an awful lot of pain. Later I was taken to another doctor downstairs. And still later Dr. Battersby took me to Wyandotte General Hospital.

'I stayed in the hospital more than two weeks altogether. During my stay I was very sick indeed. I received treatment by special nurses and medical specialists. For days my tongue was so swollen I could only drink with a tube. Whereas I weighed 118-120 before the accident, I now weight 95 pounds. My tongue now has a feeling of no feeling or numbness. I don't seem to have any appetite.'

Sandra testified further, on cross-examination:

'I knew the purpose of the separating disk because the doctor told me. I knew that it was being used at the time the incident happened.

'Q. And didn't you move your tongue or move your head just at that instant? A. No, sir, I did not.

'Q. You are sure of that? A. I am positive.'

As in Ellering, Dr. Battersby 'rightly felt that he should account for the wound the instrument manipulated by him inflicted.' He did so by testifying:

'A. I was using this separating disk. The purpose of the separating disk is to make sufficient space between the teeth to place a band in order to pack the teeth with the silver metal used for filling. As I was using the disk, she moved and disk contacted her tongue.

'Q. As you were using the disk she moved and that is it? A. That is the way it happened.

'Q. Which way did she move, doctor? A. How am I supposed to tell you that. She gave a little jerk. That is all.

* * *

* * *

'I started to use the disk, and there was, I don't know if you would call it convulsive movement or reflex action on the part of Sandra, and the disk struck her tongue.

'Immediately as it touched her tongue, I attempted to turn the--I turned it off and removed the disk, the instrument from her mouth, and I began to take measures to stop the bleeding. Also, in thinking that perhaps the disk might be carrying bacteria, I gave her penicillin. And, then I wanted consultation on the case; so, I called Dr. Heilman, rather, I had our secretary call, Dr. Kemler who is a physician downstairs, Dr. Kemler came up and I believe he put two stitches in the tongue.

'After the cutting I stopped the motor immediately. I then tried to aid Sandra every way possible. I had further consultations. Finally I took her to the hospital in my car. Dr. A. L. Rehfield was called at my request.

* * *

* * *

'The Court: I don't know whether I quite understand. Just the instant before this accident occurred, had there been nay movement on the part of the patient? A. Well, I constantly warn patients to sit still. I always try to take precautions I feel necessary. The disk had to be rotating clockwise when used on the left side, your Honor. You can see that it is moving in a direction towards the check; so, I was holding the cheek away from that movement. Now, I don't know whether it was reflective action on the part of the patient or not but the movement produced the disk movement to the tongue and the tongue was cut.

'The Court: What I want to know is whether there was any sudden movement of the patient immediately preceding the accident? A. Well, just--that is when it happened, when the disk hit the tongue. It was because of the movement.

'The Court: Well, I am not quite clear. I don't know whether the jury is or not as to whether there was any sudden movement on the part of Sandra that caused the disk to slip. A. That is what I testified, your Honor, that there was.

'The Court: How do you describe that movement? A. Well, your Honor, I think you and any member of the jury has sat in a dental chair and given a little jerk when a dentist started working on them. I know I have sat in a chair myself and done the same thing.

'The Court: Well, is that your description of what happened in this case? A. I don't know exactly, sir, how much she moved.

'The Court: Well, is the slipping of the disk on the tongue or on the cheek a very common occurrence? A. I would say that it happens probably to every dentist during the course of his practice.

'The Court: That is all.'

Decision of defendants' motion for direction having been reserved, and the jury having returned a verdict in favor of Sandra in the sum of $5,000 and a verdict in favor of Sandra's mother in the sum of $947.75, the trial judge granted motion for judgments notwithstanding such verdicts and entered judgments accordingly. The named plaintiffs have appealed.

First: Defendants rely on the general rule that an action of present nature must be supported by admissible opinion testimony tending to show that the requisite degree of professional care has not been exercised. The rule is considered at length in annotation (141 A.L.R. 5) headed 'Necessity of expert evidence to support an action for malpractice against a physician or surgeon.' Michigan follows it (Zoterell v. Repp, 187 Mich. 319, 153 N.W. 692; Delahunt v. Finton, 244 Mich. 226, 221 N.W. 168: LeFaive v. Asselin, 262 Mich. 443, 247 N.W. 911; Nemer v. Green, 316 Mich. 307, 25 N.W.2d 207). That it applies to corresponding actions against detists will be seen on examination of the annotation (129 A.L.R. 101, 116) headed 'Duty and liability of dentist to patient.'.

Plaintiffs say, however, that the cases at bar fall within a recognized exception, exemplified in LeFaive v. Asselin, supra. We turn, then, to authority wherein such exception has either been applied or denied in like instances of oral injury. Ellering and Vale will lead review since plaintiffs emphasize the first and defendants stress the latter. Vale, earliest of the 2 (1920), is considered first.

In Vale 'plaintiff sustained an extensive cut and severe injuries to her mouth and tongue * * * by reason of the fact that the disk passed from the tooth to the bottom of the plaintiff's mouth and came in contact with her tongue * * *.' The court said:

'There is no room here for the application of the doctrine of res ipsa loquitur. Negligence of the defendant cannot be inferred from the fact of injury under the circumstances...