Hotelling v. Walther

• Decision Date: 10 November 1942
• Citation: 130 P.2d 944,169 Or. 559
• Parties: HOTELLING <I>v.</I> WALTHER
• Court: Oregon Supreme Court

169 Or. 559

130 P.2d 944

HOTELLING

v. WALTHER

Supreme Court of Oregon.

Argued October 20, 1942.

Affirmed November 10, 1942.

Limitation of actions — Physicians and surgeons — Torts

1. Where dentist only partially removed wisdom tooth and after interval of ten days treated patient's infected tooth socket for more than a year without having X-ray made or discovering that parts of root were cause of infection, there was a "continuing tort" and cause of action "accrued" and statute of limitations began to run from date of last treatment.

Physicians and surgeons — Negligence

2. The fact that a wisdom tooth was broken or crushed in extraction is not evidence of negligence, but dentist's duty and obligation to patient did not end upon partial extraction of the tooth.

Physicians and surgeons — Reasonable care

3. Dentists like physicians and surgeons are not guarantors of good results but are obliged only to exercise reasonable care and skill in the treatment of patients, and what constitutes "reasonable care and skill" is determined by the degree of care and skill ordinarily exercised by members of the profession in similar places.

Evidence — Judicial notice

4. It is common knowledge that an impacted wisdom tooth is difficult to extract and that the operation often results in breaking parts of the roots.

Limitation of actions — Negligence

5. In determining when cause of action accrued on account of alleged negligence of dentist, the alleged negligent treatment was required to be considered as a whole.

Action — One cause of action

6. A plaintiff is not obliged to split his cause of action.

Limitation of actions — Negligence

7. The continued negligent treatment of patient by dentist constituted but a "single cause of action", as respects when cause of action accrued.

Limitation of actions — Torts

8. Where the tort is continuing the right of action is also "continuing", as respects time when cause of action accrued.

Physicians and surgeons — Due care

9. After partial extraction of wisdom tooth there was a "continuing duty" on part of dentist to exercise due care and skill in diagnosing the cause of infection surrounding the tooth socket.

                  When statute of limitations commences to run against actions
                against dentists for malpractice, note, 74 A.L.R. 1317. See, also
                41 Am. Jur. 233
                  1 C.J.S., Actions, § 71
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge, pro tem.

Action by C.C. Hotelling against D.E. Walther for alleged negligence in failing to exercise due care in the extraction of a lower wisdom tooth and in subsequent treatment thereof. From an order granting plaintiff a new trial after judgment of involuntary nonsuit on ground that cause of action was barred by the statute of limitations, the defendant appeals.

AFFIRMED.

Frank S. Senn, of Portland (Senn & Recken and Robert L. Recken, all of Portland, on the brief), for appellant.

John F. Conway, of Portland (Henry G. Kreis, of Portland, on the brief), for respondent.

BELT, J.

This action was commenced on September 30, 1940, to recover damages resulting from the alleged malpractice of the defendant, a duly licensed and practicing dentist in the city of Portland. The defendant is charged with negligence in that he failed to exercise due care in the extraction of a lower wisdom tooth and in the subsequent treatment thereof. More precisely, it is averred that the defendant only partially extracted the tooth, leaving broken parts of the roots thereof in the tooth socket and that he failed to exercise due care and skill in diagnosing the cause of the trouble.

At the conclusion of plaintiff's case in chief a motion for a judgment of involuntary nonsuit was allowed on the ground that the cause of action was barred by the statute of limitations. Thereafter, the court set aside such judgment and granted plaintiff a new trial. Defendant appeals from the order granting a new trial.

On July 15, 1938, the defendant, pursuant to his contract of employment, extracted — or partially extracted — a wisdom tooth of the plaintiff. About ten days after the extraction, plaintiff returned to the defendant for further treatment as the tooth socket was infected and exuding much greenish pus. Plaintiff returned for treatment two or three times each month thereafter until October 20, 1939. During this period of time, plaintiff's condition — according to the evidence — became progressively worse. Defendant flushed out the infected area but never at any time took a radiograph to ascertain the cause of the trouble.

On October 20, 1939, plaintiff consulted another dentist who referred him to an X-ray dental specialist. An X-ray picture taken by Dr. H.C. Fixott disclosed two parts of the roots in a highly infected area surrounding the tooth socket. Thereafter Dr. Byron E. Loomis succeeded in extracting the broken parts of the tooth.

There is substantial evidence tending to show negligence on the part of the defendant. The sole question on this appeal is whether this action was commenced within two years after the "cause of action shall have accrued", as required by § 1-206 O.C.L.A. It is contended by defendant that the cause of action accrued when the tooth was extracted on July 15, 1938, or when the alleged wrong was committed. Plaintiff asserts that this case involves a continuous tort and, by reason thereof, the statute commenced to run when the defendant ceased his negligent treatment, viz., on October 20, 1939. Counsel are agreed that the two-year period of limitation applies to this kind of case. The divergence of opinion arises over what constitutes the accrual of a cause of action. The answer to this question is determinative of this appeal.

1-3. We think the fallacy of appellant's position lies in assuming that no continuing tort is involved. Defendant's duty and obligation to his patient did not end upon the partial extraction of the tooth. True, the mere fact in itself that the wisdom tooth was broken or crushed in extraction is not evidence of negligence. Dentists, like physicians and surgeons, are not guarantors of good results. The dentist is obliged only to exercise reasonable care and skill in the treatment of his patient. As to what constitutes reasonable care and skill — that is determined by the degree of care and skill ordinarily exercised by members of his own profession in similar places: Patterson v. Howe, 102 Or. 275, 202 P. 225; Schamoni v. Semler, 147 Or. 353, 31 P. (2d) 776.

4. The evidence in this case fails to disclose negligence in the original extraction of the tooth. It is common knowledge that an impacted wisdom tooth is difficult to extract and the operation often results in breaking parts of the roots. A dentist's work is not completed, however, by a partial extraction. The negligence here is really predicated upon the failure to exercise due care and skill in diagnosing the cause of plaintiff's trouble and in permitting the broken parts of the roots to remain in the tooth socket. Had defendant taken or procured an X-ray picture, it is reasonable to assume that there would have been no...