Lindloff v. Ross

• Decision Date: 20 June 1932
• Citation: 243 N.W. 403,208 Wis. 482
• Parties: LINDLOFF v. ROSS.
• Court: Wisconsin Supreme Court

208 Wis. 482

243 N.W. 403

LINDLOFF

v.ROSS.

Supreme Court of Wisconsin.

June 20, 1932.

Appeal from a judgment of the Circuit Court for Barron County; W. R. Foley, Circuit Judge.

Action by O. A. Lindloff against R. A. Ross. From a judgment in favor of defendant, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

This action was commenced on the 10th day of August, 1931, to recover damages for alleged malpractice.

The defendant at all the times herein mentioned was a licensed dentist residing at Rice Lake, Wis. He had practiced his profession for about sixteen years. In August, 1929, the plaintiff had a severe pain in his left lower jaw. He consulted the defendant, who examined his teeth, X-rayed his left lower jaw, and found that his left lower third molar, or wisdom tooth, was horizontally impacted. An operation was advised and was thereafter performed. The operation required the breaking down and cutting away of a portion of the plaintiff's jawbone, and was apparently performed in an approved manner. No complaint as to that operation is made by the plaintiff and it is material only by way of introduction. Several weeks later the plaintiff complained to the defendant that there existed “a peculiar tight feeling in the right lower jaw,” or, as the defendant testified, “a strained condition of the jaw resulting in pain and pressure.” The defendant thereupon examined the plaintiff's right lower jaw, X-rayed it, and found that the wisdom tooth on that side was also impacted. The defendant advised the prompt removal of that tooth, and an operation similar in all respects to the first one was performed. Some infection existed in the region of the impacted tooth. Following the second operation plaintiff's jaw and face became very sore and stiff. He could not manipulate his jaw and was unable to eat. Plaintiff informed the defendant that he could not move his jaw and was unable to eat solid foods. Shortly after the second operation the plaintiff's jaw became badly infected. The plaintiff had a high fever and swooning spells. Pus flowed from his jaw and his face continued to be badly swollen. From the 9th of September when the second operation was performed, to about the 20th of September, the plaintiff was under the constant care of the defendant. After some time phlebitis developed in the plaintiff's right leg which necessitated treatment by several physicians. He was confined for a number of weeks in several hospitals. During his confinement the defendant extracted three more of the plaintiff's teeth from the infected jaw. Cuts were made on the outside of his jaw for drainage purposes. Thereafter he continued to improve slowly. For some time he was compelled to use crutches. About the middle of November the plaintiff desired to make a trip to the state of Indiana with his father. He consulted the defendant, his physician Dr. Dawson, and also Dr. Spielbrink of Eau Claire, as to the advisability of making the trip by auto. It was decided to permit the plaintiff to accompany his father. On December 3d, while making the return trip and before reaching the city of Racine, the plaintiff noticed that a liquid formed in his mouth and, as he spat, something seemed to pop and blood flowed from his gum. Shortly thereafter he consulted Dr. Nelson of Racine, who found that his jaw was broken just back of the first bicuspid on the right side. The plaintiff thereupon took the train home and consulted the defendant, who found a fracture which, in his opinion and in the opinion of the other experts produced by him, was a pathological fracture; that is to say, one resulting from disease. Upon discovering the fracture it was decided by defendant and plaintiff's physician, Dr. Dawson, that the plaintiff should be taken to the Mayo Clinic for an examination. The trip was made and Dr. New of the Mayo Clinic consulted. According to the testimony of Dr. New, he recommended that the dead bone be removed from the plaintiff's jaw. He testified, however, that another recognized procedure would be to wait and see if more new bone formed before removing the dead bone, and that it was a matter of judgment as to whether the jaw should be opened and the dead bone removed. Both the defendant and Dr. Dawson testified that Dr. New recommended that either an operation be performed to remove the dead bone and replace it by implanting a piece of bone taken from the plaintiff's hipbone, or that the removal of the dead bone be delayed until more new bone had formed. The plaintiff returned to Rice Lake, where the defendant continued to treat him. On the 26th of December the defendant securely wired the plaintiff's upper and lower jaws together so as to permit the fracture to mend. The plaintiff's jaw remained wired for about six weeks, during which time the plaintiff was compelled to eat liquid foods. The wires were then removed and the plaintiff obtained a result pronounced excellent by Dr. New, who thereafter examined him. The right side of the plaintiff's jaw is slightly shortened so that it is pulled slightly to the right. No expert testimony bearing upon the question of defendant's lack of care and skill was produced by the plaintiff.

At the conclusion of the testimony the defendant moved to direct a verdict in his favor. The court expressed the opinion that there was no evidence in the case proving actionable negligence on the part of the defendant, but decided to take the verdict of the jury so that another trial would be avoided in case its opinion was held to be erroneous on appeal to this court. The issues were thereupon submitted to the jury on a special verdict, and the jury found that the defendant, in extracting the third lower molar on September 9, 1929, caused the fracture of plaintiff's jaw; that the defendant in his treatment and care of the plaintiff, after he extracted said molar, failed to use reasonable skill and care in not discovering that plaintiff's jaw was broken; that the plaintiff's injury and damage was a natural and probable result of the failure of the defendant to use reasonable skill and care in discovering that the plaintiff's jaw was broken; and that the defendant ought reasonably to have foreseen that some injury or damage to plaintiff might probably result from said failure to use ordinary care; and assessed damages. Upon the coming in of the verdict the defendant moved to change the answers returned by the jury and for judgment in his favor. The defendant's motions were granted and judgment rendered accordingly, from which judgment entered December 10, 1931, the plaintiff appealed.

A. J. Connors, of Barron, and W. T. Doar, of New Richmond, for appellant.

Laurence S. Coe, of Rice Lake (Clarence C. Coe, of Barron, of counsel), for respondent.

NELSON, J.

[1] It is well established that it is the duty of a dentist to exercise that degree of care, diligence, judgment, or skill which dentists in good standing usually exercise in the same or similar localities under like or similar circumstances having regard to the advanced state of dental science at the time of discharging his legal duty to his patient. Eggert v. Dramburg, 197 Wis. 153, 221 N. W. 732;Krueger v. Chase, 172 Wis. 163, 177 N. W. 510;Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900;Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111;Marchand v. Bellin, 158 Wis. 184, 147 N. W. 1033.

[2] In order to hold a dentist liable the burden rests upon a plaintiff to show that the dentist failed in the requisite degree of care and skill. Kuehnemann v. Boyd, 193 Wis. 588, 214 N. W. 326, 215 N. W. 455.

[3] The degree of care and skill which must be exercised can only be proved by the testimony of experts. Without such testimony...