Krueger v. Chase

• Citation: 172 Wis. 163,177 N.W. 510
• Parties: KRUEGER v. CHASE ET AL.
• Decision Date: 04 May 1920
• Court: United States State Supreme Court of Wisconsin

172 Wis. 163

177 N.W. 510

KRUEGER

v.CHASE ET AL.^a1

Supreme Court of Wisconsin.

May 4, 1920.

Appeal from Municipal Court of Brown County; Carlton Merrill, Judge.

Action by Nellie Krueger against John B. Chase, trustee in bankruptcy of G. R. Hickey. From a judgment for plaintiff, defendant appeals. Reversed.

Malpractice. G. R. Hickey is a dentist engaged in the practice of his profession at Green Bay. As a result of a prior examination and consultation, on January 18, 1918, the plaintiff went to St. Vincent Hospital, where she was anæsthetized--her family physician, Dr. R. M. Burdon, administering the anæsthetic--and Dr. Hickey removed 11 teeth. Just prior to the operation Dr. Hickey again examined the plaintiff's mouth and teeth, discovered no fillings, and discovered no fillings at the time the teeth were pulled. At the same time Dr. Burdon examined the plaintiff's mouth, and he saw no fillings in any of the teeth. The next day the plaintiff commenced to cough, thought that she was suffering from a cold and pneumonia developed, for which Dr. Burdon treated her for 4 or 5 weeks. The plaintiff claims that 6 weeks after the operation she coughed up two pieces of tooth, and 11 weeks and five days after the operation coughed up a large silver filling, about one pennyweight in weight. The plaintiff had an abscess on her right lung; it being conceded on all sides that the presence of the pieces of tooth and the filling would be sufficient to account for the abscess and pneumonia. It was the claim of the plaintiff that Dr. Hickey had not used proper care to prevent the escape of the filling and pieces of tooth into her lungs, and that by reason of his negligence, and the unskillful manner in which Dr. Hickey performed his work, he was liable to the plaintiff for damages.

The case was tried before the court and a jury, and the jury found by special verdict: (1) That the plaintiff was injured by the filling of a tooth escaping into her lung; (2) that the plaintiff was injured by pieces of tooth escaping into her lung; (3) that the defendant, in extracting plaintiff's teeth and in his treatment and care of her, failed to exercise such reasonable care and skill as is ordinarily possessed and exercised by dentists in good standing, etc.; (4) that the failure to use such care and skill was the proximate cause of the plaintiff's injury; (5) that Dr. Hickey did not use ordinary care and skill, by reason of his failure to discover before extraction that there was a filling among the teeth extracted; (6) that the failure to use such skill and care was the proximate cause of the plaintiff's injury--and assessed damages at $6,500.

There were proper motions to preserve the questions raised here. Plaintiff had judgment for the amount of the verdict, from which the defendant appeals.

Minahan, Minahan, Minahan & Duquaine, of Green Bay, for appellant.

Classon & Whitcomb and Allen V. Classon, all of Oconto (M. E. Davis, of Green Bay, of counsel), for respondent.

ROSENBERRY, J. (after stating the facts as above).

The defendant contends: First, that no actionable negligence was proved; and, second, that the injury was the result of unavoidable accident. The plaintiff contends: First, that the defendant was negligent in failing to protect the throat of the plaintiff, by failing to place a sponge or packing in plaintiff's throat before he operated upon each tooth; and, second, that he was negligent in failing to observe the filling, to discover that it was missing, when he extracted the tooth, and in failing to make search for the missing part.

As regards the first claim of the plaintiff, a careful reading of the record convinces us that Dr. Hickey did all that any reputable practitioner of good standing in the vicinity or locality does in that respect, and more than some of the practitioners do, so that a finding of negligence predicated upon a failure to properly guard the throat cannot be sustained.

[1] As to whether or not the finding of the jury that he was negligent in failing to discover the presence of the filling we are not agreed; but, assuming that he was negligent in that respect, we are of the opinion that there is no evidence that such failure was the proximate cause of the injury sustained by the plaintiff. It appears that the entrance of particles of teeth or filling escaping from the mouth during an operation into the trachea, and thence into the lung, is a thing of very rare occurrence. Twelve physicians and dentists testified in this case. Six of them had been engaged...