Larson v. Candlish, 83-066

• Decision Date: 15 June 1984
• Docket Number: No. 83-066,83-066
• Citation: 144 Vt. 499,480 A.2d 417
• Court: Vermont Supreme Court
• Parties: George LARSON, D.D.S. v. Marilyn CANDLISH. Marilyn CANDLISH v. George LARSON, D.D.S.

Page 417

480 A.2d 417

144 Vt. 499

George LARSON, D.D.S. v. Marilyn CANDLISH.

Marilyn CANDLISH v. George LARSON, D.D.S.

No. 83-066.

Supreme Court of Vermont.

June 15, 1984.

Marilyn Candlish, pro se.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

UNDERWOOD, Justice.

This appeal involves two small claims actions which were consolidated for hearing below. Dr. George Larson, a dentist, first brought suit against Marilyn Candlish to recover the balance due for professional services rendered to her. Subsequently, Mrs. Candlish brought an action for professional malpractice against Dr. Larson. Both claims arose from dental treatment rendered by Dr. Larson to Mrs. Candlish. Both parties appeared pro se below.

The court rendered judgment for Dr. Larson for the balance due him, rejecting Mrs. Candlish's contention that there was an accord and satisfaction. The court also rendered judgment for Dr. Larson in the malpractice action, because Mrs. Candlish failed to present any expert testimony on the key elements necessary to prevail in a malpractice action. We affirm as to both actions.

The court below made findings of fact and conclusions of law. Mrs. Candlish does not challenge any findings made below, so we will rely on the court's findings for this appeal.

On March 23, 1980, Mrs. Candlish was examined by Dr. Larson for an endodontic problem. Dr. Larson is a specialist in endodontics in the Rutland, Vermont, area, and on March 28, 1980, he performed a root canal procedure on Mrs. Candlish. At the time, she told Dr. Larson that she needed nitrous oxide gas rather than novocaine, and that this was her regular procedure for dental work. Nevertheless, Dr. Larson administered one injection of novocaine and then gave Mrs. Candlish a small administration of nitrous oxide gas. When Mrs. Candlish complained of pain, Dr. Larson injected additional novocaine and refused to administer more gas. Dr. Larson testified that novocaine is an anesthetic, which makes an area insensitive to pain, whereas nitrous oxide gas is an analgesic, which only lessens pain. He further testified that the gas was administered in limited amounts because it is less effective in reducing pain than is novocaine.

Mrs. Candlish testified that despite use of both agents, the procedure was agonizing. She also testified that Dr. Larson knew she was in severe pain but refused to give her more gas and left her from time to time to attend to other patients.

After completion of the root canal procedure, Mrs. Candlish returned home in extreme pain. She alleges that she called Dr. Larson twice that evening about the pain and was told to take two different pain relievers. She further testified that she returned to Dr. Larson's office at about 9:00 p.m. on March 28th, and that Dr. Larson admitted to her that he had packed the surgical area too tightly. According to Mrs. Candlish, he then changed the packing. Dr. Larson denied receiving any telephone calls that evening, and he denied that he performed any further procedures on Mrs. Candlish on March 28th.

Dr. Larson's charge for the root canal procedure was $255. Mrs. Candlish paid on the bill in increments until May of 1981. On May 20, 1981, she sent what she felt would be her last payment; it was a check for $12.50 and brought the total payment to $127.50. On the back of the check was a hand written notation stating, "The original account of $255.00 (4-11-80) is PAID IN FULL." The check was endorsed with Dr. Larson's office stamp and processed for payment.

Mrs. Candlish's brief does not raise any claims of error on appeal but simply restates her version of the facts and alleges that (1) Dr. Larson violated applicable standards of care, and (2) the endorsement stamp amounted to an accord and satisfaction. We find no error.

The malpractice claim is controlled by 12 V.S.A. § 1908 and Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 449 A.2d 900 (1982). Section 1908 applies to dentists and places upon the plaintiff the burden of proving the following:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the state of Vermont.

(2) That the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and

(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

In its conclusions of law, the court noted the complete lack of evidence on accepted anesthetic procedures, and on any deviation by Dr. Larson from accepted procedures. In Senesac, supra, we noted that normally the burden of proof imposed by 12 V.S.A. § 1908 will be satisfied only by expert testimony. 141 Vt. at 313, 449 A.2d at 902. In the instant case, the trial court noted that "except for the unsubstantiated opinion of Mrs. Candlish, there [was] no evidence whatever that Dr. Larson failed properly to perform the endodontic procedure...." The record bears this out.

We have established an...