Kasmer v. Sternal, 9593.
| Decision Date | 12 January 1948 |
| Docket Number | No. 9593.,9593. |
| Citation | 165 F.2d 624 |
| Parties | KASMER v. STERNAL. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. David G. Bress, of Washington, D. C., with whom Messrs. Alvin L. Newmyer and Alvin L. Newmyer, Jr., both of Washington, D. C., were on the brief, for appellant.
Mr. David A. Fegan, of Washington, D. C., for appellee.
Before GRONER, Chief justice, and EDGERTON and PRETTYMAN, Associate Justices.
This is an appeal from a judgment for plaintiff (appellee) on the verdict of a jury in a case of alleged malpractice. In our view the decision turns upon the question whether the jury were correctly instructed, and that question, we think, must be answered in the negative.
The facts, considered from the viewpoint most favorable to the plaintiff, are as follows:
Plaintiff, a former employee of the Government, is approximately seventy years of age. He has been in more or less delicate health since 1942 and has been wearing false teeth, including an upper and a partial lower denture, for the past twenty-six years. In 1943 he procured and wore a new set from a New York dentist and in 1944 some sharp points or prongs in the lower denture caused a puncture in his tongue. When he first observed the puncture it was about the size of a pinhead, and he suffered pain from this time until some two or three months later when he called on defendant (appellant), a Washington dentist. At that time (September, 1944) the lesion on his tongue showed no tendency of healing and was about the size of the phosphorous end of a match, and raw flesh could be seen through the puncture.
Plaintiff called the defendant dentist's attention to the condition of his tongue and expressed his own view that it was due to the faulty denture he was then wearing. Defendant concurred in this view and warned plaintiff to discontinue the use of the denture and agreed to provide a new set. Plaintiff's testimony is that defendant then assured him he could cure the tongue condition and gave him a prescription for an antiseptic wash known as "Metaphen," and advised plaintiff to use this on his tongue three times a day. Plaintiff asked the defendant if it would not be advisable for him to see a physician, but defendant replied he could do as much for him as any physician.
Plaintiff thereafter visited the dentist's office between the date of the first visit in September, 1944, and his final visit the following June, something like twenty-five times in connection with the various steps incident to fitting the new dentures. During all of this period the would on plaintiff's tongue steadily increased in size until it was the width of the end of plaintiff's thumb.
The new lower denture prepared by defendant was found by the plaintiff to be too tight and to press on his tongue, and another new set was subsequently prepared. But during all of this time plaintiff's tongue wound spread until it had covered a large part of the tongue, and was in 1945 diagnosed as cancerous by Dr. Hunter, a pathologist.
Three physicians were called by plaintiff. The first, Dr. Kossow, a general practitioner, testified he knew about as much, and no more, on the subject of cancer as the average general practitioner in the District of Columbia. Plaintiff first visited Dr. Kossow in June 1945, for the purpose of having a general physical examination. In the course of the examination the physician noticed the lesion on plaintiff's tongue, which at that time extended from about the middle of the tongue back almost to the throat. The glands in plaintiff's neck had then become enlarged, and the doctor, suspecting the possibility of cancer, advised plaintiff to see Dr. Hunter for an examination of the tongue to determine definitely whether cancer was present. Dr. Kossow testified not only that he, personally, did not know whether the sore on plaintiff's tongue was cancerous, but that he did not know what caused the sore or the cancer.
After Dr. Hunter's report was made, Dr. Kossow estimated that the cancer probably had existed for at least a year. But he neither stated nor suggested that the sore, which had steadily grown and spread from its first observance to the period of the operation — more than a year later — was or was not cancerous in its inception. His testimony from beginning to end was a total disclaimer of any knowledge of when the cancer started or what caused it.
Dr. Hunter, the pathologist who diagnosed pla...
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