Hill v. Jackson

• Decision Date: 16 June 1924
• Docket Number: No. 15037.,15037.
• Citation: 265 S.W. 859
• Parties: HILL v. JACKSON
• Court: Missouri Court of Appeals

265 S.W. 859

HILL v. JACKSON

No. 15037.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

Rehearing Denied July 9, 1924.

1. Evidence 477(3)—Plaintiff properly permitted to testify that defendant dislocated her jaw when extracting her teeth.

Dislocation of a jaw not being so obscure as to lie beyond pale of testimony of lay witness, there was no error in permitting plaintiff to testify that defendant dislocated her jaw at the time he extracted her teeth.

2. Physicians and surgeons 18(9)—Refusing instruction withdrawing from jury alleged negligence causing dislocation of jawbone held erroneous.

Evidence held not to make case of negligence against dentist in connection with dislocation of patient's jaw, and, doctrine of res ipsa loquitur being inapplicable, it was error to refuse defendant's instruction withdrawing alleged negligence in that respect from jury.

3. Physicians and surgeons 18(6)—Doctrine of res ipsa loquitur held inapplicable to dislocation of jaw during tooth extraction.

The doctrine of res ipsa loquitur cannot apply to dislocation of jaw during tooth extraction, when there is evidence that dislocation of the jaw may occur when a tooth is being extracted with proper care.

4. Physicians and surgeons 14(4)—Care required in extracting teeth stated.

In extracting teeth, defendant was required to use only that degree of knowledge, ability, and skill that dentists practicing in similar localities ordinarily. possess, instead of that possessed by dentists anywhere.

5. Physicians and surgeons 18(11)—No damages for pain from dislocated jaw unless negligence shown.

Plaintiff could not recover for pain and suffering incident to dislocation of her jaw unless there was testimony showing negligence by dentist.

6. Trial 127—Fact that dentist carried bility insurance held inadmissible.

In malpractice action against dentist, fact that he carried liability insurance, or notified insurer as required when suit was threatened, is inadmissible.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Action by Nora Hill against C. M. Jackson. Jcdgment for plaintiff, and defendant appeals. Reversed and remanded.

Ewing & Ewing, of Nevada, Mo., and Haff, Meservey, Michaels, Blackmar & Newkirk, of Kansas City, for appellant.

A. E. Elliott, of Nevada, Mo., and W. H. Hallett, of Kansas City, for respondent.

BLAND, J.

This is a malpractice suit. Plaintiff recovered a verdict and judgment in the sum of $1,500, and defendant has appealed.

The petition alleges:

"* * * That defendant in extracting plaintiff's teeth as aforesaid did negligently, carelessly and unskillfully dislocate her jaw in so doing, and did negligently and carelessly fail to discover that he had dislocated the same, and did negligently and carelessly fail to replace and reset it and to advise plaintiff that he had so dislocated it."

The facts show that plaintiff, as the result of a severe case of pyorrhea, suffered from inflammation of the gums and pus around the teeth which were broken down. She consulted the defendant, a dentist of Nevada, Mo., concerning her ailment, and on August 8, 1921, the defendant extracted all of her upper teeth. She returned on September 6, 1921, and defendant extracted all of her lower teeth. Defendant testified that in extracting plaintiff's lower teeth he broke off one and had difficulty in getting it out. Over defendant's objection plaintiff was permitted to testify that defendant dislocated her jaw at the time her lower teeth were extracted. Plaintiff's husband testified:

"I was present when he pulled my wife's teeth, and she screamed when he pulled her teeth, and told him she couldn't shut her mouth. He said it was the medicine drawing the muscles, and that it would probably work out by the time we got home, and the jaws wouldn't be so stiff by then."

Plaintiff testified:

"I told him (defendant) my jaw was dislocated, and he said it was the effects of the medicine stiffening the muscles.

"Q. How did you know your jaw was dislocated? A. Because I had such pain up here (indicating) in my jaw, and I couldn't close my mouth."

About 10 days after the extraction of her lower teeth, plaintiff, being in the same condition—that is, unable to close her mouth and with her jaw paining her—went to her family physician, and he discovered that her jaw was dislocated, but he did not attempt to set it. Another physician in the presence of the defendant afterwards made strenuous efforts to set her jaw by manipulation, without result, and plaintiff's jaw remained dislocated to the time of the trial.

There is testimony tending to show that it is a very easy matter for a dentist to discover by examination a dislocated jaw. There was conflict in the testimony as to whether it was easy or difficult to set a dislocated jaw at the time of the dislocation, but there was ample evidence to show that the longer the jaw is allowed to remain in this condition the greater the difficulty of setting it, for the reason that the working of the jawbone out of place tends to cause friction and a wasting away of the head of the bone, and the end of the bone may become softened and the cavity where the bone has come out will start to fill up.

There was a great deal of testimony on the part of defendant tending to show that he did not dislocate plaintiff's jaw; that the condition of her jaw was caused as the result of an infection from the pyorrhetic condition of her mouth and gums; that this infection had been transmitted to the joint, producing inflamed muscles and a thickening of the tissues at the head of the jawbone, a filling up of the socket in which it rests, causing ankylosis of the jaw, and forcing the head of the bone down and out of place to a certain extent.

Dr. Hornback, testifying for plaintiff, stated that he made an examination of plaintiff about three or four months after the time the lower teeth were pulled, and at that time he found that her jaw was dislocated; that plaintiff's jaw protruded forward and downward; that it was very easy to detect a dislocated jaw; that in his opinion the head of the jaw bone rested on the tubercle process. There was evidence that plaintiff's jaw was in the same condition when Dr. Hornback examined her that it was in on the day it is claimed it was dislocated.

Denying that he had dislocated plaintiff's jaw, defendant, of course, admitted that he did not inform her that her jaw was dislocated and made no claim that he attempted to set it; on the contrary, the evidence shows that when plaintiff returned, some days afterwards, complaining of the condition of her jaw, he told her that she was getting along nicely. The evidence shows that it was the duty of a dentist who has dislocated a patient's jaw to immediately reset it.

It is insisted that defendant's demurrer to the evidence should have been...